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“I am a submarine!”
This digest compilation wouldn’t have been possible without the help of Vani, PJ, Cathe,
Marco, Ben and Mike. 
III. Actors in International Law
A. States
3. Jurisdiction and Immunities
Brownlie Chapter XIV: Sovereignty and Equality of States
I. In General
1. SOVEREIGNTY AND EQUALITY: THE BASIC CONSTITUTIONAL DOCTRINE
OF THE LAW OF NATIONS which governs a community consisting primarily of
states having uniform legal personality.
Because of the existence of international law and of the equality and legal
personality of states, the dynamics of state sovereignty can be expressed in
terms of law; and sovereignty is, in a major aspect, a relation to other states
(and to organizations of states) defined by law.
2. PRINCIPAL CORROLARIES OF STATES’ SOVEREIGNTY AND EQUALITY:
a. JURISDICTION (prima facie exclusive) over a territory and the permanent
population there
b. DUTY OF NON-INTERVENTION of another state’s area of exclusive
jurisdiction
c. DEPENDENCE OF OBLIGATION FROM CUSTOMARY LAW. Special
Applications of this can be seen in the ff:
(i) jurisdiction of international tribunals depends on the consent of parties
(ii) membership in international organizations not obligatory
(iii) powers of organs of such organizations (to determine their own
competence, to decide by majority votes, to enforce decisions) depend
upon the consent of member-States
3. SOVEREIGNTY AS DISCRETIONARY POWER WITHIN AREAS DELIMITED
BY LAW. States alone can confer nationality for purposes of municipal law,
delimit the territorial sea, and decide on the necessary action ins
II. Sovereignty and the Application of Rules
A. VALIDITY OF OBLIGATIONS ARISING FROM TREATIES.
• In the Wimbledon, the Permanent Court rejected the argument that a
treaty provision could not deprive a state of the sovereign right to apply the
law of neutrality to vessels passing through the Kiel Canal. A treaty by
which a State undertakes to perform or refrain from performing a certain
act is not an abandonment of sovereignty. The right of entering into
international engagements is an attribute of State sovereignty.
B. INTERPRETATION OF TREATIES.
• On some occasions, the International Court has referred to sovereign
rights as a basis for restrictive interpretation of treaty obligations. But
public international law UPLAW 2009 B
everything depends on the context, the intention of the parties and the
relevance of countervailing principles (like effectiveness).
C. PRESUMPTIONS AND BURDENS.
• Many areas of international law are uncertain or contain principles that do
not admit of easy application to concrete issues.
• ISSUE: In case of doubt as to the mode of application of rules or in case of
absence of rules the presumption is that states have legal competence (or
is one of incompetence)?
• In the Lotus case, the court resolved the issue of jurisdiction on the basis
that restrictions upon the independence of States cannot be presumed.
• However, there is no general rule. It is possible that a general presumption
of either kind would lead to inconvenience or abuse. And in judicial
practice, issues are approached empirically. The context of a problem will
determine the incidence of particular burdens of proof.
• BURDENS OF PROOF – the duty to establish a restriction on sovereignty
on the part of the proponent of the duty.
• The jurisdictional ‘geography’ of the problem may provide useful
indications. In the Asylum case, the Court stressed the fact that diplomatic
asylum involves a derogation from sovereignty (represented by the
normally exclusive jurisdiction of the territorial state). Compare this with
the Fisheries case which had as a dominant factor the international impact
of the delimitation of frontiers (in this case the maritime frontier)
D. THE REGULATION OF RIGHTS
III. Sovereignty and Competence
1. SOVEREIGNTY IN GENERAL characterizes the powers and privileges resting on
customary law and independent of the particular consent of another State.
2. SOVEREIGNTY IS USED TO:
• Describe the legal competence which states have in general,
• Refer to a particular function of this competence, or
• Provide a rationale for a particular aspect of the competence
3. The jurisdiction (including legislative competence over national territory) may be
referred to in terms of ‘sovereignty’ or ‘sovereign rights’. Sovereignty may refer to
the power to acquire title to territory and the rights accruing from the exercise of that
power. It also pertains to the correlative duty of respect for territorial sovereignty,
and the privileges in respect of territorial jurisdiction (sovereign state immunities).
IV. Membership of Organizations
1. The institutional aspects of organizations of states result in actual (as opposed to
formal) qualification of sovereign equality.
ACTUAL. Without the express consent of member states, organizations may adopt
majority voting and also have a system of weighted voting; and organs may be permitted
to take decisions, and even binding rules.
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FORMAL. It can be said that on joining he organization, each member consented in
advance to the institutional aspects so in a formal way, the principle that obligations can
only arise from consent of states and the principle of sovereign equality are satisfied.
2. EUROPEAN COMMUNITIES’ PRACTICE. While permitting integration (which
radically affects jurisdiction for special purposes) they have been careful not to jar
the delicate treaty structures by too ready assumption of implied powers.
3. INTERPRETATION OF UN CHARTER by the organs (with approval of Court) has
been in accordance with principles of effectiveness and implied powers. If an
organization encroaches on domestic jurisdiction of members to a substantial
degree this may amount to federation. The area of competence of members as well
as their very personality will be at issue.
4. CRITERIA OF EXTINCTION OF PERSONALITY:
a. obligatory nature of membership
b. majority decision-making
c. determination of jurisdiction by the organization itself
d. binding quality of decisions of the organization apart from consent of member
States
V. The Reserved Domain of Domestic Jurisdiction
1. DUTY OF NON-INTERVENTION IN AFFAIRS OF OTHER STATES: CORROLARY
OF INDEPENDENCE AND EQUALITY; A MASTER PRINCIPLE. Matters within the
competence of states under general international law are within the reserved
domain (domestic jurisdiction) of states. 1
2. PROBLEM OF DOMESTIC JURSIDCITION.
The general position: RESERVED DOMAIN – the domain of state activities where
the jurisdiction of the state is not bound by international law. The extent of this domain
depends on international law and varies according to development.
It is widely accepted that no subject is irrevocably fixed within the reserved domain,
but some jurists assume that there are topics presently recognized as within the
reserved domain such as nationality and immigration. This approach is very misleading
because everything depends on the precise facts and legal issues arising. When a state
delimits a fishing zone or territorial sea, the manner and origin of the exercise of this
state power is a matter for the state. But when it comes to enforcing the limit vis-à-vis
other states, the issue is placed on the international plane. Similarly, conferment or
withdrawal of nationality may lead to disputes between states when it comes to the
exercise of diplomatic protection.
3. DISTINCTION BETWEEN INTERNATIONAL COMPETENCE (that is, no outside
authority can annul or prevent internally valid acts of state power) AND
INTERNATIONAL RESPONSIBILITY FOR ULTRA VIRES ACTS.
4. DISTINCTION HAS WIDE APPLICATION BUT NOT ABSOLUTE. In particular
contexts, international law may place restrictions on internal territorial competence
of states because of treaty obligations (example: forbidding legislation which
discriminates certain groups) or because of territorial privileges created by custom.
1
Browlie considers this as a tautology (needless, meaningless repetition)+
2
5. RELATIVITY OF CONCEPT OF RESERVED DOMIAN: ILLUSTRATION: There is a
rule that a state cannot plead provisions of its own law or deficiencies in their own
law as answer to answer a claim against it for breach of international law
obligations. It can also be illustrated by the fact that an international obligation may
refer to national law as a means of describing the status to be created or protected.
6. If a matter (because of its nature and because of the issue of the case) is prima
facie within the reserved domain, then presumptions against any restriction on that
domain may be created. (Illustration: the imposition of customs tariffs is prima facie
unrestricted by international law while the introduction of forces into another state
does not enjoy such presumption.
VI. ART.2, PAR. 7 of the UN Charter
1. ADVENT OF INTERNATIONAL ORGANIZATIONS WITH POWERS TO SETTLE
DISPUTES ON A POLITICAL BASIS has caused states to favor reserved domain. In
the League of Nations Covenant, Art. 15, par. 8 in relation to disputes submitted to
the Council and not to arbitration or judicial settlement: If one of the parties claim
(and the Council finds) that the dispute between them arise out of a matter which,
by international law, is solely within the domestic jurisdiction of that party, the
Council shall report so. The Council shall make no recommendation as to its
settlement.
2. IF COUNCIL MAKES POLITICAL SETTLEMENT, IT TOUCHES ON RESERVED
DOMAIN (since this frequently causes disputes). And so the need to write the legal
limit of action was apparent. This issue arose at the drafting of the UN Charter. The
result is ART. 2, PAR. 7:
“Nothing contained in this present Charter shall authorize the UN to intervene in matters
which are essentially within the domestic jurisdiction of any State or shall require the
Members to submit such matters to settlement under the present Charter; but this
principle shall not prejudice the application of enforcement measures under Chapter VII.”
3. CONTRASTS BETWEEN THE COVENANT (#1) AND THE CHARTER (#2)
PROVISIONS: In the Charter, there is no reference to international law, the
reference is to matters ‘essentially’ within the domestic jurisdiction, and there is no
designation of the authority which will have the power to qualify matters.
4. CHARTER PROVISION INTENDED TO BE FLEXIBLE AND NON-TECHNICAL:
The restriction was meant to be thoroughgoing because of the wide implications of
the economic and social provisions of Chapter IX of the Charter (hence the formula
‘essentially within’).
5. INTENTIONS (of flexibility and the assumption that it does not override other
provisions), IN PRACTICE WORKED AGAINST EACH OTHER. This has resulted in
the erosion of the reservation of domestic jurisdiction even though drafters have
intended its reinforcement.
6. “INTERVENE”: This term has been approached empirically. Discussions,
recommendations in general terms and even resolutions have not been inhibited by
Art. 2, Par.7. The term should not be conceived only as a dictatorial intervention.
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Member states have proceeded empirically with an eye to general opinion. And they
have a clear knowledge that precedents created in one connection may have a
boomerang effect.
7. UN ORGANS HAVE TAKEN ACTION ON A WIDE RANGE OF TOPICS DEALING
WITH RELATIONS BETWEEN GOVT. AND ITS OWN PEOPLE (on the basis of
Chapters IX and X of charter and human rights provisions in Arts. 55 and 56)
Resolutions on breaches of human rights, right of self determination and
colonialism, and non-self governing territories (qualified by the GA) has been
adopted regularly. If the organ felt that the acts complained of were contrary to the
purposes and principles of the Charter and that it endangers international peace
and security, then a resolution is passed.
The Security Council adopted a resolution concerning apartheid only partly on the
basis that the situation constitutes a potential threat to international peace and
security.
8. RELATION OF ART. 2, PAR. 7 TO GENERAL INTERNATIONAL LAW does not have
a clear answer. On its face, the provision is a matter of constitutional competence
for the UN organs and lacks reference to international law. In practice, political
organs have avoided express determination of technical points arising from the
provision. THUS, in principle, it has no necessary and direct impact on general law.
9. RESERVED DOMAIN CORRESPONDS TO NON-INTERVENTION IN THE
CHARTER.
10. What has happened is that a new content has been given to the obligations and
legal competence of states through the medium of the Charter.
VII. International Tribunals and the Plea of Domestic Jurisdiction
1. LACK OF SPECIFIC RELEVANCE has characterized the concept of domestic
jurisdiction in relation to practice of tribunals.
2. In National Decrees in Tunis Morocco this concept was prominent because of the
special circumstances in which the League Council had requested an advisory
opinion. The dispute between Great Britain and France was brought before the
League Council by Britain because France had rejected the request for judicial
settlement. France pleaded Art. 15, par. 8 of League Covenant (see #1 of VI). The
parties agreed that the League Council should request the Permanent Court to give
an advisory opinion. ISSUE: WON the Council’s jurisdiction was barred by the
provision cited by France.
The Court said that it was not interested in the actual legal rights of the parties but
with the general character of the legal issues to establish the competence of the Council.
COURT REACHED A PROVISIONAL CONCLUSION on the international character
of the issues.
3. This Provisional Conclusion above cited may not be justifiable in a case where there
is a preliminary objection to jurisdiction in a contentious case (where the question of
domestic jurisdiction is raised in relation to the precise issues before the Court).
4. JURISDICTION = MERITS. In practice, the International Court has joined the plea
of domestic jurisdiction to the merits (even if the plea is in a form of preliminary
objection) because it has an intimate connection with substantial issues.
3
5. APPLICATION OF ART. 2, PAR. 7 TO THE COURT’S JURISDICTION. The object of
arguing for its application is to benefit from the extensive formula ‘essentially within’.
6. The plea of domestic jurisdiction is available by operation of law. Its success
depends on the particular legal relations of the parties.
7. IN ADVISORY JURISDICTION, IT IS DIFFERENT when the basis is that the
political organ was incompetent to request for an opinion because of Art. 2, par. 7.
The relevance of the Charter reservation is indisputable.
8. Peace Treaties case: The Court considered objections to its competence based
upon:
(a) incompetence of the requesting organ
(b) application of Art.2, par.7 to the Court itself.
The objections involved the argument that a matter may be ‘essentially within’ the
domestic jurisdiction of a state even though it is governed by a treaty.
As to competence of requesting organ, the Court said:
The object is directed solely to obtaining from the Court certain clarifications (of a legal
nature) regarding the applicability of the procedure for settlement of disputes (in peace
treaties with Bulgaria, Hungary and Romania). The interpretation of the terms of a treaty
for this purpose could not be considered as a question essentially within the domestic
jurisdiction of a State. It is a question of international law which, by its very nature, lies
within the competence of the Court.
The Court then said that these considerations sufficed to dispose of the objection
based on Art. 2, par. 7.
9. Although this is not an unequivocal evidence that Art.2, par. 7 applies to advisory
jurisdiction, it is an indication that the Court will not in any case give any specific, more
restrictive, content to the ‘essentially within’ formula as compared with the normal version
of the principle of domestic jurisdiction: matter regulated by treaty does not remain
‘essentially within’ the domestic jurisdiction of a state.
Brownlie. Ch. XV: Jurisdictional Competence
1. In General.
Jurisdiction - particular aspects of the general legal competence of states (“sovereignty’).
Refers to judicial, legislative and administrative competence.
Distinct from the power to make decisions or rules (prescriptive or legislative jurisdiction)
is the power to take executive action in pursuance of or consequent on the making of
decisions or rules (enforcement or prerogative jurisdiction).
Presumption: jurisdiction is territorial.
2 principles in the territorial theory:
1. While the best foundation for the law, it fails to provide ready-made solutions for some
modern jurisdictional conflicts.
2. A principle of substantial and genuine connection between the subject-matter of
jurisdiction, and the territorial base and reasonable interests of the jurisdiction sought to
be exercised, should be observed.
The sufficiency of grounds for jurisdiction is an issue normally considered relative to the
rights of other states and not as a question of basic competence.
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2. Civil Jurisdiction.
IL standards WRT treatment of aliens a state must normally maintain a system of courts
empowered to decide civil cases and prepared to apply private IL where appropriate in
cases containing a foreign element. Municipal courts are reluctant to assume jurisdiction
in cases concerning a foreign element and adhere to the territorial principle conditioned
by the situs of the facts in issue and supplemented by criteria relating to the concepts of
allegiance or domicile and doctrines of prior express submission to the jurisdiction and of
tacit submission, for example on the basis of the ownership of property in the state of the
forum. Excessive and abusive assertion of civil jurisdiction could lead to int’l
responsibility or protests at ultra vires acts.
As civil jurisdiction is ultimately reinforced by procedures of enforcement involving
criminal sanctions, in principle no great difference between problems created by
assertion of civil and criminal jurisdiction over aliens. In either case, the prescriptive
jurisdiction is involved, in any case, anti-trust legislation involves a process which,
though formally ‘civil’, is in substance coercive and penal.
3. Criminal Jurisdiction.
The IL issue in only acute when aliens, or other persons under the diplomatic protection
of another state are involved. This achieved prominence after about 1870, and the
appearance of clear principles has been retarded by the prominence in the sources of
the subject of municipal decisions, which exhibit empiricism and adherence to national
policies and by the variety of the subject-matter.
1. Territorial principle (TP) – courts of the place where the crime is committed may
exercise jurisdiction has received universal recognition, an application of the essential
territoriality of the state’s sovereignty (sum of legal competences).
Practical advantages: 1) convenience of the forum; and 2) presumed involvement of the
interests of the state where the crime is committed. English and American decisions
seem to suggest that TP is exclusive, but state practice has not adopted this view and
UK legislature has conferred jurisdiction over nationals, inter alia, as to treason, bigamy,
murder and breaches of the official Secrets Acts, wherever committed. Where states
have adopted TP, this has been given extensive application.
Subjective application – creates jurisdiction over crimes commenced within the state but
completed or consummated abroad.
Objective territorial principle (OTP) – jurisdiction is founded when any essential
constituent element of a crime is consummated on state territory. Ex. Firing of gun across
a frontier causing a homicide on the territory of the forum but the principle can be used to
found jurisdiction in cases of conspiracy, violation of anti-trust and immigration laws by
activity abroad & in other fields of policy. This has general support & a controversial
application to collisions on the high seas in the Lotus case.
Lotus ((1961): high seas collision between a French steamer and a Turkish collier where
the latter sank and its crew and passengers died. The steamer came into port in Turkey,
its officers on watch at time of collision were tried and convicted of involuntary
manslaughter. PCIJ’s issue: whether Turkey had acted in conflict with IL by instituting
proceedings (exercise of criminal jurisdiction), and what reparation, if any, was due.
France said: flag state of the vessel had jurisdiction over acts performed on board on
high seas. Turkey denied: vessels on the high seas form part of the territory of the nation
whose flag they fly. The President broke the tie (7-6); PCIJ said that Turkey did not act in
conflict with IL principles. Majority of the 6 avoided dealing with the question of
4
compatibility of a Turkish penal code provision (punishment of acts abroad by foreigners
against Turkish nationals; involved the protective principle of jurisdiction) with IL; Moore
concurred with the result but rejected the principle. Basis of majority view: principle of
objective territorial jurisdiction—had to assimilate the Turkish vessel to Turkish national
territory—thus, the collision affected Turkish territory. Judgment is too vague & general to
be helpful.
As to criminal jurisdiction, it said: “though it is true that in all systems of law the territorial
character of criminal law is fundamental, it is equally true that all or nearly all those
systems extend their jurisdiction to offences outside the territory of the State which
adopts them, in ways which vary form State to State. The territoriality of criminal law is
not an absolute principle of IL and by no means coincides with territorial sovereignty.
As to jurisdiction in general: “…it leaves them wide measure of discretion which is only
limited in certain cases by prohibitive rules; as to others, every State remains free to
adopt the principles which it regards as best and most suitable.”
This has been criticized and its emphasis on state discretion is contradicted by the ICJ in
Fisheries and Nottlebohm, which concerned the comparable competences of states to
delimit the territorial sea and to confer nationality on individuals. In the Woodpulp Cases,
the Report for the Hearing in the European Court of Justice said that: “the only two legal
bases of jurisdiction in IL are the principles of nationality and territoriality…)
b. Nationality principle (NP) – nationality, as a mark of allegiance & an aspect of
sovereignty, is generally recognized as a basis for jurisdiction over extra-territorial acts.
NP’s application may be extended by reliance on residence & other connections as
evidence of allegiance owed by aliens & by ignoring changes of nationality. Since TP &
NP & the incidence of dual nationality create parallel jurisdiction and possible double
jeopardy, many states place limitations on NP, often confining it to serious offences.
Nationality is a necessary criterion in cases such as commission of criminal acts in
locations like Antartica, where the ‘territorial’ criterion is inappropriate.
c. Passive Personality Principle (PPP) – aliens may be punished for acts abroad harmful
to nationals of the forum. This is the least justifiable as a general principle and its
application falls under the principles of protection and universality considered below. In
the Cutting case, a Mexican court exercised jurisdiction as to the publication of
defamatory matter against a Mexican by an American in a Texas newspaper. Court
applied the PPP among others, causing diplomatic protests from US, although outcome
was inconclusive.
d. Protective or security principle (P/SP) – nearly all states assume jurisdiction over
aliens for acts done which affect the security of the state, usually but not necessarily, in
political offenses (currency, immigration, economic offences). UK and US allow
significant exceptions to the doctrine of territoriality though without express reliance upon
this principle. UK: punished aliens for abetment of acts on high seas of illegal
immigrants; Joyce v. D.P.P. – alien who left the country in possession of a British
passport owed allegiance and was guilty of treason when he later broadcast propaganda
for an enemy in wartime). The application varies widely.
e. Universality principle (UP) – some states have adopted, usually with limitations, a
principle allowing jurisdiction over acts of non-nationals where the circumstances,
including the nature of the crime, justify the repression of some types of crime as a
matter of int’l public policy (common crimes, where the state where crime occurred has
refused extradition and unwilling to try the case; stateless persons in areas not subject to
the jurisdiction of any state: res nullius or res communis). Anglo-American opinion is
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hostile to this and Harvard Research regards it only as basis for auxiliary competence,
except in piracy. Hijacking (unlawful seizure of aircraft) and offences in traffic of narcotics
may fall under this principle.
f. Crimes under IL – breaches of laws of war, especially Hague Convention of 1907 and
Geneva Convention of 1949, may be punished by any state, which obtains custody of
persons suspected of responsibility. This may be seen as acceptance of UP but is not,
since what is punished is the breach of IL and is not punishment under national law of
acts in respect of which IL gives a liberty to all states to punish but does not itself declare
as criminal (piracy). Universality in war crimes is in the Geneva Convention. In
Eichmann, Israeli courts faced charges of crimes against humanity arising from events
before Israel appeared as a state. In Barbie (1983 and 1984), French Court of Cassation
held that crimes against humanity were defined in French law by reference to int’l
agreements and not subject to statutory limitation.
4. Relations of the Separate Principle.
‘Principles’ are generalizations of a mass of national provisions, which do not directly
reflect categories of jurisdiction in the same way that, for example, the more recent
legislation on jurisdiction over the continental shelf involves reference to a definite
quantity of interest recognized by IL. Each individual principle may only be evidence of
the reasonableness of the exercise of jurisdiction. Principles interweave in practice.
These has led some jurists to formulate a broad principle resting on some genuine or
effective link between the crime and the state of the forum—significance of which is
evidenced by the European Convention on Jurisdiction and the Enforcement of
Judgments in Civil and Commercial Matters (1968) and the European Convention on
State Immunity (1972). This solves issues of concurrence of jurisdiction (state of
nationality and locus delicti. UP may require a separate regime, with qualifications on
competence arising from general principles of law, including the rule neb is in idem
(where the doctrine of substantial connection-equivalent of a proper law as in private IL-
is not applied, as in UP, a choice of law problem is left open and there is a tendency to
solve it indistinctly by reference to GPIL). Where there are connections with several law
districts the forum which is not the locus delicti may allow the accused to plead the lex
loci delicti.
5. Extra-territorial Enforcement Measures.
A state cannot take measures on another’s territory by way of enforcement of national
laws without the latter’s consent. No arrests, no service of summons, no investigations,
no orders for production may be executed on another state’s territory, except under the
treaty’s terms or other consent given. In economic regulation & anti-trust legislation,
controversy has arisen. States would probably acquiesce to an exercise of enforcement
jurisdiction in matters governed by the OTP of jurisdiction. US courts, in Alcoa (1945) &
Watchmakers of Switzerland (1955), said that whenever activity abroad has
consequences or effects within the US which are contrary to local legislation, US courts
may make orders requiring the disposition of patent rights & other property of foreign
corporations, reorganizations of industry in another country, production of documents,
etc. This doctrine seems to be unrestricted to agreements abroad intended to have
effects within the US & actually having effects. The orders may be enforced by action
within the US against the individuals or property present within the territorial jurisdiction,
& the policy adopted goes beyond the normal application of the OTP. Recently, US
courts have adopted a principle of the balancing of the various national interests
involved, which, though unhelpfully vague could result in some mitigation of the cruder
aspects of the “effects doctrine”.
5
US policies have provoked a strong reaction from many foreign governments, in
particular, by the Bonner Amendment to the Shipping Act, under which US Federal
Marine Commission was given regulatory powers concerning the terms upon which non-
American ship-owners carry goods to and from the US. UK and other states enacted
legislation to provide defensive measures against US policy. Similar cases: US Export
Administration Act in the face of US measures directed against non-American
corporations involved in contracts relating to the construction of the West Siberian
pipeline. The European Community and UK protested as to the illegality of actions by US
authorities, intended to prevent the re-export of machinery of US origin and the supply of
products derived from US data. Anti-cartel legislation in several European States is
based on principles similar to those adopted by US. Court of Justice of the European
Communities has applied a principle similar to the US “effects doctrine” in respect of
company subsidiaries and the Advocate General espoused this view in his Opinion in the
Woodpulp Cases.
There is an assumption that there are certain limits to enforcement jurisdiction but no
consensus on what those are. UK: a state “acts in excess of its own jurisdiction when its
measures purport to regulate acts which are done outside its territorial jurisdiction by
persons who are not its own nationals and which have no, or no substantial, effect within
its territorial jurisdiction”. Judge Jennings: the principle “that extraterritorial jurisdiction
may not be exercised in such a way as to contradict the local law at the place where the
alleged offence was committed”. As to corporations with complex structures and foreign-
based subsidiaries, a principle of substantial or effective connection could be applied as
a basis for jurisdiction. This approach would accord with the highly relevant notion of the
“proper law” of a transaction. Present situation: a state has enforcement jurisdiction
abroad only to the extent necessary to enforce its legislative jurisdiction—the latter rests
upon existing principles of jurisdiction and these are close to the principle of substantial
connection.
6. A General View of the Law.
Essential and logical points:
a. Substantive or legislative jurisdiction (power to make decisions or rules enforceable
within state territory) – no major distinction between the types of jurisdiction. The
types used in presenting materials (civil, criminal, fiscal, monetary jurisdiction) are
not the basis of significant distinctions in principles limiting extra-territorial
jurisdiction. Exercise of civil jurisdiction as to aliens presents the same problems as
the exercise of criminal jurisdiction over them.
b. No essential distinction between the legal bases for and limits upon substantive (or
legislative) jurisdiction and enforcement (or personal or prerogative) jurisdiction.
One is a function of the other. If substantive jurisdiction is beyond lawful limits, then
any consequent enforcement jurisdiction is unlawful.
c. 2 generally recognized bases for jurisdiction of all types are TP & NP, but application
of such is subject to the operation of other principles (par. d.)
d. Extra-territorial acts can only lawfully be the object of jurisdiction if certain general
principles are observed:
i. there should be a substantial and bona fide connection between the
subject-matter and the source of the jurisdiction;
ii. the principle of non-intervention in the domestic or territorial jurisdiction of
other states should be observed;
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iii. a principle based on elements of accommodation, mutuality and
proportionality should be applied. Thus nationals resident abroad should
not be constrained to violate the law of the place of residence.
e. Customary law and general principles of law relating to jurisdiction are emanations
of the concept of domestic jurisdiction and its concomitant, the principle of non-
intervention in the internal affairs of other states. These do not apply or do not apply
helpfully to i) certain cases of concurrent jurisdiction; ii) crimes against IL. Special
rules have evolved. These also apply to the high seas, continental shelf, the EEZ,
outer space and Antartica.
f. Principle of territorial jurisdiction is to be placed in proper relation to other principles.
It is not completely exclusive in its application to aliens within national territory.
Ramifications of qualification: i) jurisdiction of the alien’s state of origin is not
excluded; b) territorial jurisdiction may be excluded in absence of substantial links
between alien or foreign corporation and the state asserting jurisdiction.
g. Jurisdiction is not based upon a principle of exclusiveness: the same acts may be
within the lawful ambit of one or more jurisdictions. But, an area of exclusiveness
may be established by treaty (offenses committed on board aircraft).
7. Cognate Questions, Including Extradition.
What are the legal consequences of a wrongful exercise of jurisdiction? In principle,
excess of jurisdiction gives rise to state responsibility even in absence of intent to harm
another state. The accused’s state of origin has locus standi as to proceedings which by
object or mode involve a breach of existing standards protecting human rights. A change
of sovereignty does not give the effect of an amnesty for criminals.
Apart from the unsatisfactory procedure of trial in absentia, states have to depend on
cooperation of other states to obtain the surrender of fleeing suspects or criminals.
Extradition is a form of int’l judicial assistance through a procedure of request and
consent, regulated by general principles. But executive discretion to expel aliens may be
used ad hoc for similar ends. Except for alleged crimes under IL, in absence of treaty,
surrender of an alleged criminal cannot be demanded as a right. But surrender is not
forbidden; it is lawful unless it constitutes complicity in conduct harmful to human rights
or in crimes under IL (genocide).
Extradition issues center on questions of internal and constitutional law and effect of
treaties on municipal rules. But some courts, in giving extradition in absence of treaty,
have abstracted from treaties and municipal provisions certain “general principles of IL”.
2 leading principles are: double criminality (act charged must be criminal under the laws
of both the state of refuge and the requesting state) and specialty (person surrendered
shall be tried and punished exclusively for offences for which extradition was requested
and granted). Extradition may be refused if the requesting state is not expected to
observe reasonable procedural standards and if the offence is political. Granting of
political asylum – power limited in law in respect of int’l crimes (including genocide), in
conventions for the suppression of terrorist acts, and in practice by security measures
between members of political and military alliances. Generally, states refuse to extradite
nationals, but some do so without assuming the responsibility for trying the suspect in an
obvious abuse of power. While int’l responsibility may arise as a consequence if illegal
seizure of offenders, violation of the law does not affect validity of subsequent exercise of
jurisdiction (similar with defective extradition procedures and mistaken surrender of
fugitive criminals).
8. Special Cases of Concurrent Jurisdiction.
6
Issue: relation between the territorial sovereign and the flag state as to jurisdiction over
private vessels in ports or internal waters. Special character of the internal economy of
ships is still recognized, the rule being that the law of the flag depends on the nationality
of the ship and the flag state has responsibility for and jurisdiction over the ship. But,
when a foreign ship enters a port, except perhaps as a consequence of distress, a
temporary allegiance is owed to the territorial sovereign and a case of concurrent
jurisdiction arises, since both the flag state and the local sovereign may exercise
jurisdiction in respect of activities associated with the ship for breaches of their
respective laws. As to criminal jurisdiction, debate is on limits of local jurisdiction. In
principle, there are no limits provided action is taken WRT only to breaches of local law
and not to breaches of rules set by the law of the flag state. But, it has been customary
to contrast the Anglo-American position with the French jurisprudence (followed by some
other states).
UK’s opinion during the preparatory work of the Hague Codification Conference of 1930:
derogation from the exercise of local criminal jurisdiction is a matter of comity and
discretion. In Wildenhaus (1887): a murder by a crew member of another, both Belgian
nationals, committed on board a Belgian ship in dock in Jersey City, ipso facto disturbed
the public peace on shore. This is contrasted to French practice based upon the opinion
of the Conseil d’Etat in the cases of Sally and Newton in 1806: maintained the principle
of local jurisdiction in matters affecting state interests, of police, for offences by crew
members against even strangers on board. The French practice is more liberal vis-à-vis
the flag state, more explicit in renunciation of jurisdiction. But such contrasts are minimal
and actual practice is fairly uniform.
Incres Steamship Co. Ltd. V. Int’l Maritime Workers Uniion (1963): problematic since the
NY CA said that a federal statute was applied to labor disputes between foreign nationals
operating ships under foreign flags, thus the National Labour Relations Board had
jurisdiction. UK as an intervening amicus curiae said in a brief that to hold that
jurisdiction existed if the foreign flag vessel called at a US port ‘regularly’ opposed the
’traditional internal economy doctrine long applied by all nations to foreign flag vessels
temporarily in their ports’ and gave ‘an unwarranted extraterritorial effect to domestic
law’. UK seems to regard the exception as to matters involving the tranquility of port as a
matter of law, not of comity. National policy is involved and legislation employs penal
sanctions as a longstop. A doctrine of effective connection may be usable in both criminal
and civil jurisdiction. US SC said in Incres and McCulloch v. Sociedad NacionalI (1963)
that the National Labor Relations Act had no application to the operation of foreign-flag
states employing alien crews, according to the well-established rule of IL.
As to aircrafts, UK law says that extra-territorial commission of common law offences is
punishable & many provisions have no application to crimes on aircraft abroad or over
high seas. State practice on relation between national law of the aircraft & law of any
foreign territory overflown is not coherent & general practice on criminal jurisdiction is
helpful. But work sponsored by Int’l Civil Aviaiton Organization has produced a
Convention on Offences & Certain Other Acts Committed on Board Aircraft: Art. 3.
1) State of registration of the aircraft is competent to exercise jurisdiction over offences
and acts committed on board;
3) Convention does not exclude any criminal jurisdiction exercised in accordance with
national law.
Art. 4: A Contracting State which is not the State of registration may not interfere with an
aircraft in flight in order to exercise its criminal jurisdiction over an offence committed on
board except in these cases:
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a) offence has effect on the territory of such state;
b) offence committed by or against a national or permanent resident of such state;
c) offence against the security if such state;
d) offence consists of a breach of any rules or regulations relating to flight or
maneuver of aircraft in force in such state;
e) exercise of jurisdiction is necessary to ensure the observance of any obligation of
such state under a multilateral int’l agreement.
Hijacking of aircraft has prompted the promotion of multilateral conventions creating
duties for states to punish the seizure of aircraft in flight and to exercise jurisdiction in
specified conditions, for example, when the offence is committed on board an aircraft
registered in the contracting state.
Higgins Chapter 4  please refer to the previous digest compilation
Higgins. Ch. 5: Exceptions to Jurisdictional Competence: Immunities from Suit
and Enforcement
In Ch. 4, we saw that IL provides norms for the allocation of competences among states:
doctrine of jurisdiction. The most basic ground for exercise of jurisdiction: territoriality
(state expects its laws to apply to all within the territory—nationals, foreigners, residents,
visitors). Some elements of self-restraint do enter the picture, where common sense
prevails. 2 major categories of jurisdiction: for others they are jurisdiction to legislate and
jurisdiction to enforce. Higgins calls them: jurisdiction to prescribe and jurisdiction to
apply.
Are there exceptions to the authorization to apply law within one’s own territory?
In classical IL, 2 beneficiaries of an exception to the normal application of law on the
basis of territoriality: foreign states & foreign diplomats. We add: int’l organizations.
STATE IMMUNITY.
States, including their governments, were granted immunity from territorial jurisdiction of
other states. Interrelated policy reasons have been suggested:
1. Doctrine of sovereign equality: pari parem non habet imperiium. No state can be
expected to submit to the laws of another.
2. It would offend the dignity of a state to submit to the jurisdiction of another.
Parlement Belge (1880), Brett LJ spoke of the duty of ‘every state to respect the
independence and dignity of every other sovereign state’.
Doctrine of absolute immunity of states – prevailed until end of the last century (1800s) &
began to be questioned as states engaged in functions not wholly reserved to the state
(why, if one had identical contracts with a private person and the government, could one
only sue on the first and not on the second?). More acute problems arose with
widespread contracting for trade by socialist & non-socialist governments, & notions of
stability, fairness & equity in the market place. Absolute immunity has been based on
status. Potential defendant only had to show that it was a state or a government, & that it
was being impleaded directly or indirectly (through claims relating to property over which
it claimed title), for it to be accorded immunity.
From 1950s onwards, more states moved towards the restrictive or qualified doctrine of
immunity (early ones: Italy, Belguim). As states trade, it was unsatisfactory that if they
broke their contracts, they were protected by an absolute immunity from the exercise of
7
local jurisdiction. Federal Republic of Germany (FRG) & the US indicated that they would
no longer emphasize the status of the defendant, rather, the activity or transaction in
which it had been engaging. Under the restrictive doctrine of immunity, a distinction was
to be made between:
1. Acta jure imperii—acts in public authority in respect of which there would still be
immunity.
2. Acta jure gestionis—commercial or private acts, in respect of which no immunity
now lies.
Status was important only to put a defendant within the category of persons who
potentially could claim immunity; but actual entitlement so to claim depends upon the
activity or transactions in question. In the 1970s and 1980s, several common-law
countries (US & UK) adopted statutes based essentially on this distinction & to tidy up
anomalies as law develops (Foreign Sovereign Immunity Act 1976 of the US; State
Immunity 1978 of UK).
IL requires that a state limit exercise of its jurisdiction in respect of a foreign state or
government—but to what extent and scope? As with other normative requirement of IL,
we look at treaties, state practice as evidence of custom, judicial decisions and legal
writings (source materials on IL of state immunity).
a. There is no treaty of universal application. The formulation of articles by the IL
Commission (ILC) has been completed, geared towards providing the text for such
treaty. After much debate, the Draft Articles affirm the restrictive approach, in terms
of implied consent (entering into such a contract the foreign state deemed to have
consented to the exercise of jurisdiction). European Convention on State Immunity
of 1972, an example of regional treaty, is directed towards reciprocal enforcement of
judgments but based on the restrictive principle. Council of Europe states are
parties to the Convention.
b. State practice is not uniform. Most of the industrialized world has moved to limiting
immunity—making it unavailable for commercial acts or transaction—but not the
Soviet Union or industrialized Eastern Europe, which while under Marxism insisted
upon absolute immunity. Latin America and much of the new Commonwealth are
still opposed to restrictive immunity.
c. Judicial decisions. It is before domestic courts that issues of immunity from local
jurisdiction arise, where a private individual and a foreign state. Local courts
recognize that they must provide answers in accordance with IL. Where there is a
statute law, they must follow that legislative enactment, which is based on what local
legislature has understood to be required and permitted by IL.
Conclusion: IL today does not require the courts of one state to afford absolute immunity
from jurisdiction to a foreign state or government, which will be entitled to invoke a
limited immunity, in the courts of another, for its acta jure imperii.
Problems:
1. How to distinguish an actus jure imperii from an actus jure gestionis? A contract for
sale and purchase is generally regarded as a commercial transaction, an actus jure
gestionis. What about a contract to buy missiles? Is that an exercise of sovereign
authority? What about contracts for the employment of a diplomat?
2. Is everything done within an embassy to be regarded as actus jure imperii? What
about non-diplomatic employment—no immunity? In Sengupta v. India, English
court found that all matters concerning an embassy were acta jure imperii and
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immune from local jurisdiction. But in another English case, Alcom v. Columbia, CA
said that an embassy bank account was designated for commercial purposes, as it
is used to make purchases and pay bills. House of Lords reversed: not for lower
courts to require to know the nature of all expenditure under the account. While
rejection of absolute immunity removes the preoccupation with status alone of the
defending state, it cannot provide a mechanistic answer: courts to appraise whether
the subject transaction was commercial or in sovereign capacity.
Old method of determination: purpose of contract. Look at a contract to purchase
missiles, note that the object of the contract is a high state matter—a matter of sovereign
authority. There has been general rejection of reliance on ‘purpose’ as being
incompatible with the requirement to focus on the nature of the transaction. Trendtex
Trading v. Central Bank of Nigeria (1977): purpose is irrelevant to its designation as
attracting absolute or qualified immunity. Claims against the Empire of Iran (1963): “as a
means of determining the distinction…refer to the nature of the state transaction or the
resulting legal relationships, not to the motive or purpose. US Foreign Sovereign
Immunities Act of 1976: character of an activity shall be determined by its nature, not its
purpose. UK Act is silent but subsequent case law affirms that the nature is controlling.
Another test—whether an act is one that may be performed by anyone, or only by a
sovereign?—signaled by Empire of Iran, has been applied in 1° Congreso del Partido. It
has even been seen as replacing the test as unsatisfactory. Sir Fitzmaurice, criticizing
the imperii/gestionis distinction, said: ‘a sovereign state does not cease to be a sovereign
state because it performs acts which a private citizen might perform.’ Lauterpacht: ‘in
engaging in economic activities ostensibly removed from the normal field of its political
and administrative activities, the state nevertheless acts as a public person for the
general purposes of the community as a whole. Sir Robert Jennings: see if an act is one
done in the exercise of sovereign activity, which excludes the doing of something which
an ordinary private person might also do. Higgins: useful test but application on facts is
still a matter for the courts.
1° Congreso: contracts of affreigment between Cuba & a private Chilean firm of
importers. Chilean President Allende’s government was overthrown and masters of the
vessels were ordered by Cuban officials not to discharge cargo at the Chilean Valparaiso
port. So there was a commercial contract and an order, taken for political reasons, to
breach the contract. CFI, and House of Lords, through Goff J.: actus jure imperi is: act
which ‘is of its own character a governmental act, as opposed to an act which any private
citizen can perform. Immunity found to lie for the acts of ordering the non-discharge. Lord
Wilberforce used the same test but in denying the cargo to its buyers, said Cuba ‘had not
exercised and had no right to exercise, sovereign powers. It acted, as any owner of the
ship would act, through Mambisa, the managing operations. It invoked no governmental
authority.’ Thus, application of the same test to the same facts by different courts need
not necessarily lead to the same result. Per Wilderforce’s view, nothing would be left
protected by immunity acta jure imperii—perhaps declaration of war, conclusion of treaty
and nationalization of property.
Kuwait Airways Corp. v. Iraqi Airways Co. and Another (1992): passing by Iraqi
government officials of Kuwait Airways aircraft to Iraqi Airways, after the invasion of
Kuwait, was not an actus jure imperii, even if the motive was commercial, since facts
showed that the circumstances called for its characterization as gestionis. This has been
reversed and is pending appeal.
8
Even in the market place, government may need to act as such, not a trader. But why
grant immunity? Let it pay if its action caused damage—there is no specific performance
in IL, government still free to take whatever action it feels it needs to for the public good.
In the distribution of benefits & burdens in the int’l legal system, why should private
traders pay for freedom to pursue states’ political & foreign-policy objectives.
Questions: Should an agreement to arbitrate be regarded as a waiver of any claim to
immunity in any action arising in a domestic court in connection with that arbitration?
Should general rules on immunity apply to torts and to contracts? Should state
enterprises be treated as states for purposes of immunity? States applying restrictive
immunity, the answer is yes. But these have been put in doubt in the ILC—either by the
rapporteur’s draft or by the comments of members showing their dissatisfaction with the
draft. The final draft adopted favors qualified immunity.
Other issues: should central banks have immunity? Also, the distinction between
immunity form suit and immunity from execution. In the former, no question of immunity
from execution arises. But if legal action is permitted and judgment is given, may it be
executed against its property? Extent of immunity from execution as consequence of
immunity from action is largely a matter for national determination. In the Netherlands
and some others, they are closely related. In the UK and US, there are distinct legal
requirements for each phase. Some allow execution, following the same immunity
criteria as applied to jurisdiction—the property must be ‘commercial’ not ‘public’. Sec.
13(5) of UK Act allows Ambassador of a foreign state to certify that property is in use or
destined for use, for public purposes—hence, immune from execution. These are not
obligatory requirements of IL. If the ILC’s works results in a treaty, some of these issues
are clarified by the int’l treaty for the parties. In formulation of norms still in the making,
the object is to identify and sustain the interest of the int’l community as a whole and
fashion legal prescriptions thus.
DIPLOMATIC IMMUNITY
Permanent diplomatic missions are only one institutional means with which a state can
conduct diplomacy with another; includes visits by heads of government or officials,
special missions, official representation at ad hoc or regular conferences. These may be
established at headquarters of int’l organizations (IOs): law relating to their status is still
developing. Privileges and immunities of member representatives to IOs was codified in
the Vienna Convention on the Representatives of States in their Nations with IOs of a
Universal Charter of 1975, but this has not been sufficiently ratified to enter into force. By
contrast, diplomatic law, which applies to the permanent missions that states have
established within each others’ territories since the fifteenth century, is well developed.
Until the end of the 1950s, sources of diplomatic law were largely customary IL (CIL),
although there were bilateral treaties on the topic. Attempts at codification in 1815
(Congress of Vienna) ad in the 1920s (League of Nations). But it was the1961 Vienna
Convention on Diplomatic Relations that did so, confirming existing CIL and the great
majority of states parties to it.
Diplomatic immunity, like state immunity, is an exemption to the general IL provided for
territorial jurisdiction. Purpose: allow diplomats to carry out functions within the
framework of necessary security and confidentiality. They are not usually exempt from
local jurisdiction to prescribe laws (except certain tax laws not applied or even prescribed
against diplomats or diplomatic premises). They must comply with local law but will be
immune from local jurisdiction to apply and enforce such laws.
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Person of the diplomatic agent is inviolable. He is respected, protected against attack,
can’t be detained or arrested, immune from criminal jurisdiction of the recessing state.
The mission’s premises, archives & documents (on or off the premises) are inviolable.
Diplomatic communications are protected; diplomatic bag is not to be opened or
detained.
Substantive content of law of diplomatic immunity is clear but uncertainty remains:
varying national policies on marriage & different understandings of the concept of
‘family’, scope of Art. 37, Vienna Convention is open to debate, namely, immunities for
‘members of the family of a diplomatic agent forming part of his household’. Receiving
states interpret this variously. UK: includes ‘spouse & minor (child under 18) children’.
Also, does the prohibition on opening or detaining the diplomatic bag include X-ray
(maybe) or external search for explosives or drugs by ‘sniffer dogs’.
The principle of inviolability of the archives is enshrined in Rose King (1947). But Art. 24
of the 1961 Vienna Convention on Diplomatic Relations provides for inviolability for
‘archives and documents of the mission,’ seeming to say that they are separate things,
even if the intention was to provide inviolability for both. The Vienna Convention on
Consular Relations of 1963 avoids this by defining consular archives as ‘all the papers,
document s, correspondence, books, films, tapes, registers of the consular post, together
with the ciphers and codes, the land indexes and any of the articles of furniture intended
for their protection and safekeeping.’ Litigation arose after the collapse of the ITC, under
the Headquarters Agreement (1972) with UK, guaranteed that its archives receive the
same immunities as those of the diplomatic mission under Art. 24 of the Convention.
Creditors of the ITC (tin company) said the immunity did not extend to documents more
generally. CA said: ‘archives’ referred to records intended as a formal record, not to
incidental papers. House of Lords: broader meaning in the Consular Convention used.
Art. 24: ‘wherever they may be’—wherever stored, taken or left. Even abroad? English
courts are not likely to be in the position to enforce the inviolability of a document from
authorities of another country where the document is located, but this is not to say that
its being outside the jurisdiction, the court can treat is as non-archival and without
protection.
Policy issue: if such immunities and inviolability are given to allow performance of the
diplomatic function, should this continue even if abused? UK example: diplomat commits
indecent assault upon a child—also protected? How about the diplomat’s expired lease?
If a policewoman is shot from the embassy’s window, can the local police enter the
premises and make an arrest? Despite protests, immunity should continue to be
available. 1) One cannot assume criminal guilt before trial, to argue that there should be
n immunity from trial; 2) It’s easy to cry abuse by the diplomat & shake off the
immunities, leading to harassment & pressure against diplomats. Besides, the
reprehensible behavior of a particular diplomat should not destroy the integrity of the
Vienna Convention. But the receiving state has the right to notify the sending state,
without an explanation or allegation, that the member of the diplomatic staff is persona
non grata. The receiving state may also limit the size of the mission, suspend or
terminate diplomatic relations. Except in the case of espionage—not always then—states
are often reluctant to invoke the last 2 powers. It is not in the community interest that
states fail to use available remedies against abuse & undercut the immunities, intended
to protect bona fide work & would become unavailable if so withdrawn upon the receiving
state’s unilateral determination of an ‘abusive’ act.
INTERNATIONAL ORGANIZATIONS (IOs).
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IOs, though not ‘accredited to’ a particular country, are located in a particular country.
They require certain privileges and immunities, necessary for its purposes, from the
jurisdiction of that state and from all its member states should there be the potential of its
acts or staff or property coming under their jurisdiction also.
UN was immune ‘from every form of legal process’. Art. 103, UN Charter: need for the
protection. Convention on Privileges and Immunities of the UN: inviolability of premises
and archives, diplomatic immunity of most senior officials and immunity of senior officials
from jurisdiction and execution on a functional basis. There is also a Convention for
Specialized Agencies. These multilateral provisions are often supplemented by a bilateral
headquarters agreement between the organization and the host state. This is similar to
IOs which are not UN specialized agencies but there are no general convention on
immunities (ILC is examining relations between IOs and host states, may result in a
treaty). The need for immunities is also in the Headquarters Agreement.
Are these immunities dependent on inclusion in governing instruments or are they
enjoyed as a matter of CIL? The Third Restatement of the Law (1987) says that it is the
latter. Reporters’ Notes says this relates to universal IOs. Do organizations of limited
membership receive immunities from the jurisdiction of the host state as a matter of CIL?
Standard Chartered Bank v. Int’l Tin Co. (1987): ‘never recognized at common law as
entitled to sovereign status…entitled to no sovereign or diplomatic immunity except
where granted by legislative instrument, and only to such extent.’
Real issue: whether IL requires a different type of int’l person, an IO, be accorded
functional immunities? Higgins says yes: basis is good faith and functionalism (give what
is necessary for performance of functions), not in deference to sovereignty or
representation through diplomacy. She also says that there is no difference between IOs
with universal and limited membership. The issue is that members—and a fortiori the
headquarters state—may not at one and the same time establish an organization and fail
to provide it with those immunities that ensure its role as distinct from that of the host
state (Mazilu case [1989]).
Fifth Report of the Special Rapporteur on Relations between States and Internalional
Organizations is not clear; it provides treaties on inviolability of archives but concludes
that ‘doctrine and state practice’ fully supports the principle of the inviolability of archives.
This is deduced from customary law relating to diplomatic missions, simply asserting that
‘it is equally valid in the case of IOs’. The matter is still treated by assimilation to
diplomatic missions.
Importance of determination whether immunities of IOs are customary or treaty-based: 1)
There may exist no relevant headquarters agreement; 2) it may be necessary to see if
the terms of the headquarters agreement are exhaustive of immunities claimed or is text
deficient such that other immunities refer to CIL; 3) courts may not give effect to the
terms of the treaty incorporated in domestic law—if no law is enacted or if terms do not
match those of the treaty, the issue may be: is there still an obligation incumbent on
courts under CIL? (remember Harry’s long discussion on non-reliance on the
Incorporation Clause to make customary norms binding on the RP) Int’l Tin Council v.
Amalgamet (1988): no obligation on non-host states to give immunities to IOs in absence
of treaty commitment by the US. For most IOs, domestic courts regard IL as prohibiting
assertion of jurisdiction over employment claims. Also, it is not always necessary for an
IO to have full immunity from suit and enforcement for it to fulfill its purposes (many
organizations in the banking field allow suits by bondholders and related creditors).
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Does the imprerii/gestionis distinction apply to IOs? This question arises only if one
accepts that immunities are not necessarily determined only by legislative provisions.
The matter is unsettled. But how can an organization act in ‘sovereign authority’? This
will assimilate them to states, which is incorrect. Their basis for immunity is different.
Relevant test under general IL: whether immunity from jurisdiction to prescribe is
necessary for fulfillment of purpose.
Amalgamet case also highlights a problem as to what documents constitute archives—
immune. Papers for meetings prepared by IOs, sent to state members for study, before
deliberation—Higgins says: states members do not receive as ‘third parties’ (papers are
no longer the organization’s, not inviolate). Working papers are received by states parties
in their capacity as organs of IOs, remaining as documents of IOs, still protected under
Art. 24. Otherwise, Secretariat (an organ) shares with members (an organ) confidential
documents, without protection from disclosure by the host state. But this is the position of
the House of Lords in Shearson Lehman Bros. Inc. v. Maclaine Waterson & Co. (1988).
The Fifth Report by the ILC does not address the range of problems, merely referring to
Art. 24 and insisting that IOs are subject to IL and thus enjoy inviolability of their
archives.
Conclusions:
1. Immunities from suit of states to fulfill its governmental functions are very limited.
2. There is a case for allowing greater possibilities of execution of judgments against
defaulting states.
3. Diplomatic immunities in the 1961 Convention represent the minimum required for
diplomats to fulfill their functions without interference from the receiving state. If
abused, they should be required to leave, but the immunity must not be narrowed
for they protect proper, law-compliant acts.
4. Local courts must be encouraged to appreciate that their required immunities are
based on their own functional needs, not on artificial assimilation to states and
diplomatic missions. Immunities serve an important purpose but appropriate limits
come from a full understanding of the social purposes which this exception to
territoriality based jurisdiction based.
 CASES on Jurisdiction
BROWNELL v. SUNLIFE (June 22, 1954)
Petitioner: Herbert Brownell, Jr., as Attorney-General of the US
Respondent: Sun Life Assurance Company of Canada
Ponente: Labrador, J.
PETITION TO RECOVER HALF OF THE PROCEEDS OF AN ENDOWMENT POLICY
UNDER THE PHIL. PROPERTY ACT OF THE US. This is a petition instituted in the CFI
of Manila enforcing the provisions of the Philippine Property Act of the US against the
Sun Life Assurance to compel it to comply with the demand of the to pay the Alien
Property Custodian of the U.S. the sum of P310.10, which represents one-half of the
proceeds of an endowment policy which already matured and is payable to one Naogiro
Aihara, a Japanese national. Under the policy Aihara and his wife, Filomena Gayapan,
were insured jointly for the sum of P1,000, and upon its maturity the proceeds thereof
were payable to said insured, share and share alike, or P310.10 each.
DEFENSES OF SUN LIFE. (1) that the immunities provided in section 5 (b) (2) of the
10
Trading With the Enemy Act of the United States are of doubtful application in the
Philippines, and have never been adopted by any law of the Philippines as applicable
here or obligatory on the local courts; (2) that the defendant is a trustee of the funds and
is under a legal obligation to see it to that it is paid to the person or persons entitled
thereto, and unless the petitioner executes a suitable discharge and an adequate
guarantee to indemnify and keep it free and harmless from any further liability under the
policy, it may not be compelled to make the payment demanded.
JUDGMENT IN FAVOR OF US. The CFI ruled in favor of the US. Sun Life has appealed
to this Court, contending that the court erred in holding that the Trading With the Enemy
Act of the United States is binding upon the inhabitants of this country, notwithstanding
the attainment of complete independence on July 4, 1946, and in ordering the payment
prayed for.
ISSUE 1: WON PHILIPPINE PROPERTY ACT OF 1946 OF THE US IS BINDING
UPON THE PHILIPPINES.
HELD: YES. The ratification of or concurrence of the RP to the agreement for the
extension of the Philippine Property Act of 1946 is clearly implied from the acts of the
President of the RP and of the Secretary of Foreign Affairs, as well as by the enactment
of Republic Acts Nos. 7, 8, and 477.
The operation of the Philippine Property Act of 1946 in the Philippines is not derived from
the unilateral act of the US Congress, which made it expressly applicable to the RP, or
from the saving provision contained in the proclamation of independence of the RP from
the US. It is well-settled in the United States that its laws have no extraterritorial effect.
The application of said law in the Philippines is based concurrently on said act
(Philippine Property Act of 1946) and on the tacit consent thereto and the conduct of the
Philippine Government itself in receiving the benefits of its provisions.
PHIL. PROPERTY ACT PROVIDES FOR THE APPLICATION OF THE TRADING WITH
THE ENEMY ACT EVEN AFTER RP’s PROCLAMATION OF INDEPENDENCE. The US
Congress passed the Philippine Property Act of 1946. Section 3 thereof provides that
"The Trading with the Enemy Act of October 6, 1917, as amended, shall continue in force
in the Philippines after July 4, 1946, ...." To implement the provisions of the act, the US
President on July 3, 1946, promulgated EO No. 9747, "continuing the functions of the
Alien Property Custodian and the Department of the Treasury in the Philippines."
AGREEMENT BET. ROXAS & MC NUTT. Prior to and preparatory to the approval of
said Philippine Property Act of 1946, an agreement was entered into between President
Manuel Roxas of the Commonwealth and U. S. Commissioner Paul V. McNutt whereby
title to enemy agricultural lands and other properties was to be conveyed by the US to
the Philippines in order to help the rehabilitation of the latter, but that in order to avoid
complex legal problems in relation to said enemy properties, the Alien Property
Custodian of the US was to continue operations in the Philippines even after the latter's
independence, that he may settle all claims that may exist or arise against the above-
mentioned enemy properties, in accordance with the Trading With the Enemy Act of the
US. This purpose of conveying enemy properties to the Philippines after all claims
against them shall have been settled is expressly embodied in the Philippine Property
Act of 1946.
RESERVATIONS OF THE US IN RP’s PROCLAMATION OF INDEPENDENCE. And
when the proclamation of the independence of the Philippines by President Truman was
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made, said independence was granted "in accordance with the subject to the
reservations provided in the applicable statutes of the Unites States." The enforcement
of the Trading With the Enemy Act of the United States was contemplated to be made
applicable after independence, within the meaning of the reservations.
ACTS OF PHIL. OFFICIALS ACKNOWLEDGING APPLICATION OF PHIL. PROPERTY
ACT.
1. Conformity to the enactment of the Philippine Property Act of 1946 of the United
States was announced by President Manuel Roxas in a joint statement signed by him
and by Commissioner Mcnutt.
2. Ambassador Romulo also formally expressed the conformity of the Philippines
Government to the approval of said act to the American Senate prior to its approval.
3. And after the grant of independence, the RP Congress approved RA No. 8, entitled:
AN ACT TO AUTHORIZE THE PRESIDENT OF THE PHLIPPINES TO ENTER INTO
SUCH CONTRACT OR UNDERTAKINGS AS MAY BE NECESSARY TO EFFECTUATE
THE TRANSFER TO THE REPUBLIC OF THE PHILIPPINES UNDER THE
PHILIPPINES PROPERTY ACT OF NINETEEN HUNDRED AND FORTY-SIX OF ANY
PROPERTY OR PROPERTY RIGHTS OR THE PROCEEDS THEREOF AUTHORIZED
TO BE TRANSFERRED UNDER SAID ACT; PROVIDING FOR THE ADMINISTRATION
AND DISPOSITION OF SUCH PROPERTIES ONCE RECEIVED; AND
APPROPRIATING THE NECESSARY FUND THEREFOR.
4. The RP Congress also approved RA No. 7, which established a Foreign Funds Control
Office.
5. After the approval of the Philippine Property Act of 1946 of the US, the RP
Government also formally expressed, through the Sec. of Foreign Affairs, conformity
thereto through letters of the Secretary.
6. The RP Congress has also approved RA No. 477, which provides for the
administration and disposition of properties which have been or may hereafter be
transferred to the RP in accordance with the Philippines Property Act of 1946 of the US.
CONSENT TO BE BOUND BY THE PHIL. PROPERTY ACT IS MANIFESTED BY
BOTH RP EXEC & LEG. It is evident that the consent of the RP Government to the
application of the Philippine Property Act of 1946 to the Phil. after independence was
given, not only by the Exec. Department of the Phil. Government, but also by the
Congress, which enacted the laws that would implement or carry out the benefits
accruing from the operation of the US law.
SUN LIFE’S CONTENTIONS: NO EXPRESS PROVISION. Sun Life, however, contends
that the operation of the law after independence could not have actually taken, or may
not take place, because both RA No. 8 and 477 do not contain any specific provision
whereby the Philippine Property Act of 1946 or its provisions is made applicable to the
Philippines. It is also contended that in the absence of such express provision in any of
the laws passed by the Philippine Congress, said Philippine Property Act of 1946 does
not form part of our laws and is not binding upon the courts and inhabitants of the
country.
11
FOREIGN LAW: OPERATES THROUGH CONSENT. There is no question that a foreign
law may have extraterritorial effect in a country other than the country of origin, provided
the latter, in which it is sought to be made operative, gives its consent thereto. This
principle is supported by the unquestioned authority.
The jurisdiction of the nation within its territory is necessarily exclusive and absolute. It is
susceptible of no limitation not imposed by itself. Any restriction upon it, deriving validity
from an external source, would imply a diminution of its sovereignty to the extent of the
restriction, and an investment of that sovereignty to the same extent in that power in
which would impose such restriction. All exceptions, therefore, to the full and complete
power of a nation within its own territories, must be traced up to the consent of the nation
itself. They can flow from no other legitimate source. This consent may be either express
or implied. (Philippine Political Law by Sinco, pp. 27-28, citing Chief Justice Marshall's
statement in the Exchange, 7 Cranch 116)
In the course of his dissenting opinion in the case of S. S. Lotus, decided by the
Permanent Court of International Justice, John Bassett Moore said:
1. It is an admitted principle of International Law that a nation possesses and exercises
within its own territory an absolute and exclusive jurisdiction, and that any exception to
this right must be traced to the consent of the nation, either express or implied.
CONSENT NEED NOT BE EXPRESS. The consent of a Senate to the operation of a
foreign law within its territory does not need to be express; it is enough that said consent
be implied from its conduct or from that of its authorized officers.
515. No rule of International Law exists which prescribe a necessary form of ratification.
— Ratification can, therefore, be given tacitly as well as expressly. Tacit ratification takes
place when a State begins the execution of a treaty without expressly ratifying it. It is
usual for ratification to take the form of a document duly signed by the Heads of the
States concerned and their Secretaries for Foreign Affairs. It is usual to draft as many
documents as there are parties to the Convention, and to exchange these documents
between the parties. Occasionally the whole of the treaty is recited verbatim in the
ratifying documents, but sometimes only the title, preamble, and date of the treaty, and
the names of the signatory representatives are cited. As ratification is only the
confirmation of an already existing treaty, the essential requirements in a ratifying
document is merely that it should refer clearly and unmistakably to the treaty to be
ratified. The citation of title, preamble, date, and names of the representatives is,
therefore quite sufficient to satisfy that requirements. (Oppenheim, pp. 818-819;
emphasis ours.)
International Law does not require that agreements between nations must be concluded
in any particular form or style. The law of nations is much more interested in the faithful
performance of international obligations than in prescribing procedural requirements.
(Treaties and Executive Agreements, by Myers S. McDougal and Asher Lands, Yale Law
Journal, Vol. 54, pp. 318-319)
ISSUE 2: WON A DEED OF DISCHARGE AND INDEMNITY FOR ITS PROTECTION
BE FIRST ISSUED BEFORE SUN LIFE PAYS FOR THE AMOUNT?
HELD: NO.. The Trading With the Enemy Act of the United States, the application of
which was extended to the Philippines by mutual agreement of the two Governments,
contains an express provision to the effect that delivery of property or interest therein
made to or for the account of the US in pursuance of the provision of the law, shall be
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considered as a full acquittance and discharge for purposes of the obligation of the
person making the delivery or payment. (Section 5(b) (2), Trading With the Enemy Act.)
This express provision of the United States law saves the respondent-appellant from any
further liability for the amount ordered to be paid to the petitioner, and fully protects it
from any further claim with respect thereto. The request of the respondent-appellant that
a security be granted it for the payment to be made under the law is, therefore,
unnecessary, because the judgment rendered in this case is sufficient to prove such
acquittance and discharge.
PEOPLE v. LOL-LO and SARAW (1922 February 27)
Ponente, Malcolm, J.
1. THE JOURNEY. Two boats left Matuta, a Dutch possession, for Peta, another Dutch
possession. In one of the boats was one individual, a Dutch subject, and in the other
boat eleven men, women, and children, likewise subjects of Holland. After a number of
days of navigation, at about 7 o'clock in the evening, the second boat arrived between
the Islands of Buang and Bukid in the Dutch East Indies.
2. THE ATTACK OF THE PIRATES2. Upon arrival, the second boat was surrounded by
six vintas manned by twenty-four Moros all armed. The Moros first asked for food, but
once on the Dutch boat, took for themselves all of the cargo, attacked some of the men,
and brutally violated two of the women “by methods too horrible to described”.
3. THE ESCAPE. All of the persons on the Dutch boat, with the exception of the two
young women, were again placed on it and holes were made in it, with the idea that it
would submerge. However, these people, after eleven days of hardship and privation,
were rescued. Taking the two women with them, and repeatedly violating them, the
Moros finally arrived at Maruro, a Dutch possession. Two of the Moro marauders were
Lol-lo, who also raped one of the women, and Saraw. At Maruro the two women were
able to escape.
4. THE ARREST. Lol-lo and Saraw later returned to their home in South Ubian, Tawi-
Tawi, Sulu, Philippine Islands. There they were arrested and were charged in the Court
of First Instance of Sulu with the crime of piracy. A demurrer was interposed by counsel
de officio for the Moros, based on the grounds that the offense charged was not within
the jurisdiction of the Court of First Instance, nor of any court of the Philippine Islands,
and that the facts did not constitute a public offense, under the laws in force in the
Philippine Islands. After the demurrer was overruled by the trial judge, a trial was had,
and a judgment was rendered finding the two defendants guilty and sentencing each of
them to life imprisonment, to return together with Kinawalang and Maulanis, defendants
in another case, to the offended parties, the thirty-nine sacks of copra which had been
robbed, or to indemnify them in the amount of 942 rupees, and to pay a one-half part of
the costs.
FIRST ISSUE: Does the Court of First Instance have jurisdiction over the crime
committed? YES.
FIRST RATIO:
2
Of the Caribbean…hehehe ang corny. Vintage ceejay ☺
12
1. DEFINITION OF PIRACY. All of the elements of the crime of piracy are present. Piracy
is robbery or forcible depredation on the high seas, without lawful authority and done
animo furandi, and in the spirit and intention of universal hostility.
2. PIRACY AS A CRIME AGAINST MANKIND. It cannot be contended with any degree
of force as was done in the lower court and as is gain done in this court, that the Court of
First Instance was without jurisdiction of the case. Pirates are in law hostes humani
generis. Piracy is a crime not against any particular state but against all mankind. It may
be punished in the competent tribunal of any country where the offender may be found or
into which he may be carried. The jurisdiction of piracy unlike all other crimes has no
territorial limits. As it is against all so may it be punished by all. Nor does it matter that
the crime was committed within the jurisdictional 3-mile limit of a foreign state, "for those
limits, though neutral to war, are not neutral to crimes." (U. S. vs. Furlong)
SECOND ISSUE: Are the Penal Code Provisions on piracy3 still in effect? YES.
SECOND RATIO:
3
ART. 153. The crime of piracy committed against Spaniards, or the subjects of another
nation not at war with Spain, shall be punished with a penalty ranging from cadena temporal
to cadena perpetua.
"If the crime be committed against nonbelligerent subjects of another nation at war with
Spain, it shall be punished with the penalty or presidio mayor.
"ART. 154. Those who commit the crimes referred to in the first paragraph of the next
preceding article shall suffer the penalty of cadena perpetua or death, and those who commit
the crimes referred to in the second paragraph of the same article, from cadena temporal to
cadena perpetua:
"1. Whenever they have seized some vessel by boarding or firing upon the same.
"2. Whenever the crime is accompanied by murder, homicide, or by any of the physical
injuries specified in articles four hundred and fourteen and four hundred and fifteen and in
paragraphs one and two of article four hundred and sixteen.
"3. Whenever it is accompanied by any of the offenses against chastity specified in Chapter
II, Title IX, of the book.
"4. Whenever the pirates have abandoned any persons without means of saving themselves.
"5. In every case, the captain or skipper of the pirates.
"ART. 155. With respect to the provisions of this title as well as all others of this code,
when Spain is mentioned it shall be understood as including any part of the national
territory.
"ART. 156. For the purpose of applying the provisions of this code, every person, who,
according to the Constitution of the Monarchy, has the status of a Spaniard shall be
considered as such
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1. MUNICIPAL LAWS DESIGNED TO SECURE PEACE AND ORDER CONTINUE TO
BE EFFECTIVE DESPITE A TRANSFER OF TERRITORY TO ANOTHER
SOVEREIGNTY. The general rules of public law recognized and acted on by the United
States relating to the effect of a transfer of territory from another State to the United
States are well-known. The political law of the former sovereignty is necessarily
changed. The municipal law in so far as it is consistent with the Constitution, the laws of
the United States or the characteristics and institutions of the government, remains in
force. As a corollary to the main rules, laws subsisting at the time of transfer, designed to
secure good order and peace in the community, which are strictly of a municipal
character, continue until by direct action of the new government they are altered or
repealed. (Chicago, Rock Island, etc., R. Co. vs. McGlinn)
2. MCKINLEY’S INSTRUCTIONS. These principles of the public law were given specific
application to the Philippines by the Instructions of President McKinley of May 19,1889,
to General Wesley Merritt, the Commanding General of the Army of Occupation in the
Philippines, when he said:
"Though the powers of the military occupant are absolute and
supreme, and immediately operate upon the political condition of the
inhabitants, the municipal laws of the conquered territory, such as
affect private rights of person and property, and provide for the
punishment of crime, are considered as continuing in force, so far as
they are compatible with the new order of things, until they are
suspended or superseded by the occupying belligerent; and in
practice they are not usually abrogated, but are allowed to remain in
force, and to be administered by the ordinary tribunals, substantially
as they before the occupation. This enlightened practice is, so far as
possible, to be adhered to on the present occasion."
It cannot admit of doubt that the articles of the Spanish Penal Code dealing with piracy
were meant to include the Philippine Islands. Article 156 of the Penal Code of the Penal
Code in relation to article 1 of the Constitution of the Spanish Monarchy, would also
make the provisions of the Code applicable not only to Spaniards but to Filipinos.
3. PIRACY ACCORDING TO GROTIUS. The opinion of Grotius was that piracy by the
law of nations is the same thing as piracy by the civil law, and he has never been
disputed. The specific provisions of the Penal Code are similar in tenor to statutory
provisions elsewhere and to the concepts of the public law. This must necessarily be so,
considering that the Penal Code finds its inspiration in this respect in the Novelas, the
Partidas, and the Novisima Recopilacion.
4. BASIS FOR THE PIRACY LAW’S CONTINUED EFFECTIVITY. The Constitution of
the United States declares that the Congress shall have the power to define and punish
piracies and felonies committed on the high seas, and offenses against the law of
nations. The Congress, in putting on the statute books the necessary ancillary legislation,
provided that whoever, on the high seas, commits the crime of piracy as defined by the
law of nations, and is afterwards brought into or found in the United States, shall be
imprisoned for life. The framers of the Constitution and the members of Congress were
content to let a definition of piracy rest on its universal conception under the law of
nations. It is evident that the provisions of the Penal Code now in force in the Philippines
13
relating to piracy are not inconsistent with the corresponding provisions in force in the
United States.
5. CONSEQUENT AND CORRESPONDING AMENDMENTS TO THE LAW. By the
Treaty of Paris, Spain ceded the Philippine Islands to the United States. A logical
construction of articles of the Penal Code, like the articles dealing with the crime of
piracy, would be that wherever "Spain" is mentioned, it should be substituted by the
words "United States" and wherever "Spaniards" are mentioned, the word should be
substituted by the expression "citizens of the United States and citizens of the Philippine
Islands." Somewhat similar reasoning led this court in the case of United States vs.
Smith to give to the word "authority" as found in the Penal Code a limited meaning,
which would no longer comprehend all religious, military, and civil officers, but only public
officers in the Government of the Philippine Islands. Under the construction above
indicated, article 153 of the Penal Code would read as follows:
"The crime of piracy committed against citizens of the United States
and citizens of the Philippine Islands, or the subjects of another
nation not at war with the United States, shall be punished with a
penalty ranging from cadena temporal to cadena perpetua.
"If the crime be committed against nonbelligerent subjects of another
nation at war with the United States, it shall be punished with the
penalty of presidio mayor."
The crime falls under the first paragraph of article 153 of the Penal Code in relation to
article 154. There are present at least two of the circumstances named in the last cited
article as authorizing either cadena perpetua or death. The crime of piracy was
accompanied by (1) an offense against chastity and (2) the abandonment of persons
without apparent means of saving themselves. It is, therefore, only necessary for us to
determine as to whether the penalty of cadena perpetua or death should be imposed. In
this connection, the trial court, finding present the one aggravating circumstance of
nocturnity, and compensating the same by the one mitigating circumstance of lack of
instruction provided by article 11, as amended, of the Penal Code, sentenced the
accused to life imprisonment. At least three aggravating circumstances, that the wrong
done in the commission of the crime was deliberately augmented by causing other
wrongs not necessary for its commission, that advantage was taken of superior strength,
and that means were employed which added ignominy to the natural effects of the act,
must also be taken into consideration in fixing the penalty. Considering, therefore, the
number and importance of the qualifying and aggravating circumstances here present,
which cannot be offset by the sole mitigating circumstance of lack of instruction, and the
horrible nature of the crime committed, it becomes our duty to impose capital
punishment.
DISPOSITION:
The vote upon the sentence is unanimous with regard to the propriety of the imposition
of the death penalty upon the defendant and appellant Lol-lo (the accused who raped
one of the women) but is not unanimous with regard to the defendant and appellant
Saraw, since one member of the court, Mr. Justice Romualdez, registers his
nonconformity. In accordance with the provisions of Act No. 2726, it results, therefore,
that the judgment of the trial court as to the defendant and appellant Saraw is affirmed,
and is reversed as to the defendant and appellant Lol-lo, who is found guilty of the crime
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of piracy and is sentenced therefor to be hung until dead, at such time and place as shall
be fixed by the judge of first instance of the Twenty-sixth Judicial District. The two
appellants together with Kinawalang and Maulanis, defendants in another case, shall
indemnify jointly and severally the offended parties in the equivalent of 924 rupees, and
shall pay a one-half part of the cost of both instances. So ordered.
George L. Tubb & Wesley Tedrow (petitioners) v. Thomas E. Griess (respondent)
GR No. L-1325. Apr. 7, 1047
Nature: Petition for habeas corpus
Ponente: Moran, C.J.
1. ARREST & CHARGES. Petitioners, US citizens who are residing in the RP under
written contract of employment with the US Army, Manila Engineer Department
(MED) as civilian employees, allege that sometime between Jan. 4 & Jan. 13, 1947,
as appearing in the “charge sheet” submitted by respondent, the petitioners were
apprehended by the authorities of the US Army & have since been held in custody.
On Jan. 28, 1947, they were formally charged with violations of Articles of War
regarding misappropriation of US Government property destined for military use,
said acts having been committed within premises occupied by the US Army under
lease contracts.
2. PETITION alleges that petitioners are being unlawfully deprived of their liberty &
that Philippine courts have exclusive jurisdiction over their arrest, confinement &
imprisonment because (1) they are not persons subject to military laws, & (2) martial
law is no longer enforced.
ISSUE: Do Philippine courts have jurisdiction over the petitioners? NO.
RATIO
1. PETITIONERS ARE MILITARY PERSONNEL. In the contract of employment
entered into by petitioners with the US Army, it is shown that they voluntarily
submitted themselves to US military law while serving said contract, thereby
submitting themselves to the full extent of the authority of the US Army in this area.
This, coupled with the fact that petitioners are American citizens, makes their
position during the subsistence of said contract no different from that of enlisted
men, enlistment after all being nothing more than a contract of voluntary service in
the armed forces of one’s country. Petitioners then, in relation to the US Army in the
Philippines & during the subsistence of their employment contract, can be deemed
to possess the status of military personnel.
2. EXEMPTION FROM STATE JURISDICTION. It is a settled principle of International
Law (IL) that a foreign army allowed to march through a friendly country or to be
stationed in it, by permission of its government or sovereign, is exempt from the civil
& criminal jurisdiction of the place. In Raquiza v. Bradford, SC held that “if a foreign
army permitted to be stationed in a friendly country, ‘by permission of its government
or sovereign,’ is exempt from the civil & criminal jurisdiction of the place, with much
more reason should the US Army which is not only permitted by the Commonwealth
Government to be stationed here but has come to the islands & stayed in them for
the express purpose of liberating them, & further prosecuting the war to a
successful conclusion, be exempt from the civil & criminal jurisdiction of this place,
at least for the time covered by said agreement of the 2 Governments. By analogy,
an attempt of our civil courts to exercise jurisdiction over the US Army before such
14
period expires, would be considered as a violation of this country’s faith, which the
SC should not be the last to keep & uphold. By exercising it, the purpose for which
the stationing of the army in the islands was requested or agreed upon may be
hampered or prejudiced, & a portion of said military force would be withdrawn from
the control of the sovereign to whom they belong. And, again, by analogy, the
agreement for the stationing of the US Army or a part of its forces in the Philippines
implies a waiver of all jurisdiction over their troops during the time covered by such
agreement, & permits the allied general or commander-in-chief to retain that
exclusive control & discipline which the government of his army may require.”
3. BASIS is the leading case of The Schooner Exchange vs. McFadden, in which the
US SC through CJ Marshall, held that “a third case in which a sovereign is
understood to cede a portion of his territorial jurisdiction is, where he allows the
troops of a foreign prince to pass through his dominions. In such case, without any
express declaration waiving jurisdiction over the army to which this right of passage
has been granted, the sovereign who should attempt to exercise it would certainly
be considered as violating his faith. By exercising it, the purpose for which the free
passage was granted would be defeated, & a portion of the military force of a
foreign independent nation would be diverted from those national objects & duties to
which it was applicable, & would be withdrawn from the control of the sovereign
whose power & whose safety might greatly depend on retaining the exclusive
command & disposition of this force. The grant of a free passage therefore implies a
waiver of all jurisdiction over the troops during their passage, & permits the foreign
general to use that discipline, & to inflict those punishments which the government
of his army may require.”
4. TREATIES. Since then, this principle has been consistently embodied in treaties of
military character among friendly nations & has been accepted by all the countries
of the world. The most authoritative writers on IL concur in this rule:
Wheaton: “A foreign army or fleet, marching through, sailing over, or stationed in the
territory of another State, with whom the foreign sovereign to whom they belong is in
amity, are also, in like manner, exempt from the civil & criminal jurisdiction of the place.”
[Westlake affirms this view]
Hall: “Military forces enter the territory of a state in amity with that to which they belong,
either when crossing to & fro between the main part of their country & an isolated piece
of it, or as allies passing through for the purposes of a campaign, or furnishing garrisons
for protection. In cases of the former kind, the passage of soldiers being frequent, it is
usual to conclude conventions, specifying the line of road to be followed by them, &
regulating their transit so as to make it as little onerous as possible to the population
among whom they are. Under such conventions offenses committed by soldiers against
the inhabitants are dealt with by the military authorities of the state to which the former
belong; & as their general object in other respects is simply regulatory of details, it is not
necessary to look upon them as intended in any respect to modify the rights of
jurisdiction possessed by the parties to them respectively. There can be no question that
the concession of jurisdiction over passing troops to the local authorities would be
extremely inconvenient; & it is believed that the commanders, not only of forces in transit
through a friendly country with which no convention exists, but also of forces stationed
there, assert exclusive jurisdiction in principle in respect of offenses committed by
persons under their command, though they may be willing as a matter of concession to
hand over culprits to the civil power when they have confidence in the courts, and when
their stay is likely to be long enough to allow of the case being watched. The existence of
a double jurisdiction in a foreign country being scarcely compatible with the discipline of
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an army, it is evident that there would be some difficulty in carrying out any other
arrangement.”
Lawrence: ”The universally recognized rule of modern times is that a state must obtain
express permission before its troops can pass through the territory of another
state...Permission may be given as a permanent privilege by treaty for such a purpose
as sending relief to garrisons, or it may be granted as a special favor for the special
occasion on which it is asked. The agreement for passage generally contains provisions
for the maintenance of order in the force by its own officers, & makes them, & the state in
whose service they are, responsible for the good behavior of the soldiers towards the
inhabitants. In the absence of special agreement the troops would not be amenable to
the local law, but would be under the jurisdiction & control of their own commanders, as
long as they remained within their own lines or were away on duty, but not otherwise.”
Oppenhein: “Whenever armed forces are on foreign territory in the service of their home
State, they are considered exterritorial & remain, therefore, under its jurisdiction. A crime
committed on foreign territory by a member of these forces cannot be punished by the
local civil or military authorities, but only by the commanding officer of the forces or by
other authorities of their home State. This rule, however, applies only in case the crime is
committed, either within the place where the force is stationed, or in some place where
the criminal was on duty; it does not apply, if, for example, soldiers belonging to a foreign
garrison of a fortress leave the rayon of the fortress not on duty but for recreational &
pleasure, & then and there commit a crime. The local authorities are in that case
competent to punish them.”
Hyde: “Strong grounds of convenience & necessity prevent the exercise of jurisdiction
over a foreign organized military force which, with the consent of the territorial sovereign,
enters its domain. Members of the force who there commit offenses are dealt with by the
military or other authorities of the State to whose service they belong, unless the
offenders are voluntarily given up.”
McNair & Lauterpacht: “It is a principle of IL that the armed forces of one State, when
crossing the territory of another friendly country, with the acquiescence of the latter, is not
subject to the jurisdiction of the territorial sovereign, but to that of the officers & superior
authorities of its own command.”
Vattel: “…the grant of passage includes that of every particular thing connected with the
passage of troops, & of things without which it would not be practicable; such as the
liberty of carrying whatever may be necessary to an army; that of exercising military
discipline on the officers & soldiers…”
4. RATIO FOR DISMISSING PETITION. Without applying the recent treaty on military
bases concluded between the governments of the Philippines & the US, it having
reference to base sites not involved in this case, & considering that a part of the US
Army is stationed in the Philippines with permission of our government, & that
petitioners who belong to the military personnel of that army are charged with
violations of Articles of War for offenses committed in areas under the control of the
US Army, thereby giving said army jurisdiction over their person & the offenses
charged, petition is dismissed, without costs.
Paras concurs.
Perfecto dissents:
FACTS: PETITIONERS. Civilian employees of the US Army MED depot at the North
Harbor, Manila were arrested on Jan. 4, 1947, by individuals posing as agents of the CID
(Criminal Investigation Division). They claim that: 1) detention for over 1 month with no
formal complaint for any specific violation of law filed against them, nor any judicial order
15
for their commitment issued; 2) they did not commit any offense for which they may be
arrested or detained without formal charges or judicial warrant; 4) according to the
information, they are detained by the US Army authorities at the North Harbor, at the
alleged order of Cap. Griess, Security Officer of the MED; 5) their detention was based
on the suspicion of having stolen & disposed of construction materials, explosives, &
miscellaneous items belonging to the US Army; 6) they are not persons subject to
military laws & only a competent court having jurisdiction in the RP can order their arrest,
detention, & imprisonment; & 7) no martial law in the RP, war having been officially
terminated as of Dec. 31, 1946, & the RP Constitution being in full force & operation,
their detention & confinement are utterly illegal.
GRIESS averred that: 1) he, as a US Army officer, per orders issued by his superiors & in
his official capacity, has in custody the petitioners against each of whom charges have
been filed, which charges are to be tried & heard by a general court martial; 2)
petitioners are civilian employees of the US Army in the RP, Tubb under a written
contract of employment dated Jan. 30, 1946, clause 26 of which, reads: “The Employee
understands he or she is subject to the US Military Law while serving under this
agreement,” & Tedrow under a written contract of employment dated July 29, 1946,
clause 9 of which, reads: “You are subject to military law wherever it is established by
competent authorities”; 3) part of the US Army is stationed in the RP by virtue of US
laws, including Joint Resolution No. 93, which provides for the mutual protection of the
US & the RP &, petitioners were engaged as civilian employees of said army; 4) all
persons serving with the US Army without the territorial jurisdiction of the US are subject
to the articles of war of said country; 5) on Jan. 28, 1947, formal charges for violation of
the 94th Article of War were filed against Tubb, & for violation of the 96th Article of War
against Tedrow, & by virtue of such, Griess has custody of petitioners; 6) the place at the
North Harbor, where petitioners are in custody is under the US jurisdiction by virtue of
duly executed leases dated June 14 & Nov. 14, 1945; 7) petitioners are not confined in
any prison or jail but are confined under surveillance of Griess in their living quarters
which are situated on the leased premises.
During a HEARING on Mar. 7, 1947, Griess’ counsel, accompanied by Griess & 2-star
generals of the US Army in uniform, said that the case has been communicated to
Washington & that the US Government is interested in its result. Petitioners’ counsel
protested against the uncalled-for statement & a Justice stated that the SC shall not
allow any outsider to influence it in deciding. This wasn’t mentioned in the decision,
despite its clear attempt to jeopardize the authority of the SC. This should not be allowed
to pass without a rebuke or more drastic action. The SC, if it is to uphold its dignity &
prestige & keep the people’s faith & respect, should not be slow in repressing, correcting,
or punishing bullying tactics by a litigant or attorney in a case.
HELD: The petitioners are illegally deprived of their personal freedom &, therefore, are
entitled to be immediately released.
RATIO: The commitment in their contracts of employment that they are subject to military
law may not repeal the mandates in the Constitution’s Bill of Rights. Fundamental rights
are not goods of commerce. They are not proper subjects of contracts. Besides, the
commitment can never be construed as a renunciation of their constitutional rights.
Military law is not superior nor equal to the supreme law. Constitutional guarantees are
intended to protect, not only Filipino citizens, but all human beings within the territory of
our Republic, including US citizens &, if need be, even against their own government &
army. The fundamental law does not use the word citizens in the Bill of Rights. It
invariably uses the word person. Due process of law by which a person may be deprived
of his liberty contemplates judicial process. The Bill contemplates judicial process, &
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such can only be had with the intervention of tribunals. Under Art. VIII, judicial power
shall be vested in one SC & in such inferior courts as may be established by law. There
is no question that petitioners’ fundamental rights, as guaranteed by the RP Constitution,
have been flagrantly violated & SC will be recreant in not granting them the expected
relief to which they are entitled under the law.
SC ERRS. This is 1 more case in which, by majority vote, this SC abdicates its powers,
denying the victims of the redress to which they are entitled. Here, the abdication is
aggravated by a surrender of the sovereignty of the Filipino people. Without the benefit
of ambassadorial negotiations, of senatorial ratifications, or even of a scrap of treaty or
convention, the majority accepts & recognizes extra-territoriality, only to wash hands in
this case.
WRONG BASIS. Since IL has been indiscriminatingly & confusingly misapplied in
support of the glaringly erroneous majority opinion in Co Kim Chain v. Valdez Tan Keh &
Dizon, many have been misled into imitating the example to the extent of creating a
portentous judicial vogue. It seems that one is liable to lose his self-respect if he can not
invoke IL once in a while, although to do it he has to hurriedly scratch the surface of the
science & oftenly misread his authors, an unavoidable risk in litigations where there is no
legal issue between nations. The risk is shown by the hard time endured by supporters of
the majority in the Co Kim Chain case to explain their IL pronouncements, which shred
petitioner’s counsel in Laurel v. Misa, had invoked as authority in support of the theory of
“suspended allegiance.” Inconsistencies are hard to explain. It is even harder if the only
reasonable explanation that can be given would exact an honest admission of error.
CASE ABOUT PERSONS, NOT STATES. The legal issues revolve on the question of
personal freedom of 2 individuals, small civilian employees in the service of the US Army,
& who are under the territorial jurisdiction of the RP & under the pale of our Constitution.
The case does not raise any question involving any nation or group of nations. That
petitioners are US citizens is indifferent. Liberty, as a fundamental human right, is a
constitutional issue, & not international. Despite this fact, the real & only issue, the
constitutional one, is side-stepped by the majority. IL is used as a bludgeon to blast
petitioners’ faith in the inviolability of their constitutional rights.
LEGAL FAD. Cheap IL has become a fashion in judicial & legal circles. Under the spell of
IL, the sense of legal values has suffered & is enduring a moral disturbance, blurring
judicial vision. Swayed by the transient infatuation of the new legal fad, the majority let
themselves to be blindfolded by the fulgour of the newly found juridical shibboleth to
ignore petitioners’ clamors for the vindication of their constitutional rights, condemning
their earnest prayers for relief to the futility of “vox clamantis in diserto.” Such is the
glamour of the resounding IL that it was able to drown & obliterate completely
humanitarian & lofty tenets stereotyped in the Constitution by the will of the sovereign
people. Misunderstood, misinterpreted, misapplied, IL has become a sort of juridical
panacea, a universal thesaurus, always at hand for any solution that can be desired in
any ticklish litigation, even recognized as endowed with aseity.
ROOT of this awry judicial attitude lies in a glaring misconception of Sec. 3, Art. VIII: “The
Philippines renounces war as an instrument of national policy, and adopts the generally
accepted principles of international law as part of the law of the Nation.”
GUIDELINES. There is the mistaken idea that IL had become part of the Constitution &
even superior to the primary principles & fundamental guarantees expressly enunciated
therein. To correct such a mistake, remember these basic ideas, that:
1. the declaration that the Philippines “adopts the generally accepted principles of IL as
part of the law of the Nation” is an enunciation of a general national policy but never
intended to lay down specific principles, provisions, or rules superior or even equal to the
specific mandates & guarantees in the fundamental law.
16
2. “the generally accepted principles of IL” made part of our statute books are not
placed in a higher legal hierarchy than any other law that Congress may enact.
3. said ‘generally accepted principles of IL” are not fixed and unchangeable but, on the
contrary, may undergo development & amplification, amendment & repeal, that is, the
same biological rules that govern all laws, including the fundamental one.
4. the general statement in the Constitution implies that the principles of IL which
should be considered as part of the law of the nation are subject to determination by the
agencies of our government, including courts of justice, & once determined they may be
amended, enlarged or repealed, exactly as any act of Congress.
5. those principles are to be gathered from many sources-treaties & conventions, court
decisions, laws enacted by legislatures, treatises, magazine articles, historical facts &
others-& the majority of them must be sifted from conflicting opinions coming from said
sources.
6. the provisions of the Constitution should always be held supreme & must always
prevail over any contrary law without exempting principles of IL, no matter how generally
or universally they may be accepted.
CONSTITUTIONAL RIGHTS. Under the Constitution’s express provisions, petitioners
appear to be unconstitutionally deprived of their personal liberty &, so are entitled to be
set free. To deny the petition, the majority invoke IL. The hypothesis is wrong because it
is expressly based on pronouncements made in Raquiza v. Bradford, which are
completely mistaken. Said mistaken pronouncements relied on the opinion of Marshall in
The Schooner Exchange case, which, although rendered by one considered to be the
greatest US SC luminary, was written long ago, which, from the cultural point of view,
despite the inverse difference of years, appears to be millennia behind from our Atomic
Age than the Stone Age was from Marshall’s time. But even accepting the validity of
Marshall’s opinion, there is nothing in them to support herein majority position, because,
while Marshall recognized the jurisdiction of a foreign army passing through another
country over their “troops during their passage,” herein majority fails to differentiate
petitioners from said “troops,” both parties agreeing that petitioners are civilians, & no
one can pretend that Marshall would commit the lexicographical error of including
“civilians” among the “troops” of an army.
QUOTED WRITINGS INAPPLICABLE. As to:
Wheaton & Westlake, nothing in the case intimates that the SC is asked or is trying to
exercise any jurisdiction over the US Army stationed in Manila. Petitioners are neither an
army nor a fleet, but mere American civilians.
Hall, there is no convention that the majority may invoke, & to accept a conjecture as an
authority to set a legal rule is below the level of judicial dignity.
Lawrence, petitioners are civilians & cannot be classified as “troops.”
Oppenheim, has any one in this case pretended that petitioners are soldiers?
Hyde, the words “member” of an “organized military force” can never be understood to
include civilians.
McNair & Lauterpacht, they deal exclusively with the jurisdiction on “the armed forces” of
a foreign country. Civilians are not a part of armed forces.
Vattel, petitioners must change to cease being civilians &, through magic, become
overnight “officers” or “soldiers,” so the facts can be made to conform to the legal theory
intended to be applied by the majority.
WRONG INVOCATION. This analysis shows that the pretended principles of IL invoked
by the majority happened to be conclusively missing in all of the quotations inserted in
their opinion. Only the force of an overpowering autosuggestion can permit reading in
those quotations what is not written therein. Proneness to read in the writings of
authorities of IL or even in judicial decisions any ruling, principle, or doctrine that may
justify the trampling down of the fundamental, Constitutional human rights invoked by
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petitioners, must have been corrected once & for all since June 25, 1945, when the UN
Charter was adopted in San Francisco. Since then, principles or rules of IL incompatible
or deviating from the principles & ideals enunciated in the Charter must be considered
obsolete.
UN CHARTER: “to save succeeding generations from the scourge of war, which twice in
our lifetime has brought untold sorrow to mankind, to reaffirm faith in fundamental human
rights, in the dignity & worth of the human person, in the equal rights of men & women &
of nations large & small, to establish conditions under which justice & respect for the
obligations arising from treaties & other sources of IL can be maintained & “to promote
social progress & better standards of life in larger freedom.”
STATES’ DUTIES. “Fundamental human rights” & “dignity and worth of the human
person” form part of the supreme concern of the UN. Neither RP nor US can honorably
ignore solemn commitments they entered into as UN members. All government
agencies, tribunals & armies, are duty bound to respect, obey & make effective those
commitments. The Preamble provides “that armed forces shall not be used, save in
common interest,” the latter comprehending the basic purposes of the UN organization,
such as “promoting & encouraging respect for human rights & for fundamental freedoms
for all without distinction as to race, sex, language, or religion.”
NO FEAR. There is absolutely no reason why we should be afraid, reluctant, or hesitant
in performing our duty to grant petitioners the legal relief to their illegal & unconstitutional
deprivation of personal liberty, because our action may displease the US army or
government, or because the US army stationed in Manila may disregard our decision.
Justice is one of the paramount concerns & ideals of humanity. We cannot believe that
any part of the stationed US army would dare to challenge a final decision of the SC or of
any RP court, that any responsible officer or soldier of that great army will ever commit
an act that may tarnish the record of brilliant & glorious achievements it accomplished in
the battle of the Philippines. That army fought to help us reconquer our freedom from
Japanese slavery & to obtain justice against the criminal invasion of our soil, & we
cannot believe it will ever do anything to obstruct the efficient functioning of our
machinery of justice.
DESPITE U.S. INTEREST. But whether the case has been communicated to
Washington, or the US Government is interested in its outcome, or the US army may
ignore any decision in favor of petitioners, or whatever adverse action may be taken by
the all-powerful US, these are considerations that should not stop us from doing our duty
in the administration of justice. Only by failing to do so may we merit the sneers of
shame, wrath of our people, curse of the present & future generations.
MARTIN CASE. On Feb. 10, 1947, the petition in Martin v. Ramos, was summarily
dismissed, & a unanimous SC said that the CFI of Ilocos Norte has jurisdiction to try
Felipe Martin, a guard in the service of the US Army in Laoag, for killing Pantaleon Tabac
while Martin was in the performance of his official duties as a guard. The petition of Lt.
Walter T. Bartlett to have Martin delivered to the US Army was denied.
MARTIN REVERSED. What is the reason of this change of judicial criterion in 2 month’s
time? There is no valid, legal reason. Tribunals enunciate “falsus in unus, falsus in
omnibus.” By its inconsistency, is not this SC being placed in the quandary of seeing the
logic of that maxim hanging upon it as a sword of Damocles?
WHY ABDICATE? We refuse to believe that the fact that respondent, a US Army officer,
is vigorously opposing the petition, & that his atty hurled a menacing statement, which
has not been met by appropriate action from the SC, has anything to do with the
reversal. But apparently stronger reasons than the inapplicable quotations on IL must be
adduced to allay all suspicion that judicial supremacy is being abdicated in favor of
military omnipotence.
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JUDICIAL DUTY. The petition, besides invoking Constitutional guarantees, is an appeal
to “broadest human sympathies & understanding.” If, according to President Roxas,
judges should respect & apply the law “under all circumstances & never to sacrifice the
same for the sake of expediency,” then there is absolutely no reason why petitioners
should be denied the protection of the law “par excellence,” the supreme law, the
Constitution. Neither the President nor any authority, except the people from whose
sovereignty our powers are derived, may take any hand on how this SC is to administer
justice, but the standard set in the presidential statement is so basically sound that we do
not see any reason why it should not be included in our goals.
HUMAN RIGHTS. The effectiveness of legal & constitutional guarantees of human rights
is in issue. The majority decided to set at naught that effectiveness. If the law can not
afford effective protection to individual rights, where shall we look for that protection?
Since its more primitive stages, human society has been able to exist thanks to law as its
strongest foundation. The binding force of law unified the members of a family under its
head, patriarch or matriarch; grouped families into clans & tribes; created towns & cities;
consolidated nations & federations of states. That binding force is the sovereign talisman
that will weld all humanity into the unity essential for the attainment of the ideal of One
World.
NOW HE INVOKES IL!!! Gloomy premonitions, alarms, fears, & despair shall be
dispelled once we think than eventually all the countries, nations & peoples of the world
will adhere to, abide by, & enforce the principle of singleness of the law as the only
means of ensuring world peace. The UN Charter & the Statute of the ICJ are the first
steps in the right direction. They are laws intended for the majority of the nations of the
earth. We hope that in no distant future will the whole mankind be ruled by the laws
enacted by a single world authority, representing the world’s collective conscience. But to
attain this ideal we must strengthen faith in the law, in its effectiveness, in its vitalizing
social function, in its guarantees of human rights. That faith can not be strengthened by
making of the safeguards of the Constitution a mummery. The petition must be granted &
so we vote.
HAW PIA v. THE CHINA BANKING CORPORATION (April 9, 1948)
Ponente: Feria, J.
QUICK SUMMARY OF THE CASE. Haw Pia mortgaged property to China Banking
Corporation (hereinafter CBC) because she was indebted to it through overdraft. Later,
Japan sequestered CBC and appointed Bank of Taiwan (hereinafter BOT) as liquidator.
She paid BOT and went to court to compel CBC to cancel her mortgage. ISSUE: WON
the liquidation was valid. WON BOT was authorized to accept payment. HELD: YES.
YES. Confiscation is not allowed under the Hague Regulations. There was no
confiscation here but a mere sequestration. Sequestration, along with freezing, blocking
and placing under custody are allowable measures used by the occupying power. Thus,
there was valid tender of payment to BOT which discharged Haw Pia’s obligation. CBC is
ordered to cancel the mortgage and return Haw Pia’s TCT.
IMPORTANT PROVISION IN THIS CASE. Hague Regulations, Section III, on Military
Authority over Hostile Territory is a part of the Hague Convention respecting the laws and
customs of war on land, and is intended to serve as a general rule of conduct for the
belligerents in their relations with each other and with the inhabitants.
IMPORTANT DOCTRINE IN THIS CASE:
[1] belligerent occupant has a right:
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[a] over both public and private property of enemy
[b] to issue currency
[2] definition of the word “enemy.”
[3] occupant may sequester/liquidate enemy banks
[4] liquidation is not confiscation
FACTS. On Sep ’39, Haw Pia secured an overdraft account from CBC up to P8k. As
guaranty, she mortgaged property under TCT. On Jan ’42, BOT was appointed by the
Japanese as liquidator of the “enemy bank” CBC by virtue of Administrative Ordinance
No. 11 (AO 11).
Haw Pia made payments to BOT in Japanese military notes. On Sep ’45, she sued CBC
and BOT to return her title and cancel the mortgage. Her arguments can be summarized
as follows:
[1] the act of liquidation is a confiscation/appropriation of private property which
is violative to Article 46, Section III, Hague Regulations of 1907.
[2] the payment in Japanese war-notes were valid because they were issued
as legal tender at par with the Philippine peso, and guaranteed by Japanese
Government which takes full responsibility for their usage having the correct
amount to back them up
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do not amount to a straight confiscation, as [1] freezing, [2] blocking, [3] placing under
custody, and [4] sequestrating the enemy private property.
MEASURES OF PREVENTION ARE NOT REPUGNANT TO HAGUE REGULATIONS.
This is based on [1] writings of well-known writers on International Law, [2] express
authorization granted under the Army and Navy Manual of Military Government and Civil
Affairs of US and of other civilized countries, and [3] Trading with the Enemy Acts of the
US and other civilized countries.
WELL-KNOWN WRITERS ALLOW MEASURES OF PREVENTION WITHOUT
VIOLATING THE HAGUE REGULATIONS. The following writers were considered:
Hyde in his International Law says that a belligerent occupant “may fairly endeavor to
prevent enemy property of any kind within its territory (or elsewhere within its reach) from
being so employed as to afford direct military aid to its foe. Measures of prevention may,
in a particular case, assume a confiscatory aspect. In such a situation the question may
arise whether those measures are, nevertheless, excusable. It is believed that they may
be, and that they are not invariably unlawful despite the absence of efforts to
compensate the owners.”
Oppenheim in his International Law agrees.

CBC filed a cross complaint because it did not recognize the payments made by her to
BOT.
CFI declared the payments void and ordering her to pay CBC, or else, the property
mortgaged will be sold at public auction.
TWO ISSUES. First, WON the Japanese Military Administration had authority to liquidate
CBC through BOT. Second, WON payments made to BOTin Japanese military notes
discharged Haw Pia from her obligation to CBC.
JAPANESE HAD POWER TO ORDER LIQUIDATION. Because under international law,
the occupying power can effect a liquidation that is in the form of a mere sequestration
(vs. a confiscation/appropriation). Since it was not possible to cover all circumstances
during war, the pertinent provision in Section III, Military Authority over Hostile Territory,
Hague Regulations provides that the principle of international law shall result from the
“… usages established among civilized peoples, from the laws of humanity, and the
dictates of public conscience.” The usage before the Hague Convention in fact allowed
confiscation or appropriation.
Feildchenfeld in his "The International Economic Law of Belligerent Occupation (1942)"
supports the conclusion of Hyde, when he says that "according to Article 46 of the Hague
Regulations, private property must be respected and cannot be confiscated. This rule
affords protection against the loss of property, through outright confiscation, but not
against losses under lawful requisition, contribution, seizure, fines, taxes, and
expropriation"
Martin Domke in his Trading with the Enemy in World War II, says, “freezing Control is
but one phase of the present war effort; it is but one weapon on the total war which is
now being waged on both economic and military fronts.
MANUALS ALLOW MEASURES OF PREVENTION WITHOUT VIOLATING THE
HAGUE REGULATIONS. The United States Army and Navy Manual of Military
Government and Civil Affairs provides that “ in the occupation of such territories for a
considerable period of time, the civil affairs officers will in most cases be concerned with
the following and other activities: … Closing, if necessary and guarding of banks, bank
funds, safe deposit boxes, securities and records; providing interim banking and credit
needs; liquidation; reorganization, and reopening of banks at appropriate times…”

QUALIFICATIONS ON THE PERMISSIBILITY OF CONFISCATION
APPROPRIATION. First, under Article 46, confiscation of private property by order of the
military authorities is prohibited. Second, under Article 47, pillage or stealing and thievery
of private property by individuals is prohibited. Third, under Article 53, cash funds, and
property liable to requisition and all other movable property belonging to the State
susceptible of military use or operation, may be confiscated or taken possession of as a
booty and utilized for the benefit of the invader's government
RATIO FOR THE RULE: PREVENTION. In the effort of occupying powers to control
enemy property within their jurisdiction in order to avoid their use in aid of the enemy and
to increase their own resources, they had to resort to such measures of prevention which
/ TRADING WITH THE ENEMY ACTS ALLOW MEASURES OF PREVENTION
WITHOUT VIOLATING THE HAGUE REGULATIONS. Almost all principal nations since
WW1 confirms that the assets of enemy corporations, specially banks incorporated
under the laws of the country at war with the occupant and doing business in the
occupied territory, may be legally sequestrated, and the business thereof wound up or
liquidated. Such sequestration of properties is merely a conservation (vs. a confiscation).
Section 12 of the US Trading with the Enemy Act provides that "after the end of the war
any claim of enemy or ally of an enemy to any money or other property received and
held by the Alien Custodian or deposited in the United States Treasury, shall be settled
as Congress shall direct.”
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DEFINITION OF “ENEMY” UNDER TRADING WITH ENEMY ACTS. The following acts
by countries provide the definition for an “enemy.” The control-test is used.
[1] Section 2 (1) of the Trading with the Enemy Act of Great Britain – "any body of
persons (whether corporate or incorporate) carrying on business in any place, if and so
long as the body is controlled by a person who, under this section, is an enemy."
[2] Italian Act regards as enemies "legal persons when enemy subject have any
prevalent interests whatever in them."
[3] Section 2-a, Trading with the Enemy Act of the United States – “enemy shall be
deemed to mean any corporation incorporated within such territory of any nation with
which the United States is at war."
[4] French Act regards as enemies, corporations incorporated in conformity with the laws
of an enemy state.
[5] Decree of the Dutch Government-in-exile on June 7, 1940, considers as enemies
legal persons "organized or existing according to or governed by the law of an enemy
state."
[6] The German Act of January 15, 1940, I section 3 (1) 3, deems enemies all
corporations, "the original legal personality of which is based on the laws of an enemy
state."
[7] The Italian Act of 1938, section 5, regards corporations as enemies if they are enemy
of nationality under the law of the enemy state.
[8] Japanese Act, Chapter 1, No. 25, deems enemies "all corporations belonging to
enemy countries."
CBC IS AN ENEMY OF JAPAN. CBC, comes within the meaning of the word "enemy"
as used in the Trading with the Enemy Acts of civilized countries, because [1] it was
controlled by Japan's enemies, [2] incorporated under the laws of a country with which
Japan was at war.
PURPOSE OF SEQUESTRATION. According to the Annual Report of the Office of the
Alien Custodian, “in the absence of effective measures of control, enemy-owned property
can be used to further the interest of the enemy and to impede [the enemy’s] own war
effort. All enemy-controlled assets can be used to finance propaganda, espionage, and
sabotage in this country or in countries friendly to [the enemy’s] cause. They can be used
to acquire stocks of strategic materials and supplies…”
PRESUMPTIONS IN FAVOR OF JAPAN. It should be presumed that Japan, in
sequestrating and liquidating CBC, must have acted in accordance with:
[1] its own Manual of the Army and Navy and Civil Affairs
[2] its own Trading with the Enemy Act;
[3] and even if not, it had the right to sequester and liquidate by virtue of the
international law principle that "what is permitted to one belligerent is also
allowed to the other, especially considering that Japan is permitted by the
Allied Nations, specially the US and England, to sequestrate, impound, and
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block enemy properties found within their own domain or in enemy territories
occupied during the war by their armed forces.
LIQUIDATING WAS NECESSARY. Because with regard to the funds of commercial
banks (vs. private personal properties), it was impossible or impracticable to attain the
purpose for which the freezing, blocking and impounding are intended, without liquidating
the said banks and collecting the loans given by them.
PAYMENT IN JAPANESE MILITARY NOTES DISCHARGED HAW PIA FROM HER
OBLIGATION. Because Japan had power to appoint BOT as liquidator with authority to
make collection under the general power of Japan to sequester and impound the assets
of enemy banks.
Also, payment to BOT was valid because it was authorized to receive payment under
Article 1162, of the Civil code.
JAPAN CAN VALIDLY ISSUE MILITARY CURRENCY. This is evidenced by, first, Article
43 of the Hague Regulations recognizing the occupant's general power to maintain law
and order
Second, the military necessity as shown by the history of the use of money or currency in
wars.As early as the year 1122, during the siege of Tyre, Doge Micheli paid his troops in
leather money which he promised to redeem when he returned to Venice. Moving on to
WW2, the Germans had been using a variety of occupation currencies as legal tenders
on a large scale, the currency initially used in most occupied areas being the
Reichskroditkassa mark.
Third, according to the US case Thorington vs. Smith, it is a necessary consequence
from the actual supremacy of the insurgent government, as a belligerent, within the
territory where it circulated, and from the necessity of civil obedience on the part of all
who remained in it, that this currency must be considered
Fourth, Feilchenfeld in his book "The International Economic Law of Belligerent
Occupation," says that the occupant in exercising his powers in regard to money and
currency, may adopt 3 methods; 1 of which is where the regional currency has become
inadequate and it is deemed inadvisable by the occupant to expose his own currency to
further strain, new types of money may be created by the occupant.
To be noted is the fact that the coverage of the Philippine Treasury Certificate had
become inadequate, for most if not all the said coverage have been taken to the US and
many millions of silver pesos were buried or thrown into the sea near Corregidor, and
Japan did not want to use her national currency, and expose it to additional strains.
 CASES on Sovereign Immunities
REGINA v. BARTLE AND THE COMMISSIONER OF POLICE FOR THE METROPOLIS
AND OTHERS EX PARTE PINOCHET
REGINA v. EVANS AND ANOTHER AND THE COMMISSIONER OF POLICE FOR THE
METROPOLIS AND OTHERS EX PARTE PINOCHET (On Appeal from a Divisional
Court of the Queen's Bench Division) (24 March 1999)
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Origin of Case: When the Government of Spain attempted to extradite Senator Augusto
Pinochet Duarte from UK to stand trial in Spain for crimes committed (primarily in Chile)
during his term as head of state of Chile.
2 Major Issues: 1. whether the Spanish charges constituted "extradition crimes" within
the meaning of the Extradition Act of 1989; and
2. whether Pinochet, as a former head of state, was entitled to
immunity from arrest and prosecution in the UK for crimes committed while he was
Chile’s head of state.
LORD BROWNE-WILKINSON
Summary of his judgment: First, he made an account of the legal principles applicable
to the case. Then he relayed the facts. The 1 st issue pertained to the relevant date, to
determine which of the charges were extraditable and which are not. From a reading of
the Extradition Acts of 1870 and 1989, and its travaux preparatoires, he concluded that
the relevant date is the conduct date. From there, he determined which of the charges
are extraditable and which are not. This was narrowed down to 2 categories: torture and
murder. The 2nd issue was WON Pinochet enjoyed state immunity with respect to these
charges. Lord Wilkinson then discussed the evolution of torture from an element of war
crimes or hostilities, to an international crime on its own. The Torture Convention then
was analysed, and the kind of immunity afforded to a head of state. It was concluded that
Pinochet as a former head of state enjoys immunity ratione materiae, but torture as
defined under the Torture convention cannot be a public function, hence he does not
enjoy immunity with regard to these acts committed after Sept. 29, 1988. He then
concluded with a judgment of allowing the appeal so as to permit the extradition
proceedings only with respect to certain charges of torture, but declared that, since no
one advanced any reason why the ordinary rules of immunity should not apply to murder
and conspiracy to murder charges, Pinochet is entitled to such immunity.
OUTLINE OF THE LAW
In general, a state only exercises criminal jurisdiction over offences which occur within its
geographical boundaries. If a person who is alleged to have committed a crime in Spain
is found in the UK, Spain can apply to the UK to extradite him to Spain. The power to
extradite from the UK for an "extradition crime" is now contained in the Extradition
Act 1989.4
THE DOUBLE CRIMINALITY RULE -most important requirement in this case, whereby
the conduct complained of must constitute a crime under the law both of Spain
and of the UK.
Since the Nazi atrocities and the Nuremberg trials, IL has recognised a number of
offences as being international crimes. Individual states have taken jurisdiction to try
some international crimes even in cases where such crimes were not committed within
the geographical boundaries of such states. The most important of such international
crimes for present purposes is torture which is regulated by the International Convention
Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, 1984.
The obligations placed on the UK by that Convention (and on the other 110 or more
signatory states who have adopted the Convention) were incorporated into the law of the
UK on Sept. 29, 1988. As required by the Torture Convention "all" torture wherever
committed world-wide was made criminal under UK law and triable in the UK.
4
defines what constitutes an “extradition crime", and which will be referred to as the
“extradition act” or “ the Act” or “Act of 1989”
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Remember:
• Torture became a crime in UK on Sept. 29, 1988 under the Criminal Justice Act
of 1988, Sec. 134.
• Principle of double criminality requires the act to be a crime both under the laws
of UK and Spain.
THE FACTS
COUP ON 11 September 1973- a right-wing coup evicted the left-wing regime of
President Allende. The coup was led by a military junta, of whom then General Pinochet
was the leader. At some stage he became head of state.
THE PINOCHET REGIME -September 11, 1973-March 11, 19905
NO DISPUTE ON ACTS OF BARBARISM DURING PINOCHET’S REGIME: -committed
in Chile and elsewhere in the world: torture, murder and the unexplained disappearance
of individuals, all on a large scale. Although it is not alleged that Pinochet himself
committed any of those acts, it is alleged that they were done in pursuance of a
conspiracy to which he was a party, at his instigation and with his knowledge. He denies
these allegations. None of the conduct alleged was committed by or against citizens of
the UK or in the UK
PINOCHET GOES TO UK IN 1998 for medical treatment. The judicial authorities in
Spain sought to extradite him in order to stand trial in Spain on a large number of
charges. Some of those charges had links with Spain. But most of the charges had no
connection with Spain. Senator Pinochet is seen as an arch-devil by those of left-wing
political convictions and a saviour of Chile by those of right-wing political convictions.
TASK OF THE HOUSE: to decide on 2 questions of law:
1. are there any extradition crimes; and,
2. if so, is Pinochet immune from trial for committing those crimes.
If there are no extradition crimes, then there is no legal right to extradite Pinochet to
Spain, or stand in his way to return to Chile.
If there are extradition crimes in relation to which Senator Pinochet is not entitled to state
immunity then it will be open to the Home Secretary to extradite him.
Sequence of events from the 1st warrant to the appeal to this House:
16 October 1998 -an international warrant for the arrest of Pinochet was issued in
Spain.
-a magistrate in London issued a provisional warrant ("the 1 st warrant") under Sec. 8
of the Extradition Act 1989.
17 October 1998 -He was arrested in a London hospital on.
18 October 1998 -the Spanish authorities issued a 2nd international warrant.
22 October 1998 -A further provisional warrant ("the second warrant") was issued by the
magistrate at Bow Street Magistrates Court, accusing Senator Pinochet of:
"(1) Between 1 January 1988 and December 1992 being a public official
intentionally inflicted severe pain or suffering on another in the performance or purported
performance of his official duties;
5
When Pinochet resigned
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(2) Between the 1 January 1988 and 31 December 1992 being a public official,
conspired with persons unknown to intentionally inflict severe pain or suffering on
another in the performance or purported performance of his official duties;
(3) Between the 1 January 1982 and 31 January 1992 he detained other persons
(the hostages) and in order to compel such persons to do or to abstain from doing any
act threatened to kill, injure or continue to detain the hostages;
(4) Between the 1 January 1982 and 31 January 1992 conspired with persons
unknown to detain other persons (the hostages) and in order to compel such persons to
do or to abstain from doing any act, threatened to kill, injure or continue to detain the
hostages;
(5) Between January 1976 and December 1992 conspired together with persons
unknown to commit murder in a Convention country."
PINOCHET’S DEFENSE:
-Filed for habeas corpus and leave to move for judicial review of both warrants.
-Arguments:
1. that certain crimes alleged were not “extradition crimes” within the
meaning of the Extradition act because they were not crimes under the UK law when
they were committed.
2. although torture was contrary to IL it was not strictly an international crime
in the highest sense6.
-Other Arguments:7
1. that if the Torture Convention sought to remove immunity ratione
materiae for torture, then there would be some discussion on that during the negotiations
leading to the treaty.
2. (Chile’s) That though the use of torture by state authorities was prohibited
by IL, with the character of jus cogens or obligation erga omnes, this does not confer
universal jurisdiction or affect the immunity of a former head of state ratione materiae
from the jurisdiction of foreign national courts.
3. (Pinochet & Chile) Sec. 20 of the State Immunity Act as amended entitles
Pinochet to immunity in respect of any acts committed in the performance of his
functions as head of state anywhere in the world, and that the conduct which forms the
subject matter of the extradition proceedings, insofar as it occurred when Senator
Pinochet was head of state, consisted of acts committed by him in performance of his
functions as head of state.
DIVISIONAL COURT on 28 October 19988 quashed both warrants. The 2nd warrant
was quashed on the grounds that Pinochet, as former head of state, was entitled to state
immunity. The Lord Chief Justice held that, in order to be an extradition crime, it was not
necessary that the conduct should be criminal at the date of the conduct relied upon but
only at the date of request for extradition.9
6 Pinochet under Spanish law, save that the genocide charges are omitted. The charges in
suggested by Ms. Montgomery for Senator Pinochet
7
discussed in the other opinions
8
Hereinafter referred to as “DC” -Lord Bingham of Cornhill C.J., Collins and Richards JJ.
9 imprisonment or more. Otherwise section 2(1)(a) would have referred to conduct which
"I would however add on the retrospectivity point that the conduct alleged against the
subject of the request need not in my judgment have been criminal here at the time the
alleged crime was committed abroad. There is nothing in section 2 which so provides.
What is necessary is that at the time of the extradition request the offence should be a
criminal offence here and that it should then be punishable with 12 months
21
SPAIN FORMALLY REQUESTS FOR EXTRADITION- 4 November 1998-This formal
request greatly expanded the list of crimes alleged in the 2nd provisional warrant so as to
allege a widespread conspiracy to take over the Government of Chile by a coup and
thereafter to reduce the country to submission by committing genocide, murder, torture
and the taking of hostages, such conduct taking place primarily in Chile but also
elsewhere.
SPAIN APPEALS: The Crown Prosecution Service (CPS), on behalf of the Government
of Spain appealed to this House. Though the 1st warrant’s quashal was not appealed.
DC CERTIFIES THE POINT OF LAW OF GENERAL IMPORTANCE: “The proper
interpretation and scope of the immunity enjoyed by a former head of state from arrest
and extradition proceedings in the United Kingdom in respect of acts committed while he
was head of state."
1ST HEARING OF THE APPEAL IN THE HOUSE-between November 4 and 12, 1998-
The Committee heard submissions by counsel for the CPS as appellants (on behalf of
Spain), Senator Pinochet, Amnesty International as interveners and an independent
amicus curiae. Written submissions were also entertained from Human Rights Watch.
That Committee entertained argument based on the extended scope of the case as put
forward in the Request for Extradition. It was conceded that all matters charged against
Senator Pinochet were extradition crimes.
APPEAL WAS ALLOWED IN THE JUDGMENT-25 November 1998 appeal was allowed
by a majority10 on the grounds that Senator Pinochet was not entitled to immunity in
relation to crimes under IL.
NOVEMBER JUDGMENT SET ASIDE ON 15 January 1999 on the grounds that the
Committee was not properly constituted:
REHEARING OF THE APPEAL ON 18 January 1999 –Positions changed again.
1. the Home Secretary had issued to the magistrate authority to proceed under Sec.
7 of the Extradition Act. In deciding to permit the extradition to Spain to go ahead he
relied in part on the decision of this House at the first hearing that Senator Pinochet was
not entitled to immunity. He did not authorise the extradition proceedings to go ahead on
the charge of genocide: accordingly no further arguments were addressed to us on the
charge of genocide which has dropped out of the case.
2. the Republic of Chile applied to intervene as a party. Up to this point Chile had
been urging that immunity should be afforded to Senator Pinochet, but it now wished to
be joined as a party. Any immunity precluding criminal charges against Senator Pinochet
is the immunity not of Senator Pinochet but of the Republic of Chile. Leave to intervene
was therefore given to the Republic of Chile. The same amicus, Mr. Lloyd Jones, was
heard as at the first hearing as were counsel for Amnesty International. Written
representations were again put in on behalf of Human Rights Watch.
3. the ambit of the charges against Pinochet had widened again. Chile had put in
further particulars of the charges which they wished to advance. In order to try to bring
some order to the proceedings, Mr. Alun Jones Q.C., for the CPS, prepared a schedule
of the 32 UK criminal charges which correspond to the allegations made against
that schedule are fully analysed and considered in the speech of my noble and learned
friend, Lord Hope of Craighead who summarises the charges as follows:
would at the relevant time 'have constituted' an offence and section 2(3)(c) would have said
'would have constituted'. I therefore reject this argument."
10
Lord Nicholls of Birkenhead, Lord Steyn and Lord Hoffmann, Lord Slynn of Hadley and
Lord Lloyd of Berwick dissenting
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EXTRADITION CRIMES
Charge # Conduct charged Date of conduct11 -From Lord Wilkinson’s understanding (from the 1 st hearing), the CPS did not seek to rely
(between or on) on any conduct of Senator Pinochet occurring before Sept. 11, 1973 (the date on which
1, 2 & 5 conspiracy to torture Jan. 1, 1972 & Sept. 20, the coup occurred) or after March 11, 1990 (the date when Pinochet retired as head of
1973 and state).
Aug. 1, 1973 & Jan. 1,
1990 -If Pinochet was entitled to state immunity, then such immunity covered the whole period
3 conspiracy to take hostages Aug. 1, 1973 & Jan. 1, of the alleged crimes.
1990
-at the 2nd hearing however, the CPS extended the period during which the crimes were
4 conspiracy to torture in furtherance of which Jan. 1, 1972 & Jan. 1, said to have been committed.14 Hence, Pinochet’s counsel revived the argument that
murder was committed in various countries 1990 certain charges, particularly those relating to torture and conspiracy to torture were not
including Italy, France, Spain and Portugal, “extradition crimes” because they were not crimes under the UK law at the time they
6&8 torture Aug. 1, 1973 & Aug. 8 were committed.
1973 and -This point could no longer be confined to the period before Pinochet became
on Sept. 11, 1973 head of state.
9 & 12 conspiracy to murder in Spain Jan. 1, 1975 & Dec. 31, -If the DCR requires the conduct to be a crime under the law of UK at the time
1976 it was committed, then any charge based on torture or conspiracy to torture occurring
before September 29, 1988 could not be an "extradition crime" and therefore could not in
conspiracy to commit murder in Italy on Oct. 6, 1975 any event found an extradition order against Pinochet.
10 & 11 attempted murder in Italy on Oct. 6, 1975
13-29; & torture on various occasions Sept. 11, 1973 & May Extradition Act of 1989
31-32 1977 Sections 1 and 2
30 torture on June 24, 1989 Sec. 1(1) says that a person who is accused of an "extradition crime" may be arrested
and returned to the state which has requested extradition.
1st ISSUE:12 What does the Double Criminality Rule (DCR) require? For the act to
be a crime under both laws Sec. 2 defines "extradition crime" so far as relevant as follows:
1. at the date it was committed (conduct date)? or 1. In this Act, except in Schedule 1, 'extradition crime' means -
2. act to be a crime under both laws at the date of extradition (request (a) conduct in the territory of a foreign state, a designated Commonwealth
date)? country or a colony which, if it occurred in the UK, would constitute an offence
punishable with imprisonment for a term of 12 months, or any greater punishment, and
Coz if only at the date of extradition, then the DCR was satisfied even if the acts took which, however described in the law of the foreign state, Commonwealth country or
place before 1988. The Spanish courts have held that they have jurisdiction over all the colony, is so punishable under that law;
crimes alleged. (b) an extra-territorial offence against the law of a foreign state, designated
To answer the question, it must be determined whether or not the definition of an Commonwealth country or colony which is punishable under that law with imprisonment
"extradition crime" in the Act of 1989 requires the conduct to be criminal under UK law at for a term of 12 months, or any greater punishment, and which satisfies -
the date of commission (conduct date) or only at the date of extradition (request i. the condition specified in subsection (2) below; or
date). 13 ii. all the conditions specified in subsection (3) below.

2. The condition mentioned in subsection (1)(b)(i) above is that in corresponding

11
If dates are (for ex.) Jan. 1, 1972 & Jan 1, 1973, read as: “between Jan. 1, 1972 & Jan. 1, circumstances equivalent conduct would constitute an extra-territorial offence against the
1973” law of the UK punishable with imprisonment for a term of 12 months, or any greater
12 punishment.
Answer is conduct date
13
Lord Browne-Wilkinson’s view: 3. The conditions mentioned in subsection (1)(b)(ii) above are -
1. only a limited number of the charges relied upon to extradite Senator Pinochet
constitute extradition crimes since most occurred long before 1988. an extradition crime and would enable the Home Secretary (if he thought fit) to
2. torture committed outside the UK before 29 September 1988 was not a crime extradite Senator Pinochet to Spain unless he is entitled to state immunity.
under UK law. 14
for example, see charges 1 and 4 where the conspiracies are said to have started on 1
3. Question of state immunity remains a point of crucial importance since, there is January 1972, i.e. at a time before Pinochet was head of state and therefore could be entitled
certain conduct of Senator Pinochet (albeit a small amount) which does constitute to immunity.
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(a) that the foreign state, Commonwealth country or colony bases its of the Act: conduct must be criminal under UK law at
jurisdiction on the nationality of the offender; Sec. 7(2)(b) -requires the extra-dition the conduct date and not only at the
(b) that the conduct constituting the offence occurred outside the UK; and request to be accompanied by evidence request date.
(c) that, if it occurred in the UK, it would constitute an offence under the sufficient to justify arrest
law of the UK punishable with imprisonment for a term of 12 months, or any greater -The whole process of arrest and
punishment." Sec. 7(5) -The Secretary of State then committal leads to a position where under
issues his authority to proceed which has to section 9(8) the magistrate has to be
specify the offences under UK law which satisfied that, under the UK law, if the
Q is: whether the references to conduct "which, if it occurred in the UK, would constitute
"would be constituted by equivalent conduct conduct "had occurred" the evidence was
an offence"15 refer to:
in the UK" sufficient to warrant his trial-which is a
1. a hypothetical occurrence which took place at the date of the request for
clear reference to the position of “conduct
extradition ("the request date"); or
Sec. 8(3) - the magistrate is given date”.
2. the date of the actual conduct ("the conduct date").
power to issue a warrant of arrest if he is
supplied with such evidence "as would in -Moreover, it is compelling that the
Request date v. Conduct date
his opinion justify the issue of a warrant for evidence which the magistrate has to
DC Lord Chief Request date
the arrest of a person accused" consider has to be sufficient "to warrant
Justice
his trial". Here what is under consideration
Lord Lloyd16 Agreed with the DC Lord CJ in the 1st hearing
Sec. 9(8) -The committal court then is not an abstract concept whether a
Lord Browne- -The words "if it occurred . . . would constitute" in Sec. 2 can be has to consider, amongst other things, hypothetical case is criminal but of a hard
Wilkinson interpreted in 2 ways if read in isolation: whether "the evidence would be sufficient to practical matter--would this case in
1. refer to the request date (hypothetical event happening warrant his trial if the extradition crime had relation to this defendant be properly
now); or taken place within jurisdiction of the court" committed for trial if the conduct in
2. to the conduct date (a past hypothetical event) question had happened in the UK? The
answer to that question must be "no"
-The right construction is not clear. The word "it" in the phrase "if it unless at that date the conduct was
occurred . . ." is a reference back to the actual conduct of the criminal under the law of the UK.
individual abroad which, by definition, is a past event. Hence, what
is relevant is WON that “past event” constitute an offense under the law
2nd type of extradition
of UK at the time the offense was committed.
-where extradition is sought by a foreign state which, like Spain, is a party to the
European Extradition Convention.
-THE RELEVANT DATE is THE CONDUCT DATE. It is not correct to
Requirements in this type are the same as -this provides no ground for distinguishing
construe these words in isolation and the submissions strongly indicate
those in the 1st type except that the Convention cases from the first class of
the relevant date to be the conduct date.
requesting state does not have to present case.
evidence to provide the basis on which the
-The Starting point is the Extradition Act of 1989 which has 3 types of
magistrate can make his order to commit. -The double criminality requirement must
extradition
The requesting state merely supplies the be the same in both classes of case.
information.
EXTRADITION ACT OF 1989
3 types of extradition and Lord Browne-Wilkinson’s judgment on it 3rd type of extradition
type of extradition Lord Browne Wilkinson consists of those cases where there is an Order in Council in force under the Extradition
1st type of extradition Act 1870
-extradition to a Commonwealth country, to a colony or to a foreign country which is not a -This type is regulated by Schedule I to the
party to the European Convention on Extradition. Act, which contains, in effect, the relevant
This class of case is Regulated by Part III -these provisions clearly indicate that the provisions of the Act of 1870, which subject
to substantial amendments had been in
15 force down to the passing of the Act of
In Secs. 2(1)(a) and (3)(c)
16 1989.
who was the only member of the Committee to express a view on this point at the first
hearing: He said: "But I agree with the DC that this argument is bad. It involves a -The scheme of the Act of 1870 was to
misunderstanding of Sec. 2 of the Extradition Act 1989. Section 2(1)(a) refers to conduct define "extradition crime" as meaning "a
which would constitute an offence in the UK now. It does not refer to conduct which crime which, if committed in England . . .
would have constituted an offence then."
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would be one of the crimes described in 2. 4- conspiracy to torture
the 1st schedule to this Act" (sec. 26) 3. 30- single act of torture
-The 1st schedule to the Act of 1870 4. 9-conspiracy to murder in Spain
contains a list of crimes and is headed: 5. Such conspiracies in Spain to commit murder in Spain
"The following list of crimes is to be -It is therefore quite clear from the words 6. Such conspiracies in Spain prior to Sept. 29, 1988, to commit acts of
construed according to the law existing in emphasised that under the Act of 1870 the torture in Spain (part of Charge 4)
England . . . at the date of the alleged DCR required the conduct to be criminal 2nd ISSUE: WON PINOCHET ENJOYS SOVEREIGN IMMUNITY IN RELATION TO
crime, whether by common law or by under English law at the conduct date, THESE 2 SURVIVING CATEGORIES OF CHARGE: TORTURE AND MURDER
statute made before or after the passing of not at the request date. MODERN LAW OF TORTURE
this Act." -Apart from the law of piracy, the concept of personal liability under IL for international
crimes is of comparatively modern growth.
-Act of 1989, Schedule 1, par. 20: -The traditional subjects of IL are states, not human beings.
"'extradition crime', in relation to any -After the war crime trials after the 1939-45 WW, the international community
foreign state, is to be construed by -Hence, in this 3rd type, regulated by came to recognise that there could be criminal liability under IL for a class of crimes such
reference to the Order in Council under Schedule 1, the same position applies as as war crimes and crimes against humanity.
Sec. 2 of the Extradition Act 1870 applying it formerly did under the Act of 1870, i.e. -Doubts as to the legality of the Charter of the Nuremberg Tribunal, in my judgment, were
to that state as it had effect immediately the conduct date. stilled by the Affirmation of the Principles of International Law recognised by the Charter
before the coming into force of this Act and of Nuremberg Tribunal adopted by the United Nations General Assembly on 11
to any amendments thereafter made to that -It would be extraordinary for one Act to December 1946. That Affirmation affirmed the principles of IL recognised by the Charter
Order;" require different dates for different types of of the Nuremberg Tribunal and the judgment of the Tribunal and directed the Committee
extradition on the codification of IL to treat as a matter of primary importance plans for the
formulation of the principles recognised in the Charter of the Nuremberg Tribunal.
-a trawl of the travaux preparatoires
relating to the Extradition Convention and -At least from that date onwards the concept of personal liability for a crime in IL must
the departmental papers leading to the Act have been part of IL.
of 1989 show that they were silent as to
the relevant date and that there was no -TORTURE FROM BEING LINKED TO WAR OR HOSTILITIES TO AN
discussion as to changing the date on INTERNATIONAL CRIME ON ITS OWN. –In the early years, state torture was one of the
which criminality under English law was to elements of war crime, hence, torture and various other crimes against humanity, were
be demonstrated. linked to war or at least to hostilities of some kind.
-In the course of time, this linkage with war fell away and torture became an
-It seems impossible that the legislature international crime on its own17
would have intended to change the
relevant date it had applied for over a -THE IL PROHIBITING TORTURE HAS THE CHARACTER OF JUS COGENS OR A
hundred years (under the Act of 1870) by PEREMPTORY NORM, i.e. one of those rules of IL which have a particular status. This
a side wind and without investigation. was accepted by the Republic of Chile.
"Because of the importance of the values it protects, [the prohibition of torture]
has evolved into a peremptory norm or jus cogens, that is, a norm that
THE CHARGES WHICH ALLEGE EXTRADITION CRIMES
enjoys a higher rank in the international hierarchy than treaty law and even
-Lord Hope’s speech considered the consequences of requiring torture to be a crime
'ordinary' customary rules. The most conspicuous consequence of this higher
under UK law at the conduct date, hence
rank is that the principle at issue cannot be derogated from by states through
-Charges which are not extraditable:
international treaties or local or special customs or even general customary rules
1. the charges of torture and conspiracy to torture relating to conduct
not endowed with the same normative force. . . . Clearly, the jus cogens nature of
before Sept. 29, 1988 are not extraditable,
the prohibition against torture articulates the notion that the prohibition has now
2. Charge 3-conspiracy to take hostages, does not disclose any offense
under the Taking of Hostages Act of 1982. Sec. 1 of the law consists of taking and
detaining a person (the hostage), so as to compel someone who is not the hostage to do 17
see Oppenheim's International Law (Jennings and Watts edition) vol. 1, 996; note 6 to
or abstain from doing some act. The charge alleges that the hostages was to be forced
Article 18 of the I.L.C. Draft Code of Crimes Against Peace; Prosecutor v. Furundzija
to do something by reason of threats to injure non-hostages-which is the exact converse
Tribunal for Former Yugoslavia, Case No. 17-95-17/1-T. Ever since 1945, torture on a large
of the offense, hence not an extradition crime.
-Charges which are the only extradition crimes: scale has featured as one of the crimes against humanity: see, for example, U.N. General
1. 2- conspiracy to torture Assembly Resolutions 3059, 3452 and 3453 passed in 1973 and 1975; Statutes of the
International Criminal Tribunals for former Yugoslavia (Article 5) and Rwanda (Article 3).
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 * bok * cj * tiff * gem * tin *
become one of the most fundamental standards of the international community.
Furthermore, this prohibition is designed to produce a deterrent effect, in that it
signals to all members of the international community and the individuals over
whom they wield authority that the prohibition of torture is an absolute value from
which nobody must deviate."18
-UNIVERSAL JURISDICTION OVER TORTURE IS JUSTIFIED BY ITS JUS
COGENS NATURE -IL provides that offences jus cogens may be punished by any
state because the offenders are "common enemies of all mankind and all nations have
an equal interest in their apprehension and prosecution"19
-STATE TORTURE WAS AN INTERNATIONAL CRIME IN THE HIGHEST SENSE, long
before the Torture Convention of 1984 (in light of the authorities)
-But there was no tribunal or court to punish international crimes of torture. Local courts
could take jurisdiction20
-But the objective was to ensure a general jurisdiction so that the torturer was not
safe wherever he went. For example, in this case it is alleged that during the Pinochet
regime torture was an official, although unacknowledged, weapon of government and
that, when the regime was about to end, it passed legislation designed to afford an
amnesty to those who had engaged in institutionalised torture. If these allegations are
true, the fact that the local court had jurisdiction to deal with the international crime of
torture was nothing to the point so long as the totalitarian regime remained in power: a
totalitarian regime will not permit adjudication by its own courts on its own shortcomings.
Hence the demand for some international machinery to repress state torture which is not
dependent upon the local courts where the torture was committed.
The Torture Convention of 1984
Over 110 states (including Chile, Spain and UK) became state parties to the Torture
Convention. But it is far from clear that none of them practised state torture. What was
needed therefore was an international system which could punish those who were guilty of
torture and which did not permit the evasion of punishment by the torturer moving from one
state to another. The Torture Convention was agreed not in order to create an international
crime which had not previously existed but to provide an international system under which
the international criminal-the torturer -could find no safe haven.21
Art. 1 defines torture as the intentional infliction of severe pain and of suffering
with a view to achieving a wide range of purposes "when such pain or
suffering is inflicted by or at the instigation of or with the consent or
acquiescence of a public official or other person acting in an official
capacity."
18
The Tribunal in Furundzija at para. 153
19
Demjanjuk v. Petrovsky (1985) 603 F. Supp. 1468; 776 F. 2d. 571.
20
:see Demjanjuk (supra); Attorney-General of Israel v. Eichmann (1962) 36 I.L.R.S.
21
Burgers and Danelius (respectively the chairman of the UN Working Group on the 1984
Torture Convention and the draftsmen of its first draft) say, at p. 131, that it was "an
essential purpose [of the Convention] to ensure that a torturer does not escape the
consequences of his act by going to another country."
25
Art. 2 (1) Each state party shall take effective legislative, administrative, judicial
or other measures to prevent acts of torture in any territory under its
jurisdiction.
(2) No exceptional circumstances whatsoever, whether a state of war or
a threat of war, internal political instability or any other public emergency,
may be invoked as a justification of torture.
(3) outlaws any defence of superior orders
Art. 3 precludes refoulement of persons to another state where there are
substantial grounds for believing that he would be in danger of being
subjected to torture
Art. 4 requires each state party to ensure that "all" acts of torture are offences
under its criminal law
Art. 5 (1) each state party has to establish its jurisdiction over torture
(jurisdiction) (a) when committed within territory under its jurisdiction
(b) when the alleged offender is a national of that state, and
(c) in certain circumstances, when the victim is a national of that
state.
(2) a state party has to take jurisdiction over any alleged offender who is
found within its territory.
Art. 6 contains provisions for a state in whose territory an alleged torturer is
found to detain him, inquire into the position and notify the states referred
to in Art. 5(1) and to indicate whether it intends to exercise jurisdiction
Art. 7 (1) The state party in territory under whose jurisdiction a person alleged
(exercise of to have committed any offence referred to in Article 4 is found, shall in
jurisdiction) the cases contemplated in Article 5, if it does not extradite him, submit
the case to its competent authorities for the purpose of prosecution.
Art. 8 (1) torture is to be treated as an extraditable offence
(4) torture shall, for the purposes of extradition, be treated as having
been committed not only in the place where it occurred but also in the
state mentioned in Art. 5(1)
Universal -There was argument on the extent of jurisdiction to prosecute torturers
Jurisdiction conferred on states other than those mentioned in Art. 5(1), I think it is
enough that it is clear that in all circumstances, if the Art. 5(1) states do
not choose to seek extradition or to prosecute the offender, other states
must do so.
-PURPOSE OF THE CONVENTION -to introduce the principle aut
dedere aut punire--either you extradite or you punish.
-NO MORE OBJECTIONS TO THE AUT DEDERE AUT PUNIRE
PRINCIPLE. Some states wished to make the exercise of jurisdiction in
Art. 5(2) dependent upon the state assuming jurisdiction having refused
extradition to an Art. 5(1) state. The objections were withdrawn in the
session of 1984: "The inclusion of universal jurisdiction in the draft
Convention was no longer opposed by any delegation.” 22 If there is no
22
Working Group on the Draft Convention U.N. Doc. E/CN. 4/1984/72, para. 26
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prosecution by, or extradition to, an Art. 5(1) state, the state where the
alleged offender is found (which will have already taken him into custody 2 kinds of immunities:
under Art. 6) must exercise the jurisdiction under Art. 5(2) by prosecuting RATIONE PERSONAE RATIONE MATERIAE24
him under Art. 7(1). Of the Ambassador Under the Vienna
Convention
1. WON the acts of the head of state are done by “a public official or a person Immunity of Head of state:
acting in an official capacity” within the meaning of Art. 1 (yes) - State immunity probably grew from the historical immunity of the person of the monarch.
-this is also the question which arises under Sec. 134 of the Criminal Justice In any event, such personal immunity of the head of state persists to the present day: the
Act of 1988 head of state is entitled to the same immunity as the state itself.
Immunity of Ambassadors
Views on WON a head of state is a public official or acting in official capacity The Vienna Convention on Diplomatic Relations, 196125 covers the immunity of the
Republic of accepted that the acts alleged against Senator Pinochet, if proved, Ambassador. It provides that:
Chile and were acts done by a public official or person acting in an official • the Ambassador shall enjoy his immunity and privileges from the
Senator capacity within the meaning of Art. 1. moment he takes up post.
Pinochet (during • After his post is over, he shall still enjoy these privileges and immunity
the argument) until he leaves the country or on expiry of a reasonable period in
Lord Slynn, (in held that a head of state was neither a public official nor a person which to do so, but shall subsist until that time, even in case of armed
his judg-ment in acting in an official capacity within the meaning of Art. 1: he pointed conflict.
the 1st hearing) out that there are a number of international conventions23 which refer
specifically to heads of state when they intend to render them liable. • He shall continue to enjoy immunity with respect to acts performed in
the exercise of his functions (Art. 39(2);limited immunity; ratione
Lord Lloyd thought that a head of state who was a torturer could be prosecuted materiae).
in his own country, a view which could not be correct unless such
head of state had conducted himself as a public official or in an -Basic Principle Of IL that one sovereign -the immunities and privileges the
official capacity. state (the forum state) does not adjudicate Ambassador enjoyed ceases the moment
Lord Browne- -Unless a head of state authorising or promoting torture is an official on the conduct of a foreign state. he leaves the country after his post.
Wilkinson or acting in an official capacity within Art. 1, then he would not be However in order to preserve the integrity
guilty of the international crime of torture even within his own state. of the activities of the foreign state during
-That would run completely contrary to the intention of the the period when he was ambassador, it is
Convention if there was anybody who could be exempt from guilt. necessary to provide that immunity is
-Senator Pinochet plainly falls within the definition in Art. 1 afforded to his official acts during his
tenure in post. If this were not done the
IMPORTANT POINTS FROM THE TORTURE CONVENTION: sovereign immunity of the state could be
1) Torture within the meaning of the Convention can only be committed by "a public evaded by calling in question acts done
official or other person acting in an official capacity", but these words include a head of during the previous ambassador's time.
state. A single act of official torture is "torture" within the Convention;
2) Superior orders provide no defence; -The foreign state is entitled to procedural -This continuing partial immunity is
3) If the states with the most obvious jurisdiction (the Art. 5(1) states) do not seek to immunity from the processes of the forum different from that enjoyed ratione
extradite, the state where the alleged torturer is found must prosecute or, apparently, 24
extradite to another country, i.e. there is universal jurisdiction. immunity by reason of the subject-matter; attaches to the official acts of every acting or
4) There is no express provision dealing with state immunity of heads of state, former State organ
ambassadors or other officials. 25
Art. 29- immunity from arrest
5) Since Chile, Spain and the United Kingdom are all parties to the Convention, they Art. 31- immunity from criminal and civil jurisdiction
are bound under treaty by its provisions whether or not such provisions would apply in
Art. 39 (1)- the ambassador's privileges shall be enjoyed from the moment he takes up
the absence of treaty obligation. Chile ratified the Convention with effect from 30 October
post
1988 and the United Kingdom with effect from 8 December 1988.
(2) “When the functions of a person enjoying privileges and immunities have
2. The crucial question is WON Pinochet enjoys immunity. (Yes, immunity ratione come to an end, such privileges and immunities shall normally cease at the moment when he
materiae) leaves the country, or on expiry of a reasonable period in which to do so, but shall subsist
until that time, even in case of armed conflict. However, with respect to acts performed by
such a person in the exercise of his functions as a member of the mission, immunity shall
23
for example the Yugoslav War Crimes Statute and the Rwanda War Crimes Statute continue to subsist."
Always will B
 * bok * cj * tiff * gem * tin * 27
state. personae while he was still in post. -PARLIAMENTARY HISTORY DISCLOSES NO CLEAR INDICATION OF WHAT
-This immunity extends to both criminal and WAS INTENDED. The original section read: “a sovereign or other head of state who is in
civil liability. the UK at the invitation or with the consent of the Government of the UK." –this would
have been intelligible but it was amended because the mover (of the amendment) said
-The head of state is entitled to the same -Since he no longer represents his state, that the clause as introduced "leaves an unsatisfactory doubt about the position of heads
immunity as the state itself. he merits no particular privileges or of state who are not in the UK”; that the amendment was to ensure that heads of state
-The diplomatic representative of the immunities as a person. would be treated like heads of diplomatic missions "irrespective of presence in the UK."
foreign state in the forum state is also
afforded the same immunity in recognition -But this does not matter since Parliament cannot have intended to give heads of
of the dignity of the state which he state and former heads of state greater rights than they already enjoyed under IL.
represents. Accordingly, "the necessary modifications" which need to be made will produce the
result that a former head of state has immunity in relation to acts done as part of
-Immunity is ratione personae, attaching -Accordingly under Article 39(2) the his official functions when head of state.
to the person of the head of state or ambassador, like any other official of the
ambassador and is a complete immunity, state, enjoys immunity in relation to his CONCLUSION: PINOCHET, AS FORMER HEAD OF STATE ENJOYS IMMUNITY
rendering him immune from all actions or official acts done while he was an official. RATIONE MATERIAE
prosecutions whether or not they relate to This limited immunity, ratione materiae, is
matters done for the benefit of the state. to be contrasted with the former immunity 3. WON the alleged organisation of state torture by Pinochet (if proved) would
ratione personae which gave complete constitute an act committed by Pinochet as part of his official functions as head of
immunity to all activities whether public or state.
private.
-COMMON LAW AFFORDS A FORMER HEAD OF STATE THE SAME RATIONE -STATE IMMUNITY OF CONSIDERABLE GENERAL IMPORTANCE
MATERIAE. He too loses immunity ratione personae on ceasing to be head of state.26 INTERNATIONALLY since, if Senator Pinochet is not entitled to immunity in relation to
-THE STATE IMMUNITY ACT 197827 PART III, SEC: 20(1)(a) POSES A PROBLEM: the acts of torture alleged to have occurred after Sept. 29. 1988, it will be the first time so
1. Subject to the provisions of this section and to any necessary modifications, the far as counsel have discovered when a local domestic court has refused to afford
Diplomatic Privileges Act 1964 shall apply to- immunity to a head of state or former head of state on the grounds that there can be no
(a) a sovereign or other head of state; immunity against prosecution for certain international crimes.
(b) members of his family forming part of his household; and
(c) his private servants, -THE ISSUE is whether IL grants state immunity in relation to the international crime of
as it applies to the head of a diplomatic mission, to members of his family forming torture and, if so, whether the Republic of Chile is entitled to claim such immunity even
part of his household and to his private servants." though Chile, Spain and the UK are all parties to the Torture Convention and therefore
"contractually" bound to give effect to its provisions from Dec. 8, 1988 at the latest.
-The correct way in which to apply Art. 39(2) of the Vienna Convention to a former
head of state is baffling.28 -It is not enough to say that crimes cannot be part of a head of state’s functions because
there may be actions, which though criminal under the local law, were done officially as
to give rise to immunity ratione materiae. Can it be said that the commission of a crime
which is an international crime against humanity and jus cogens, is an act done in an
26
Watts The Legal Position in International Law of Heads of States, Heads of Government official capacity on behalf of the state?
and Foreign Ministers p. 88 and the cases there cited. He can be sued on his private
obligations: Ex-King Farouk of Egypt v. Christian Dior (1957) 24 I.L.R. 228; Jimenez v. Sir Arthur Watt’s view and Lord Wilkinson’s opinion on his view:
Aristeguieta (1962) 311 F. 2d 547. As ex head of state he cannot be sued in respect of acts Sir Arthur Watt Lord Browne-Wilkinson
performed whilst head of state in his public capacity: Hatch v. Baez [1876] 7 Hun. 596. Implementation of torture as defined by the torture -there is strong ground for this view
Thus, at common law, the position of the former ambassador and the former head of state convention cannot be a state function
appears to be much the same: both enjoy immunity for acts done in performance of their -generally, IL does not directly impose obligations -It can be objected that Watts was
respective functions whilst in office. on individuals, but this is not always appropriate looking at cases where the
27
This act modifies the traditional complete immunity normally afforded by the common
28
law in claims for damages against foreign states. Such modifications are contained in Part I What are the functions to be regarded? When do they cease since the former head of state
of the Act, which provides for immunity of foreign states from the jurisdiction of the courts almost certainly never arrives in this country let alone leaves it? Is a former head of state's
of the UK except as provided by the Act. Section 16(4) however, provides that nothing in immunity limited to the exercise of the functions of a member of the mission, or is that again
Part I is to apply to criminal proceedings. Therefore Part I has no direct application to the something which is subject to "necessary modification"? It is hard to resist the suspicion that
present case. something has gone wrong.
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 * bok * cj * tiff * gem * tin *
particularly for acts so serious that the not merely
constitute international wrongs but rather
international crimes which offend against the public
order of the international community.
-States are artificial legal persons who act through
its officials, and to say that conduct which is so
serious as to be criminal can be attributable only to
the State and not the individuals who ordered or
perpetrated it is both unrealistic and offensive to
common notions of justice.
-"The idea that individuals who commit
international crimes are internationally accountable
for them has now become an accepted part of IL.
Problems29 in this area have not affected the
general acceptance of the principle of individual
responsibility for international criminal conduct."
-"It can no longer be doubted that as a matter of
general customary IL, a head of state will
personally be liable to be called to account if there
is sufficient evidence that he authorised or
perpetrated such serious international crimes."
international community has
established a new court with no
existing jurisdiction, in which the
regulating document expressly
makes the head of state subject to
the tribunal's jurisdiction30
-This is different from the
jurisdiction being established by
the Torture Convention and the
Hostages Convention where
existing domestic courts of all the
countries are being authorised and
required to take jurisdiction
internationally.
-The question is whether, in this
new type of jurisdiction, the only
possible view is that those made
subject to the jurisdiction of each of
the state courts of the world in
relation to torture are not entitled to
claim immunity.
28
all defendants being state officials. while the former head, who is the
most responsible, will escape liability because of state immunity, his inferiors who carried
out his orders will be liable. I find it impossible to accept that this was the intention.
•bizarre results. Immunity ratione materiae applies not only to ex-
heads of state and ex-ambassadors but to all state officials who have been involved in
carrying out the functions of the state. This is necessary in order to prevent state
immunity being circumvented by prosecuting or suing the official who, for example,
actually carried out the torture when a claim against the head of state would be
precluded by the doctrine of immunity. Application to the case at bar would mean that
immunity does not only apply to Pinochet, but to all his inferiors who actually did the
torturing.
-Since the Convention says that torture can only be committed by an official or
someone in an official capacity, then they would all be entitled to immunity. It would
follow that there can be no case outside Chile in which a successful prosecution for
torture can be brought unless the State of Chile is prepared to waive its right to its
officials immunity. Therefore the whole elaborate structure of universal jurisdiction over
torture committed by officials is rendered abortive and one of the main objectives of the
Torture Convention--to provide a system under which there is no safe haven for
torturers--will have been frustrated.
-All these factors together demonstrate that the notion of continued immunity
for ex-heads of state is inconsistent with the provisions of the Torture Convention.

Lord Browne-Wilkinson’s view/judgment:
-Doubtful that, before the Torture convention, where there was no international
tribunal to punish torture and no permission or requirement for the domestic courts to
exercise jurisdiction, jus cogens was enough to justify the conclusion that the
organisation of state torture could not rank for immunity purposes as performance of an
official function
-Torture could not be regarded as a fully constituted international crime until the
existence of some form of universal jurisdiction. The Torture Convention provided what
was missing:
1.a worldwide universal jurisdiction.
2.it required all member states to ban and outlaw torture
3.an essential feature of the international crime of torture is that it
must be committed "by or with the acquiesence of a public official or other person acting
in an official capacity."
-Hence, how can it be for IL purposes an official function to do something which
CONCLUSION:
1. ON TORTURE: If, as alleged, Senator Pinochet organised and authorised torture
after Dec. 8, 1988:
-he was not acting in any capacity which gives rise to immunity ratione
materiae because such actions were contrary to IL,
-Chile had agreed to outlaw such conduct and
-Chile had agreed with the other parties to the Torture Convention that all
signatory states should have jurisdiction to try official torture (as defined in the
Convention) even if such torture were committed in Chile.
2. ON MURDER AND CONSPIRACY TO MURDER: SENATOR PINOCHET IS
ENTITLED TO THE ORDINARY RULES OF IMMUNITY since no one has advanced any
reason why they should not apply.
JUDGMENT: allow the appeal so as to permit the extradition proceedings to
proceed on the allegation that torture in pursuance of a conspiracy to commit
torture, including the single act of torture which is alleged in charge 30, was being
committed by Senator Pinochet after 8 December 1988 when he lost his immunity.
31

IL itself prohibits and criminalises? LORD GOFF OF CHIEVELEY

-Regarding torture as a public function which would give rise to immunity
ratione materiae would result in:
29
such as the non-existence of any standing international tribunal to have jurisdiction over
such crimes, and the lack of agreement as to what acts are internationally criminal for this
purpose
30
see, for example, the Nuremberg Charter Article 7; the Statute of the International
Tribunal for former Yugoslavia; the Statute of the International Tribunal for Rwanda and the
Statute of the International Criminal Court.
CENTRAL QUESTION IN THE APPEAL: WON Senator Pinochet is entitled as former
head of state to the benefit of state immunity ratione materiae in respect of the charges
advanced against him32
SPAIN’S ARGUMENT: ((Before the DC and the 1st Appellate Committee)
-Senator Pinochet was not entitled to the benefit of state immunity on 2 grounds:
31
Your Lordships’ decision excluding a large number of charges for the extradition
proceedings would require the Secretary of State to reconsider his decision under Sec. 7 of
the Act of 1989 (coz when he authorized Magistrate Bartle, he proceeded on the basis of a
whole range of torture and murder charges)
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 * bok * cj * tiff * gem * tin *
1. that the crimes alleged against Senator Pinochet are so horrific that an
exception must be made to the IL principle of state immunity; and
2. that the crimes with which he is charged are crimes against IL, in respect of
which state immunity is not available.
DC -rejected both arguments
ST
1 Appellate Committee
majority accepted the 2nd argument.
Lord "In my view, Art. 39(2) of the Vienna Convention, as modified and applied
Nicholls of to former heads of state by Sec. 20 of the Act of 1978, is apt to confer
Birken- immunity in respect of functions which IL recognises as functions of a
head head of state, irrespective of the terms of his domestic constitution. This
(leading formulation, and this test for determining what are the functions of a head
opinion) of state for this purpose, are sound in principle and were not the subject
of controversy before your Lordships. IL does not require the grant of any
wider immunity. And it hardly needs saying that torture of his own
subjects, or of aliens, would not be regarded by IL as a function of a head
of state. All states disavow the use of torture as abhorrent, although from
time to time some still resort to it. Similarly, the taking of hostages, as
much as torture, has been outlawed by the international community as an
offence. IL recognises, of course, that the functions of a head of state
may include activities which are wrongful, even illegal, by the law of his
own state or by the laws of other states. But IL has made plain that
certain types of conduct, including torture and hostage-taking, are not
acceptable conduct on the part of anyone. This applies as much to heads
of state, or even more so, as it does to everyone else; the contrary
conclusion would make a mockery of IL."
Lord Agreed with Lord Nicholls
Hoffmann
Lord Steyn delivered a concurring opinion to the same effect.
Lord Slynn -dissented
of Hadley -considered in detail "the developments in IL relating to international
crimes."
-he concluded that: "It does not seem to me that it has been shown that
there is any state practice or general consensus let alone a widely
supported convention that all crimes against IL should be justiciable in
national courts on the basis of the universality of jurisdiction. Nor is there
any jus cogens in respect of such breaches of IL which requires that a
claim of state or head of state immunity, itself a well-established principle
of IL, should be overridden."
-He considered whether IL now recognizes that crimes against humanity
are outwith the protection of head of state immunity: "except in regard to
crimes in particular situations before international tribunals these
measures did not in general deal with the question as to whether
otherwise existing immunities were taken away. Nor did they always
specifically recognise the jurisdiction of, or confer jurisdiction on, national
courts to try such crimes."
32
as set out in the schedule of charges prepared by Mr. Alun Jones Q.C. on behalf of the
Government of Spain.
29
-He then examined the Torture Convention (1984), the Genocide
Convention (1948) and the Taking of Hostages Convention (1983) and
concluded that none of them had removed the long established immunity
of former heads of state.
Lord Lloyd -dissented
of Berwick
Lord Goff of Chieveley on the 1st Appellate Committee:
-Unable to accept the simple approach of the majority of the 1 st Appellate committee
and thinks that Lord Slynn’s exercise (in reviewing relevant materials) is necessary to
consider the validity of Spain’s argument.
-Agrees with the analysis and conclusions of Lord Slynn
However, having regard to (1) the extraordinary impact on this case of the DCR; and (2)
the fact that a majority of your Lordships have formed the view that, in respect of the very
few charges (of torture or conspiracy to torture) which survive the impact of the DCR, the
effect of the Torture Convention is that in any event Senator Pinochet is not entitled to
the benefit of state immunity, the present issue has ceased to have any direct bearing on
the outcome of the case.
During the course of the hearing, 2 new issues emerged or acquired an importance:
1ST ISSUE: THE DOUBLE CRIMINALITY RULE (DCR)
Sequence of events: (from the hearing)
1. Spain sought to extend backwards the period during which the crimes charged were
alleged to have been committed, with the effect that some of those crimes could be said
to have taken place before the 1973 coup. The purpose obviously was to avoid the
privilege of state immunity
2. Ms. Montgomery, for Pinochet, revived the submission that certain charges were not
extradition crimes because they were not, at the time they were alleged to have been
committed, criminal under the law of UK, thus offending against the DCR (Lord Goff
agrees with this)
3. Since Spain did not analyse the consequences of this argument, if successful, in order
to identify the charges against Senator Pinochet which would survive the application of
the DCR, Lord Hope of Craighead undertook this substantial task.
4. The principal charges which survived are those which relate to acts of torture, or
conspiracies to torture, after Sept. 29, 1988 and some murder charges. These are:
Date of conduct
Charge in so far as they relate to the period
Conduct Charged
# between Sept. 29, 1988 &
Jan. 1, 1990
2 conspiracy to torture between Aug. 1, 1973 & Jan. 1, 1990
4 conspiracy to torture between Jan. 1, 1972 & Jan. 1, 1990
30 single act of torture on June 24, 1989
9 conspiracy to murder in Spain Jan. 1, 1975 & Dec. 31, 1976
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 * bok * cj * tiff * gem * tin *
4 such conspiracies in Spain to between Jan. 1, 1972 & Jan. 1, 1990
commit murder in Spain
STATE IMMUNITY
-The principle is expressed in the Latin maxim par in parem non habet
imperium, the effect of which is that one sovereign state does not adjudicate on the
conduct of another. This principle applies as between states, and the head of a state is
entitled to the same immunity as the state itself, as are the diplomatic representatives of
the state.
-Immunity of a head of state, whether ratione personae or ratione materiae,
applies to both civil and criminal proceedings. why?- coz the immunity applies to any
form of legal process.
The State Immunity Act of 1978:
-Principle of par in parem non habet imperium applies in criminal proceedings
-on which the principles of state of immunity are based is in a strange form.
-There can be no doubt that the Act is intended to provide the sole source of
English law on this topic.33
-Part III Sec. 20(1) is the relevant provision on this point:
"Subject to the provisions of this section and to any necessary modifications,
the Diplomatic Privileges Act 1964 shall apply to--(a) a sovereign or other
head of state . . . as it applies to the head of a diplomatic mission."
The Diplomatic Privileges Act of 1964
-Function is to give effect to the Vienna Convention on Diplomatic Relations in
this country
-Problem: how to identify the "necessary modifications" when applying the
Vienna Convention to heads of state. Art. 39 of the Vienna Convention provides:
"1. Every person entitled to privileges and immunities shall enjoy
them from the moment he enters the territory of the receiving state on
proceeding to take up his post or, if already in its territory, from the moment
when his appointment is notified to the Ministry for Foreign Affairs or such other
ministry as may be agreed.
"2. When the functions of a person enjoying privileges and
immunities have come to an end, such privileges and immunities shall normally
cease at the moment when he leaves the country, or on expiry of a reasonable
period in which to do so, but shall subsist until that time, even in case of armed
conflict. However, with respect to acts performed by such a person in the
exercise of his functions as a member of the mission, immunity shall continue
to subsist."
-It would seem strange to apply this to a head of state but the legislative history
shows that it was originally intended to apply only to a sovereign or other head of state in
this country at the invitation or with the consent of the government of this country, but
was amended to provide also for the position of a head of state who was not in this
country.
-Hence, apply the Vienna Convention to heads of state "with the necessary
modifications.” In the case of a head of state tie Art. 39(1) or (2) to the territory of the
33
This is because the long title to the Act provides (inter alia) that the Act is "to make new
provision with regard to the immunities and privileges of heads of state."
30
receiving state.34 Once that is realised, there seems to be no reason why the immunity of
a head of state under the Act should not be construed as far as possible to accord with
his immunity at customary IL, which provides the background against which this statute
is set.35
-The effect is that a head of state will, under the statute as at IL, enjoy state
immunity ratione personae so long as he is in office, and after he ceases to hold office
will enjoy the concomitant immunity ratione materiae "in respect of acts he performed in
the exercise of his functions as head of state." The critical question being WON the acts
were in the exercise of his functions as head of state.
THE MERE FACT THAT THE CRIME HERE IS TORTURE DOES NOT EXCLUDE
STATE IMMUNITY. Criminal conduct does not itself exclude immunity, even if serious.
Hence, Question is WON any limit is placed on the immunity in respect of criminal
offences.
Lord Goff of Chieveley on Sir Arthur Watts: 36
2 points on torture:
1. it is evident that Sir Arthur is referring not just to a specific crime as such, but
to a crime which offends against the public order of the international community, for
which a head of state may be internationally accountable. The instruments cited by him
show that he is concerned here with crimes against peace, war crimes and crimes
against humanity. Originally these were limited to crimes committed in the context of
armed conflict, as in the case of the Nuremberg and Tokyo Charters, and still in the case
of the Yugoslavia Statute, though there it is provided that the conflict can be international
or internal in character. Subsequently, the context has been widened to include (inter
alia) torture "when committed as part of a widespread or systematic attack against a
civilian population" on specified grounds. A provision to this effect appeared in several
statutes in the 1990s37 these developments were foreshadowed in the International Law
Commission's Draft Code of Crimes of 1954 but was not adopted. A gap of 35 years
followed before the developments in the 1990s. It follows that these provisions are not
capable of evidencing any settled practice in respect of torture outside the context of
armed conflict until well after 1989 which is the latest date with which we are concerned
in the present case.
34
as was suggested on behalf of the appellants
35
see Alcom Ltd. v. Republic of Colombia [1984] 1 A.C. 580, 597G, per Lord Diplock.
36
Who referred to a number of instruments: including the Charter of the Nuremberg
Tribunal (1946), the Charter of the Tokyo Tribunal (1948), the International Law
Commission's Draft Code of Crimes Against the Peace and Security of Mankind
(provisionally adopted in 1988), and the Statute of the War Crimes Tribunal for former
Yugoslavia (1993), all of which expressly provide for the responsibility of heads of state,
apart from the Charter of the Tokyo Tribunal which contains a similar provision regarding
the official position of the accused.
37
International Law Commission's Draft Code of Crimes of 1996 and also appeared in the
Statute of the International Tribunal for Rwanda (1994), and in the Rome Statute of the
International Court (adopted in 1998); and see also the view expressed obiter by the U.S.
Court of Appeals in Siderman de Blake v. Republic of Argentina (1992) 965 F. 2d 699 at p.
716.
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2. Instruments mentioned (footnote 32) are all concerned with international
responsibility before international tribunals, and not with the exclusion of state immunity
in criminal proceedings before national courts. This supports the conclusion of Lord
Slynn that "except in regard to crimes in particular situations before international
tribunals these measures did not in general deal with the question whether otherwise
existing immunities were taken away", with which I agree.
It follows that, if state immunity in respect of crimes of torture has been excluded
at all in the present case, this can only have been done by the Torture Convention
itself.
THE TORTURE CONVENTION
-concerned with the jurisdiction of national courts,
-but its "essential purpose" is to ensure that a torturer does not escape the
consequences of his act by going to another country
-Lord Goff then enumerates the Articles of the Convention (see above)
-Art. 7 (1) reflects the principle aut dedere aut punire, designed to ensure that torturers
do not escape by going to another country.
-There was some uncertainty on whether a head of state can be considered a public
official or at least a person acting in a public capacity. It has been argued that earlier
conventions expressly mentioned heads of state. But I am content to proceed on
Republic of Chile’s concession that, in the Torture Convention, heads of state must be
regarded as falling within the category of "other person acting in a public capacity."
- the crucial question now relates to the availability of state immunity.
-The Convention does not mention state immunity. Had it intended to exclude state
immunity, it would have been provided for in a separate article or paragraph.
2ND ISSUE: WON IMMUNITY RATIONE MATERIAE HAS BEEN EXCLUDED UNDER
THE TORTURE CONVENTION
The argument: since torture contrary to the Convention can only be committed by a
public official or other person acting in an official capacity, and since it is in respect of the
acts of these very persons that states can assert state immunity ratione materiae, it
would be inconsistent with the obligations of state parties under the Convention for them
to be able to invoke state immunity ratione materiae in cases of torture contrary to the
Convention.
Lord Goff:
-before the Torture Convention, torture by public officials could be the subject of
state immunity. Since therefore exclusion of immunity is said to result from the Torture
Convention and there is no express term of the Convention to this effect, the argument
has, to be formulated as dependent upon an implied term in the Convention.
-the proposed implied term has not been precisely formulated; it has not therefore
been exposed to that valuable discipline which is always required in the case of terms
alleged to be implied in ordinary contracts.
-This is a different argument from that which was advanced to your Lordships, it was
not advanced to the DC nor the 1st Appellate Committee.
-it must be rejected as contrary to principle and authority, and indeed contrary to
common sense.
Waiver of immunity by treaty must be express -Republic of Chile submitted that
a state's waiver of its immunity by treaty must always be express. I agree.
31
-Lord Goff then goes on to cite passages38 which indicate the need for an express
waiver of the state of its immunity. The consent of the state to the exercise of jurisdiction
against it must be express. In general, implied consent is to be regarded only as an
added explanation or justification for an otherwise valid and recognised exception, of
which the only example given is actual submission to the jurisdiction of the courts of
another state
-Lord Goff also cited a US Supreme Court Ruling39 where the plaintiff contended
that the defendant had impliedly waived its state immunity the relevant international
agreements. The Court tersely rejected this argument.
-the State Immunity Act 1978 is consistent with the above principles. There is no
suggestion in the Act that an implied agreement to submit would be sufficient, except in
so far as an actual submission to the jurisdiction of a court of this country, may be
regarded as an implied waiver of immunity;
-but my reading of the Act leads me to understand that such a submission to the
jurisdiction is here regarded as an express rather than an implied waiver of immunity or
agreement to submit to the jurisdiction. This is consistent with Part III, Sec. 20.
-the Vienna Convention on Diplomatic Relations so rendered applicable by section 2
of the Act of 1964 provides for an express waiver. Once again, there is no provision for
an implied agreement.
In light of the foregoing it is clear that both in accordance with IL and with the
UK law, a state’s waiver of its immunity by treaty must always be express.
Circumvention of the principle by suggesting that Torture is not a
governmental function, hence not covered by immunity ratione materiae. -This well
established principle (express consent to waiver of state immunity) can be circumvented
in this case not by proposing that the state parties agreed to waive their state immunity
under the Torture Convention, but that Torture does not form part of the functions of
public officials or persons acting in an official capacity, including the head of state.
-The principle cannot be circumvented this way. “Functions” as used in this context
is well-established: governmental functions as opposed to private acts. The fact that an
official act is criminal in nature does not deprive it of its governmental character. This is
true whether the crime is light or serious.
-If governmental functions are to be limited such as to exclude Torture, this can only
be done by means of an implication arising from the Torture Convention itself.
An implication must in any event be rejected. I recognise that a term may be
implied into a treaty, if the circumstances are such that "the parties must have intended
to contract on the basis of the inclusion in the treaty of a provision whose effect can be
stated with reasonable precision."
-It would, however, be wrong to assume that a term may be implied into a treaty on
the same basis as a term may be implied into an ordinary commercial contract. This is
because treaties are different in origin, and serve a different purpose. Treaties are the
fruit of long negotiation, the purpose being to produce a draft which is acceptable to a
number, often a substantial number, of state parties.
38
Oppenheim’s IL;Article 7 of the Commission's Draft Articles; commentary on Art. 7.
39
Argentine Republic v. Amerada Hess Shipping Corporation (1989) 109 S.Ct. 683
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-In circumstances such as these, it is the text of the treaty itself which provides the
only safe guide to its terms, though reference may be made, where appropriate, to the
travaux preparatoires.
- But implied terms cannot, except in the most obvious cases, be relied on as
binding the state parties who ultimately sign the treaty, who will in all probability include
those who were not involved in the preliminary negotiations.
-The implied term argued is that the continued availability of state immunity is
inconsistent with the obligations of state parties to the Convention, is in my opinion not
justified.
-The danger of introducing the proposed implied term e is underlined by the fact that
there is nothing in the negotiating history of the Torture Convention which throws any
light on the proposed implied term. Certainly the travaux preparatoires shown to your
Lordships reveal no trace of any consideration being given to waiver of state immunity.
-In any event, however, not only is there no mention of state immunity in the
Convention, but in my opinion it is not inconsistent with its express provisions that, if
steps are taken to extradite him or to submit his case to the authorities for the purpose of
prosecution, the appropriate state should be entitled to assert state immunity. In this
connection, I comment that it is not suggested that it is inconsistent with the Convention
that immunity ratione personae should be asserted; if so, I find it difficult to see why it
should be inconsistent to assert immunity ratione materiae.
Hence, the proposed implication must be rejected not only as contrary to
principle and authority, but also as contrary to common sense.
I Disagree with Lord Hope’s Conclusion- that in respect of a few charges, state
immunity is not available to Pinochet.
-In the surrounding circumstances, I find it difficult to see how after 29 September
1988, it could be said that there was any systematic or widespread campaign of torture,
constituting an attack on the civilian population, so as to amount to a crime against
humanity, or that a single act could be easily related to a campaign alleged to have been
in existence so long ago.
No settled practice that state immunity is not available for a crime against
humanity. I am of the opinion that in 1989 there was no settled practice that state
immunity ratione materiae was not available in criminal proceedings before a national
court concerned with an alleged crime against humanity, or indeed as to what constituted
a crime against humanity.
LORD GOFF’S JUDGMENT: For the above reasons, I am of the opinion that by far the
greater part of the charges against Senator Pinochet must be excluded as offending
against the DRC; and that, in respect of the surviving charges--charges 9, 30, 2 and 4
(insofar as they can be said to survive the DCR)--Senator Pinochet is entitled to the
benefit of state immunity ratione materiae as a former head of state. I would therefore
dismiss the appeal of the Government of Spain from the decision of the Divisional Court.
LORD HOPE OF CRAIGHEAD
THE OFFENCES ALLEGED AGAINST SENATOR PINOCHET
(1) torture between 1 January 1988 and December 1992;
(2) conspiracy to torture between 1 January 1988 and 31 December 1992;
(3) (a) hostage-taking and
32
(b) conspiracy to take hostages between Jan. 1, 1982 and Jan. 31, 1992; and
(4) conspiracy to commit murder between January 1976 and December 1992.
Comparing these dates with the date of the coup (Sept. 11, 1973) and Pinochet’s
resignation (March 11, 1990), it appears:
(a) that he was not being charged with any acts of torture prior to 1 January
1988 [the date of the UK law enacting the UN Torture Convention],
(b) that he was not being charged with any acts of hostage-taking or
conspiracy to take hostages prior to I January 1982 and
(c) that he was not being charged with any conspiracy to commit murder prior
to January 1976.
On the other hand he was being charged with having committed these offences up to
December 1992, well after the date when he ceased to be head of state in Chile.
Hostage-taking: There is no allegation that the conspiracy was to threaten to kill, injure
or detain those who were being detained in order to compel others to do or to abstain
from doing any act. The narrative shows that the alleged conspiracy was to subject
persons already detained to threats that others would be taken and that they also would
be tortured.
-This amount to a conspiracy to take hostages within the meaning of section 1
of the Act of 198240. The purpose of the proposed conduct, as regards the detained
persons, was to subject them to what can best be described as a form of mental torture.
I would hold therefore that it is not necessary for your Lordships to examine the
Hostage Convention in order to see whether its terms were such as to deprive a former
head of state of any immunity from a charge that he was guilty of hostage-taking. In my
opinion Senator Pinochet is not charged with the offence of hostage-taking within the
meaning of section 1 (1) of the Taking of Hostages Act 1982.
Conspiracy to murder and attempted murder: The charges of conspiracy to torture
include allegations that it was part of the conspiracy that some of those who were
abducted and tortured would thereafter be murdered. Charge 4 alleges that in
furtherance of that agreement about four thousand persons of many nationalities were
murdered in Chile and in various other countries outside Chile. Two other charges,
charges 9 and 12, allege conspiracy to murder - in one case of a man in Spain and in the
other of two people in Italy. Charge 9 states that Senator Pinochet agreed in Spain with
others who were in Spain, Chile and France that the proposed victim would be murdered
in Spain. Charge 12 does not say that anything was done in Spain in furtherance of the
alleged conspiracy to murder in Italy. There is no suggestion in either of these charges
that the proposed victims were to be tortured. Two further charges, charges 10 and 11,
allege the attempted murder of the two people in Italy who were the subject of the
conspiracy to commit murder there. Here again there is no suggestion that they were to
be tortured before they were murdered.
Charge 9-- that between 1 January 1975 and 31 December 1976 he was a party to
a conspiracy in Spain to murder someone in Spain - is an offence for which he could,
unless protected by immunity, be extradited to Spain under reference to section 4 of the
Act of 1861, as it remained in force until the relevant part of it was repealed by the Act of
40
A person, whatever his nationality, who, in the United Kingdom or elsewhere, -
(a) detains any other person (‘the hostage’), and
(b) in order to compel a State, international governmental organisation or person
to do or to abstain from doing any act, threatens to kill, injure or continue to detain the
hostage, commits an offence."
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1977. This is because his participation in the conspiracy in Spain was conduct by him in
Spain for the purposes of section 2(1)(a) of the Extradition Act 1989.
Charge 4-that he was a party to a conspiracy to murder, in furtherance of which
about four thousand people were murdered in Chile and in various countries outside
Chile including Spain. It is implied that this conspiracy was in Chile, so I would hold that
this is not conduct by him in Spain for the purposes of section 2(1)(a) of Act of 1989. The
question then is whether it is an extra-territorial offence within the meaning of section
section 2(1)(b) of that Act.
Prior to the coming into force of the Suppression of Terrorism Act 1978, a
conspiracy which was formed outside this country to commit murder in some country
other than England in pursuance of which nothing was done in England to further that
conspiracy would not be punishable in England, as it was not the intention that acts done
in pursuance of the conspiracy would result in the commission of a criminal offence in
this country. The presumption against the extra-territorial application of the criminal law
would have precluded such conduct from being prosecuted here. Section 4(1) of the Act
of 1978 gives the courts of the UK jurisdiction over a person who does any act in a
convention country which, if he had done that act in a part of the UK, would have made
him guilty in that part of the UK of an offence mentioned in some, but not all, of the
paragraphs of Schedule 1 to that Act. Murder is one of the offences to which that
provision applies. But that Act, which was passed to give effect to the European
Convention on the Suppression of Terrorism of 27 January 1977, did not come into force
until 21 August 1978: S.I. 1978 No. 1063. And Chile is not a convention country for the
purposes of that Act, nor is it one of the non-convention countries to which its provisions
have been applied by section 5 of the Act of 1978. Only two non-convention countries
have been so designated. These are the United States (S.I. 1986 No. 2146) and India
(S.I. 1993 No. 2533).
Hence, the only conduct alleged against Senator Pinochet as conspiracy
to murder in charge 4 for which he could be extradited to Spain is that part of it
which alleges that he was a party to a conspiracy in Spain to commit murder in
Spain prior to 21 August 1978.
Conspiracy in Spain or elsewhere to commit murder in a country which had
been designated as a convention country after that date- the extradition request
states that acts in furtherance of the conspiracy took place in France in 1975, in Spain in
1975 and 1976 and in the United States and Portugal in 1976. These countries have now
been designated as countries to which the Suppression of Terrorism Act 1978 applies.
But the acts which are alleged to have taken place there all pre-date the coming into
force of that Act. So the extra-territorial jurisdiction cannot be applied to them.
Attempted murder in Italy- not, as such, offences for which Senator Pinochet
could be extradited to Spain under reference to section 2(1)(a) of the Act of 1989
because the alleged conduct did not take place in Spain and because he is not of
Spanish nationality. Grounds to allow extradition under Sec. 2(1)(b):
1. Murder is now an extra-territorial offence under §4(1)(a) of the
Suppression of Terrorism Act 1978 as it is an offence mentioned in paragraph 1 of
Schedule 1 to that Act, Italy has been designated as a convention country (S.I. 1986 No.
1137) and,
2. That an offence of attempting to commit that offence is an extra-territorial
offence under §4(1)(b) of the Act of 1978.
The alleged attempted murders in Italy are said to have been committed on 6
October 1975. As the Act of 1978 was not in force on that date, these offences are not
capable of being brought within the procedures laid down by that Act.
33
Torture and conspiracy to torture. Torture is another of those offences, wherever the
act takes place, which is deemed by section 22(6) of the Extradition Act 1989 to be an
offence committed within the territory of any other state against whose law it is an
offence. This provision and Sec. 134 of the Criminal Justice Act 1988 gave effect to the
Torture Convention of 10 December 1984.
Sec. 134 made it a crime under English law for a public official or a person acting in
an official capacity to commit acts of both physical and mental torture. It made such acts
of torture an extra-territorial offence wherever they were committed and whatever the
nationality of the perpetrator. Read with the Convention’s definition of torture, Sec. 134
would have to include the ancillary offences of counselling, procuring, commanding and
aiding or abetting acts of torture and of being an accessory before or after the fact to
such acts.
All of these offences became extra-territorial offences against the law of the UK
within the meaning of section 2(2) of the Extradition Act 1989 as soon as section 134
was brought into force on 29 September 1988.
The Convention, Sec. 134 and the Extradition Act of 1989 do mention the offense of
conspiracy to commit torture. So, while the courts of the UK have extra-territorial
jurisdiction under section 134 over offences of official torture wherever in the world they
were committed, that section does not give them extra-territorial jurisdiction over a
conspiracy to commit torture in any other country where the agreement was made
outside the UK and no acts in furtherance of the conspiracy took place here. Nor is it
conduct which can be deemed to take place in the territory of the requesting country
under section 22(6) of the Act of 1989.
However, the general statutory offence of conspiracy under section 1 of the Criminal
Law Act 1977 extends to a conspiracy to commit any offence which is triable in England
and Wales. Among those offences are all the offences over which the courts in England
and Wales have extra-territorial jurisdiction, including the offence under section 134 of
the Act of 1988.
Hence, I consider that the common law rule as to extra- territorial conspiracies laid
down in Somchai Liangsiriprasert v. Government of the United States of America [1991]
1 A.C. 225 applies if a conspiracy which was entered into abroad was intended to result
in the commission of an offence, wherever it was intended to be committed, which is an
extra-territorial offence in this country. Accordingly the courts of this country could try
Senator Pinochet for acts of torture in Chile and elsewhere after 29 September 1988,
because they are extra-territorial offences under section 134 of the Act of 1988. They
could also try him here for conspiring in Chile or elsewhere after that date to commit
torture, wherever the torture was to be committed, because torture after that date is an
extra-territorial offence and the courts in England have jurisdiction over such a
conspiracy at common law.
Torture prior to 29 September 1989: Acts of physical torture were already crimes under
the English law even before Sept. 29, 1988. However, if these offences were committed
before Sec. 134, they could not be extra-territorial offences against the UK law within the
meaning of section 2(2) of the Extradition Act 1989 as there is no basis upon which they
could have been tried extra-territorially in this country.
Pinochet could only be extradited to Spain for offences which, if it occurred in the
UK, would constitute an offence which would be punishable in this country. Section 22(6)
of the Act of 1989 is of no assistance, because torture contrary to the Torture Convention
had not yet become an offence in this country.
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Hence, none of the charges of conspiracy to torture and none of the various torture
charges allege that Senator Pinochet did anything in Spain which might qualify under
section 2(1)(a) of the Act of 1989 as conduct in that country.
All one can say at this stage is that, if the information presented to the magistrate
under section 9(8) of the Act of 1989 in regard to charge 4 were to demonstrate (i) that
he did something in Spain prior to 29 September 1988 to commit acts of torture there, or
(ii) that he was party to a conspiracy in Spain to commit acts of torture in Spain, that
would be conduct in Spain which would meet the requirements of section 2(1)(a) of that
Act.
Torture after 29 September 1989: The effect of section 134 of the Criminal Justice Act
1988 was to make acts of official torture, wherever they were committed and whatever
the nationality of the offender, an extra- territorial offence in the UK.
Charge 4 is not confined to conspiracy to torture. The charge included that many
people in various countries were murdered after being tortured in furtherance of the
conspiracy that they would be tortured and then killed. So this charge includes charges
of torture as well as conspiracy to torture. And it is broad enough to include the ancillary
offences mentioned.
Ill-defined as this charge is, I would regard it as including allegations of torture
and of conspiracy to torture after 29 September 1988 for which, if he has no immunity,
Senator Pinochet could be extradited to Spain on the ground that, as they were extra-
territorial offences against the law of the United Kingdom, they were extradition crimes
within the meaning of section 2(1) of the Act of 1989. This means that: the only offences
of torture and conspiracy to torture which are punishable in this country as extra-
territorial offences against the law of the UK within the meaning of section 2(2) of the Act
of 1989 are those offences of torture and conspiracy to torture which he is alleged to
have committed on or after 29 September 1988.
But almost all the offences of torture and murder, of which there are alleged to
have been about four thousand victims, were committed during the period of repression
which was at its most intense in 1973 and 1974. The extradition request alleges that
during the period from 1977 to 1990 only about 130 such offences were committed. Of
that number only three have been identified in the extradition request as having taken
place after 29 September 1988.
Charge 30-one act of official torture in Chile on 24 June 1989, and relates
exclusively to the period after 29 September 1988.
Charge 2- with respect to the charges after 29 September 1988.
Charges which are relevant to the question of immunity: Result of Analysis: The
only charges which allege extradition crimes for which Senator Pinochet could be
extradited to Spain if he has no immunity are:
(1) those charges of conspiracy to torture in charge 2, of torture and conspiracy
to torture in charge 4 and of torture in charge 30 which, irrespective of where the conduct
occurred, became extra-territorial offences as from 29 September 1988 under section
134 of the Criminal Justice Act 1988 and under the common law as to extra territorial
conspiracies;
(2) the conspiracy in Spain to murder in Spain which is alleged in charge 9;
(3) such conspiracies in Spain to commit murder in Spain and such
conspiracies in Spain prior to 29 September 1988 to commit acts of torture in Spain, as
can be shown to form part of the allegations in charge 4.
So far as the law of the UK is concerned, the only country where Senator Pinochet
could be put on trial for the full range of the offences which have been alleged against
him by the Spanish judicial authorities is Chile.
34
STATE IMMUNITY
- well settled in customary IL.
-The test is whether they were private acts on the one hand or governmental acts done
in the exercise of his authority as head of state on the other. It is whether the act was
done to promote the state's interests - whether it was done for his own benefit or
gratification or was done for the state. "The critical test would seem to be whether the
conduct was engaged in under colour of or in ostensible exercise of the head of state's
public authority." 41
-The sovereign or governmental acts of one state are not matters upon which the courts
of other states will adjudicate. The fact that acts done for the state have involved conduct
which is criminal does not remove the immunity. Indeed the whole purpose of the
residual immunity ... is to protect the former head of state against allegations of such
conduct after he has left office. A head of state needs to be free to promote his own
state's interests during the entire period when he is in office without being subjected to
the prospect of detention, arrest or embarrassment in the foreign legal system of the
receiving state. The conduct does not have to be lawful to attract the immunity.
-The principle of immunity protects all acts which the head of state has performed
in the exercise of the functions of government. The purpose for which they were
performed protects these acts from any further analysis. There are only 2 exceptions to
this approach which customary IL has recognised.
1. relates to criminal acts which the head of state did under the colour of his
authority as head of state but which were in reality for his own pleasure or benefit.42
2. relates to acts the prohibition of which has acquired the status under IL of
jus cogens. This compels all states to refrain from such conduct under any
circumstances and imposes an obligation erga omnes [ie, all States--as opposed to only
one or several] to punish such conduct. As Sir Arthur Watts said in respect of conduct
constituting an international crime, such as war crimes, special considerations apply.
THE TORTURE CONVENTION AND THE LOSS OF IMMUNITY
- The Torture Convention is an international instrument. As such, it must be construed in
accordance with customary international law and against the background of the
subsisting residual former head of state immunity.
-Waivers to state immunity must always be express.
-it is contended that the torture convention, by necessary implication, removed immunity.
-The convention is not contrary to any existing immunities in customary IL, nor makes
mention of state immunity. The jus cogens character of the immunity enjoyed by serving
heads of state ratione personae suggests that, on any view, that immunity was not
intended to be affected by the Convention.
-Despite these difficulties, there are sufficient signs that the necessary developments in
IL were in place when the Convention entered into force. The careful discussion of the
41
United States v. Noriega (1990) 746 F.Supp. 1506, 1519-1521. Sir Arthur Watts Q.C. in
his Hague Lectures, The Legal Position in International Law of Heads of States, Heads of
Governments and Foreign Ministers (1994-III) 247 Recueil des cours, p. 56
42
The examples which Lord Steyn gave [1998] 3 W.L.R. 1456, 1506B-C of the head of state
who kills his gardener in a fit of rage or who orders victims to be tortured so that he may
observe them in agony seem to me plainly to fall into this category and, for this reason, to lie
outside the scope of the immunity.
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jus cogens [norm from which no State may deviate] and erga omnes [crimes against all
nations] rules in regard to allegations of official torture in Siderman de Blake v. Republic
of Argentina (1992) 26 F.2d 1166, pp. 714-718, which I regard as persuasive on this
point, shows that there was already widespread agreement that the prohibition against
official torture had achieved the status of a jus cogens norm.
-Having secured a sufficient number of signatories, the convention entered into force on
26 June 1987.
-In my opinion, once the machinery which it provides was put in place to enable
jurisdiction over such crimes to be exercised in the courts of a foreign state, it was no
longer open to any state which was a signatory to the Convention to invoke the immunity,
in the event of allegations of systematic or widespread torture committed after that date
being made in the courts of that state against its officials or any other person acting in an
official capacity.
CONCLUSION
It follows that I would hold that, while Senator Pinochet has immunity from prosecution
for the conspiracy in Spain to murder in Spain which is alleged in charge 9 and for such
conspiracies in Spain to murder in Spain and such conspiracies in Spain prior to 8
December 1988 to commit acts of torture in Spain as could be shown to be part of the
allegations in charge 4, he has no immunity from prosecution for the charges of torture
and of conspiracy to torture which relate to the period after that date.
LORD HOPE OF CRAIGHEAD’SJUDGMENT: On this basis only I too would allow the
appeal, to the extent necessary to permit the extradition to proceed on the charges of
torture and conspiracy to torture relating to the period after 8 December 1988.
LORD HUTTON
The rehearing of this appeal has raised a number of separate issues which have been
fully considered in the speech of my noble and learned friend Lord Browne-Wilkinson
which I have had the benefit of reading in draft. I am in agreement with his reasoning and
conclusion that the definition of an "extradition crime" in the Extradition Act 1989 requires
the conduct to be criminal under UK law at the date of commission. I am also in
agreement with the analysis and conclusions of my noble and learned friend Lord Hope
of Craighead as to the alleged crimes in respect of which Senator Pinochet could be
extradited apart from any issue of immunity. I further agree with the view of Lord Browne-
Wilkinson that Senator Pinochet is entitled to immunity in respect of charges of murder
and conspiracy to murder, but I wish to make some observations on the issue of
immunity claimed by Senator Pinochet in respect of charges of torture and conspiracy to
torture.
TORTURE AND IMMUNITY
The 1950 Report of the IL Commission to the General Assembly set out the following
principle followed by the commentary contained in paragraph 103:
"The fact that a person who committed an act which constitutes a crime under
international law acted as head of state or responsible Government official
does not relieve him from responsibility under IL.
This principle is based on Art. 7 of the Charter of the Nürnberg Tribunal. According to the
Charter and the judgment, the fact that an individual acted as head of state or
responsible government official did not relieve him from international responsibility. 'The
principle of IL which, under certain circumstances, protects the representatives of a
state', said the Tribunal, 'cannot be applied to acts which are condemned as criminal by
35
IL. The authors of these acts cannot shelter themselves behind their official position in
order to be freed from punishment' The same idea was also expressed in the following
passage of the findings: 'He who violates the laws of war cannot obtain immunity while
acting in pursuance of the authority of the state if the state in authorising action moves
outside its competence under IL."
The 1954 ILCommission draft code of offences against the peace and security of
mankind provided in Art. III: "The fact that a person acted as head of state or as
responsible Government official does not relieve him of responsibility for committing any
of the offences defined in the code."
The Statute of the International Tribunal for the former Yugoslavia established by the
Security Council of the UN in 1993 for the prosecution of persons responsible for serious
violations of international humanitarian law committed in the territory of the former
Yugoslavia since 1991 provided in Art. 7 par 2: "The official position of any accused
person, whether as head of state or Government or as a responsible Government official,
shall not relieve such person of criminal responsibility nor mitigate punishment."
The Statute of the International Tribunal for Rwanda established by the Security Council
of the UN in 1994 for the prosecution of persons responsible for genocide and other
serious violations of international humanitarian law committed in the territory of Rwanda
in 1994 provided in Art. 6 par 2:"The official position of any accused person, whether as
head of state or Government or as a responsible Government official shall not relieve
such person of criminal responsibility nor mitigate punishment."
In July 1998 in Rome the UN Diplomatic Conference of Plenipotentiaries on the
Establishment of an International Criminal Court adopted the Statute of the International
Criminal Court. Art. 27 provides:
1. This Statute shall apply equally to all persons without any distinction based
on official capacity. In particular, official capacity as a head of state or Government, a
member of a Government or parliament, an elected representative or a government
official shall in no case exempt a person from criminal responsibility under this Statute,
nor shall it, in and of itself, constitute a ground for reduction of sentence.
2. Immunities or special procedural rules which may attach to the official
capacity of a person, whether under national or IL, shall not bar the court from exercising
its jurisdiction over such a person."
Therefore since the end of the WWII, there has been a clear recognition by the
international community that certain crimes are so grave and so inhuman that they
constitute crimes against IL and that the international community is under a duty to bring
to justice a person who commits such crimes. Torture has been recognised as such a
crime.
SENATOR PINOCHET AND HIS CLAIM FOR IMMUNITY
-grounds for such claim: that acts of torture committed by him when he was
head of state were done by him in exercise of his functions as head of state.
LORD HUTTON’S JUDGMENT: In my opinion he is not entitled to claim such immunity.
The Torture Convention makes it clear that no state is to tolerate torture by its public
officials or by persons acting in an official capacity43
43
See Art. 2 of the torture convention
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Issue is WON the acts of torture were functions of a head of state: My Lords, the
position taken by the democratically elected Government of Chile that it desires to
defend Chilean national sovereignty and considers that any investigation and trial of
Senator Pinochet should take place in Chile is understandable. But in my opinion that is
not the issue which is before your Lordships; the issue is whether the commission of acts
of torture taking place after 29 September 1988 was a function of the head of state of
Chile under IL. For the reasons which I have given I consider that it was not.
LORD SAVILLE OF NEWDIGATE
My Lords,
QUESTIONS OF LAW:
1. WON Pinochet’s acts amount to extradition crimes as he can only be extradited for
an extradition crime under the Extradition Act of 1989.
2. WON he enjoys immunity as former head of state with regard to these
extradition crimes.
I agree with the conclusions and reasoning of Lord Browne-Wilkinson & with Lord Hope
of Craighead as regards the allegations which amount to extradition crimes.
GENERAL RULES UNDER CUSTOMARY IL:
1. Serving heads of state enjoy immunity immunity from criminal proceedings in other
countries by virtue of holding that office. = immunity ratione personae.
It covers all conduct of the head of state while the person concerned holds that
office and thus draws no distinction between what the head of state does in his official
capacity (i.e. what he does as head of state for state purposes) and what he does in his
private capacity.
2. Former heads of state do not enjoy this form of immunity. However, a former head
of state does enjoy immunity from criminal proceedings in other countries in respect of
what he did in his official capacity as head of state. This form of immunity is known as
immunity ratione materiae.
3. These immunities belong not to the individual but to the state in question. They exist
in order to protect the sovereignty of that state from interference by other states.
They can, of course, be modified or removed by agreement between states or
waived by the state in question.
Lord Saville on the effect of Sec. 20(1)(a) of the State Immunity Act of 1978: =To
give effect to these IL immunities. The allegations concern acts done in his official
capacity. The extradition proceedings are criminal proceedings, hence, it follows that
unless there exists, by agreement or otherwise, any relevant qualification or exception to
the general rule of immunity ratione materiae, Senator Pinochet is immune from this
extradition process.
EXCEPTION TO THE GENERAL RULES: Only possible exception relates to torture. I
believe that there is no such exception or qualification before the Torture Convention.
Although the systematic or widespread use of torture became universally condemned as
an international crime, it does not follow that a former head of state, who as head of state
used torture for state purposes, could under IL be prosecuted for torture in other
countries where previously under that law he would have enjoyed immunity ratione
materiae.
36
The Torture Convention:
-Set up a scheme under which each state becoming a party was in effect obliged
either to extradite alleged torturers found within its jurisdiction or to refer the case to its
appropriate authorities for the purpose of prosecution.
-Thus as between the states who are parties to the Convention, there is now an
agreement that each state party will establish and have this jurisdiction over alleged
torturers from other state parties.44
-Applies only to any act of torture "inflicted by or at the instigation of or with the
consent or acquiescence of a public official or other person acting in an official capacity."
It thus covers what can be described as official torture and must therefore include
torture carried out for state purposes. The words used are wide enough to cover not
only the public officials or persons acting in an official capacity who themselves inflict
torture but also (where torture results) those who order others to torture or who conspire
with others to torture.
CONCLUSION: Torture is an exception to the general rule of immunity as agreed
upon by the state parties to the Convention:
A head of state who tortures for state purposes, would be a person acting in an official
capacity within the meaning of the Convention. He would be a prime example of an
official torturer.
Torture as an official act and immunity
Immunity ratione personae Immunity ratione materiae
I don’t think this is removed in cases of Wholly related to what a former head of
torture because this immunity is enjoyed by state did in his official capacity.
the head of state whether he is acting in an
official or private capacity.
Attaches to the office and not to any Attaches to a former head of state’s conduct
particular conduct of the office holder. whilst in office.
-I cannot see how immunity ratione materiae can exist consistently with the terms of
the Convention. Each state party has agreed that the other state parties can exercise
jurisdiction over alleged official torturers found within their territories, by extraditing them
or referring them to their own appropriate authorities for prosecution; and thus to my
mind can hardly simultaneously claim an immunity from extradition or prosecution that is
necessarily based on the official nature of the alleged torture.
-I believe that Since December 8, 1988 (when Convention was ratified), Chile, Spain
and UK, as parties are in agreement that immunity ratione materiae of their former heads
of state cannot be claimed in cases of alleged official torture. In other words, so far as
the allegations of official torture against Senator Pinochet are concerned, there is now
by this agreement an exception or qualification to the general rule of immunity
ratione materiae.
-This conclusion was reached by the Convention’s express terms. A former head of
state who resorted to torture for official purposes falls within the Convention’s terms. It is
those who seek to remove such alleged official torturers from the machinery of the
44
UK has established this jurisdiction through a combination of Sec. 134 of the
Administration of Justice Act 1988 and the Extradition Act 1989. It ratified the Torture
Convention on 8 December 1988. Chile’s ratification of the Convention took effect on 30
October 1988 and that of Spain just over a year earlier.
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Convention who have to assert a basis to hold the clear words of the Convention as
inapplicable to a former head of state. I can see no valid basis for such an assertion. QUESTION BEFORE THE LORDSHIPS: Whether a parallel development has taken
place so as to restrict the availability of state immunity as a bar to the criminal jurisdiction
OTHER ARGUMENTS AND LORD SAVILLE’S TAKE ON THEM: of national courts.
Anent Absence of any discussion on the removal of the immunity during
negotiations leading to the Convention: If states wished to preserve such immunity, in 2 OVERLAPPING IMMUNITIES RECOGNIZED BY IL:
the face of universal condemnation of official torture, it is perhaps not surprising that they RATIONE PERSONAE RATIONE MATERIAE
kept quiet about it. -A status immunity. -A subject-matter immunity.
-The individual enjoys protection because -It operates to prevent the official and
Anent Express waiver: True. I agree with this as a General proposition. But the express of his official status. governmental acts of one state from being
and unequivocal terms of the Torture Convention fulfil any such requirement. To my mind -While in office, he enjoys absolute called into question in proceedings before
these terms demonstrate that the states who have become parties have clearly and immunity from the civil and criminal the courts of another, and only incidentally
unambiguously agreed that official torture should now be dealt with in a way which would jurisdiction of the national courts of foreign confers immunity on the individual.
otherwise amount to an interference in their sovereignty. states. -Immunity from the civil and criminal
jurisdiction of foreign national courts but
Anent Act of State and non-justiciability: These arguments must also fail, since they only in respect of governmental or official
are equally inconsistent with the terms of the Convention agreed by these state parties. acts.
-But only narrowly available. -A narrower immunity but it is more widely
LORD SAVILLE’S JUDGMENT: I would accordingly allow this appeal to the extent -Confined to serving heads of state and available.
necessary to permit the extradition proceedings to continue in respect of the crimes of heads of diplomatic missions, their families -Available to former heads of state and
torture and (where it is alleged that torture resulted) of conspiracy to torture, allegedly and servants. heads of diplomatic missions, and any one
committed by Senator Pinochet after 8 December 1988. whose conduct in the exercise of the
-Not available to serving heads of authority of the state is afterwards called
LORD MILLETT government who are not also heads of into question, whether he acted as head of
Agrees with Lord Browne-Wilkinson’s reasoning save in one respect (That statutory state, military commanders and those in government, government minister, military
authority is not required to exercise jurisdiction over crimes such as torture). charge of the of the security forces, or their commander or chief of police, or
STATE IMMUNITY DOES NOT BELONG TO PINOCHET BUT TO THE REPUBLIC OF subordinates (it would’ve been available to subordinate public official.
CHILE Hitler, but not to Mussolini or Tojo).
-State immunity is not a personal right. -Immunity is the same whatever the rank of
-It is an attribute of the sovereignty of the state. the office-holder. The exercise of authority
-The immunity which is in question in the present case, therefore, belongs to the by the military and security forces of the
Republic of Chile, not to Senator Pinochet. state is the paradigm example of such
-It may be asserted or waived by the state, but where it is waived by treaty or conduct.
convention the waiver must be express. -It is reflected in English law by §20(1) of -Given statutory form in English law by the
the State Immunity Act 1978, enacting combined effect of §20(1) of the State
THE DOCTRINE OF STATE IMMUNITY customary IL and the Vienna Convention Immunity Act 1978 the Diplomatic
-The product of the classical theory of IL. on Diplomatic Relations (1961). Privileges Act 1964 and Art. 39(2) of the
-Taught that states were the only actors on the international plane; the rights of Vienna Convention.
individuals were not the subject of IL. Rationale of the immunities:
-States were sovereign and equal: it followed that one state could not be impleaded -Head of state’s special status as the -The equality of sovereign states and the
in the national courts of another: par in parem non habet imperium. holder of his state’s highest office. doctrine of non-interference in the internal
-States were obliged to abstain from interfering in the internal affairs of one another. -He is regarded as the personal affairs of other states. It was held that
-IL was not concerned with the way in which a sovereign state treated its own embodiment of the state itself. courts of one state cannot sit in judgment
nationals in its own territory. -It would be an affront to the dignity and on the sovereign acts of another.45
-It is a cliche of modern IL that the classical theory no longer prevails in its sovereignty of the state which he
unadulterated form. The idea that individuals who commit crimes recognised as such by personifies and a denial of the equality of -The immunity is sometimes also justified
IL may be held internationally accountable for their actions is now an accepted doctrine sovereign states to subject him to the by the need to prevent the serving head of
of IL. jurisdiction of the municipal courts of state or diplomat from being inhibited in the
-The adoption by most major jurisdictions of the restrictive theory of state immunity,
enacted into English law by Part I of the State Immunity Act 1978, has made major
45
inroads into the doctrine as a bar to the jurisdiction of national courts to entertain civil Duke of Brunswick v. King of Hanover (1848) 2 H.L.Cas. 1; Hatch v. Baez (1876) 7 Hun.
proceedings against foreign states. 596 U.S.; Underhill v. Hernandez (1897) 168 U.S. 456.
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 * bok * cj * tiff * gem * tin *
another state, whether in respect of his performance of his official duties by fear of
public acts or private affairs. His person is the consequences after he has ceased to
inviolable; he is not liable to be arrested or hold office. This last basis can hardly be
detained on any ground whatever. prayed in aid to support the availability of
-The head of a diplomatic mission the immunity in respect of criminal
represents his head of state and thus activities prohibited by IL.
embodies the sending state in the territory
of the receiving state. Hence he also
enjoys absolute immunity while in office.
IMMUNITY AT ISSUE IN THIS CASE: Immunity ratione materiae. Given its scope and
rationale, it is closely similar to and may be indistinguishable from aspects of the Anglo-
American Act of State doctrine.
Immunity ratione materiae Anglo-American Act of State Doctrine
-A creature of IL -A rule of domestic law
-Operates as a plea in bar to the -Holds the national court incompetent to
jurisdiction of the national court adjudicate upon the lawfulness of the
sovereign acts of a foreign state.
THE DIFFICULTIES OF THE STATE IMMUNITY ACT OF 1978
-The former head of state is given the same immunity "subject to all necessary
modifications" as a former diplomat, who continues to enjoy immunity in respect of acts
committed by him "in the exercise of his functions."
-The functions of a diplomat are limited to diplomatic activities, ie. acts performed in
his representative role in the receiving state. He has no broader immunity in respect of
official or governmental acts not performed in exercise of his diplomatic functions.
-There is therefore a powerful argument for holding that, by a parity of reasoning,
the statutory immunity conferred on a former head of state by the Act of 1978 is confined
to acts performed in his capacity as head of state, ie. in his representative role. If so, the
statutory immunity would not protect him in respect of official or governmental
acts which are not distinctive of a head of state, but which he performed in some
other official capacity, whether as head of government, commander-in-chief or
party leader.
IL BEFORE WWII WOULD HAVE ATTRACTED IMMUNITY RATIONE MATERIAE
-Pinochet is accused, with acts related to his position as 1st Commander-in-Chief of
the Chilean army, then later, as head of state, for having embarked on a widespread and
systematic reign of terror in order to obtain power and then to maintain it. If these are
true, he deliberately employed torture as an instrument of state policy.
-Before the WWII, under IL, his conduct as head of state would have attracted
immunity ratione materiae. This would be equally true of acts performed as
Commander-in-Chief. These were not private acts. They were official and governmental
or sovereign acts by any standard. This immunity would’ve been available absolutely.
-HOWEVER, even before the end of WWII, it was questionable whether the doctrine
of state immunity accorded protection in respect of conduct which was prohibited by IL.46
46
As early as 1841, many commentators held the view that: "the Government’s authority
could not confer immunity upon its agents for acts beyond its powers under IL. Sir Hirsch
Lauterpacht (1947) 63 L.Q.R. pp. 442-3. Writing in (1946) 59 Harvard Law Journal 396
before the Nuremberg Tribunal delivered its judgment and commenting on the seminal
judgment of Chief Justice Marshall in Schooner Exchange v. McFaddon (1812) 11 U.S. (7
38
NUREMBERG TRIBUNAL ON WAR CRIMES AS INTERNATIONAL CRIMES
-Whether conduct contrary to the peremptory norms of IL attracted state immunity
from the jurisdiction of national courts, however, was largely academic in 1946, since the
criminal jurisdiction of such courts was generally restricted to offences committed within
the territory of the forum state or elsewhere by the nationals of that state.
-The International Military Tribunal (the Nuremberg Tribunal) which was established
by the four Allied Powers at the conclusion of the WWII to try the major war criminals
was not, strictly speaking, an international court or tribunal.
-The Tribunal was the joint exercise by the four states which established the
Tribunal, of a right which each of them was entitled to exercise separately on its own
responsibility in accordance with IL."
-Art. 7 of its Charter provided: "The official position of defendants, whether as
heads of state or responsible officials in government departments, shall not be
considered as freeing them from responsibility or mitigating punishment."
-“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 rules of war cannot obtain immunity while acting in pursuance of the
authority of the state if the state in authorising action moves outside its competence
under IL. The principle of IL, which under certain circumstances protects the
representatives of a state, cannot be applied to acts which are condemned as criminal by
IL"
-The great majority of war criminals were tried in the territories where the crimes
were committed. The jurisdiction of these courts has never been questioned and could
be said to be territorial. But everywhere the plea of state immunity was rejected in
respect of atrocities committed in the furtherance of state policy in the course of the
WWII; and nowhere was this justified on the narrow (though available) ground that there
is no immunity in respect of crimes committed in the territory of the forum state.
JURISDICTION
UN GENERAL ASSEMBLY47 UNANIMOUSLY AFFIRMS THE PRINCIPLES OF THE
NUREMBERG TRIBUNAL IN RESOLUTION 95 IN 1946.
Cranch) 116, Sheldon Glueck observed at p. 426: "Thus state immunity did not provide a
defence to a crime against the rules of war: "As Marshall implied, even in an age when the
doctrine of sovereignty had a strong hold, the non-liability of agents of a state for ‘acts of
state’ must rationally be based on the assumption that no member of the Family of Nations
will order its agents to commit flagrant violations of international and criminal law." Glueck
added that: "In modern times a state is—ex hypothesi- incapable of ordering or ratifying acts
which are not only criminal according to generally accepted principles of domestic penal
law but also contrary to that international law to which all states are perforce subject. Its
agents, in performing such acts, are therefore acting outside their legitimate scope; and must,
in consequence be held personally liable for their wrongful conduct." It seems likely that
Glueck was contemplating trial before municipal courts, for more than half a century was to
pass before the establishment of a truly international criminal tribunal. This would also be
consistent with the tenor of his argument that the concept of sovereignty was of relatively
recent origin and had been mistakenly raised to what he described as the "status of some
holy fetish."
47
UN GA
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-After that, it was undeniable that individuals could be held criminally responsible for
war crimes and crimes against peace and were not protected by state immunity from the
jurisdiction of national courts.
-Moreover, it was not suggested that trial could only be held where the crime was
committed.
Jurisdiction Not Limited To Crimes In Connection With War Crimes or Crimes Against
Peace: The tribunal ruled that it only had jurisdiction over crimes connected to war
crimes or crimes against peace. But this jurisdictional restriction based on the
Charter cannot be considered as a substantive requirement of IL. It was natural in
the immediate aftermath of war to establish such connection. As memory of the
war receded, it was abandoned.
-The UN GA rejected this principle but recognized the necessity to distinguish
international crimes from ordinary domestic offences. For this, the Commission proposed
that acts would constitute international crimes only if they were committed at the
instigation or the toleration of state authorities. This is the distinction which was later
adopted in the Convention against Torture (1984).
Distinction Important In Relation To Immunity Ratione Materiae: The very official or
governmental character of the acts which is necessary to found a claim to immunity
ratione materiae, and which still operates as a bar to the civil jurisdiction of national
courts, was now to be the essential element which made the acts an international crime.
-This is why the Commission’s draft code provided that: "The fact that a person
acted as head of state or as a responsible Government official does not relieve him of
responsibility for committing any of the offences defined in the code."
CASES CITED:
ISRAEL V. EICHMANN (1962), Landmark Decision Of The Israel Sc: Eichmann was a
very senior official of the 3rd Reich. He was in charge with the implementation of the final
solution and subordinate to only 2. He was abducted in Argentina, brought to Israel, tried
and convicted. SC dismissed his appeal. His abduction has been greatly criticized but
Israel’s right to assert jurisdiction was never questioned. The court dealt with issues of
jurisdiction and Act of the State. Israel was not a belligerent of WWII nor were the crimes
committed within its territory. Jurisdiction was supported by the historic link between
Israel and the Jews.
-The SC concentrated on the international and universal character of the crimes he
was convicted of, not least because some were directed against non-Jewish groups
(Poles, Slovenes, Czechs and gipsies).
The case is authority for three propositions:
1. There is no rule of IL which prohibits a state from exercising
extraterritorial criminal jurisdiction in respect of crimes committed by foreign
nationals abroad.
-The jurisdiction of the court was derived from an Act of 1950, which it held not to
conflict any principle of IL. After a detailed examination of the authorities including
the SS Lotus case, it concluded that there was no rule of IL which prohibited a state
from trying a foreign national for an act committed outside its borders.
-There seems no reason to doubt this conclusion. The limiting factor that prevents
the exercise of extra-territorial criminal jurisdiction from amounting to an
unwarranted interference with the internal affairs of another state is that, for the trial
to be fully effective, the accused must be present in the forum state.
39
2. War crimes and atrocities of the scale and international character of the
Holocaust are crimes of universal jurisdiction under customary IL.
-Significantly, the court also held that the scale and international character of
the atrocities of which the accused had been convicted fully justified the application of
the doctrine of universal jurisdiction. It approved the general consensus of jurists that war
crimes attracted universal jurisdiction
-This seems to have been an independent source of jurisdiction derived from
customary IL, which formed part of the unwritten law of Israel, and which did not depend
on the statute. The court explained that the limitation often imposed on the exercise of
universal jurisdiction, that the state which apprehended the offender must first offer to
extradite him to the state in which the offence was committed, was not intended to
prevent the violation of the latter’s territorial sovereignty. Its basis was purely practical.
The great majority of the witnesses and the greater part of the evidence would normally
be concentrated in that state, and it was therefore the most convenient forum for the trial.
3. The fact that the accused committed the crimes in question in the course
of his official duties as a responsible officer of the state and in the exercise of his
authority as an organ of the state is no bar to the exercise of the jurisdiction of a
national court.
-The Court rejected the defence of Act of State.
-This did not differ in any material respect from a plea of immunity ratione
materiae. It was based on the fact that in committing the offences of which he had been
convicted the accused had acted as an organ of the state, "whether as head of the state
or a responsible official acting on the government’s orders." The court applied Art. 7 of
the Nuremberg Charter and which it regarded as having become part of the law of
nations.
DEMJANJUK V. PETROVSKY (1985, US CASE)-In the context of an extradition request
by the State of Israel the court accepted Israel’s right to try a person charged with murder
in the concentration camps of Eastern Europe. It held that the crimes were crimes of
universal jurisdiction, observing: "IL provides that certain offences may be punished by
any state because the offenders are enemies of all mankind and all nations have an
equal interest in their apprehension and punishment."
-The difficulty is to know precisely what is the ambit of the expression "certain
offences".
THE TREND WAS CLEAR: WAR CRIMES HAD BEEN REPLACED BY CRIMES
AGAINST HUMANITY
Art. 5 of the Universal Declaration of Human Rights of 1948 and Art. 7 of the
International Covenant on Civil and Political Rights of 1966 both provided that no one
shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.
General Assembly Resolution in 1973 proclaimed the need for international co-
operation in the detection, arrest, extradition and punishment of persons guilty of war
crimes and crimes against humanity.
General Assembly Resolution in 1975 proclaimed the desire to make the
struggle against torture more effective throughout the world. The fundamental human
rights of individuals, deriving from the inherent dignity of the human person, had become
a commonplace of IL.
Art. 55 of the Charter of the UN was taken to impose an obligation on all states
to promote universal respect for and observance of human rights and fundamental
freedoms.
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-The way in which a state treated its own citizens within its own borders had
become a matter of legitimate concern to the international community.
The most serious crimes against humanity were genocide and torture. Genocide
was made an international crime by the Genocide Convention in 1948.
-Large scale and systematic use of torture and murder by state authorities for
political ends had come to be regarded as an attack upon the international order.
-When Pinochet seized power, the international community had renounced the use
of torture as an instrument of state policy.
-The Republic of Chile accepts that by 1973 the use of torture by state authorities
was prohibited by IL, and that the prohibition had the character of jus cogens or
obligation erga omnes. But insists that this does not confer universal jurisdiction or
affect immunity ratione materiae.
Lord Millet’s opinion: NO STATUTORY AUTHORITY IS REQUIRED FOR UK
COURTS TO EXERCISE JURISDICTION OVER CRIMES SUCH AS TORTURE
Crimes Prohibited By IL Attract Universal Jurisdiction Under CUSTOMARY IL Upon
Satisfaction Of 2 Criteria:
1. They must be contrary to a peremptory norm of IL so as to infringe a jus cogens.
-This is well attested in the authorities & text books. In Prosecutor v. Anto
Furundzija (10 December 1998) the court stated: "At the individual level, that is, of
criminal liability, it would seem that one of the consequences of the jus cogens character
bestowed by the international community upon the prohibition of torture is that every
state is entitled to investigate, prosecute, and punish or extradite individuals accused of
torture who are present in a territory under its jurisdiction."
2. They must be so serious and on such a scale that they can justly be regarded as
an attack on the international legal order.
-This req is implicit in the original restriction to war crimes and crimes against
peace, the reasoning of the court in Eichmann, and the definitions used in the more
recent Conventions establishing ad hoc international tribunals for the former Yugoslavia
and Rwanda.
-Isolated offences, even if committed by public officials, would not satisfy
these criteria.
-Every state has jurisdiction under customary IL to exercise extra-territorial
jurisdiction in respect of international crimes which satisfy the relevant criteria.
-Whether its courts have extra-territorial jurisdiction under its internal domestic law
depends, of course, on its constitutional arrangements and the relationship between
customary IL and the jurisdiction of its criminal courts. The jurisdiction of the English
criminal courts is usually statutory but supplemented by common law. Customary IL is
part of the common law, and accordingly I consider that the English courts have and
always have had extra-territorial criminal jurisdiction in respect of crimes of universal
jurisdiction under customary IL.
THE PROHIBITION ON TORTURE (And Other Crimes) EXISTED WELL BEFORE THE
TORTURE CONVENTION
-The assumption that the prohibition against torture and other cruel, inhuman or
degrading treatment or punishment is established under IL only by the Convention and
binding only to the state parties is incorrect. On the contrary, the Convention is based
40
upon the recognition that the above-mentioned practices are already outlawed under IL,
with the principal aim of strengthening the existing prohibition.
The Systematic Use Of Torture On A Large Scale And As An Instrument Of
State Policy Had Joined Piracy, War Crimes And Crimes Against Peace As An
International Crime Of Universal Jurisdiction Well Before 1984. I consider that it had
done so by 1973. Therefore, I would hold that the courts of this country already
possessed extra-territorial jurisdiction in respect of torture and conspiracy to torture on
the scale of the charges in the present case and did not require the authority of statute to
exercise it, contrary to your Lordships’ view. Such authority was conferred by Sec. 134 of
the Criminal Justice Act 1988 and the section is not restrospective. Hence, I shall
proceed on the footing that Pinochet cannot be extradited for acts before Sec. 134.
THE STATUTORY AUTHORITY FOR EXERCISING EXTRA-TERRITORIAL
JURISDICTION
-The Torture Convention did not create a new international crime, but redefined it by
extending the offence to cover isolated and individual instances of torture provided that
they were committed by a public official (as opposed to only the widespread and
systematic use of torture as an instrument of state policy)
-I believe that offences of this kind were not previously regarded as international
crimes attracting universal jurisdiction. The charges against Senator Pinochet, however,
are plainly of the requisite character.
-The Convention thus affirmed and extended an existing international crime and
imposed obligations on the parties to the Convention to take measures to prevent it and
to punish those guilty of it. The obligation imposed by the Convention resulted in the
passing of Sec. 134 of the Criminal Justice Act 1988.
CONCLUSION AS TO JURISDICTION: I agree, that our courts have statutory extra-
territorial jurisdiction in respect of the charges of torture and conspiracy to torture
committed after the section had come into force and (for the reasons explained by my
noble and learned friend, Lord Hope of Craighead) the charges of conspiracy to murder
where the conspiracy took place in Spain.
IMMUNITY RATIONE MATERIAE , THE TORTURE CONVENTION and SEC. 134
TORTURE AND CONSPIRACY TO TORTURE:
DEFINITION OF TORTURE (CONVENTION & SEC. 134) ARE INCONSISTENT WITH
IMMUNITY RATIONE MATERIAE. The offence can be committed only by or at the
instigation of or with the consent or acquiescence of a public official or other person
acting in an official capacity.
-The official or governmental nature of the act, which forms the basis of the
immunity, is an essential ingredient of the offence. No rational system of criminal justice
can allow an immunity which is co-extensive with the offence.
-While immunity ratione personae may still be claimed by a head of state or
diplomat (coz his immunity is absolute), a former head of state and a former diplomat are
in no different position from anyone else claiming to have acted in the exercise of state
authority.
-If the respondent’s arguments were accepted, section 134 would be a dead letter.
Either the accused was acting in a private capacity, in which case he cannot be charged
with an offence under the section; or he was acting in an official capacity, in which case
he would enjoy immunity from prosecution. Perceiving this weakness in her argument,
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counsel for Senator Pinochet submitted that the UK took jurisdiction so that it would be
available if, but only if, the offending state waived its immunity. I reject this explanation
out of hand. It is not merely far-fetched; it is entirely inconsistent with the aims and object
of the Convention. The evidence shows that other states were to be placed under an
obligation to take action precisely because the offending state could not be relied upon to
do so.
CHILE DID NOT WAIVE ITS IMMUNITY COZ IMMUNITY RATIONE MATERIAE IS
NOT AVAILABLE TO THIS CRIME. The Republic of Chile was a party to the Torture
Convention, and must be taken to have assented to the imposition of an obligation on
foreign national courts to take and exercise criminal jurisdiction in respect of the official
use of torture.
-I do not regard it as having thereby waived its immunity. In my opinion there was no
immunity to be waived. The offence is one which could only be committed in
circumstances which would normally give rise to the immunity.
-The international community had created an offence for which immunity ratione
materiae could not possibly be available. IL cannot be supposed to have established a
crime having the character of a jus cogens and at the same time to have provided an
immunity which is co-extensive with the obligation it seeks to impose.
-I see nothing illogical or contrary to public policy in denying the victims of state
sponsored torture the right to sue the offending state in a foreign court while at the same
time permitting (and indeed requiring) other states to convict and punish the individuals
responsible if the offending state declines to take action. This was the very object of the
Torture Convention.
-Chile insists on the exclusive right to prosecute him. The Torture Convention, however,
gives it only the primary right. If it does not seek his extradition (and it does not) then the
UK is obliged to extradite him to another requesting state or prosecute him itself.
CONSPIRACY TO MURDER: The offences are alleged to have taken place in the
requesting state. The plea of immunity ratione materiae is not available in respect of an
offence committed in the forum state, whether this be England or Spain.
LORD MILLET’S JUDGMENT: I would allow the appeal in respect of the charges
relating to the offences in Spain and to torture and conspiracy to torture wherever and
whenever carried out.
But the majority of your Lordships think otherwise, and consider that Senator Pinochet
can be extradited only in respect of a very limited number of charges. This will transform
the position from that which the Secretary of State considered last December. I agree
with my noble and learned friend Lord Browne-Wilkinson that it will be incumbent on the
Secretary of State to reconsider the matter in the light of the very different circumstances
which now prevail.
LORD PHILLIPS OF WORTH MATRAVERS
My Lords,
I agree with Lord Browne-Wilkinson with regard to the issue of WON the crimes were
extradition crimes, and with Lord Hope of Craighead with regard to the non-availability of
state immunity with respect to these extradition crimes.
STATE IMMUNITY
Why is it said to be contrary to international law to prosecute someone who was once
head of state, or a state official, in respect of acts committed in his official capacity? It is
common ground that the basis of the immunity claimed is an obligation owed to Chile,
not to Senator Pinochet. The immunity asserted is Chile’s. The following general
principles are invoked by Chile to support its claim of immunity:
41
(a) the sovereign equality of states and the maintenance of international relations
require that the courts of one state will not adjudicate on the governmental acts of
another state;
(b) intervention in the internal affairs of other states is prohibited by international
law;
(c) conflict in international relations will be caused by such adjudication or
intervention."
THE SOURCES OF IMMUNITY
Many rules of public international law are founded upon or reflected in Conventions. The
primary source of IL is custom, that is "a clear and continuous habit of doing certain
actions which has grown up under the conviction that these actions are, according to IL,
obligatory or right." Other sources of IL are judicial decisions, the writing of authors and
"the general principles of law recognised by all civilised nations" (see Art. 38 of the
Statute of the ICJ).
CUSTOM, NOT A FOUNDATION FOR IMMUNITY
-Prior to the developments in international law which have taken place in the last
fifty years international practice of criminal law was territorial. Pinochet would not have
been subjected to criminal proceedings here for acts committed in Chile because under
the law of England, he has committed no crime.
-This accorded with the fundamental principle of IL that one state must not intervene
in the internal affairs of another.
-The Vienna Convention on Diplomatic Relations 1961 provides for immunity from
civil and criminal process while the diplomat is in post and, thereafter, in respect of
conduct which he committed in the performance of his official functions while in post.
-Customary IL provided a head of state with immunity from any form of process
while visiting a foreign state. It seems unlikely though that a foreign head of state should
commit a crime in the performance of his official functions while on a visit then
subsequently return after ceasing to be head of state.
-this cannot have happened with sufficient frequency for any custom to have
developed in relation to it.
-Nor am I aware of any custom which would have protected from criminal
process a visiting official of a foreign state who was not a member of a special mission
had he had the temerity to commit a criminal offence in the pursuance of some official
function.
-Hence, I do not believe that custom can provide any foundation for a rule that
a former head of state is entitled to immunity from criminal process in respect of crimes
committed in the exercise of his official functions.
JUDICIAL DECISIONS
-Pinochet & Chile have not been able to point to any body judicial precedent which
supports the proposition that a former head of state or other government official can
establish immunity from criminal process on the ground that the crime was committed in
the course of performing official functions.
-The best that counsel for Chile has been able to do is to draw attention to the
following obiter opinion of the Swiss Federal Tribunal in Marcos and Marcos v. Federal
Department of Police (1989): "The privilege of the immunity from criminal jurisdiction of
heads of state has not been fully codified in the Vienna Convention [on Diplomatic
Relations]. But it cannot be concluded that the texts of conventions drafted under the
aegis of the UN grant a lesser protection to heads of foreign states than to the diplomatic
representatives of the state which those heads of state lead or universally represent.
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Arts. 32 and 39 of the Vienna Convention must therefore apply by analogy to heads of
state."
WRITINGS OF AUTHORS
(cites some writings establishing the former head of state’s entitlement to immunity)
-Lord Phillips do not find these writings, unsupported as they are by any reference
to precedent or practice, a compelling foundation for the immunity in respect of criminal
proceedings that is asserted.
GENERAL PRINCIPLES OF LAW RECOGNISED BY ALL CIVILISED NATIONS
-The claim for immunity raised in this case is asserted in relation to a novel type of
extra-territorial criminal jurisdiction.
-If immunity from that jurisdiction is to be established it seems to me that this can
only be on the basis of applying the established general principles of IL relied upon by
Chile, rather than any specific rule of law relating to immunity from criminal process.
-These principles underlie some of the rules of immunity that are clearly established
in relation to civil proceedings.
RULES OF IMMUNITY
IMMUNITY FROM CIVIL SUIT OF THE STATE ITSELF
-Originally an absolute rule that the court of one state would not entertain a civil suit
brought against another state.
-All states are equal and this is why one state could not sit in judgment on another.
-But state practice developed an alternative restrictive rule of state immunity in
respect of public acts, when the states began to engage in commerce on a large scale.
-A distinction was drawn between acts done jure imperii and acts done jure
gestionis.
-In Trendtex Trading Corporation v. Central Bank of Nigeria [1977], the majority of
the Court of Appeal held that the common law of England, of which IL forms part, had
also changed to embrace the restrictive theory of state immunity from civil process. That
change was embodied in the State Immunity Act 1978, which gave effect to the
European Convention on State Immunity of 1972. Part I 48 of the Act provides for a state’s
general immunity from jurisdiction. However, Sec. 16(4) expressly stated that Part I does
not apply to criminal proceedings.
THE IMMUNITY OF A HEAD OF STATE RATIONE PERSONAE.
-Applied to both criminal and civil proceedings and, insofar as civil proceedings
were concerned, to transactions entered into by the head of state in his private as well as
his public capacity.
When the immunity of the state in respect of civil proceedings was restricted to
exclude commercial transactions, the immunity of the head of state in respect of
transactions entered into on behalf of the state in his public capacity was similarly
48
Part I :
1. General immunity from jurisdiction
(1) A state is immune from the jurisdiction of the courts of the UK except as provided in
the following provisions of this Part of this Act."
Part I goes on to make provision for a number of exceptions from immunity, the most
notable of which is, by Section 3, that in relation to a commercial transaction entered into by
the state.
42
restricted, although the remainder of his immunity remained (Sections 14 (1) (a) and 20
(5) of the Act of 1978).
IMMUNITY RATIONE MATERIAE
-Applies to preclude the courts of another state from asserting jurisdiction in relation
to a suit brought against an official or other agent of the state, present or past, in relation
to the conduct of the business of the state while in office.
-While a head of state is serving, his status ensures him immunity. Once he is out of
office, he is in the same position as any other state official and any immunity will be
based upon the nature of the subject matter of the litigation.
-2 explanations for immunity ratione materiae.
1. To sue an individual in respect of the conduct of the state’s business is,
indirectly, to sue the state. The state would be obliged to meet any award of damage
made against the individual. This reasoning has no application to criminal proceedings.
2. The principle that it is contrary to IL for one state to adjudicate upon the
internal affairs of another state.
Where a state or a state official is impleaded, this principle applies as part of
the explanation for immunity. Where a state is not directly or indirectly impleaded in the
litigation, so that no issue of state immunity as such arises, the English and American
courts have nonetheless, as a matter of judicial restraint, held themselves not competent
to entertain litigation that turns on the validity of the public acts of a foreign state,
applying what has become known as the act of state doctrine.
-(cites the cases counsel for respondent provided the court)49 All but one of those
cases involved decisions of courts exercising the federal jurisdiction of the US, Al-Adsani
v. Government of Kuwait being a decision of the Court of Appeal of this country. In each
case immunity from civil suit was afforded by statute—in America, the Foreign Sovereign
Immunities Act and, in England, the State Immunity Act 1978. In each case the court felt
itself precluded by the clear words of the statute from acceding to the submission that
state immunity would not protect against liability for conduct which infringed IL.
EXTENT TO WHICH THE RULE50 WILL APPLY TO THE EXERCISE OF CRIMINAL
JURISDICTION
Summary of the Respondent’s Submission
Lord Phillips on the Submissions
in respect of the effect of Public IL
1. One state will not entertain judicial -The 1st 2 are made out in relation to
proceedings against a former head of state civil proceedings.
or other state official of another state in
relation to conduct performed in his official Hence, the vital issue is: the extent to
capacity. which they apply to the exercise of
2. This rule applies even if the conduct criminal jurisdiction in relation to the
49
Saltany v. Reagan (1988) 702 F. Supp. 319 (claims of assassination and terrorism);
Siderman de Blake v. Republic of Argentine (1992) 965 F.2d 699 (claim of torture); Princz
v. Federal Republic of Germany (1994) 26 F. 3d 1166 (D.C. Cir. 1994) (claim in respect of
the holocaust); Al-Adsani v. Government of Kuwait (1996) 107 I.L.R. 536 (claim of torture);
Sampson v. Federal Republic of Germany 975 F. Supp. 1108 (N.D. I11. 1997) (claim in
respect of the holocaust); Smith v. Libya, 886 F. Supp. 406 (EDNY, 1995) 101 F. 3d 239 (2d
Cir. 1996) (claim in respect of Lockerbie bombing); Persinger v. Islamic Republic of Iran
729 F.2d 835, (D.C. Cir. 1984) (claim in relation to hostage taking at the U.S. Embassy).
50
see #1 of the submissions
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amounts to a crime against international conduct that forms the basis of the
law. request for extradition.
3. This rule applies in relation to both
civil and criminal proceedings.
THE DEVELOPMENT OF INTERNATIONAL CRIMINAL LAW
In the latter part of this century there has been developing a recognition among states
that some types of criminal conduct cannot be treated as a matter for the exclusive
competence of the state in which they occur.
-The appellants contend that IL now recognises a category of criminal conduct with
the following characteristics:
1) It is so serious as to be of concern to all nations and not just to the state in which
it occurs.
2) Individuals guilty of it incur criminal responsibility under IL.
3) There is universal jurisdiction in respect of it. This means that IL recognises
the right of any state to prosecute an offender for it, regardless of where the criminal
conduct took place.
4) No state immunity attaches in respect of any such prosecution.
-This is an area where IL is on the move and has been effected by express
consensus. Since WWII, states have recognized that not all criminal conduct can be left
to dealt with as a domestic matter by the laws and the courts of the territories in which
such conduct occurs. Some crimes are of such gravity that they cannot be tolerated by
the international community. The nature of these crimes is such that they are likely to
involve the concerted conduct of many and liable to involve the complicity of the officials
of the state in which they occur, if not of the state itself. In these circumstances it is
desirable that jurisdiction should exist to prosecute individuals for such conduct outside
the territory in which such conduct occurs.
-I believe that it is still not resolved WON IL recognizes universal jurisdiction over
international crimes.
-Israel asserted such a jurisdiction in the case of Eichmann, in relation to war
crimes, but this does not reflect any general state practice in relation to international
crimes. States have tended to agree on the creation of international tribunals, and on
occasion have agreed to let their national courts enjoy jurisdiction to prosecute for a
particular category of international crime wherever occurring.
The principle of state immunity does not bar the exercise of jurisdiction by an
International Tribunal. But the instruments of such tribunals tended to make it plain that
no exception from responsibility or immunity from process is to be enjoyed by a head of
state or other state official.
Charter of the Nuremberg Tribunal 1945-Art. 7: "The official position of
defendants, whether as head of state or responsible officials in Government
Departments shall not be considered as freeing them from responsibility or mitigating
punishment"
Statute with provisions to like effect:
The Tokyo Charter of 1946,
The Statute of the International Criminal Tribunal for the former Yugoslavia of
1993,
The Statute of the International Criminal Tribunal for Rwanda 1994 and
The Statute of the International Criminal Court 1998
43
REMOVAL OF IMMUNITIES MUST BE BY EXPRESS AGREEMENT. Such an
agreement was incorporated in the Convention on the Prevention and Suppression of
the Crime of Genocide 1984, which provides: "Persons committing genocide or any of
the other acts enumerated in Art. III shall be punished, whether they are constitutionally
responsible rulers, public officials, or private individuals."
Q: If there was no express agreement in the Genocide Convention, may immunity
ratione materiae be granted upon proof that he acted in an official capacity?
Lord Phillip’s A: No. Assisting in genocide can never be a function of a state official.
No established rule of IL requires state immunity ratione materiae to be accorded
in respect of prosecution for an international crime. International crimes and extra-
territorial jurisdiction in relation to them are both new arrivals in the field of public IL. I do
not believe that state immunity ratione materiae can co-exist with them.
-The exercise of extra-territorial jurisdiction overrides the principle that one state will
not intervene in the internal affairs of another. It does so because, where international
crime is concerned, that principle cannot prevail. An international crime is as offensive, if
not more offensive, to the international community when committed under colour of
office. Once extra-territorial jurisdiction is established, it makes no sense to exclude from
it acts done in an official capacity.
Pinochet’s alleged conduct is undeniably criminal under IL. This has been acceded to
by Chile.
-The charges were not merely abuse of power as head of state by committing
torture, but of subduing political opposition by a campaign of abduction, torture
and murder that extended beyond the boundaries of Chile.
-Considering the allegations, I believe it is incorrect to attempt to analyse
which constitute international crimes and which do not. If Pinochet did behave as
Spain alleged, then the entirety of his conduct was a violation of the norms of IL.
He can have no immunity against prosecution for any crime that formed part of
that campaign.
THE TORTURE CONVENTION IS INCOMPATIBLE WITH THE APPLICABILITY OF
IMMUNITY RATIONE MATERIAE. There are only 2 possibilities:
1. The States Parties to the Convention proceeded on the premise that no
immunity could exist ratione materiae in respect of torture, a crime contrary to IL. or
2. The States Parties to the Convention expressly agreed that immunity ratione
materiae should not apply in the case of torture.
I believe that the 1st is the correct one, but both are fatal to Chile & Pinochet’s assertion
of immunity in respect of extradition proceedings based on torture.
THE STATE IMMUNITY ACT 1978
(on the application of the “necessary modifications” to a head of state)
-All who have, in these proceedings, given judicial consideration to this problem
have concluded that the provisions apply so as to confer the immunities enjoyed by a
diplomat upon a head of state in relation to his actions wherever in the world they take
place. This leads to the further conclusion that a former head of state continues to enjoy
immunity in respect of acts committed "in the exercise of his functions" as head of state,
wherever those acts occurred.
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-For myself, I would not accord Sec. 20 such broad effect. It seems to me that it court in Hawai'i. Hilao sought the injunction to protect the Estate's assets in order to
does no more than to equate the position of a head of state and his entourage visiting enforce its judgment.
this country with that of a diplomatic mission within this country. Thus interpreted, Sec.
20 accords with established principles of IL, is readily applicable and can appropriately On appeal, the Republic claims sovereign immunity, asserts an Act of State defense, and
be described as supplementary to the other Parts of the Act. contends that the district court erred in designating it an aider and abettor of the Estate.
-As Lord Browne-Wilkinson has demonstrated, reference to the parliamentary
history of the Section discloses that this was precisely the original intention of Section BACKGROUND FACTS (Basic Phil history lang)
20, for the section expressly provided that it applied to a head of state who was "in the
UK at the invitation or with the consent of the Government of the UK". Those words were 1. MARCOS FLED TO THE STATES BUT HIS ASSETS WERE SEIZED
deleted by amendment. The mover of the amendment explained that the object of the Shortly after being deposed as president of the Philippines in February 1986, Ferdinand
amendment was to ensure that heads of state would be treated like heads of diplomatic Marcos ("Marcos") and his wife Imelda fled to Hawai'i, taking with them dozens of crates
missions "irrespective of presence in the UK". filled with gold, jewelry, and cash. President Corazon Aquino, who replaced Marcos as
president, created the Presidential Commission on Good Government, an official agency
On Section 20 charged with recovering the assets of the Republic from the Marcos family and its
Pinochet & Chile Lord Phillips associates.
-Sec. 20, as amended, entitles -This submission means that the Act of 1978 requires
Pinochet to immunity in respect the English court to produce a result which is in These assets, which have never been comprehensively identified in any litigation,
of any acts committed in the conflict with IL and with our obligations under the originally included U.S. and Philippine real estate holdings, valuable art works, cash and
performance of his functions as Torture Convention. other property seized by U.S. Customs officials in Hawai'i, and funds in bank accounts in
head of state anywhere in the California and Switzerland. The Republic contends that the Marcoses and their
world, and that the conduct This is not correct: associates obtained these assets through misuse of Marcos' official position, and
which forms the subject matter 1. Sec. 20 has no application to conduct of a head of Philippine law provides for the forfeiture to the national treasury of property unlawfully
of the extradition proceedings, state outside the UK. Such conduct remains governed obtained by public officials.
insofar as it occurred when by the rules of PIL.
Senator Pinochet was head of 2. LAWSUITS AGAINST THE MARCOS (Republic even sued)
state, consisted of acts 2. Part III’s entitlement to a former head of state, of A number of lawsuits were filed against the Marcos family in American courts. Among
committed by him in immunity in respect of performance of his official them were five suits filed in the Northern District of California and the District of Hawai'i
performance of his functions as actions do not extend to actions that are prohibited as by individuals alleging that they or their relatives had been arrested, tortured, or
head of state, criminal under IL. executed by military intelligence personnel acting pursuant to martial law declared by
Marcos in 1971. The district courts dismissed all five suits on the ground that the Act of
In this way one can reconcile, as one must seek to do, State doctrine precluded liability. Id.
the provisions of the Act of 1978 with the requirements
of public international law. In an appeal of those decisions to this court, the Republic filed an amicus curiae brief
urging the U.S. courts to exercise jurisdiction over the human rights claims. This court
LORD PHILLIP’S JUDGMENT: I would allow the appeal in respect of so much of the reversed in two unpublished decisions. The human rights cases were subsequently
conduct alleged against Senator Pinochet as constitutes extradition crimes. I agree with consolidated in the district court in Hawai'i and certified as a class action suit against the
Lord Hope as to the consequences which will follow as a result of the change in the Estate.
scope of the case.
Meanwhile, in a separate action filed in the Central District of California, the Republic
sued the Estate and Imelda Marcos, asserting RICO and pendent state law claims, and
HILAO v MARCOS seeking the recovery of $1.55 billion allegedly plundered from the Philippines treasury.
IN RE ESTATE OF FERDINAND: MARCOS HUMAN RIGHTS LITIGATION On 25 June 1986, the district court enjoined the Marcoses and their associates from
disposing of any assets anywhere in the world.
Opinion by Judge Fletcher
3. RP SETTLES WITH IMELDA
These appeals concern whether a United States court properly enjoined the Republic of The Republic's suit against the Estate was settled in October 1991 and dismissed on
the Philippines from entering into agreements with the Estate of former Philippine 4 November 1991. As part of the settlement, the Estate and Imelda Marcos agreed to
President Ferdinand Marcos to transfer to the Philippines assets of the Estate that the transfer the Estate assets impounded by U.S. Customs officials in Hawai'i, except for
Republic asserts were looted from the Philippines treasury. The plaintiff class ("Hilao"), a some personal items and the cash in three accounts at a Los Angeles bank, to the
group of 10,000 people who allege that they or their relatives were tortured or executed Republic. The assets in Swiss banks were not transferred under the terms of the
by Marcos, was awarded almost $2 billion in damages from the Estate in federal district settlement, perhaps because the Swiss courts had frozen all Marcos assets in
Switzerland in 1986 at the request of the Republic and had agreed that the assets would
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be returned to the Philippines if criminal prosecutions against the Marcos family in the
Philippines succeeded. The injunction freezing the Estate's assets was dissolved as
part of the settlement.
4. HILAO DISAGREED WITH RP SETTLEMENT
Note: the district court in Hawai'i granted Hilao's request to have the injunction reinstated
on 19 November 1991.
Hilao had won a favorable liability verdict on 24 September 1992. On 23 February 1994,
the jury awarded Hilao $1.2 billion in punitive damages. On 20 July 1994, Hilao filed a
motion to modify the injunction to identify the Republic as an agent, representative, aider
or abettor of the Estate subject to the injunction. Hilao contended that the Republic had
seized assets of the Estate in the Philippines worth $672 million, as well as $2 million
of the $409 million in cash that the Estate had deposited in Swiss banks. It claimed that
the Republic had sold $481 million worth of stock, held in the Meralco Foundation for the
benefit of the Estate, and had appropriated the proceeds to itself. It also asserted that
the Republic and the Estate entered into two agreements on 26 June 1992, to transfer
works of art 6 from the United States to the National Museum of the Philippines, and to
divide the Estate's other assets between the Estate and the Republic.
On 12 September 1994, the district court heard argument on the motion; the Republic
appeared specially and asserted its sovereign immunity. The district court the
following day issued an order identifying the Republic as a "representative, agent, aider
or abettor" of the Estate, and subjecting it to the injunction.
On 18 January 1995, a jury in Hawai'i awarded Hilao $766 million in compensatory
damages. On 3 February 1995, the district court entered a final judgment, which
included a permanent injunction against the Estate and its "aiders and abettors" and a
finding that the Republic is an aider and abettor of the Estate.
DISCUSSION OF THE CASE
I. Standing
Hilao asserts that the Republic lacks standing to appeal the injunction because it is
neither a party nor an intervenor, and there has been no enforcement action against it.
Hilao seems to want to have it both ways. On the one hand, it asserts that the Republic
has no standing to appeal because it has not been harmed by the injunction. On the
other hand, it contended at oral argument that the Republic could be cited for contempt if
it were to violate the injunction.
REPUBLIC HAS STANDING
The permanent injunction, however, finds as a matter of fact that the Republic is
"an agent, representative, aider or abettor of the Estate" and expressly enjoins not
only the Estate but also "its agents, representatives, aiders and abettors". Thus,
the court clearly expressed its view that the injunction binds the Republic.
The injunction clearly confronts the Republic with the choice of either conforming its
conduct to the dictates of the injunction or ignoring the injunction and risking contempt
proceedings. This constitutes sufficient injury-in-fact to give the Republic standing to
challenge the injunction even in the absence of an actual finding of contempt against it.
II. Sovereign Immunity (the important part of the case)
45
PHIL CLAIMS SOVEREIGN IMMUNITY
The Republic claims that the district court lacked authority to subject it to the injunction
because it enjoys sovereign immunity under the Foreign Sovereign Immunities Act
(FSIA).
HILAO ARGUES THAT DISTRICT COURT NEED NOT EVEN ASSUME JURISDICTION
OVER THE RP
Hilao argues that the FSIA does not govern because Rule 65(d) of the Federal Rules of
Civil Procedure makes an injunction binding upon "those persons in active concert or
participation with" an enjoined party to the action where those persons have actual
notice. Therefore, Hilao argues that the district court did not need to establish personal
jurisdiction over the Republic in order to find that the Republic is an aider and abettor of
the Estate and therefore bound by the injunction.
COURT SAYS: In order to enforce injunction on the RP, it must have personal jurisdiction
over RP.
In order to enforce this injunction against the Republic, through, for example, contempt
proceedings, the district court would have to have personal jurisdiction over the
Republic. An injunction against the Republic in the absence of personal jurisdiction over
it would be futile, as the court would be powerless to enforce its injunction.
A court should not issue an unenforceable injunction: "The rule that a court of equity
will not issue an unenforceable decree of injunction comprehends as a reason for
denying injunctive relief that the court . . . does not have the means to punish
disobedience once discovered.'"
MAIN ISSUE: COULD THE DISTRICT COURT ASSUME JURISDICTION OVER THE
RP?
APPLICABLE LAW: THE FSIA
The FSIA is the sole basis for jurisdiction over a foreign state. Personal jurisdiction
over a foreign state depends on subject-matter jurisdiction over the action against
the foreign state under the FSIA. It states that "Personal jurisdiction, like subject-
matter jurisdiction, exists only when one of the exceptions to foreign sovereign immunity
in [the FSIA] applies."
GENERAL RULE
Foreign states are immune from the jurisdiction of courts in the United States unless a
claim against them falls within an exception to immunity under the Act
Thus, the district court lacked jurisdiction over the Republic absent the existence of
an applicable exception under the FSIA.
ARGUMENT OF HILAO: Commercial activity and waiver exceptions apply
NOTE: Hilao claims that both the commercial activity and waiver exceptions of the
FSIA apply. Once a plaintiff offers evidence that one of the FSIA's exceptions to immunity
applies, the party claiming immunity bears the burden of proving by a preponderance of
the evidence that the exception does not apply.
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A. Commercial-Activity Exception
The FSIA directs that a foreign state is not immune from suit in U.S. courts if:
the action is based upon a commercial activity carried on in the United States
by the foreign state; or upon an act performed in the United States in
connection with a commercial activity of the foreign state elsewhere; or upon
an act outside the territory of the United States in connection with a commercial
activity of the foreign state elsewhere and that act causes a direct effect in the
United States.
HOW TO DETERMINE “Commercial Character”
The commercial character of an activity "shall be determined by reference to the nature
of the course of conduct or particular transaction or act, rather than by reference to its
purpose." “The issue is whether the particular actions that the foreign state performs
(whatever the motive behind them) are the type of actions by which a private party
engages in `trade and traffic or commerce.” "The question is not whether the foreign
government is acting with a profit motive or instead with the aim of fulfilling uniquely
sovereign objectives." The central question is "whether the activity is of a kind in
which a private party might engage."
RP IS ACTING TO RECOVER STOLEN PROPERTY; not a “commercial activity” at all
Hilao argues that the Republic is attempting to recover indebtedness, while the Republic
describes itself as pursuing misappropriated public assets. The Republic's description
is more accurate, in that a governmental agency of the Philippines is acting under
a statutory mandate to recover property allegedly stolen from the treasury. This
exercise of police power is a governmental rather than commercial activity, and,
thus, the commercial-activity exception does not apply.
B. Waiver Exception
A foreign state is not immune from suit if it "has waived its immunity either explicitly or by
implication . . . ." and such waiver is NARROWLY CONSTRUED. "Courts have found
such waivers in cases where a foreign state has agreed to arbitration in another country
or where a foreign state has agreed that the law of a particular country should govern a
contract. An implicit waiver would also include a situation where a foreign state has filed
a responsive pleading in an action without raising the defense of sovereign immunity."
There is no exclusive list of the circumstances giving rise to implied waiver. However, to
support a finding of implied waiver, there must exist a direct connection between the
sovereign's activities in U.S. courts and the plaintiff's claims for relief.
NOTE: Hilao argues that the Republic waived immunity by
(1) submitting the amicus curiae brief in Trajano and Hilao cases
(2) using the U.S. courts to pursue assets held by the Estate.
(3) Republic's signing of the Convention Against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment
1. Amicus Curiae Brief
46
HILAO asserts that the amicus brief represents the Republic's agreement "that the law of
a particular country should govern." In the amicus brief, the Republic argued that the Act
of State defense did not apply to Hilao's claims against Marcos because the claims
concerned allegedly illegal acts. It urged this Court to permit the suit to proceed in
American courts, stating, "The Government of the Philippines can state without hesitation
or reservation that its foreign relations with the United States will not be adversely
affected if these human rights claims against Ferdinand Marcos are heard in U.S. courts;
and, in fact, relations may well be improved if Filipino citizens see that justice is available
in U.S. courts."
COURT: SUBMISSION OF BRIED DID NOT CONSTITUTE AN IMPLIED WAIVER.
Submission of the brief does not constitute an implied waiver of immunity. The brief
related to damages claims against the Estate rather than to potential relief from
the Republic. Regardless of the Republic's wisdom in encouraging a lawsuit that may
eventually lead to little or no recovery for the plaintiffs in large part because of the
Republic's own subsequent actions, it nonetheless can legitimately claim that its position
in the amicus brief was consistent with and unrelated to the actions it has taken to
recover assets held by the Estate. In pursuing the assets, the Republic sought property
to which it felt it was legally entitled. In lending support to the Hilao litigation, it merely
stated that Hilao should be permitted to seek damages from whatever assets the Estate
could establish as its own.
2. Lawsuits over the Estate's Assets
REPUBLIC contends that the suits seeking recovery from the Estate of assets belonging
to the Republic are unrelated to the human rights litigation because one is about
ownership of assets while the other is about torture.
HILAO responds that one of the central issues in its human rights litigation is entitlement
to the Estate's assets. Hilao cites Siderman de Blake case, which involved a family's
suit against the government of Argentina for torture and persecution. In that case, Court
remanded for a determination as to whether there was a direct link between the conduct
alleged and Argentina's letter rogatory asking a California court for help in serving Jose
Siderman.; Court there held: “If Argentina has engaged our courts in the very course of
activity for which the Sidermans seek redress, it has waived its immunity as to that
redress."
COURT: NO DIRECT CONNECTION
Hilao has failed to demonstrate a "direct connection" between its action for human rights
abuses and the Republic's pursuit of its assets. Clearly, the Republic has not engaged
U.S. courts in helping the Marcoses or the Republic to commit such violations.
Moreover, the Republic has not taken legal action of any kind against Hilao in the
U.S. courts.
3. Convention Against Torture
HILAO argues that there was a waiver based upon the Republic's signing of the
Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment. Article 14 states in part that "[e]ach State Party shall ensure in its legal
system that the victim of an act of torture obtains redress and has an enforceable right to
fair and adequate compensation." Hilao contends that the Republic must have
contemplated adjudication of torture claims in the U.S. when it ratified the treaty.
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COURT: CONVENTION DOES NOT MANDATE THAT SUCH REDRESS OCCUR IN
THE US COURTS
Even if the Philippines does have a duty under the Convention to help in the redress of
torture and other abuses committed by the Marcoses against citizens of the Republic,
the Convention does not mandate that such redress occur in the United States
courts. Court concluded that the waiver exception does not apply.
CONCLUSION
Because no exception to the FSIA applies to the Republic in this case, the district
court lacked jurisdiction over the Republic. Thus, the district court would be without
the power to enforce the injunction against the Republic in the capacity of an aider or
abettor. The district court therefore abused its discretion by issuing a futile injunction. The
injunction is VACATED to the extent it purports directly to enjoin the Republic.
JUSMAG PHILIPPINES v. NLRC
Primary Issue:
The immunity from suit of the Joint United States Military Assistance Group to the
Republic of the Philippines (JUSMAG-Philippines) is the pivotal issue in the case at
bench.
JUSMAG assails the Resolution of the NLRC ordering the Labor Arbiter to assume
jurisdiction over the complaint for illegal dismissal filed by FLORENCIO SACRAMENTO
(private respondent) against petitioner.
FACTS
1. Private respondent was one of the seventy-four (74) security assistance support
personnel (SASP) working at JUSMAG-Philippines. 1 He had been with JUSMAG from
December 18, 1969, until his dismissal on April 27, 1992. His services were terminated
allegedly due to the abolition of his position. 2 He was also advised that he was under
administrative leave until April 27, 1992, although the same was not charged against his
leave.
2. On March 31, 1992, private respondent filed a complaint with the Department of Labor
and Employment on the ground that he was illegally suspended and dismissed from
service by JUSMAG. 3 He asked for his reinstatement.
JUSMAG then filed a Motion to Dismiss invoking its immunity from suit as an agency of
the United States. It further alleged lack of employer-employee relationship and that it
has no juridical personality to sue and be sued. LA dismissed the complaint due to want
of jurisdiction
3. the NLRC 8 reversed the ruling of the Labor Arbiter as it held that petitioner had lost its
right not to be sued. The resolution was predicated on two grounds: (1) the principle of
estoppel � that JUSMAG failed to refute the existence of employer-employee
relationship under the "control test"; and (2) JUSMAG has waived its right to immunity
from suit when it hired the services of private respondent on December 18, 1969.
4. The NLRC relied on the case of Harry Lyons vs. United States of America, 9 where the
"United States Government (was considered to have) waived its immunity from suit by
entering into (a) contract of stevedoring services, and thus, it submitted itself to the
jurisdiction of the local courts."
ISSUES:
47
THE PUBLIC RESPONDENT COMMITTED GRAVE ABUSE OF DISCRETION
AMOUNTING TO LACK AND/OR EXCESS OF JURISDICTION �
A. IN REVERSING THE DECISION OF THE LABOR ARBITER AND IN NOT
AFFIRMING THE DISMISSAL OF THE COMPLAINT IT BEING A SUIT AGAINST THE
UNITED STATES OF AMERICA WHICH HAD NOT GIVEN ITS CONSENT TO BE
SUED; AND
B. IN FINDING WAIVER BY JUSMAG OF IMMUNITY FROM SUIT;
II
THE PUBLIC RESPONDENT COMMITTED GRAVE ABUSE OF DISCRETION
AMOUNTING TO LACK AND/OR EXCESS OF JURISDICTION �
A. WHEN IT FOUND AN EMPLOYER-EMPLOYEE RELATIONSHIP BETWEEN
JUSMAG AND PRIVATE RESPONDENT; AND
B. WHEN IT CONSIDERED JUSMAG ESTOPPED FROM DENYING THAT PRIVATE
RESPONDENT IS ITS EMPLOYEE FOR FAILURE TO PRESENT PROOF TO THE
CONTRARY.
S.C. HOLDS: We find the petition impressed with merit.
RATIO
1. JUSMAG History – child of the US-PHIL Military Assistance Agreement
JUSMAG was created pursuant to the Military Assistance Agreement 10 dated March 21,
1947, between the Government of the Republic of the Philippines and the Government of
the United States of America. As agreed upon, JUSMAG shall consist of Air, Naval and
Army group, and its primary task was to advise and assist the Philippines, on air force,
army and naval matters. 11
Article 14 of the 1947 Agreement provides, inter alia, that "the cost of all services
required by the Group, including compensation of locally employed interpreters, clerks,
laborers, and other personnel, except personal servants, shall be borne by the Republic
of the Philippines."
This set-up was to change in 1991. In Note No 22, addressed to the Department of
Foreign Affairs (DFA) of the Philippines, dated January 23, 1991, the United States
Government, thru its Embassy, manifested its preparedness "to provide funds to cover
the salaries of security assistance support personnel" and security guards, the rent of
JUSMAG occupied buildings and housing, and the cost of utilities. 12 This offer was
accepted by our Government, thru the DFA, in Note No. 911725, dated April 18, 1991. 13
2. RELEVANT STIPULATION OF THEMEMORANDUM OF AGREEMENT between AFP
and JUSMAG
Consequently, a Memorandum of Agreement 14 was forged between the Armed Forces of
the Philippines and JUSMAG-Philippines, thru General Lisandro C. Abadia and U.S.
Brigadier General Robert G. Sausser. The Agreement delineated the terms of the
assistance-in-kind of JUSMAG for 1991, the relevant parts of which read:
a. The term salaries as used in this agreement include those for the security guards
currently contracted between JUSMAG and A' Prime Security Services Inc., and the
Security Assistance Support Personnel (SASP). . . . .
b. The term Security Assistance Support Personnel (SASP) does not include active duty
uniformed members of the Armed Forces of the Philippines performing duty at JUSMAG.
c. It is understood that SASP are employees of the Armed Forces of the
Philippines (AFP). Therefore, the AFP agrees to appoint, for service with JUSMAG, no
more than 74 personnel to designated positions with JUSMAG.
d. SASP are under the total operational control of the Chief, JUSMAG-Philippines. The
term "Operational Control" includes, but is not limited to, all personnel administrative
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actions, such as: hiring recommendations; firing recommendations; position
classification; discipline; nomination and approval of incentive awards; and payroll
computation. Personnel administration will be guided by Annex E of JUSMAG-
Philippines Memo 10-2. For the period of time that there is an exceptional funding
agreement between the government of the Philippines and the United States
Government (USG), JUSMAG will pay the total payroll costs for the SASP
employees.
e. All SASP employed as of July 1, 1990 will continue their service with JUSMAG at their
current rate of pay and benefits up to 30 June 1991, with an annual renewal of
employment thereafter subject to renewal of their appointment with the AFP
f. All SASP will, after proper classification, be paid salaries and benefits at established
AFP civilian rates.
g. The AFP agrees not to terminate SASP without 60 days prior written notice to
Chief, JUSMAG-Philippines. Any termination of these personnel thought to be
necessary because of budgetary restrictions or manpower ceiling will be subject to
consultations between AFP and JUSMAG to ensure that JUSMAG's mission of dedicated
support to the AFP will not be degraded or harmed in any way.
h. The AFP agrees to assume the severance pay/retirement pay liability for all
appointed SASP.
3. JUSMAG was performing a governmental function when it hired these SASPs.
From the foregoing, it is apparent that when JUSMAG took the services of private
respondent, it was performing a governmental function on behalf of the United States
pursuant to the Military Assistance Agreement. Hence, we agree with petitioner that the
suit is, in effect, one against the United States Government, albeit it was not impleaded
in the complaint. Considering that the United States has not waived or consented to the
suit, the complaint against JUSMAG cannot not prosper.
4. PIL PART: Definition of State Immunity
In this jurisdiction, we recognize and adopt the generally accepted principles of
international law as part of the law of the land. 15 Immunity of State from suit is one of
these universally recognized principles. In international law, "immunity" is commonly
understood as an exemption of the state and its organs from the judicial
jurisdiction of another state. 16 This is anchored on the principle of the sovereign
equality of states under which one state cannot assert jurisdiction over another in
violation of the maxim par in parem non habet imperium (an equal has no power over
an equal). 17
5. OLD RULE ON EXCEPTION TO STATE IMMUNITY: if a State enters into any
contract and descends into the level of a citizen.
Under the traditional rule of State immunity, a state cannot be sued in the courts of
another State, without its consent or waiver. However, in Santos, et al., vs. Santos, et al.,
18
we recognized an exception to the doctrine of immunity from suit by a state, thus:
. . . . Nevertheless, if, where and when the state or its government enters into a contract,
through its officers or agents, in furtherance of a legitimate aim and purpose and
pursuant to constitutional legislative authority, whereby mutual or reciprocal benefits
accrue and rights and obligations arise therefrom, and if the law granting the authority to
enter into such contract does not provide for or name the officer against whom action
may be brought in the event of a breach thereof, the state itself may be sued, even
without its consent, because by entering into a contract, the sovereign state has
descended to the level of the citizen and its consent to be sued is implied from the very
act of entering into such contract. . . . .
48
6. Harry Lyons vs. US Case – the pronouncement in this case regarding immunity has
been treated as obiter due to the metamorphosis of the doctrine of immunity!
In the case of Harry Lyons, Inc., the petitioner entered into a contract with the United
States Government for stevedoring services at the U.S. Naval Base, Subic Bay,
Philippines. It then sought to collect from the US government sums of money arising
from the contract. One of the issues posed in the case was whether or not the defunct
Court of First Instance had jurisdiction over the defendant United States, a sovereign
state which cannot be sued without its consent. This Court upheld the contention of
Harry Lyons, Inc., that "when a sovereign state enters into a contract with a private
person, the state can be sued upon the theory that it has descended to the level of an
individual from which it can be implied that it has given its consent to be sued under the
contract."
The doctrine of state immunity from suit has undergone further metamorphosis. The view
evolved that the existence of a contract does not, per se, mean that sovereign states
may, at all times, be sued in local courts. The complexity of relationships between
sovereign states, brought about by their increasing commercial activities, mothered a
more restrictive application of the doctrine. 20 Thus, in United States of America vs. Ruiz,
21
we clarified that our pronouncement in Harry Lyons, supra, with respect to the waiver
of State immunity, was obiter and "has no value as an imperative authority."
7.NEW RULE ON EXCEPTION TO STATE IMMUNITY : Doctrine of Immunity is
restricted to sovereign or governmental activities (jure imperil) and cannot be extended
to commercial, private and proprietary acts (jure gestionis)
As it stands now, the application of the doctrine of immunity from suit has been restricted
to sovereign or governmental activities ( jure imperii). 22 The mantle of state immunity
cannot be extended to commercial, private and proprietary acts ( jure gestionis).
8. US v. Ruiz – explains the new rule specifically why business contracts are exempted
from immunity and why governmental acts are still under such immunity.
The restrictive application of State immunity is proper when the proceedings arise out of
commercial transactions of the foreign sovereign, its commercial activities or economic
affairs. Stated differently, a State may be said to have descended to the level of an
individual and thus can be deemed to have tacitly given its consent to be used only when
it enters into business contracts. It does not apply where the contract relates to the
exercise of its sovereign functions. (emphasis ours)
We held further, that the application of the doctrine of state immunity depends on the
legal nature of the act. Ergo, since a governmental function was involved � the
transaction dealt with the improvement of the wharves in the naval installation at Subic
Bay � it was held that the United States was not deemed to have waived its immunity
from suit.
9. United States vs. Hon. Rodrigo, et al – case illustrates what a business contract
entails.
Genove was employed as a cook in the Main Club located at U.S. Air Force Recreation
Center, John Hay Air Station. He was dismissed from service after he was found to have
polluted the stock of soup with urine. Genove countered with a complaint for damages.
Apparently, the restaurant services offered at the John Hay Air Station partake of the
nature of a business enterprise undertaken by the United States government in its
proprietary capacity. The Court then noted that the restaurant is well known and
available to the general public, thus, the services are operated for profit, as a
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commercial and not a governmental activity. Speaking through Associate Justice
Isagani Cruz, the Court (En Banc) said:
The consequence of this finding is that the petitioners cannot invoke the doctrine of state
immunity to justify the dismissal of the damage suit against them by Genove. Such
defense will not prosper even if it be established that they were acting as agents of the
United States when they investigated and later dismissed Genove. For the matter, not
even the United States government itself can claim such immunity. The reason is that by
entering into the employment contract with Genove in the discharge of its proprietary
functions, it impliedly divested itself of its sovereign immunity from suit. (emphasis ours)
10. Summary or the Court’s words of consolation
The contract was entered into in the discharge of its governmental functions, the
sovereign state cannot be deemed to have waived its immunity from suit. 24 Such is the
case at bench. Prescinding from this premise, we need not determine whether JUSMAG
controls the employment conditions of the private respondent.
We also hold that there appears to be no basis for public respondent to rule that
JUSMAG is stopped from denying the existence of employer-employee relationship with
private respondent. On the contrary, in its Opposition before the public respondent,
JUSMAG consistently contended that the (74) SASP, including private respondent,
working in JUSMAG, are employees of the Armed Forces of the Philippines. This can be
gleaned from: (1) the Military Assistance Agreement, supra, (2) the exchange of notes
between our Government, thru Department of Foreign Affairs, and the United States, thru
the US Embassy to the Philippines, and (3) the Agreement on May 21, 1991, supra
between the Armed Forces of the Philippines and JUSMAG.
We symphatize with the plight of private respondent who had served JUSMAG for more
than twenty (20) years. Considering his length of service with JUSMAG, he deserves a
more compassionate treatment. Unfortunately, JUSMAG is beyond the jurisdiction of this
Court. Nonetheless, the Executive branch, through the Department of Foreign Affairs and
the Armed Forces of the Philippines, can take the cudgel for private respondent and the
other SASP working for JUSMAG, pursuant to the aforestated Military Assistance
Agreement.
US V. REYES (1993)
Montoya, is an American citizen who, at the time material to this case, was employed as
an identification (I.D.) checker at the U.S. Navy Exchange (NEX) at the Joint United
States Military Assistance Group (JUSMAG) headquarters in Quezon City.
Petitioner Maxine Bradford, hereinafter referred to as Bradford, is likewise an American
citizen who was the activity exchange manager at the said JUSMAG Headquarters.
On 22 January 1987 Montoya was searched searched after she had bought some items
from the retail store of the NEX JUSMAG, where she had purchasing privileges, and
while she was already at the parking area, Montoya. She was informed by the defendant
that the search is to be made on all Jusmag employees that day. After having found
nothing in her possession, she was allowed to leave the premises. She then found out
that she was the only searched. That moreover, a check with Navy Exchange Security
Manager, R.L. Roynon was made and she was informed that it is a matter of policy that
customers and employees of NEX Jusmag are not searched outside the store unless
there is a very strong evidence of a wrongdoing;
49
Hence, a complaint with the Regional Trial Court against Bradford for damages due to
the oppressive and discriminatory acts committed by the latter in excess of her authority
as store manager of the NEX JUSMAG.
Bradford, together with the government of the United States of America filed on 25 June
1987, also through the law firm of Luna, Sison and Manas, a Motion to Dismiss based on
the following grounds:
1) The action is in effect a suit against the United States of America, a foreign sovereign
immune from suit without its consent for the cause of action pleaded in the complaint;
and
2) Defendant, Maxine Bradford, as manager of the US Navy Exchange Branch at
JUSMAG, Quezon City, is immune from suit for act(s) done by her in the performance of
her official functions under the Philippines-United States Military Assistance Agreement
of 1947 and Military Bases Agreement of 1947, as amended.
They further claimed that the Navy Exchange (NAVEX), an instrumentality of the U.S.
Government, is considered essential for the performance of governmental functions. Its
mission is to provide a convenient and reliable source, at the lowest practicable cost, of
articles and services required for the well-being of Navy personnel, and of funds to be
used for the latter's welfare and recreation. Montoya's complaint, relating as it does to
the mission, functions and responsibilities of a unit of the United States Navy, cannot
then be allowed. To do so would constitute a violation of the military bases agreement.
That the rights, power and authority within the bases can only be exercised by the United
States through the officers and officials of its armed forces, such as Bradford. Baer vs.
Tizon 8 and United States of America vs.Ruiz 9 were invoked to support these claims.
Montoya filed a motion for preliminary attachment 10 on the ground that Bradford was
about to depart from the country and was in the process of removing and/or disposing of
her properties with intent to defraud her creditors.
TC resolved both motions. On the motion to dismiss, the grounds and arguments
interposed for the dismissal of this case are determined to be not indubitable. Hence, the
motion is denied for lack of merit.
The motion for preliminary attachment is granted in the interest of justice, upon the
plaintiff's filing of a bond in the sum of P50,000.00.
TC then rendered judgment in favor of Montoya awarding her moral and exemplary
damages, and actual expenses and attorney’s fees.
On that same date, BRADFORD AND USA filed with the SC a Petition for Restraining
Order which sought to have the trial court's decision vacated and to prevent the
execution of the same; it was also prayed that the trial court be enjoined from continuing
with Civil Case No. 224-87. This was granted which had the effect of "ENJOINING the
respondents and the Provincial Sheriff of Pasig, Metro Manila, from enforcing the
Decision dated September 10, 1987, and the Writs of Attachment and Execution issued
in Civil Case No. 224-87."
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ISSUE: WON Bradford is immune from suit for acts done by her which led to Montaya’s
filing of complaint in the case at bar.
HELD: NO
BRADFORD’S (PETITIONER’S) CONTENTION. Aside from maintaining the affirmative
view, the public petitioner and Bradford even go further by asserting that even if the
latter's act were ultra vires she would still be immune from suit for the rule that public
officers or employees may be sued in their personal capacity for ultra vires and tortious
acts is "domestic law" and not applicable in International Law.
It is claimed that the application of the immunity doctrine does not turn upon the
lawlessness of the act or omission attributable to the foreign national for if this were the
case, the concept of immunity would be meaningless as inquiry into the lawlessness or
illegality of the act or omission would first have to be made before considering the
question of immunity; in other words, immunity will lie only if such act or omission is
found to be lawful.
MONTOYA’S (PRIVATE RESPONDENT’S) CONTENTION
BRADFORD IS A MERE CIVILIAN EMPLOYEE. On the other hand, Montoya submits
that Bradford is not covered by the protective mantle of the doctrine of sovereign
immunity from suit as the latter is a mere civilian employee of JUSMAG performing non-
governmental and proprietary functions.
ULTRA VIRES. And even assuming arguendo that Bradford is performing governmental
functions, she would still remain outside the coverage of the doctrine of state immunity
since the act complained of is ultra vires or outside the scope of her authority. Bradford's
authority to order a search, it is asserted, should have been exercised with restraint and
should have been in accordance with the guidelines and procedures laid down by the
cited "NAVRESALEACT, Subic Inst." Moreover, ultra vires acts of a public officer or
employee, especially tortious and criminal acts, are his private acts and may not be
considered as acts of the State. Such officer or employee alone is answerable for any
liability arising therefrom and may thus be proceeded against in his personal capacity.
ACT WAS COMMITTED OUTSIDE THE TERRITORIAL CONTROL OF US. Montoya
further argues that both the acts and person of Bradford are not exempt from the
Philippine courts' jurisdiction because (a) the search was conducted in a parking lot at
Scout Borromeo, Quezon City, outside the JUSMAG store and, therefore, outside the
territorial control of the U.S. Military Bases in the Philippines;
OTHER CONTENTION. (b) Bradford does not possess diplomatic immunity under Article
16(b) of the 1953 Military Assistance Agreement creating the JUSMAG which provides
that only the Chief of the Military Advisory Group and not more than six (6) other senior
members thereof designated by him will be accorded diplomatic immunity; 35 and (c) the
acts complained of do not fall under those offenses where the U.S. has been given the
right to exercise its jurisdiction (per Article 13 of the 1947 Military Bases Agreement, as
amended by the, Mendez-Blair Notes of 10 August 1965). 36
COURT: BRADFORD IS NOT IMMUNE FROM THE SUIT. It is apparent from the
complaint that Bradford was sued in her private or personal capacity for acts allegedly
done beyond the scope and even beyond her place of official functions, the case falls
within the exception to the doctrine of state immunity. Unauthorized acts of government
50
officials or officers are not acts of the State, and an action against the officials or officers
by one whose rights have been invaded or violated by such acts, for the protection of his
rights, is not a suit against the State within the rule of immunity of the State from suit.
I. Director of the Bureau of Telecommunications, et al. vs. Aligaen,
"Inasmuch as the State authorizes only legal acts by its officers, unauthorized
acts of government officials or officers are not acts of the State, and an action
against the officials or officers by one whose rights have been invaded or
violated by such acts, for the protection of his rights, is not a suit against the
State within the rule of immunity of the State from suit. In the same tenor, it has
been said that an action at law or suit in equity against a State officer or the
director of a State department on the ground that, while claiming to act or the
State, he 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 doctrinaire of state immunity cannot be used as an instrument for
perpetrating an injustice.
II. It is a well-settled principle of law that a public official may be liable in his personal
private capacity for whatever damage he may have caused by his act done with malice
and in bad faith, or beyond the scope of his authority or jurisdiction. (Dumlao vs. Court of
Appeals, 114 SCRA 247 [1982])
III. Article 31 of the Vienna Convention on Diplomatic Relations admits of exceptions. It
reads:
1. A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving
State. He shall also enjoy immunity from its civil and administrative jurisdiction except in
the case of:
xxx xxx xxx
(c) an action relating to any professional or commercial activity exercised by the
diplomatic agent in the receiving State outside his official functions (Emphasis supplied).
WHEREFORE, the instant petition is DENIED for lack of merit. The Temporary
Restraining Order of 7 December 1987 is hereby LIFTED.
WYLIE v. RARANG (28 May 1992)
Petitioners: M.H. Wylie and Capt. James Williams
Respondents: Aurora I. Rarang and the IAC
Nature: Petition for review
Ponente: Gutierrez, Jr.
AT THE NAVAL BASE. In Feb. 1978, M.H. Wylie was the assistant administrative officer
and Capt. James Williams was the commanding officer of the US Naval Base in Subic
Bay, Olongapo City. Aurora I. Rarang was employed as a merchandise control guard in
the Office of the Provost Marshal.
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THE “POD”. Wylie, in his capacity as asst. admin. officer, supervised the publication of
the Naval Base station’s “Plan of the Day” (POD), which featured important
announcements, necessary precautions, and general matters of interest to military
personnel. One of its regular features was the “action line inquiry.”
THE CAUSE OF THIS MESS. On Feb. 3, 1978, the POD published, under the “NAVSTA
Action Line Inquiry,” the ff:
Question: I have observed that Merchandise Control inspector/
inspectress are (sic) consuming for their own benefit things they have
confiscated from Base Personnel. The observation is even more
aggravated by consuming such confiscated items as cigarettes and
food stuffs PUBLICLY. This is not to mention ‘Auring’ who is in herself,
a disgrace to her division and to the Office of the Provost Marshal. In
lieu of this observation, may I therefore, ask if the head of the
Merchandise Control Division is aware of this malpractice?
Answer: Merchandise Control Guards and all other personnel are
prohibited from appropriating confiscated items for their own
consumption or use. Two locked containers are installed at the Main
Gate area for deposit of confiscated items and the OPM evidence
custodian controls access to these containers. Merchandise Control
Guards are permitted to eat their meals at their worksite due to heavy
workload. Complaints regarding merchandise control guards
procedure or actions may be made directly at the Office of the
Provost Marshal for immediate and necessary action….
Rarang was the “Auring” referred to here, as she was the only one with that name in the
Office of the Provost Marshall, and Wylie’s letter of apology for the “inadvertent”
publication was also conclusive proof of this.
AN ACTION FOR DAMAGES was instituted by Rarang against Wylie, Williams, and the
US Naval Base. She prayed for P300K moral damages, exemplary damages, and P50K
attorney’s fees.
RARANG’S ALLEGATIONS: the article constituted false, injurious, and malicious
defamation and libel tending to impeach her honesty, virtue and reputation exposing her
to public hatred, contempt and ridicule; and that the libel was published and circulated in
the English language and read by almost all the U.S. Naval Base personnel.
WYLIE, WILLIAMS, THE NAVAL BASE FILED A MOTION TO DISMISS, BASED ON
THESE GROUNDS:
1. Wylie and Williams acted in the performance of their official functions as
officers of the US Navy and are immune from suit;
2. The US Naval Base is an instrumentality of the US government which cannot
be sued without its consent; and
3. lack of jurisdiction over the subject matter and the parties.
MOTION DENIED.
THE TC’S DECISION: the acts of Wylie and Williams weren’t official acts of the US
government in the operation and control of the Base but personal and tortious acts which
are exceptions to the general rule that a sovereign country can’t be sued in the court of
51
another country without its consent. Thus their acts weren’t imputable against the US
government but were done in their individual and personal capacities. They were ordered
to pay Rarang P100K moral and exemplary damages, and P30K attorney’s fees.
However, the suit against the US Naval Base was dismissed.
BOTH PARTIES APPEALED. Wylie and Williams asserted that they are immune from
suit since the publication was made in their official capacities as officers of the U. S.
Navy, and that they did not intentionally and maliciously cause the publication. Rarang
appealed as she wasn’t satisfied with the award.
THE IAC MODIFIED THE TC’S DECISION: Rarang was awarded P175K moral
damages and P60K exemplary damages.
WYLIE AND WILLIAMS’ ARGUMENT in this Petition for Review: they made the
publication in the performance of their official functions as administrative assistant
(Wylie) and commanding officer (Williams) of the US Navy and were, therefore, immune
from suit for their official actions.
ISSUE: WON Wylie and Williams are liable for the published article in the POD. Does
the grant of rights, power, and authority to the US under the RP-US Bases Treaty cover
immunity of its officers from crimes and torts?
HELD: YES and NO respectively.
THE PRINCIPLE OF STATE IMMUNITY FROM SUIT, QUOTING US v. GUINTO: The
rule that a state may not be sued without its consent, now expressed in Article XVI,
Section 3, of the 1987 Constitution, is one of the generally accepted principles of
international law that we have adopted as part of the law of our land under Article II,
Section 2…Even without such affirmation, we would still be bound by the generally
accepted principles of international law under the doctrine of incorporation 51… As applied
to the local state, the doctrine of state immunity is based on the justification given by
Justice Holmes that ‘there can be no legal right against the authority which makes the
law on which the right depends! (Kawanakoa v. Polybank) There are other practical
reasons for the enforcement of the doctrine. In the case of the foreign state sought to be
impleaded in the local jurisdiction, the added inhibition is expressed in the maxim par in
parem, non habet imperium52. All states are sovereign equals and cannot assert
jurisdiction over one another. A contrary disposition would, in the language of a
celebrated case, ‘unduly vex the peace of nations.’ (Da Haber v. Queen of Portugal)
While the doctrine appears to prohibit only suits against the state without its consent, it is
also applicable to complaints filed against officials of the state for acts allegedly
performed by them in the discharge of their duties. The rule is that if the judgment
against such officials will require the state itself to perform an affirmative act to satisfy the
same, such as the appropriation of the amount needed to pay the damages awarded
against them, the suit must be regarded as against the state itself although it has not
51
Under this doctrine, as accepted by the majority of states, such principles are deemed
incorporated in the law of every civilized state as a condition and consequence of its
membership in the society of nations. Upon its admission to such society, the state is
automatically obligated to comply with these principles in its relations with other states.
52
An equal cannot judge an equal, much less may an inferior usurp to judge a superior.
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been formally impleaded (Garcia v. Chief of Staff). In such a situation, the state may
move to dismiss the complaint on the ground that it has been filed without its consent.
The doctrine is sometimes derisively called ‘the royal prerogative of dishonesty’ because
of the privilege it grants the state to defeat any legitimate claim against it by simply
invoking its non-suability. That is hardly fair, at least in democratic societies, for the state
is not an unfeeling tyrant unmoved by the valid claims of its citizens. In fact, the doctrine
is not absolute and does not say the state may not be sued under any circumstance. On
the contrary, the rule says that the state may not be sued without its consent, which
clearly imports that it may be sued if it consents. The consent of the state to be sued may
be manifested expressly or impliedly. Express consent may be embodied in a general
law or a special law. Consent is implied when the state enters into a contract it itself
commences litigation…The above rules are subject to qualification. Express consent is
effected only by the will of the legislature through the medium of a duly enacted statute.
(Rep. v. Purisima)… not all contracts entered into by the government will operate as a
waiver of its non-suability; distinction must be made between its sovereign and
proprietary acts (US v. Ruiz). As for the filing of a complaint by the government, suability
will result only where the government is claiming affirmative relief from the defendant.
(Lim v. Brownell)
THE NATURE AND EXTENT OF IMMUNITY FROM SUIT, ALSO UNDER US v.
GUINTO: In the case of the US, the customary rule of international law on state immunity
is expressed with more specificity in the RP-US Bases Treaty53…
The petitioners54 also rely heavily on Baer v. Tizon… to support their position that they
are not suable, the US not having waived its sovereign immunity from suit. It is
emphasized that in Baer, the Court held:
“The invocation of the doctrine of immunity from suit of a foreign state
without its consent is appropriate… insofar as alien armed forces are
concerned, the starting point is Raquiza v. Bradford, a 1945 decision.
In dismissing a habeas corpus petition for the release of petitioners
confined by American army authorities, Justice Hilado cited Coleman
v. Tennessee, where it was explicitly declared: ‘It is well settled that a
foreign army, permitted to march through a friendly country or to be
stationed in it, by permission of its government or sovereign, is
exempt from the civil and criminal jurisdiction of the place.’ Two years
later, in Tubb and Tedrow v. Griess, this Court relied on Raquiza v.
Bradford and cited in support excerpts from the works of the
authoritative writers55… Accuracy demands the clarification that after
the conclusion of the Philippine-American Military Bases Agreement,
the treaty provision should control on such matter, the assumption
53
Art. III: It is mutually agreed that the US shall have the rights, power and authority within
the bases which are necessary for the establishment, use, operation, and defense thereof or
appropriate for the control thereof and all the rights, power and authority within the limits of
the territorial waters and air space adjacent to, or in the vicinity of, the bases which are
necessary to provide access to them or appropriate for their control.
54
In US v. Guinto.
55
Vattel, Wheaton, Hall, Lawrence, Oppenheim, Westlake, Hyde, and McNair and
Lauterpacht.
52
being that there was a manifestation of the submission to jurisdiction
on the part of the foreign power whenever appropriate. More to the
point is Syquia v. Almeda Lopez56… It was the ruling that respondent
Judge acted correctly considering that the ‘action must be considered
as one against the U.S. Government.’ The opinion of Justice
Montemayor continued: ‘It is clear that the courts of the Philippines
including the Municipal Court of Manila have no jurisdiction over the
present case for unlawful detainer. The question of lack of jurisdiction
was raised and interposed at the very beginning of the action. The
U.S. Government has not given its consent to the filing of this suit
which is essentially against her, though not in name. Moreover, this is
not only a case of a citizen filing a suit against his own Government
without the latter’s consent but it is of a citizen filing an action against
a foreign government without said government’s consent, which
renders more obvious the lack of jurisdiction of the courts of his
country. The principles of law behind this rule are so elementary and
of such general acceptance that we deem it unnecessary to cite
authorities in support thereof.”
The above observations do not confer on the US a blanket immunity for all acts done by
it or its agents in the Philippines. Neither may the other petitioners claim that they are
also insulated from suit in this country merely because they have acted as agents of the
US in the discharge of their official functions. 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 proprietary or private capacity. It is only when the contract involves its
sovereign or governmental capacity that no such waiver may be implied 57… In the words
of Justice Vicente Abad Santos:
“The traditional rule of immunity excepts a State from being sued in
the courts of another State without its consent or waiver. This rule is a
necessary consequence of the principles of independence and
equality of States. However, the rules of International Law are not
petrified; they are constantly developing and evolving. And because
the activities of states have multiplied, it has been necessary to
distinguish them-between sovereign and governmental acts (jure
imperii) and private, commercial and proprietary acts (jure gestionis).
The result is that State immunity now extends only to acts jure
imperii... The restrictive application of State immunity is proper only
when the proceedings arise out of commercial transactions of the
foreign sovereign, its commercial activities or economic affairs. Stated
56
The plaintiffs here were lessors who sued the Commanding Gen. of the US Army in the
Phil., seeking restoration of apartment buildings they owned which were leased to the US
armed forces. The motion to dismiss on the ground on non-suability was upheld by the TC
judge.
57
This was our ruling in US v. Ruiz where the transaction dealt with the improvement of the
wharves in the naval installation of Subic Bay. As this was a clearly governmental function,
we held that the contract did not operate to divest the US of its sovereign immunity from
suit. The projects are an integral part of the naval base which is devoted to the defense of
both the US and the Philippines, indisputably a function of the government of the highest
order; they are not utilized for nor dedicated to commercial or business purposes.
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differently, a State may be said to have descended to the level of an
individual and can thus be deemed to have tacitly given its consent to
be sued only when it enters into business contracts. It does not apply
where the contract relates to the exercise of its sovereign functions.”
The other petitioners in the cases before us all aver they have acted in the discharge of
their official functions as officers or agents of the US. However, this is a matter of
evidence. The charges against them may not be summarily dismissed on their mere
assertion that their acts are imputable to the US, which has not given its consent to be
sued. In fact, the defendants are sought to be held answerable for personal torts in which
the US itself is not involved. If found liable, they and they alone must satisfy the
judgment.
SUMMARY OF THE EVENTS. The POD was published under the direction and authority
of the commanding officer. The administrative assistant, among his other duties, is
tasked to prepare and distribute the POD. The NAVSTA Action Line Inquiry is a regular
feature of the POD58, which was to provide personnel access to the Commanding Officer
on matters they feel should be brought to his attention for correction or investigation 59.
According to Wylie, the action line naming “Auring” was received about 3 weeks prior to
the article’s publication. It was forwarded to the Provost Marshal for comment, and the
response “… included a short note stating that if the article was published, to remove the
name.” This note was forwarded to the executive officer and to the commanding officer
for approval. The approval of the commanding officer was forwarded to the office of the
Administrative Assistant for inclusion in the POD. A clerk typist in the office of the
Administrative Assistant prepared the smooth copy of the POD and Wylie, the
administrative assistant signed the smooth copy of the POD but failed to notice the
reference to “Auring” in the action line inquiry.
As the article implied that Rarang was consuming and appropriating confiscated items,
she was investigated by her supervisor. Before the article came out, she had been the
recipient of commendations by her superiors for honesty in the performance of her
duties.
PART OF OFFICIAL FUNCTIONS. Wylie and Williams actively participated in screening
the features and articles in the POD as part of their official functions. Under the rule that
US officials in the performance of their official functions are immune from suit, then it
should follow that they may not be held liable for the questioned publication.
BUT: TAKE NOTE THAT THEY WERE SUED IN THEIR PERSONAL CAPACITIES for
their alleged tortious acts in publishing a libelous article. And our laws and, we presume,
those of the US don’t allow the commission of crimes in the name of official duty, and
these aren’t covered by the immunity agreement.
CHAVEZ v. SANDIGANBAYAN on the law on immunity from suit of public officials
is applicable here: the general rule is that public officials can be held personally
accountable for acts claimed to have been performed in connection with official duties
where they have acted ultra vires or where there is showing of bad faith… A mere
invocation of the immunity clause does not ipso facto result in the charges being
58
It is a telephone answering device in the office of the Admin. Assist.
59
Either by phone or by mail.
53
automatically dropped. In the case of PCGG v. Peña, Chief Justice Teehankee added a
clarification of the immunity accorded PCGG officials under Section 4(a) of Exec. Order
No. I as follows:
…First, the main opinion does not claim absolute immunity for the
members of the Commission, The cited section … provides the
Commission’s members immunity from suit thus: ‘No civil action shall
lie against the Commission or any member thereof for anything done
or omitted in the discharge of the task contemplated by this order.’ No
absolute immunity like that sought by Mr. Marcos in his Constitution
for himself and his subordinates is herein involved. It is understood
that the immunity granted the members of the Commission by virtue
of the unimaginable magnitude of its task to recover the plundered
wealth and the State’s exercise of police power was immunity from
liability for damages in the official discharge of the task granted the
members of the Commission much in the same manner that judges
are immune from suit in the official discharge of the functions of their
office.
Immunity from suit cannot institutionalize irresponsibility and nonaccountability nor grant
a privileged status not claimed by any other official of the Republic. Where the petitioner
exceeds his authority as Solicitor General, acts in bad faith, or … ‘maliciously conspir(es)
with the PCGG commissioners in persecuting respondent Enrile by filing against him an
evidently baseless suit in derogation of the latter’s constitutional rights and liberties’,
there can be no question that a complaint for damages does not confer a license to
persecute or recklessly injure another. The actions governed by Articles 19, 20, 21, and
32 of the Civil Code on Human Relations may be taken against public officers or private
citizens alike.
ARGUMENT: that Williams as commanding officer is far removed in the chain of
command from the offensive publication and it would be asking too much to hold him
responsible for everything which goes wrong on the base.
WHILE THIS IS TRUE AS A GEN. RULE, FOR THIS CASE NO. The records show that
the offensive publication was sent to the commanding officer for approval and he
approved it. Art. 217660 prescribes a civil liability for damages caused by a person’s act
or omission constituting fault or negligence. “Fault” or “negligence” in this Article covers
not only acts “not punishable by law” but also acts criminal in character, whether
intentional or voluntary or negligent.61” Moreover, Art. 2219(7) provides that moral
damages may be recovered in case of libel, slander or any other form of defamation. In
effect, the offended party in these cases is given the right to receive from the guilty party
moral damages for injury to his feelings and reputation in addition to punitive or
exemplary damages62.
60
Whoever by act or omission, causes damage to another, there being fault or negligence is
obliged to pay for the damage done. Such fault or negligence, if there is no pre-existing
contractual relation between the parties, is called a quasi-delict and is governed by the
provisions of this Chapter.
61
Andamo v. IAC.
62
Occena v. Icarnina. Also, in Heirs of Basilisa Justice v. Gustilo, it was held that the
allegation of forgery of documents could be a defamation, which in light of Art. 2219(7)
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ULTRA VIRES ACT CAN’T BE PART OF OFFICIAL DUTY. Indeed the imputation of
theft contained in the POD is a defamation against Rarang’s character and reputation.
Wylie himself admitted that the Office of the Provost Marshal explicitly recommended the
deletion of the name if the article was published, but they were negligent because under
their direction they issued the publication without deleting the name. Such act or
omission is ultra vires and cannot be part of official duty. It was a tortious act which
ridiculed Rarang, and as a result she suffered besmirched reputation, serious anxiety,
wounded feelings and social humiliation, specially so, since the article was baseless and
false. Wylie and Williams alone, in their personal capacities, are liable for the damages
they caused.
WHEREFORE, the petition is hereby DISMISSED. The questioned decision and
resolution of the IAC are AFFIRMED.
WHO vs AQUINO (November 29, 1972)
Petitioners: The World Health Organization and Dr. Leonce Verstuyft
Respondents: Hon. Benjamin H. Aquino, as Presiding Judge of Branch VIII, CFI of Rizal,
Major Wilfredo Cruz, Major Antonio G. Relleve, and Captain Pedro S. Navarro of the
Constabulary Offshore Action Center (COSAC)
Ponente: Teehankee
Nature: Original action for certiorari and prohibition
1. NATURE OF THE ACTION. An original action for certiorari and prohibition to set aside
respondent judge's refusal to quash a search warrant issued by him at the instance of
respondents, COSAC (Constabulary Offshore Action Center) officers for the search and
seizure of the personal effects of petitioner official of the WHO (World Health
Organization) notwithstanding his being entitled to diplomatic immunity, as duly
recognized by the executive branch of the Philippine Government and to prohibit
respondent judge from further proceedings in lie matter.
2. PROCEDURAL MATTERS. Upon filing of the petition, the Court issued on June 6,
1972 a restraining order enjoining respondents from executing the search warrant in
question. Respondents COSAC officers filed their answer joining issue against
petitioners and seeking to justify their act of applying for and securing from respondent
judge the warrant for the search and seizure of ten crates (containing 120 bottles of
foreign wine) consigned to Verstuyft and stored at the Eternit Corporation warehouse on
the ground that they "contain large quantities of highly dutiable goods" beyond the official
needs of said petitioner "and the only lawful way to reach these articles and effects for
purposes of taxation is through a search warrant."
The Court thereafter called for the parties' memoranda in lieu of oral argument, which
were filed on August 3, 1972 by respondents and on August 21, 1972 by petitioners, and
the case was thereafter deemed submitted for decision.
3. VERSTUYFT IS ENTITLED TO DIPLOMATIC IMMUNITY. It is undisputed in the
record that petitioner Dr. Leonce Verstuyft, who was assigned on December 6, 1971 by
the WHO from his last station in Taipei to the Regional Office in Manila as Acting
could by analogy be ground for payment of moral damages, considering the wounded
feelings and besmirched reputation of the defendants.
54
Assistant Director of Health Services, is entitled to diplomatic immunity, pursuant to the
Host Agreement executed on July 22, 1951 between the Philippine Government and the
WHO.
Such diplomatic immunity carries with it, among other diplomatic privileges and
immunities, personal inviolability, inviolability of the official's properties, exemption from
local jurisdiction, and exemption from taxation and customs duties.
4.THE GOODS IN QUESTION SUBJECTED TO A SEARCH WARRANT, DESPITE
INSISTENCE OF VERSTUYFT’S DIPLOMATIC IMMUNITY. When Verstuyft's personal
effects contained in twelve (12) crates entered the Philippines as unaccompanied
baggage on January 10, 1972, they were accordingly allowed free entry from duties and
taxes. The crates were directly stored at the Eternit Corporation's warehouse at
Mandaluyong, Rizal, "pending his relocation into permanent quarters upon the offer of
Mr. Berg, Vice President of Eternit who was once a patient of Dr. Verstuyft in the Congo."
Nevertheless, as above stated, respondent judge issued on March 3, 1972 upon
application on the same date of respondents COSAC officers Search Warrant No. 72-
138 for alleged violation of Republic Act 4712 amending Section 3601 of the Tariff and
Customs Code3 directing the search and seizure of the dutiable items in said crates.
Upon protest of March 6, 1972 of Dr. Francisco Dy, WHO Regional Director for the
Western Pacific with station in Manila, Secretary of Foreign Affairs Carlos P. Romulo
personally wired on the same date respondent judge advising that "Dr. Verstuyft is
entitled to immunity from search in respect of his personal baggage as accorded to
members of diplomatic missions" pursuant to the Host Agreement and requesting
suspension of the search warrant order "pending clarification of the matter from the
ASAC."
Respondent judge set the Foreign Secretary's request for hewing and heard the same on
March 16, 1972, but notwithstanding the official plea of diplomatic immunity interposed
by a duly authorized representative of the Department of Foreign Affairs who furnished
the respondent judge with a list of the articles brought in by petitioner Verstuyft,
respondent judge issued his order of the same date maintaining the effectivity of the
search warrant issued by him, unless restrained by a higher court.
Verstuyft's special appearance on March 24, 1972 for the limited purpose of pleading his
diplomatic immunity and motion to quash search warrant of April 12, 1972 failed to move
respondent judge.
5. SOLGEN’S POSITION. At the hearing thereof held on May 8, 1972, the Office of the
Solicitor General appeared and filed an extended comment stating the official position of
the executive branch of the Philippine Government that Verstuyft is entitled to diplomatic
immunity, he did not abuse his diplomatic immunity, and that court proceedings in the
receiving or host State are not the proper remedy in the case of abuse of diplomatic
immunity.
The Solicitor General accordingly joined Verstuyft's prayer for the quashal of the search
warrant. Respondent judge nevertheless summarily denied quashal of the search
warrant per his order of May 9, 1972 "for the same reasons already stated in (his)
aforesaid order of March 16, 1972" disregarding Foreign Secretary Romulo's plea of
diplomatic immunity on behalf of Dr. Verstuyft.
6. CASE ELEVATED TO SC. Hence, the petition at bar. Verstuyft has in this Court been
joined by the WHO itself in full assertion of Verstuyft's being entitled 'to all privileges and
immunities, exemptions and facilities accorded to diplomatic envoys in accordance with
international law" under Section 34 of the Host Agreement.
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7. WRITS OF CERTIORARI AND PROHIBITION.
The writs of certiorari and prohibition should issue as prayed for.
1. The executive branch of the Philippine Government has expressly recognized that
petitioner Verstuyft is entitled to diplomatic immunity, pursuant to the provisions of the
Host Agreement. The Department of Foreign Affairs formally advised respondent judge of
the Philippine Government's official position that accordingly "Dr. Verstuyft cannot be the
subject of a Philippine court summons without violating an obligation in international law
of the Philippine Government" and asked for the quashal of the search warrant, since his
personal effects and baggages after having been allowed free entry from all customs
duties and taxes, may not be baselessly claimed to have been "unlawfully imported" in
violation of the tariff and customs code as claimed by respondents COSAC officers. The
Solicitor-General, as principal law officer of the Government likewise expressly affirmed
said petitioner's right to diplomatic immunity and asked for the quashal of the search
warrant.
ISSUE: WON Dr. Verstuyft’s crates can be subjected to a search warrant.
1. DIPLOMATIC IMMUNITY IS A POLITICAL QUESTION. 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 government as in the case at bar, it
is then the duty of the courts to accept the claim of immunity upon appropriate
suggestion by the principal law officer of the government, the Solicitor General in this
case, or other officer acting under his direction. Hence, in adherence to the settled
principle that courts may not so exercise their jurisdiction by seizure and detention of
property, as to embarrass the executive arm of the government in conducting foreign
relations, it is accepted doctrine that "in such cases the judicial department of (this)
government follows the action of the political branch and will not embarrass the latter by
assuming an antagonistic jurisdiction."
2. RELIANCE OF THE AQUINO ON SUSPICION OF COSAC OFFICERS NOT A
JUSTIFICATION. The unfortunate fact that respondent judge chose to rely on the
suspicion of COSAC officers "that the other remaining crates unopened contain
contraband items" rather than on the categorical assurance of the Solicitor-General that
Verstuyft did not abuse his diplomatic immunity, which was based in turn on the official
positions taken by the highest executive officials with competence and authority to act on
the matter, namely, the. Secretaries of Foreign Affairs and of Finance, could not justify
respondent judge's denial of the quashal of the search warrant.
3. PHILIPPINES BOUND BY CONVENTION ON THE PRIVILEGES AND IMMUNITIES
OF THE SPECIALIZED AGENCIES OF THE UN. As already stated above, and brought
to respondent court's attention," the Philippine Government is bound by the procedure
laid down in Article VII of the Convention on the Privileges and Immunities of the
Specialized Agencies of the United Nations for consultations between the Host State and
the United Nations agency concerned to determine in the first instance the fact of
occurrence of the abuse alleged, and if so, to ensure that no repetition occurs and for
other recourses. This is a treaty commitment voluntarily assumed by the Philippine
Government and as such, has the force and effect of law.
4. ASSUMING THERE’S GROUND FOR SUSPECTING IMMUNITY ABUSE,
CONTINUING THE SEARCH WARRANT PROCEEDINGS IS STILL NOT THE
55
PROPER REMEDY. Hence, even assuming arguendo as against the categorical
assurance of the executive branch of government that respondent judge had some
ground to prefer respondents COSAC officers' suspicion that there had been an abuse of
diplomatic immunity, the continuation of the search warrant proceedings before him was
not the proper remedy. He should, nevertheless, in deference to the exclusive
competence and jurisdiction of the executive branch of government to act on the matter,
have acceded to the quashal of the search warrant, and forwarded his findings or
grounds to believe that there had been such abuse of diplomatic immunity to the
Department of Foreign Affairs for it to deal with, in accordance with the aforementioned
Convention, if so warranted.
5. SC NOTES LACK OF COORDINATION AMONG GOV’T DEPARTMENTS. Finally,
the Court has noted with concern the apparent lack of coordination between the various
departments involved in the subject-matter of the case at bar, which made it possible for
a small unit, the COSAC, to which respondents officers belong, seemingly to disregard
and go against the authoritative determination and pronouncements of both the
Secretaries of Foreign Affairs and of Finance that Verstuyft is entitled to diplomatic
immunity, as confirmed by the Solicitor-General as the principal law officer of the
Government. Such executive determination properly implemented should have normally
constrained respondents officers themselves to obtain the quashal of the search warrant
secured by them rather than oppose such quashal up to this Court, to the
embarrassment of said department heads, if not of the Philippine Government itself vis a
vis the petitioners.
6. RA 7563. The seriousness of the matter is underscored when the provisions of
Republic Act 75 enacted since October 21, 1946 to safeguard the jurisdictional immunity
of diplomatic officials in the Philippines are taken into account, Said Act declares as null
and void writs or processes sued out or prosecuted whereby inter alia the person of an
ambassador or public minister is arrested or imprisoned or his goods or chattels are
seized or attached and makes it a penal offense for "every person by whom the same is
obtained or prosecuted, whether as party or as attorney, and every officer concerned in
executing it" to obtain or enforce such writ or process.
7. AQUINO ACTED WITHOUT JURISDICTION AND WITH GRAVE ABUSE OF
DISCRETION. The Court, therefore, holds that respondent judge acted without
jurisdiction and with grave abuse of discretion in not ordering the quashal of the search
warrant issued by him in disregard of the diplomatic immunity of Verstuyft.
DISPOSITION.
63
The pertinent section of Rep. Act 75, entitled "An act to penalize acts which would impair
the proper observance by the Republic and Inhabitants of the Philippines of the Immunities,
rights and priveleges of duly accredited of foreign diplomatic and consular agents in the
Philippines," reads: "Any writ or process sued out or prosecuted by any person or any court
of the Republic of the Philippines or by any judge or justice, whereby the person of any
ambassador or public minister of any foreign state, authorized and recieved as such by the
President or by domestic or domestic servant of any of any such ambassador or minister of
arrested or imprisoned, or his goods or chattels or destroyed, shall be deemed void and every
person
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ACCORDINGLY, the writs of certiorari and prohibition prayed for are hereby granted, and
the temporary restraining order heretofore issued against execution or enforcement of
the questioned search warrant, which is hereby declared null and void, is hereby made
permanent. The respondent court is hereby commanded to desist from further
proceedings in the matter.
US v. RUIZ (May 22 1985)
Petitioners: United States, Capt. James E. Galloway, William I. Collins and Robert Gohier
Respondents: Judge V.M. Ruiz of CFI Rizal Branch XV, Eligio De Guzman & Co. Inc.
Ponente: Abad-Santos
Nature: Petition for review with motions to set aside certain orders and issue restraining
order
1) US AUTHORITIES CALLED FOR BIDS. In May, 1972, the United States invited the
submission of bids for the following projects:
i) Repair fender system, Alava Wharf at the U.S. Naval Station Subic Bay,
Philippines.
ii) Repair typhoon damage to NAS Cubi shoreline; repair typhoon damage to
shoreline revetment, NAVBASE Subic; and repair to Leyte Wharf
approach, NAVBASE Subic Bay, Philippines.
2) DE GUZMAN AND CO. SUBMITTED BIDS. Eligio de Guzman & Co., Inc.
responded to the invitation and submitted bids. After that, the company received
from the United States two telegrams requesting it to confirm its price proposals and
for the name of its bonding company. The company complied with the requests. (In
its complaint, the company alleges that the United States had accepted its bids
because "A request to confirm a price proposal confirms the acceptance of a bid
pursuant to defendant United States' bidding practices." The truth of this allegation
has not been tested because the case has not reached the trial stage.)
3) COLLINS INFORMED DE GUZMAN AND CO. THAT THE PROJECT WAS
AWARDED TO ANOTHER PARTY. In June, 1972, the company received a letter
from William I. Collins, Director, Contracts Division, Naval Facilities Engineering
Command, Southwest Pacific, Department of the Navy of the United States. The
letter said that the company did not qualify to receive an award for the projects
because of its previous unsatisfactory performance rating on a repair contract for
the sea wall at the boat landings of the U.S. Naval Station in Subic Bay. The letter
further said that the projects had been awarded to third parties.
4) DE GUZMAN AND CO. SUED TO ENFORCE THE PROJECT CONTRACTS
WHICH IT ALLEGED HAD ALREADY BEEN PERFECTED IN ITS FAVOR. The
company sued the United States and Messrs. James E. Galloway, William I. Collins
and Robert Gohier all members of the Engineering Command of the U.S. Navy. The
complaint is to order the defendants to allow the plaintiff to perform the work on the
projects and, in the event that specific performance was no longer possible, to order
the defendants to pay damages. The company also asked for the issuance of a writ
of preliminary injunction to restrain the defendants from entering into contracts with
third parties for work on the projects.
56
5) SPECIAL APPEARANCE ENTERED. The defendants entered their special
appearance "for the purpose only of questioning the jurisdiction of this court over the
subject matter of the complaint and the persons of defendants, the subject matter of
the complaint being acts and omissions of the individual defendants as agents of
defendant United States of America, a foreign sovereign which has not given her
consent to this suit or any other suit for the causes of action asserted in the
complaint."
6) MOTION TO DISMISS FILED, OPPOSED AND DENIED; WRIT OF INJUNCTION
ISSUED TO ENJOIN U.S. TO ENTER INTO CONTRACTS WITH THIRD
PERSONS FOR THE PROJECTS. The defendants filed a motion to dismiss the
complaint which included an opposition to the issuance of the writ of preliminary
injunction. The company opposed the motion. The trial court denied the motion and
issued the writ. The defendants moved twice to reconsider but to no avail.
7) DEFENDANTS FILED PETITION TO RESTRAIN THE COURT FROM
PROCEEDING WITH THE TRIAL FOR LACK OF JURISDICTION.
ISSUE: WON the CFI should proceed with the trial. NO
1) DOCTRINE OF STATE IMMUNITY HAS BEEN LIMITED TO SOVEREIGN AND
GOVERNMENT ACTS. The traditional rule of State immunity exempts a State from
being sued in the courts of another State without its consent or waiver. This rule is a
necessary consequence of the principles of independence and equality of States.
However, the rules of International Law are not petrified; they are constantly
developing and evolving. And because the activities of states have multiplied, it has
been necessary to distinguish them — between sovereign and governmental acts
(jure imperii) and private, commercial and proprietary acts (jure gestionis). The
result is that State immunity now extends only to acts jure imperii. The restrictive
application of State immunity is now the rule in the United States, the United
Kingdom and other states in western Europe.
2) LYONS v. US NOT APPLICABLE. The CFI, when it denied the motion to dismiss,
quoted Lyons v. US: 'It is however contended that when a sovereign state enters
into a contract with a private person, the state can be sued upon the theory that it
has descended to the level of an individual from which it can be implied that it has
given its consent to be sued under the contract. . . .” According to Judge Ruiz, since
the US entered into a contract with appellant for stevedoring and miscellaneous
labor services within the Subic Bay Area, a U.S. Naval Reservation, it is evident that
it can bring an action before our courts for any contractual liability that political entity
may assume under the contract. The trial court, therefore, has jurisdiction to
entertain this case. The reliance placed on Lyons by the respondent judge is
misplaced. In Lyons v. US, plaintiff brought suit in the CFI Manila to collect several
sums of money on account of a contract between plaintiff and defendant. The
defendant filed a motion to dismiss on the ground that the court had no jurisdiction
over defendant and over the subject matter of the action. The court granted the
motion on the grounds that: (a) it had no jurisdiction over the defendant who did not
give its consent to the suit; and (b) plaintiff failed to exhaust the administrative
remedies provided in the contract. The order of dismissal was elevated to the SC for
review. In sustaining the action of the lower court, the Court said: "It appearing in the
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complaint that appellant has not complied with the procedure laid down in Article
XXI of the contract regarding the prosecution of its claim against the United States
Government, or, stated differently, it has failed to first exhaust its administrative
remedies against said Government, the lower court acted properly in dismissing this
case." It can thus be seen that the statement in respect of the waiver of State
immunity from suit was purely gratuitous and, therefore, obiter so that it has no
value as an imperative authority.
3) STATE IMMUNITY IS WAIVED ONLY WHEN TRANSACTION INVOLVES
COMMERCIAL CONTRACTS, NOT WHEN THE CONTRACTS RELATE TO
SOVEREIGN FUNCTIONS. The restrictive application of State immunity is proper
only when the proceedings arise out of commercial transactions of the foreign
sovereign, its commercial activities or economic affairs. A State may be said to have
descended to the level of an individual and can thus be deemed to have tacitly
given its consent to be sued only when it enters into business contracts. It does not
apply where the contract relates to the exercise of its sovereign functions. In this
case the projects are an integral part of the naval base which is devoted to the
defense of both the United States and the Philippines, indisputably a function of the
government of the highest order; they are not utilized for nor dedicated to
commercial or business purposes.
4) THE CORRECT TEST FOR THE APPLICATION OF STATE IMMUNITY IS NOT THE
CONCLUSION OF A CONTRACT BY A STATE BUT THE LEGAL NATURE OF THE
ACT. In Syquia v. Lopez the plaintiffs leased three apartment buildings to the US for
the use of its military officials. The plaintiffs sued to recover possession of the
premises on the ground that the term of the leases had expired, They also asked for
increased rentals until the apartments shall have been vacated. The defendants who
were armed forces officers of the United States moved to dismiss the suit for lack of
jurisdiction on the part of the court. The Municipal Court of Manila granted the motion
to dismiss; sustained by the CFI, the plaintiffs went to the SC for review on certiorari.
In denying the petition, the Court said:
"On the basis of the foregoing considerations we are of the
belief and we hold that the real party defendant in interest is
the Government of the United States of America; that any
judgment for back or increased rentals or damages will have
to be paid not by defendants Moore and Tillman and their 64
co-defendants but by the said U.S. Government. On the
basis of the ruling in the case of Land vs. Dollar already
cited, and on what we have already stated, the present
action must be considered as one against the U.S.
Government. It is clear that the courts of the Philippines
including the Municipal Court of Manila have no jurisdiction
over the present case for unlawful detainer. The question of
lack of jurisdiction was raised and interposed at the very
beginning of the action. The U.S. Government has not given
its consent to the filing of this suit which is essentially
against her, though not in name. Moreover, this is not only a
case of a citizen filing a suit against his own Government
without the latter's consent but it is of a citizen filing an
action against a foreign government without said
government's consent, which renders more obvious the lack
57
of jurisdiction of the courts of his country. The principles of
law behind this rule are so elementary and of such general
acceptance that we deem it unnecessary to cite authorities
in support thereof."
4) In Syquia, the United States concluded contracts with private individuals but the
contracts notwithstanding the United States was not deemed to have given or
waived its consent to be sued for the reason that the contracts were for jure imperii
and not for jure gestionis.
WHEREFORE, the petition is granted; the questioned orders of the respondent judge are
set aside and Civil Case No. 779-M is dismissed. Costs against the private respondent.
SEPARATE OPINION, Makasiar dissenting
The petition should be dismissed and the proceedings in Civil Case No. 779-M in the
defunct CFI (now RTC) of Rizal be allowed to continue therein.
CONSENT TO BE SUED IMPLIED FROM ACT OF ENTERING INTO A CONTRACT.
When the U.S. Government, through its agency at Subic Bay, confirmed the acceptance
of a bid of a private company for the repair of wharves or shoreline in the Subic Bay
area, it is deemed to have entered into a contract and thus waived the mantle of
sovereign immunity from suit and descended to the level of the ordinary citizen. Its
consent to be sued, therefore, is implied from its act of entering into a contract (Santos
vs. Santos). Justice and fairness dictate that a foreign government that commits a
breach of its contractual obligation - in the case at bar by the unilateral cancellation of
the award for the project by the United States government, through its agency at Subic
Bay - should not be allowed to take undue advantage of a party who may have legitimate
claims against it by seeking refuge behind the shield of non-suability. A contrary view
would render a Filipino citizen, as in the instant case, helpless and without redress in his
own country for violation of his rights committed by the agents of the foreign government
professing to act in its name. (Makasiar’s view finds support in another dissent, this time
by Perfecto, in the Syquia case. Therefore, US v. Ruiz is to Syquia as Makasiar is to
Perfecto).
FILIPINO ENTERPRISES WOULD BE UNDULY HAMPERED BY THE NON-SUABILITY
OF THE US EVEN WHEN IT ENTERS INTO CONTRACTS IN SUBIC BAY. Constant
resort by a foreign state or its agents to the doctrine of State immunity in this jurisdiction
impinges unduly upon our sovereignty and dignity as a nation. Its application will
particularly discourage Filipino or domestic contractors from transacting business and
entering into contracts with United States authorities or facilities in the Philippines -
whether naval, air or ground forces - because the difficulty, if not impossibility, of
enforcing a validly executed contract and of seeking judicial remedy in our own courts for
breaches of contractual obligation committed by agents of the United States government,
always looms large, thereby hampering the growth of Filipino enterprises and creating a
virtual monopoly in our own country by United States contractors of contracts for
services or supplies with the various U.S. offices and agencies operating in the
Philippines. The sanctity of upholding agreements freely entered into by the parties
cannot be over emphasized. Whether the parties are nations or private individuals, it is to
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be reasonably assumed and expected that the undertakings in the contract will be
complied with in good faith.
U.S. HAS DUTY TO RESPECT PHILIPPINE LAWS UNDER THE BASES AGREEMENT.
Reliance by petitioners on the non-suability of the United States Government before the
local courts, actually clashes with No. III (of the Agreement) on respect for Philippine law
of the Memorandum of Agreement signed on January 7, 1979, also amending RP-US
Military Bases Agreement, which stresses that "it is the duty of members of the United
States Forces, the civilian component and their dependents, to respect the laws of the
Republic of the Philippines and to abstain from any activity inconsistent with the spirit of
the Military Bases Agreement and, in particular, from any political activity in the
Philippines. The United States shall take all measures within its authority to insure that
they adhere to them". The foregoing duty imposed by the amendment to the Agreement
is further emphasized by No. IV on the economic and social improvement of areas
surrounding the bases, which directs that "moreover, the United States Forces shall
procure goods and services in the Philippines to the maximum extent feasible". Under
No. VI on labor and taxation of the said amendment of January 6, 1979 in connection
with the discussions on possible revisions or alterations of the Agreement of May 27,
1968, "the discussions shall be conducted on the basis of the principles of equality of
treatment, the right to organize, and bargain collectively, and respect for the sovereignty
of the Republic of the Philippines".
LYONS, INC. v. USA (26 Sept. 1958)
Plaintiff/Appellant: Harry Lyons, Inc.
Defendant/Appellee: 651 US Naval Supply Depot, US Navy Philippines
Appeal from an order of the CFI of Manila
Bautista Angelo, J.
Lyons, Inc. & the USA entered into a contract for stevedoring service at the U.S. Naval
Base, Subic Bay, RP. The contract, to terminate on June 30, 1956, was entered into
pursuant to the provisions of Sec. 2 (c) (1) of the Armed Services Procurement Act of
1947 of the USA (Public Law 413, 80th Congress). Lyons, Inc. sued before the CFI to
collect several sums of money arising from the contract. USA filed a motion to dismiss on
the ground that the court has no jurisdiction over defendant & over the subject matter of
the action. CFI sustained the motion since: (a) the courts lacks jurisdiction over
defendant, it being a sovereign state which cannot be sued without its consent; & (b)
plaintiff failed to exhaust the administrative remedies provided for in Article XXI of the
contract. Plaintiff appeals.
Issue: Does court have jurisdiction, despite the defense of state immunity (state cannot
be sued without its consent)? YES.
1. GENERAL RULE. "It is an established principle of jurisprudence in all civilized
nations, resting on reasons of public policy, because of the inconvenience and
danger which would follow from any different rule, that the sovereign cannot be sued
in its own courts, or in any other, without its consent and permission. Accordingly,
other than those instances in which the US has consented to be sued, the US is
immune from suit upon claims against it or debts due by it. * * * When consent to
suit is not forthcoming, the only remedy of the party injured by an act of the United
States is by an appeal to Congress" (Am. Jur., Section 127).
58
2. SYQUIA VS. LOPEZ (action brought against US Army Officers for recovery of
possession of apartments occupied by military personnel under a contract of lease
& to collect back rents & rents at increased rates, plus damages):
“…It is therefore, evident that the claim and judgment will be a charge against and a
financial liability to the US Government because the defendants had undoubtedly acted
in their official capacities as agents of said Government, * * *. Consequently, the present
suit should be regarded as an action against the United States Government…Therefore,
the suit cannot be entertained by the trial court for lack of jurisdiction." (Johnson vs.
General Turner)
3. EXCEPTION. But Lyons, Inc. contended that when a sovereign state enters into a
contract with a private person the state can be sued upon the theory that it has
descended to the level of an individual from which it can be implied that it has given
its consent to be sued under the contract, citing Santos vs. Santos:
"* * * If, where and when the state or its government enters into a contract, through its
officers or agents, in furtherance of a legitimate aim and purpose and pursuant to
constitutional legislative authority, whereby mutual or reciprocal benefits accrue and
rights and obligations arise therefrom, and if the law granting the authority to enter into
such contract does not provide for or name the officer against whom action may be
brought in the event of a breach thereof, the state itself may be sued even without its
consent, because by entering into a contract the sovereign state has descended to the
level of the citizen and consent to be sued is implied from the very act entering into such
contract. If the dignity of the state, the sacredness of the institution, the respect for the
government are to be preserved and the dragging of its name in a suit to be prevented,
the legislative department should name the officer or agent against whom the action may
be brought in the event of breach of the contract entered into under its name and
authority. And the omission or failure of the legislative department to do so is no obstacle
or impediment for an individual or citizen, who is aggrieved by the breach of the contract,
to bring an action against the state itself for the reasons already adverted to, to wit: the
descent of the sovereign state to the level of the individual or citizen with whom it
entered into a contract and its consent to be sued implied from the act of entering into
such contract."
4. CASE FALLS WITHIN EXCEPTION. Considering that the US Government, through
its agency at Subic Bay, entered into a contract with appellant for stevedoring &
miscellaneous labor services within the Subic Bay area, a US Navy Reservation, it
is evident that it can bring an action before our courts for any contractual liability that
that political entity may assume under the contract.
Issue: Even if TC had jurisdiction, did it err in dismissing the complaint because the
plaintiff failed to comply with the condition prescribed in the contract before an action
could be taken in court against the US Government? NO—failure to exhaust
administrative remedies. Order affirmed.
1. "ARTICLE XXI. Disputes:
“Except as otherwise provided in this contract, any dispute concerning a question of fact
arising under this contract which is not disposed of by agreement shall be decided by the
Contracting Officer, who shall reduce his decision to writing and mail or otherwise furnish
a copy thereof to the Contractor. Within 30 days from the date of receipt of such copy,
the Contractor may appeal by mailing or otherwise furnishing to the Contracting Officer a
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written appeal addressed to the Secretary, and the decision of the Secretary or his duly
authorized representative for the hearing of such appeals, shall, unless determined by a
court of competent jurisdiction to have been fraudulent, arbitrary, capricious, or so
grossly erroneous as necessary to imply bad faith, be final and conclusive, provided that,
if no such appeal is taken, the decision of the Contracting Officer shall be final and
conclusive. In connection with any appeal proceeding under this clause, the Contractor
shall be afforded an opportunity to be heard and to offer evidence in support of its
appeal. Pending final decision of a dispute hereunder, the Contractor shall proceed
diligently with the performance of the contract and in accordance with the Contracting
Officer's decision."
2. PROCEDURE FOR REMEDY UNDER THE CONTRACT: file its claim with the
Contracting Officer who is empowered to act & render a decision. If dissatisfied with
his decision, plaintiff may appeal to the Secretary of the Navy, whose decision shall
be final & conclusive "unless determined by a court of competent jurisdiction…”
Hence, it is only after the claim has been decided on appeal by the Secretary that
plaintiff can resort to a court of competent jurisdiction.
3. Eloy Miguel vs. Vda. de Reves; Heirs of Lachica v. Ducusin:
'If plaintiffs were aggrieved by the action or decision of the Director of Lands, their
remedy was to appeal to the Secretary of Agriculture and Commerce. But it does not
appear that they have done so. It does not even appear that they have pursued their
protest to its conclusion in the Bureau of Lands itself. Having failed to exhaust their
remedy in the administrative branch of the Government, plaintiffs cannot now seek relief
in the courts of justice.'
"In order to maintain a suit against the US, plaintiff must show that the US has consented
to suit & must bring himself, within the terms of the consent, & it is also generally held
that he must first exhaust his administrative remedies." (91 C.J.S.)
MINUCHER v. CA (September 24, 1992)
Petitioner: KHOSROW MINUCHER
Respondents: CA & ARTHUR W. CALZO, JR.
Nature: PETITION for review of the decision of the Court of Appeals
Ponente: DAVIDE, JR., J.
1. CALZO FRAMES UP MINUCHER FOR POSSESSION OF HEROIN. Calzo, an agent
of the Drug Enforcement Administration of Department of Justice of the USA ordered
from Minucher, a labor attaché of the Iran Embassy in Manila Iranian were introduced by
a common associate, Inigo. Calzo offered to help Minucher with his problem with his
family’s US visas for a fee of $2,000. Calzo also found buyers of certain Iranian goods
which Calzo was selling such as silk and carpets. So, Calzo came to the residence of
Minucher and asked to be entrusted with a pair of Persian silk carpets with a floor price
of $24,000 each, for which he had a buyer. The following day, Calzo returned to
Minucher’s residence, took the carpets and gave the latter $24,000; after about an hour,
Calzo returned, claimed that he had already made arrangements with his contacts at the
American Embassy concerning the visas and asked for $2,000. He was given this
amount. It turned out, however, that Calzo had prepared an elaborate plan to frame-up
Minucher for alleged trafficking; both were falsely arrested by Calzo and some American
and Filipino police officers, and were taken to Camp Crame in their underwear. Calzo
and his companions took petitioner’s 3 suitcases containing various documents, his
59
wallet containing money and the keys to his house and car, as well as the $24,000 which
Calzo had earlier delivered to him. Minucher and his companion, Torabian were
handcuffed together for 3 days and were not given food and water; they were asked to
confess to the possession of heroin or else they would be jailed or even executed by
Iranian terrorists. Consequently, the two were charged for the violation of Section 4 of
RA. No. 6425 (Dangerous Drugs Act of 1972) before the Pasig RTC. They were,
however, acquitted by the said court. Calzo testified for the prosecution in the said case.
2. COMPLAINT FOR DAMAGES. Minucher files a complaint for damages against Calzo
and alleges that Calzo falsely testified against him in the criminal case. Minucher also
avers that charges of unlawful arrest, robbery and estafa or swindling have already been
filed against the Calzo. He therefore prays for actual and compensatory damages of not
less than P480,000 ($24,000) representing the fair market value of the Persian silk
carpet and $2,000 representing the refund of the amount he had given for the visas;
moral damages in the amount of P5 million; exemplary damages in the sum of P100,000
and attorney’s fees of at least P200,000 to answer for litigation expenses incurred for his
defense in the criminal case and for the prosecution of the civil case,
3. SPECIAL APPEARANCE TO QUASH SUMMONS. Calzo’s counsel, the law firm
LUNA, SISON AND MANAS, filed a Special Appearance and Motion alleging therein that
since Calzo is an agent of the Drug Enforcement Administration of the USA, and the acts
and omissions complained of were performed by him in the performance of official
functions, the case is now under study by the Departments of State and Justice in
Washington, D.C. for the purpose of determining what defenses would be appropriate;
said counsel also prayed that the period to answer be extended. Then, counsel filed a
Special Appearance to Quash Summons alleging therein that: The action being it
personal action for damages arising from an alleged tort, the defendant being outside the
Philippines and not being a resident of the Philippines, Defendant is beyond the
processes of this court,” and praying that the summons issued be quashed. The trial
court denied the motion in its Order. Unsatisfied with the said order, Calzo filed a petition
for certiorari with the CA. In its Decision, the CA dismissed the petition for lack of merit.
Calzo elevated the case to the SC but was dismissed due to non-compliance with par 2
of Circular No. 1-88 and its failure to show that the CA had committed any reversible
error.
4. CALZO FILED HIS ANSWER. Thereafter, Calzo filed with the trial court his Answer in
the civil case wherein he denies the material allegations in the complaint, sets forth the
following Affirmative Defenses: “The Complaint fails to state a cause of action: in having
Minucher and Torabian arrested and detained at Camp Crame; a quantity of heroin,
seized from plaintiff by Philippine police authorities and in seizing the money used in the
drug transaction, defendant acted in the discharge of his official duties or otherwise in the
performance of his official functions as agent of the Drug Enforcement Administration,
U.S. Department of Justice and interposes a counterclaim for P100,000 to answer for
attorney’s fees and the expenses of litigation.”
5. CALZO’S MTD BASED ON A DIPLOMATIC NOTE. Calzo filed a Motion to Dismiss
the case on the ground that as per the copy of Diplomatic Note No. 414 issued by the
Embassy of the United States of America,13 dated 29 May 1990 and certified to be a
true and faithful copy of the original by one Donald K. Woodward, Vice Consul of the
United States of America on 11 June 1990, the Embassy advised the Department of
Foreign Affairs of the Republic of the Philippines that:
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“x x x Arthur W. Scalzo, was a member of the diplomatic staff of the United States
diplomatic mission from his arrival in the Philippines on October 14, 1985 until his
departure on August 10, 1988. x x x
x x x in May 1986, with the cooperation of Philippine law enforcement officials and in the
exercise of his functions as a member of the mission, Mr. Scalzo investigated Mr.
Khosrow Minucher, the plaintiff in the aforementioned case for allegedly trafficking in a
prohibited drug. It is this investigation which has given rise to the plaintiff’s complaint.
The Embassy takes note of the provisions of Article 39(2) of the Vienna Convention on
Diplomatic Relations, which provides that Mr. Scalzo retains immunity from civil suit for
sets performed in the exercise of his functions, as is the caw here, even though he has
departed (sic) the country.”
The trial court issued an order denying the motion for being “devoid of merit.”
6. CA DISMISSED CASE. Calzo then filed with the CA a petition for certiorari. CA
promulgated a Decision dismissing the case due to the trial court’s lack of jurisdiction
over the person of the defendant because the latter possessed diplomatic immunity. MR
denied because: “When therefore Mr. Scalzo testified in the Criminal Case against
Khosrow Minucher it was in connection with his official functions as an agent of the Drug
Enforcement Administration of the United States and member (sic) of the American
Mission charged with cooperating with the Philippine law enforcement agency. He
therefore, enjoys immunity from criminal and civil jurisdiction of the receiving State under
Article 31 of the Vienna Convention on Diplomatic Relations.” Hence, this petition for
review under Rule 45 of the Rules of Court.
ISSUE: WON a complaint for damages should be dismissed on the sole basis of a
statement contained in a Diplomatic Note, belatedly issued after an answer to the said
complaint had already been filed, that the defendant was a member of the diplomatic
staff of the United States Diplomatic Mission in the Philippines at the time the cause of
action accrued?
HELD: NO.
7. CORRECT GROUND TO DISMISS: FAILURE TO STATE A COA. While the trial court
correctly denied the motion to dismiss, the CA gravely abused its discretion in dismissing
the civil case on the basis of an erroneous assumption that simply-because of the
Diplomatic Note, the private respondent is clothed with diplomatic immunity, thereby
divesting the trial court of jurisdiction over his person. It may at once be stated that even
if the Calzo enjoys diplomatic immunity, a dismissal of the case cannot be ordered on the
ground of lack of jurisdiction over his person, but rather for lack of a cause of action
because even if he committed the imputed act and could have been otherwise made
liable therefor, his immunity would bar any suit against him in connection therewith and
would prevent recovery of damages arising therefrom.
8. COURT ACQUIRED JURISDICTION OVER CALZO. Jurisdiction over the person of
the defendant is acquired either by his voluntary appearance or by the service of
summons upon him. While in the instant case, private respondent’s counsel filed, on 26
October 1988, a motion to quash summons because being outside the Philippines and
being a non-resident alien, he is beyond the processes of the court, which was properly
denied by the trial court, he had in effect already waived any defect in the service of the
summons by earlier asking, on 2 occasions, for an extension of time to file an answer,
and by ultimately filing an Answer with Counterclaim. There is no question that the trial
court acquired jurisdiction over the person of the private respondent.
60
9. THE CASE SHOULD NOT HAVE BEEN DISMISSED. The complaint for damages
filed by the Minucher still cannot be peremptorily dismissed. Said complaint contains
sufficient allegations which indicate that the private respondent committed the imputed
acts in his personal capacity and outside the scope of his official duties and functions. As
described in the complaint, he committed criminal acts for which he is also civilly liable.
In the Special Appearance to Quash Summons earlier alluded to, an the other hand,
private respondent maintains that the claim for damages arose “from an alleged tort.”
Whether such claim arises from criminal acts or from tort, there can be no question that
private respondent was sued in his personal capacity for acts committed outside his
official functions duties. In the decision acquitting petitioner in the criminal case involving
the violation of the Dangerous Drugs Act, copy of which is attached to his complaint for
damages and which must be deemed as an integral part thereof, the trial court gave full
credit to petitioner’s theory that he was a victim of a frame-up instigated by the private
respondent. Thus, there is a prima facie showing in the complaint that indeed private
respondent could be held personally liable for the acts committed beyond his official
functions or duties.
10. REITERATED DOCTRINE IN SHAUF. In Shauf vs. Court of Appeals, after citing
pertinent authorities, this Court ruled: “The aforecited authorities are clear on the matter.
They state that the doctrine of immunity from suit will not apply and may not be
invoked where the public official is being sued in his private and personal capacity
as an ordinary citizen. The cloak of protection afforded the officers and agents of
the government is removed the moment they are sued in their individual capacity.
This situation usually arises where the public official acts without authority or in
excess of the powers vested in him. It is a well-settled principle of law that a public
official may be liable in his personal private capacity for whatever damage he may haw
mused by his act done with malice and in bad faith, or beyond the scope of his authority
or jurisdiction (Dumlao vs. Court of Appeals, et al., 114 SCRA 247 [1982]).”
11. ARTICLE 31 OF THE VIENNA CONVENTION ON DIPLOMATIC RELATIONS
admits of exceptions. It reads:
“I. A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving
State. He shall also enjoy immunity from its civil and administrative jurisdiction 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. (Emphasis
supplied).
12. NO EVIDENCE TO PROVE HE ACTED IN HIS OFFICIAL CAPACITY. There is of
course the claim of private respondent that the act imputed to him were done in his
official capacity. Nothing supports this self-serving claim other than the so-called
Diplomatic Note. In short, insofar as the records are concerned, Calzo did not come
forward with evidence to prove that indeed, he had acted in his official capacity. It does
not appear that an actual hearing on the motion to dismiss was conducted and that
Calzo offered evidence in support thereof. Thus, it is apropos to quote what this Court
stated in United States of America vs. Guinto:
“But even as we are, certain that the individual petitioners in G.R. No. 80018 were acting
in the discharge of their official functions, we hesitate to make the same conclusion in
G.R. No. 80258. The contradictory factual allegations in this case deserve in our view a
closer study of what actually happened to the plaintiffs. The record is too meager to
indicate if the defendants were really discharging their official duties or had actually
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exceeded their authority when the incident in question occurred. Lacking this information,
this Court cannot directly decide this case. The needed inquiry must first be made by the
lower court so it may assess and resolve the conflicting claims of the parties on the basis
of the evidence that has yet to be presented at the trial. Only after it shall have
determined in what capacity the petitioners were acting at the time of the incident in
question will this Court determine, if still necessary, if the doctrine of state immunity is
applicable.”
It may be mentioned in this regard that Calzo himself, in his Pre-trial Brief, unequivocally
states that he would present documentary evidence consisting of DEA records on his
investigation and surveillance of plaintiff and on his position and duties as DEA special
agent in Manila. Having thus reserved his right to present evidence in support of his
position, which is the basis for the alleged diplomatic immunity, the barren self-serving
claim in the belated motion to dismiss cannot be relied upon for a reasonable, intelligent
and fair resolution of the issue of diplomatic immunity.
The public respondent then should have sustained the trial court’s denial of the motion to
dismiss. Verily, such should have been the most proper and appropriate recourse. It
should not have been overwhelmed by the self-serving Diplomatic Note whose belated
issuance is even suspect and whose authenticity has not yet been proved. The undue
haste with which the CA yielded to the private respondent’s claim is arbitrary.
DISPOSITION. WHEREFORE, the challenged decision of the CA is SET ASIDE and the
Order of the Regional Trial Court of Manila denying private respondent’s Motion to
Dismiss is hereby REINSTATED.
HOLY SEE (represented in the Philippines by the Papal Nuncio) v. Judge ROSARIO
(RTC Makati) and STARBRIGHT SALES ENTERPRISES, INC. (Dec 1, 1994)
QUAISON, J.
1. The subject of this petition for certiorari is a parcel of land (“LOT 5-A”) consisting of
6,000 square meters located in Parañaque and registered in the name of the Holy See 64.
Lot 5-A is contiguous to Lots 5-B and 5-D which are registered in the name of the
Philippine Realty Corporation (“PRC”).
2. Lots 5-A, 5-B and 5-D were sold to Ramon Licup, through Msgr. Domingo A. Cirilos,
Jr., acting as agent to the sellers. Later, Licup assigned his rights to the sale to Starbright
Sales Enterprises (“STARBRIGHT”). In view of the refusal of the squatters to vacate the
lots sold to Starbright, a dispute arose as who of the parties has the responsibility of
evicting and clearing the land of squatters. Complicating the relations of the parties was
the sale by the Holy See Holy See of Lot 5-A to Tropicana Properties and Development
Corporation (“TROPICANA”).
3. On January 23, 1990, Starbright filed a complaint with the RTC Makati for annulment
of the sale of the three parcels of land, and specific performance and damages against
64
As would be established as a fact by the Court in this decision, Lot 5-A was acquired by
the Holy See as a donation from the Archdiocese of Manila. The donation was made not for
commercial purpose, but for the use of the Holy See to construct thereon the official place of
residence of the Papal Nuncio.
61
the Holy See, represented by the Papal Nuncio, and three other defendants: namely,
Msgr. Domingo A. Cirilos, Jr., the PRC and Tropicana. The complaint alleged among
others that (1) Msgr. Cirilos, Jr., on behalf of the Holy See and the PRC, agreed to sell to
Ramon Licup Lots 5-A, 5-B and 5-D at the price of P1,240.00 per square meters; (2) the
agreement to sell was made on the condition that earnest money of P100,000.00 be paid
by Licup to the sellers, and that the sellers clear the said lots of squatters who were then
occupying the same; (3) Licup paid the earnest money to Msgr. Cirilos; (4) in the same
month, Licup assigned his rights over the property to Starbright and informed the sellers
of the said assignment; (5) thereafter, Starbright demanded from Msgr. Cirilos that the
sellers fulfill their undertaking and clear the property of squatters; however, Msgr. Cirilos
informed Starbright of the squatters' refusal to vacate the lots, proposing instead either
that Starbright undertake the eviction or that the earnest money be returned to the latter;
(6) Starbright counterproposed that if it would undertake the eviction of the squatters, the
purchase price of the lots should be reduced from P1,240.00 to P1,150.00 per square
meter; (7) Msgr. Cirilos returned the earnest money of P100,000.00 and wrote Starbright
giving it seven days from receipt of the letter to pay the original purchase price in cash;
(8) Starbright sent the earnest money back to the sellers, but later discovered that the
Holy See and the PRC, without notice to Starbright, sold the lots to Tropicana and that
the sellers' transfer certificate of title over the lots were cancelled, transferred and
registered in the name of Tropicana; (9) Tropicana induced the Holy See and the PRC to
sell the lots to it and thus enriched itself at the expense of Starbright; (10) Starbright
demanded the rescission of the sale to Tropicana and the reconveyance of the lots, to no
avail; and (11) Starbright is willing and able to comply with the terms of the contract to
sell and has actually made plans to develop the lots into a townhouse project, but in view
of the sellers' breach, it lost profits of not less than P30,000.000.00.
4. The Holy See and Msgr. Cirilos separately moved to dismiss the complaint ---- the
Holy See for lack of jurisdiction based on sovereign immunity from suit, and Msgr. Cirilos
for being an improper party. An opposition to the motion was filed by Starbright. The trial
court issued an order denying, among others, the Holy See's motion to dismiss after
finding that the Holy See "shed off [its] sovereign immunity by entering into the business
contract in question".
5. The Holy See elevated the matter to the Supreme Court. In its petition, the Holy See
invokes the privilege of sovereign immunity only on its own behalf and on behalf of its
official representative, the Papal Nuncio. A Motion for Intervention was filed by the
Department of Foreign Affairs, claiming that it has a legal interest in the outcome of the
case as regards the diplomatic immunity of the Holy See, and that it "adopts by
reference, the allegations contained in the petition of the Holy See insofar as they refer
to arguments relative to its claim of sovereign immunity from suit".
ISSUE: WON the Department of Foreign Affairs has the personality or legal interest to
intervene in the case in behalf of the Holy See. YES
1. 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.
2. In the United States, the procedure followed is the process of "suggestion," where the
foreign state or the international organization sued in an American court requests the
Secretary of State to make a determination as to whether it is entitled to immunity. If the
Secretary of State finds that the defendant is immune from suit, he, in turn, asks the
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Attorney General to submit to the court a "suggestion" that the defendant is entitled to
immunity.
3. In England, a similar procedure is followed, only the Foreign Office issues a
certification to that effect instead of submitting a "suggestion”.
4. 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. But how the Philippine Foreign Office conveys its endorsement to
the courts varies. In International Catholic Migration Commission v. Calleja, the Secretary
of Foreign Affairs just sent a letter directly to the Secretary of Labor and Employment,
informing the latter that the respondent-employer could not be sued because it enjoyed
diplomatic immunity. In World Health Organization v. Aquino, the Secretary of Foreign
Affairs sent the trial court a telegram to that effect. In Baer v. Tizon, the U.S. Embassy
asked the Secretary of Foreign Affairs to request the Solicitor General to make, in behalf
of the Commander of the United States Naval Base at Olongapo City, Zambales, a
"suggestion" to respondent Judge. The Solicitor General embodied the "suggestion" in a
Manifestation and Memorandum as amicus curiae.
5. In the case at bench, the Department of Foreign Affairs, through the Office of Legal
Affairs moved with this Court to be allowed to intervene on the side of the Holy See. The
Court allowed the said Department to file its memorandum in support of the Holy See's
claim of sovereign immunity.
ISSUE: WON the Holy See in this case enjoys sovereign immunity from suit. YES
1. HISTORICAL BACKGROUND OF THE HOLY SEE. Before the annexation of the
Papal States by Italy in 1870, the Pope was the monarch and he, as the Holy See, was
considered a subject of International Law. With the loss of the Papal States and the
limitation of the territory under the Holy See to an area of 108.7 acres, the position of the
Holy See in International Law became controversial (the Supreme Court here quotes
Salonga and Yap, Public International Law). In 1929, Italy and the Holy See entered into
the Lateran Treaty, where Italy recognized the exclusive dominion and sovereign
jurisdiction of the Holy See over the Vatican City. It also recognized the right of the Holy
See to receive foreign diplomats, to send its own diplomats to foreign countries, and to
enter into treaties according to International Law (the Supreme Court here quotes
Garcia, Questions and Problems In International Law, Public and Private). The Lateran
Treaty established the statehood of the Vatican City "for the purpose of assuring to the
Holy See absolute and visible independence and of guaranteeing to it indisputable
sovereignty also in the field of international relations" (the Supreme Court here quotes
O'Connell, International Law). In view of the wordings of the Lateran Treaty, it is difficult
to determine whether the statehood is vested in the Holy See or in the Vatican City.
Some writers even suggested that the treaty created two international persons ---- the
Holy See and Vatican City.
2. THE CLASSIFICATION OF THE HOLY SEE. The Vatican City fits into none of the
established categories of states, and the attribution to it of "sovereignty" must be made in
a sense different from that in which it is applied to other states. In a community of
national states, the Vatican City represents an entity organized not for political but for
ecclesiastical purposes and international objects. Despite its size and object, the Vatican
City has an independent government of its own, with the Pope, who is also head of the
Roman Catholic Church, as the Holy See or Head of State, in conformity with its
62
traditions, and the demands of its mission in the world. Indeed, the world-wide interests
and activities of the Vatican City are such as to make it in a sense an "international
state". One authority wrote that the recognition of the Vatican City as a state has
significant implication ---- that it is possible for any entity pursuing objects essentially
different from those pursued by states to be invested with international personality (the
Supreme Court here quotes from a journal article by Kunz, The Status of the Holy See in
International Law, 46 The American Journal of International Law 308 [1952]). Inasmuch
as the Pope prefers to conduct foreign relations and enter into transactions as the Holy
See and not in the name of the Vatican City, one can conclude that in the Pope's own
view, it is the Holy See that is the international person. The Republic of the Philippines
has accorded the Holy See the status of a foreign sovereign. The Holy See, through its
Ambassador, the Papal Nuncio, has had diplomatic representations with the Philippine
government since 1957. This appears to be the universal practice in international
relations.
3. TWO CONCEPTS OF SOVEREIGN IMMUNITY. There are two conflicting concepts of
sovereign immunity, each widely held and firmly established. According to the classical or
absolute theory, a sovereign cannot, without its consent, be made a respondent in the
courts of another sovereign. According to the newer or restrictive theory, the immunity of
the sovereign is recognized only with regard to public acts or acts jure imperii of a state,
but not with regard to private acts or acts jure gestionis (United States of America v.
Ruiz; Coquia and Defensor-Santiago, Public International Law).
4. INTERNATIONAL PRACTICE. Some states passed legislation to serve as guidelines
for the executive or judicial determination when an act may be considered as jure
gestionis. The United States passed the Foreign Sovereign Immunities Act of 1976,
which defines a commercial activity as "either a regular course of commercial conduct or
a particular commercial transaction or act." Furthermore, the law declared that the
"commercial character of the activity shall be determined by reference to the nature of
the course of conduct or particular transaction or act, rather than by reference to its
purpose." The Canadian Parliament enacted in 1982 an Act to Provide For State
Immunity In Canadian Courts. The Act defines a "commercial activity" as any particular
transaction, act or conduct or any regular course of conduct that by reason of its nature,
is of a "commercial character."
5. THE RESTRICTIVE THEORY OF SOVEREIGN IMMUNITY. The restrictive theory,
which is intended to be a solution to the host of problems involving the issue of sovereign
immunity, has created problems of its own. Legal treatises and the decisions in countries
which follow the restrictive theory have difficulty in characterizing whether a contract of a
sovereign state with a private party is an act jure gestionis or an act jure imperii. The
restrictive theory came about because of the entry of sovereign states into purely
commercial activities remotely connected with the discharge of governmental functions.
This is particularly true with respect to the Communist states which took control of
nationalized business activities and international trading.
6. JURISPRUDENTIAL HISTORY IN CLASSIFYING ACTS OF FOREIGN STATES. The
Supreme Court has considered the following transactions by a foreign state with private
parties as acts jure imperii: (1) the lease by a foreign government of apartment buildings
for use of its military officers (Syquia v. Lopez) (2) the conduct of public bidding for the
repair of a wharf at a United States Naval Station (United States of America v. Ruiz) and
(3) the change of employment status of base employees (Sanders v. Veridiano). On the
other hand, this Court has considered the following transactions by a foreign state with
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private parties as acts jure gestionis: (1) the hiring of a cook in the recreation center,
consisting of three restaurants, a cafeteria, a bakery, a store, and a coffee and pastry
shop at the John Hay Air Station in Baguio City, to cater to American servicemen and the
general public (United States of America v. Rodrigo) and (2) the bidding for the operation
of barber shops in Clark Air Base in Angeles City (United States of America v. Guinto).
The operation of the restaurants and other facilities open to the general public is
undoubtedly for profit as a commercial and not a governmental activity. By entering into
the employment contract with the cook in the discharge of its proprietary function, the
United States government impliedly divested itself of its sovereign immunity from suit.
7. THE SUPREME LAYS DOWN GUIDELINES IN CLASSIFYING THE ACTS OF
FOREIGN STATES. In the absence of legislation defining what activities and
transactions shall be considered "commercial" and as constituting acts jure gestionis, we
have to come out with our own guidelines, tentative they may be. Certainly, the mere
entering into a contract by a foreign state with a private party cannot be the ultimate test.
Such an act can only be the start of the inquiry. The logical question is whether the
foreign state is engaged in the activity in the regular course of business. If the foreign
state is not engaged regularly in a business or trade, the particular act or transaction
must then be tested by its nature. If the act is in pursuit of a sovereign activity, or an
incident thereof, then it is an act jure imperii, especially when it is not undertaken for gain
or profit. As held in United States of America v. Guinto:
"There is no question that the United States of America, like any other
state, will be deemed to have impliedly waived its non-suability if it
has entered into a contract in its proprietary or private capacity. It is
only when the contract involves its sovereign or governmental
capacity that no such waiver may be implied."
8. APPLICATION TO THE CASE AT BENCH. In this case, if the Holy See has bought
and sold lands in the ordinary course of a real estate business, surely the said
transaction can be categorized as an act jure gestionis. However, the Holy See has
denied that the acquisition and subsequent disposal of Lot 5-A were made for profit but
claimed that it acquired said property for the site of its mission or the Apostolic
Nunciature in the Philippines. Starbright failed to dispute said claim. Lot 5-A was
acquired by the Holy See as a donation from the Archdiocese of Manila. The donation
was made not for commercial purpose, but for the use of the Holy See to construct
thereon the official place of residence of the Papal Nuncio. 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. 20-22). This treaty was concurred in by the
Philippine Senate and entered into force in the Philippines on November 15, 1965. In
Article 31(a) of the Convention, a diplomatic envoy is granted immunity from the civil and
administrative jurisdiction of the receiving state over any real action relating to private
immovable property situated in the territory of the receiving state which the envoy holds
on behalf of the sending state for the purposes of the mission. If this immunity is
provided for a diplomatic envoy, with all the more reason should immunity be recognized
as regards the sovereign itself, which in this case is the Holy See. The decision to
transfer the property and the subsequent disposal thereof are likewise clothed with a
governmental character. The Holy See did not sell Lot 5-A for profit or gain. It merely
wanted to dispose off the same because the squatters living thereon made it almost
impossible for the Holy See to use it for the purpose of the donation. The fact that
63
squatters have occupied and are still occupying the lot, and that they stubbornly refuse
to leave the premises, has been admitted by Starbright in its complaint.
9. THE IMPORTANCE OF THE POSITION OF THE DEPARTMENT OF FOREIGN
AFFAIRS. The privilege of sovereign immunity in this case was sufficiently established by
the Memorandum and Certification of the Department of Foreign Affairs. As the
department tasked with the conduct of the Philippines' foreign relations, the Department
of Foreign Affairs has formally intervened in this case and officially certified that the
Embassy of the Holy See is a duly accredited diplomatic mission to the Republic of the
Philippines exempt from local jurisdiction and entitled to all the rights, privileges and
immunities of a diplomatic mission or embassy in this country. The determination of the
executive arm of government that a state or instrumentality is entitled to sovereign or
diplomatic immunity is a political question that is conclusive upon the courts
(International Catholic Migration Commission v. Calleja). Where the plea of immunity is
recognized and affirmed by the executive branch, it is the duty of the courts to accept this
claim so as not to embarrass the executive arm of the government in conducting the
country's foreign relations (World Health Organization v. Aquino). As in International
Catholic Migration Commission and in World Health Organization, we abide by the
certification of the Department of Foreign Affairs.
10. STARBRIGHT’S RECOURSE IN THE INTERNATIONAL COURT. Starbright is not
left without any legal remedy for the redress of its grievances. Under both Public
International Law and Transnational Law, a person who feels aggrieved by the acts of a
foreign sovereign can ask his own government to espouse his cause through diplomatic
channels. Starbright can ask the Philippine government, through the Foreign Office, to
espouse its claims against the Holy See. Its first task is to persuade the Philippine
government to take up with the Holy See the validity of its claims. Of course, the Foreign
Office shall first make a determination of the impact of its espousal on the relations
between the Philippine government and the Holy See. Once the Philippine government
decides to espouse the claim, the latter ceases to be a private cause. According to the
Permanent Court of International Justice, the forerunner of the International Court of
Justice: "by taking up the case of one of its subjects and by reporting to diplomatic action
or international judicial proceedings on his behalf, a State is in reality asserting its own
rights ---- its right to ensure, in the person of its subjects, respect for the rules of
international law (The Mavrommatis Palestine Concessions).
WHEREFORE, the petition for certiorari is GRANTED and the complaint in Civil Case
No. 90-183 against petitioner is DISMISSED.
SEAFDEC v. Acosta (Sept. 2, 1993)
Petitioner: Southeast Asian Fisheries Development Center (SEAFDEC), represented by
its chairman, Dr. Flor J. Lacanilao
Respondents: Danilo Acosta in his capacity as Labor Arbiter of the National Labor
Relations Commission (NLRC), Regional Arbitration, Branch VI, Corazon Canto, Dan
Baliao, Elizabeth Supetran, Carmelita Ferrer, Cathryn Contrador & Doric Veloso
Ponente: Vitug, J.
Nature: Original petition for certiorari & prohibition, with a prayer for the issuance of a
restraining order, to set aside the order of respondent labor arbiter, denying petitioner's
motion to dismiss the cases subject matter of the petition for lack of jurisdiction
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1. ILLEGAL DISMISSAL CASES. 2 labor cases were filed by the private respondents
against the petitioner, SEAFDEC, before the NLRC, Regional Arbitration Branch,
Iloilo City. The private respondents claim having been wrongfully terminated from
their employment by the petitioner.
2. MTD-NO JURISDICTION. On Aug. 22, 1990, SEAFDEC, contending to be an
international inter-government organization, composed of various Southeast Asian
countries, filed a Motion to Dismiss, challenging the jurisdiction of the Labor Arbiter
in taking cognizance of the above cases.
3. MTD & MFR DENIED. On Sept. 20, 1990, the public respondent issued the assailed
order denying the Motion to Dismiss. A Motion for Reconsideration was interposed
but the same, in an order, dated Jan. 7, 1991, was also denied.
4. APPEAL. Petitioner appeals. The Supreme Court (SC), on Mar. 20, 1991, issued the
temporary restraining order prayed for.
5. RESPONDENTS’ ARGUMENT. The respondents, allege that SEAFDEC is not
immune from suit & assuming that if, indeed, it is an international organization, it
has, however, impliedly, if not expressly, waived its immunity by belatedly raising the
issue of jurisdiction.
6. SOLGEN IS MUM ON ISSUE. The Solicitor General filed a Manifestation and
Motion, which SC granted, praying that he be excused from filing his comment for
the Labor Arbiter, he not being in agreement with the latter's position on this matter.
7. SC DISMISSED PETITION. On Mar. 30, 1992, SC dismissed the instant petition in
a resolution which reads: “Considering the allegations, issues & arguments adduced
in the petition for certiorari as well as the separate comments thereon of the public &
private respondents, & the consolidated reply thereto of the petitioner, the Court
RESOLVED to dismiss the petition for failure to sufficiently show that the questioned
judgment is tainted with grave abuse of discretion. The TRO issued on March 20,
1991 is hereby LIFTED effective immediately.”
8. MFR. Petitioner moved for reconsideration, arguing that the ground invoked in its
petition is the labor arbiter's lack of jurisdiction over the dispute. SC is now asked to
rule upon the motion for reconsideration.
ISSUE: Whether SEAFDEC waived immunity when it belatedly raised the issue of
jurisdiction? NO. It has timely raised the issue of jurisdiction before the proceedings have
terminated. Petition granted, motion to dismiss granted.
RATIO:
1. IMMUNITY. SEAFDEC is an international agency enjoying diplomatic immunity, as
held in SEAFDEC v. NLRC, GR No. 86773, 206 SCRA 283/1992; see also
Lacanilao v. de Leon, GR No. 76532, 147 SCRA, 286/1987/, where we said:
“Petitioner SEAFDEC-Aquaculture Department is an international agency beyond the
jurisdiction of public respondent NLRC.
It was established by the Governments of Burma, Kingdom of Cambodia, Republic of
Indonesia, Japan, Kingdom of Laos, Malaysia, Republic of the Philippines, Republic of
Singapore, Kingdom of Thailand & Republic of Vietnam . . . .
The Republic of the Philippines became a signatory to the Agreement establishing
SEAFDEC on January 16, 1968. Its purpose is as follows:
The purpose of the Center is to contribute to the promotion of the fisheries
development in Southeast Asia by mutual co-operation among the member
governments of the Center, hereinafter called the 'Members', and through
64
collaboration with international organizations and governments external to the
Center (Agreement Establishing the SEAFDEC, Art. 1; . . ).
SEAFDEC-AQD was organized during the Sixth Council Meeting of SEAFDEC on July 3-
7, 1973 in Kuala Lumpur, Malaysia as one of the principal departments of SEAFDEC. . . .
to be established in Iloilo for the promotion of research in aquaculture. Paragraph 1,
Article 6 of the Agreement establishing mandates:
1. The Council shall be the supreme organ of the Center and all powers of
the Center shall be vested in the Council.
Being an intergovernmental organization, SEAFDEC including its Departments (AQD),
enjoys functional independence and freedom from control of the state in whose territory
its office is located.
As Senator Jovito R. Salonga & Former Chief Justice Pedro L. Yap stated in their book,
Public International Law (1956):
“Permanent international commissions and administrative bodies have been
created by the agreement of a considerable number of States for a variety of
international purposes, economic or social and mainly non-political. Among the
notable instances are the International Labor Organization, the International
Institute of Agriculture, the International Danube Commission. In so far as they
are autonomous and beyond the control of any one State, they have a distinct
juridical personality independent of the municipal law of the State where they
are situated. As such, according to one leading authority they must be deemed
to possess a species of international personality of their own.”
Pursuant to its being a signatory to the Agreement, the Republic of the Philippines
agreed to be represented by one Director in governing SEAFDEC Council (Agreement
Establishing SEAFDEC, Art. 5, Par. 1,. . .), and that its national laws and regulations
shall apply only insofar as its contributions to SEAFDEC of "an agreed amount of money,
movable and immovable property and services necessary for the establishment and
operation of the Center" are concerned (Art. 11, ibid). It expressly waived the application
of the Philippine laws on the disbursement of funds of petitioner SEAFDEC-AQD
(Section 2, P.D. No. 292).
The then Minister of Justice likewise opined that Philippine Courts have no jurisdiction
over SEAFDEC-AQD in Opinion No. 139, Series of 1984.
4. One of the basic immunities of an international organization is immunity from local
jurisdiction, i.e., that it is immune from the legal writs & processes issued by the tribunals
of the country where it is found. (See Jenks). The obvious reason for this is that the
subjection of such an organization to the authority of the local courts would afford a
convenient medium thru which the host government may interfere in their operations or
even influence or control its policies and decisions of the organization; besides, such
objection to local jurisdiction would impair the capacity of such body to discharge its
responsibilities impartially on behalf of its member-states. In the case at bar, for instance,
the entertainment by the NLRC of Mr. Madamba's reinstatement cases would amount to
interference by the Philippine Government in the management decisions of the SEARCA
governing board; even worse, it could compromise the desired impartiality of the
organization since it will have to suit its actuations to the requirements of Philippine law,
which may not necessarily coincide with the interests of the other member-states. It is
precisely to forestall these possibilities that in cases where the extent of the immunity is
specified in the enabling instruments of international organizations (jurisdictional
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immunity, is specified in the enabling instruments of international organizations),
jurisdictional immunity from the host country is invariably among the first accorded. (See
Jenks; See Bowett. The Law of International Institutions).
2. NON-POLITICAN PURPOSE + AUTONOMY. At its Sixth Meeting held at Kuala
Lumpur, Malaysia, on July 3 to 7 1973, the SEAFDEC Council approved the formal
establishment of its Aquaculture Department in the province of Iloilo, Philippines, to
promote research in Aquaculture as so expressed in the "Whereas" Clauses of PD
No. 292 issued on Sept. 13, 197365. Furthermore, Sec. 2 had provided for the
autonomous character of SEAFDEC, thus: “. . . .All funds received by the
Department shall be receipted and disbursed in accordance with the Agreement
establishing the Southeast Asian Fisheries Development Center and pertinent
resolutions duly approved by the SEAFDEC Council.”
3. ISAGANI CRUZ: “Certain administrative bodies created by agreement among states
may be vested with international personality when 2 conditions concur, to wit:, that
their purposes are mainly non-political & that they are autonomous, i.e., not subject
to the control of any state” (1977).
4. IMMUNITY TIMELY CLAIMED. Anent the issue of waiver of immunity, SEAFDEC
has timely raised the issue of jurisdiction. While SEAFDEC did not question the
public respondent's lack of jurisdiction at the early stages of the proceedings, it,
nevertheless, did so before it rested its case & certainly well before the proceedings
thereat had terminated.
WHEREFORE, our resolution, dated 30 March 1992, dismissing the petition for
certiorari, is hereby reconsidered, and another is entered (a) granting due course to the
petition; (b) setting aside the order, dated 20 September 1990, of the public respondent;
and (c) enjoining the public respondent from further proceeding with RAB Case No. VI-
0156-86 and RAB Case No. VI-0214-86. No costs.
65
WHEREAS, the Republic of the Philippines, on January 16, 1968, became a signatory to
the Agreement establishing the Southeast Asian Fisheries Development center (SEAFDEC);
WHEREAS, the SEAFDEC council, at its Sixth Meeting held at Kuala Lumpur (Malaysia)
on July 3-7, 1973, approved the formal establishment of its Aquaculture Department in the
province of Iloilo, Philippines;
WHEREAS, the SEAFDEC Aquaculture Department is designed to promote research in
aquaculture, especially in the production of prawns and shrimps, undertake the
corresponding training programs for fisheries experts and technicians and disseminate
information on fisheries research and development for SEAFDEC member-countries in
Southeast Asia;
WHEREAS, the establishment of the SEAFDEC Aquaculture Department in the Philippines
will directly and immediately stimulate the development of the fisheries industry in the
country, as well as in neighboring nations in Southeast Asia.
65
ICMC v. CALLEJA (28 Sept. 1990)
Consolidated on Dec. 11, 1989
Petitioner: International Catholic Migration Commission
Respondents: Hon. Pura Calleja, in her capacity as director of the Bur. of Labor
Relations, and Trade Unions of the Philippines and Allied Services (TUPAS)
Petitioner: Kapisanan ng Manggagawa at IAC sa IRRI-Organized Labor Association in
Line Industries and Agriculture
Respondents: Sec. of Labor and Employment, and International Rice Research Institute,
Inc.
Nature: Petitions to review the decisions of the Bur. of Labor Relations and the Sec. of
Labor and Employment
Ponente: Melencio-Herrera, J.
A. G.R. No. 86750 - the International Catholic Migration Commission (ICMC) Case
THE ICMC. As a response to the plight of Vietnamese refugees from South Vietnam’s
communist rule at the end of the Vietnam War, on Feb. 23, 1981, the Philippine
Government (Government) had an Agreement with the UN High Commissioner for
Refugees whereby an operating center for processing Indo-Chinese refugees for
eventual resettlement to other countries was to be established in Bataan. ICMC was
accredited by the Government to operate the refugee processing center. It was
incorporated in New York, USA, at the request of the Holy See, as a non-profit agency
involved in international humanitarian and voluntary work, and was duly registered with
the UN Economic and Social Council (ECOSOC) and enjoys Consultative Status,
Category II. Its activities are parallel to those of the International Committee for Migration
(ICM) and the International Committee of the Red Cross (ICRC).
A PETITION FOR CERTIFICATION ELECTIONS among the rank and file members was
filed by TUPAS on 14 July 1986 with the Ministry of Labor and Employment. ICMC
opposed the petition on the ground that it is an international organization registered with
the UN which enjoyed diplomatic immunity. The Med-Arbiter sustained ICMC and
dismissed the petition for lack of jurisdiction. On appeal by TUPAS, Dir. Calleja reversed
the Med-Arbiter’s Decision and ordered the immediate conduct of a certification election.
At that time, ICMC’s request for recognition as a specialized agency was still pending
with the Dept. of Foreign Affairs (DFA).
ICMC WAS GRANTED THE STATUS OF A SPECIALIZED AGENCY, with corresponding
diplomatic privileges and immunities, on 15 July 1998 by the Government through the
DFA. This was evidenced by a Memorandum of Agreement between the Government
and ICMC. ICMC then sought the immediate dismissal of the TUPAS Petition for
Certification Election invoking its immunity, but this was denied by Calleja. ICMC’s two
Motions for Reconsideration were denied despite a DFA opinion that the BLR Order
violated ICMC’s diplomatic immunity.
A PETITION FOR CERTIORARI with Preliminary Injunction was filed by ICMC on Nov.
24, 1988. On 10 Jan. 1989, the DFA filed a Motion for Intervention alleging that, as the
highest executive department with the competence and authority to act on matters
involving diplomatic immunity and privileges, and tasked with the conduct of Philippine
diplomatic and consular relations with foreign governments and UN organizations, it has
a legal interest in the outcome of this case. The intervention was allowed.
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ICMC ASSERTS THAT THE GRANT OF DIPLOMATIC PRIVILEGES AND IMMUNITIES
EXTENDS TO IMMUNITY FROM PHIL. LABOR LAWS. It cited (1) its Memorandum of
Agreement with the Government giving it the status of a specialized agency; (2) the
Convention on the Privileges and Immunities of Specialized Agencies66; and (3) Art. II,
Section 2 of the 1987 Constitution67.
DIR. CALLEJA CITED THE FF. TO SUPPORT ITS ORDER: State policy and Phil. labor
laws, particularly (1) Art. II, Section 18 and Art. III, Section 8 of the 1987 Constitution;
and (2) Arts. 243 and 246 of the Labor Code. She also contends that a certification
election is not a litigation but a mere investigation of a non-adversary, factfinding
character. It is not a suit against ICMC, its property, funds or assets, but is the sole
concern of the workers themselves.
B. G.R. No. 89331 - The International Rice Research Institute (IRRI) Case.
IRRI. On 9 Dec. 1959, the Government and the Ford and Rockefeller Foundations
signed a Memorandum of Understanding establishing the IRRI at Los Baños, Laguna. It
was intended to be an autonomous, philanthropic, tax-free, non-profit, non-stock
organization designed to carry out the principal objective of conducting “basic research
on the rice plant, on all phases of rice production, management, distribution and
utilization with a view to attaining nutritive and economic advantage or benefit for the
people of Asia and other major rice-growing areas through improvement in quality and
quantity of rice.” IRRI was initially organized and registered with the SEC as a private
corporation, but by virtue of PD 162068, IRRI was granted the status, prerogatives,
privileges and immunities69 of an international organization.
PET. FOR CERT. ELECTION. 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). On 20 April 1987, Kapisanan
filed a Petition for Direct Certification Election. IRRI opposed the petition invoking PD
1620. The Med-Arbiter held for IRRI and dismissed the petition. On appeal, Dir. Calleja
set aside the Med-Arbiter’s Order and authorized the calling of a certification election
among the rank-and-file employees of IRRI. She relied on Art. 243 of the Labor Code
and Art. XIII, Section 3 of the 1987 Constitution, and held that “the immunities and
privileges granted to IRRI do not include exemption from coverage of our Labor Laws.”
On appeal, the Sec. of Labor set aside the Order, dismissed the Petition for Certification
Election, and held that the grant of specialized agency status by the Government to the
IRRI bars DOLE from assuming and exercising jurisdiction over IRRI. Thus Kapisanan
filed a Petition for Certiorari alleging grave abuse of discretion by the Sec.
66
Adopted by the UN Gen. Assembly on Nov. 21, 1947 and concurred in by the Phil. Senate
through Resolution No. 19 on May 17, 1949. The Phil. Instrument of Ratification was signed
by the Pres. on Aug. 30, 1949 and deposited with the UN on March 20, 1950.
67
The Philippines adopts the generally accepted principles of international law as part of the
law of the land.
68
Promulgated on Apr. 19, 1979.
69
Immunities from all civil, criminal, and administrative proceedings under Phil. laws.
66
KAPISANAN’S ARGUMENTS: Art. 3 of PD 1620, invoked by the Sec., is unconstitutional
as it deprives the Filipino workers of their fundamental and constitutional right to form
trade unions for the purpose of collective bargaining as enshrined in the 1987
Constitution. The Sec. also erred in entertaining IRRI’s appeal from the Dir. Calleja’s
Order, as this order had already become final and unappealable, thus the Sec. had no
jurisdiction over the appeal.
THE SEC. RELIED ON Sec. 25 of RA 6715, which providedfor the direct filing of appeal
from the Med-Arbiter to the Office of the Sec. of Labor and Employment in cases
involving certification election orders.
ISSUES: WON the grant of diplomatic privileges and immunities to ICMC extends to
immunity from the application of Phil. labor laws.
WON the Sec. of Labor erred when it held that the grant of specialized agency status to
IRRI barred the DOLE from assuming and exercising jurisdiction over IRRI.
HELD: YES. NO.
DIPLOMATIC IMMUNITY HAS BEEN GRANTED TO ICMC AND IRRI. Art. II of the
Memorandum of Agreement between the Government and ICMC provides that ICMC
shall have a status "similar to that of a specialized agency." Art. III, Secs. 4 and 5 of the
Convention on the Privileges and Immunities of Specialized Agencies provides:
Sec. 4. The specialized agencies, their property and assets, wherever
located and by whomsoever held, shall enjoy immunity from every
form of legal process except insofar as in any particular case they
have expressly waived their immunity. It is, however, understood that
no waiver of immunity shall extend to any measure of execution.
Sec. 5. The premises of the specialized agencies shall be inviolable.
The property and assets of the specialized agencies, wherever
located and by whomsoever held shall be immune from search,
requisition, confiscation, expropriation and any other form of
interference, whether by executive, administrative, judicial or
legislative action. (Emphasis supplied).
IRRI is similarly situated. PD. 1620, Art. 3, is explicit in its grant of immunity:
Art. 3. Immunity from Legal Process. The Institute shall enjoy
immunity from any penal, civil and administrative proceedings, except
insofar as that immunity has been expressly waived by the Director-
General of the Institute or his authorized representatives.
A POLITICAL QUESTION. The DFA’s Memorandum, which sustained ICMC’s invocation
of immunity, and its letter which maintained IRRI’s immunity constitute a categorical
recognition by the Executive Branch of the Government that ICMC and IRRI enjoy
immunities accorded to international organizations, which determination has been held to
be a political question conclusive upon the Courts in order not to embarrass a political
department of Government (WHO v. Aquino).
THE TERM “INTERNATIONAL ORGANIZATIONS” is generally used to describe an
organization set up by agreement between two or more states. Under contemporary
international law, such organizations are endowed with some degree of international
legal personality such that they are capable of exercising specific rights, duties and
powers. They are organized mainly as a means for conducting general international
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business in which the member states have an interest. The UN is an international
organization dedicated to the propagation of world peace.
“SPECIALIZED AGENCIES” are international organizations having functions in particular
fields. The term appears in Arts. 5770 and 6371 of the UN Charter. According to Brierly in
The Law of Nations, “these agencies (established by inter-governmental agreements
outside the UN) fulfill the UN’s general task of promoting progress and international
cooperation in economic, social, health, cultural, educational, and related matters. These
agencies are brought into relationship with the UN by agreements entered into between
them and the Economic and Social Council.”
INTERNATIONAL IMMUNITIES. The rapid growth of international organizations under
contemporary international law has paved the way for the development of the concept of
international immunities. According to Jenks in International Immunities, “it is now usual
for the constitutions of international organizations to contain provisions conferring certain
immunities on the organizations themselves, representatives of their member states and
persons acting on behalf of the organizations. A series of conventions, agreements and
protocols defining the immunities of various international organizations in relation to their
members generally are now widely in force….”
3 PROPOSITIONS UNDERLYING THE GRANT OF INTERNATIONAL IMMUNITIES TO
INTERNATIONAL ORGANIZATIONS72: 1) international institutions should have a status
which protects them against control or interference by any one government in the
performance of functions for the effective discharge of which they are responsible to
democratically constituted international bodies in which all the nations concerned are
represented; 2) no country should derive any national financial advantage by levying
fiscal charges on common international funds; and 3) the international organization
should, as a collectivity of States members, be accorded the facilities for the conduct of
its official business customarily extended to each other by its individual member States.
The theory behind all three propositions is essentially institutional in character. It is not
concerned with the status, dignity or privileges of individuals, but with the elements of
functional independence necessary to free international institutions from national control
and to enable them to discharge their responsibilities impartially on behalf of all their
members. The raison d'etre for these immunities is the assurance of unimpeded
performance of their functions by the agencies concerned.
PURPOSE OF IMMUNITY. 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
70
Article 57.-l. The various specialized agencies, established by intergovernmental
agreement and having wide international responsibilities, as defined in their basic
instruments, in economic, social, cultural, educational, health, and related fields, shall be
brought into relationship with the United Nations in accordance with the provisions of
Article 63.
71
Article 63-1. The Economic and Social Council may enter into agreements with any of the
agencies referred to in Article 57, defining the terms on which the agency concerned shall be
brought into relationship with the United Nations. Such agreements shall be subject to
approval by the General Assembly.
72
These are contained in the ILO Memorandum.
67
internal workings. The exercise of jurisdiction by the DOLE 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. ICMC's and IRRI's immunity from local
jurisdiction by no means deprives labor of its basic rights, which are guaranteed by the
1987 Constitution and implemented by the Labor Code.
ICMC EMPLOYEES AREN’T WITHOUT RECOURSE WRT DISPUTES. Sec. 31 of the
Convention on the Privileges and Immunities of the Specialized Agencies of the United
Nations provides that "each specialized agency shall make provision for appropriate
modes of settlement of: (a) disputes arising out of contracts or other disputes of private
character to which the specialized agency is a party." And pursuant to Art. IV73 of the
Memorandum of Agreement between ICMC and the Government, whenever there is any
abuse of privilege by ICMC, the Government is free to withdraw the privileges and
immunities accorded.
SAME GOES FOR IRRI EMPLOYEES. A forum for better management-employee
relationship had been organized, as evidenced by the formation of the Council of IRRI
Employees and Management (CIEM) wherein "both management and employees were
and still are represented for purposes of maintaining mutual and beneficial cooperation
between IRRI and its employees." The existence of this Union factually and tellingly
belies the argument that PD 1620 its employees of the right to self-organization.
PET. FOR CERT. ELECTION COVERED BY THE IMMUNITY74. A certification election
can’t be viewed as an independent or isolated process. It could trigger off a series of
events in the collective bargaining process together with related incidents and/or
concerted activities, which could inevitably involve ICMC in the "legal process," which
includes "any penal, civil and administrative proceedings." The eventuality of Court
litigation is neither remote and from which international organizations are precisely
shielded to safeguard them from the disruption of their functions. Clauses on
jurisdictional immunity are said to be standard provisions in the constitutions of
international Organizations. "The immunity covers the organization concerned, its
property and its assets. It is equally applicable to proceedings in personam and
proceedings in rem."
73
Art. IV. Cooperation with Government Authorities. 1. The Commission shall cooperate at
all times with the appropriate authorities of the Government to ensure the observance of
Philippine laws, rules and regulations, facilitate the proper administration of justice and
prevent the occurrences of any abuse of the privileges and immunities granted its officials
and alien employees in Article III of this Agreement to the Commission.
2. In the event that the Government determines that there has been an abuse of the privileges
and immunities granted under this Agreement, consultations shall be held between the
Government and the Commission to determine whether any such abuse has occurred and, if
so, the Government shall withdraw the privileges and immunities granted the Commission
and its officials.
74
Immunity “from every form of legal process except in so far as in any particular case they
have expressly waived their immunity.”
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WRT PROCEDURAL ISSUE IN IRRI CASE, Dir. Calleja’s Decision had not become final
because of a Motion for Reconsideration filed by IRRI. Said Motion was acted upon only
on 30 March 1989 when RA 6715 was already in effect. Hence, no grave abuse of
discretion may be imputed to the Sec.

WHEREFORE, in G.R. No. 85750 (the ICMC Case), the Petition is GRANTED, the Order
of the Bureau of Labor Relations for certification election is SET ASIDE, and the
Temporary Restraining Order earlier issued is made PERMANENT. In G.R. No. 89331
(the IRRI Case), the Petition is Dismissed, no grave abuse of discretion having been
committed by the Secretary of Labor and Employment in dismissing the Petition for
Certification Election.

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