LOTUS CASE

France vs. Turkey

A French ship (the S.S. Lotus), collided with a Turkish ship in
international waters, killing some Turkish sailors. The French ship then
docked in Turkey.
Turkey attempted to try the French officer in charge of the Lotus
for negligence. They found him guilty and sentenced him to 80 days in
jail. France went to the Permanent Court of International Justice (P.C.I.J.)
and argued that Turkey did not have jurisdiction to try the French
officers, because they were on a French boat in international waters at
the time of the accident. Turkey argued that since their nationals were
killed, they had jurisdiction to try those responsible for the deaths.
France argued that as a matter of customary international law, the flag
of the vessel (in this case France) has exclusive jurisdiction.
The PCIJ found that Turkey did have the right to try the French
sailors. The PCIJ basically found that since the two ships were involved
in the same accident, that both countries had concurrent jurisdiction
over the accident. The PCIJ found that customary international law
gave France jurisdiction, but it didn't give them exclusive jurisdiction.
"Under international law, everything that isn't prohibited is permitted."
This case led to the Lotus Principle (aka the Lotus Approach),
which says that sovereign states may act in any way they wish so long
as they do not contravene an explicit prohibition.
The Lotus Principle was later overruled by the 1958 High Seas
Convention. Article 11(1) says that only the flag State or the State of
which the alleged offender was a national has jurisdiction over sailors
regarding incidents occurring in high seas.

TRAIL SMELTER ARBITRATION

US vs. Canada
Facts:
The Tail Smelter located in British Columbia since 1906, was owned
and operated by a Canadian corporation. The resultant effect of from
the sulfur dioxide from Trail Smelter resulted in the damage of the
state of Washington between 1925 and 1937. This led to the United

States (P) suit against the Canada (D) with an injunction against further
air pollution by Trail Smelter.
Issue:
Is it the responsibility of the State to protect to protect other states
against harmful acts by individuals from within its jurisdiction at all
times?
Held:
Yes. It is the responsibility of the State to protect other states against
harmful act by individuals from within its jurisdiction at all times. No
state has the right to use or permit the use of the territory in a manner
as to cause injury by fumes in or to the territory of another or the
properties or persons therein as stipulated under the United States (P)
laws and the principles of international law.
By looking at the facts contained in this case, the arbitration held
that Canada (D) is responsible in international law for the conduct of
the Trail Smelter Company. Hence, the onus lies on the Canadian
government (D) to see to it that Trail Smelters conduct should be in
line with the obligations of Canada (D) as it has been confirmed by
International law. The Trail Smelter Company will therefore be required
from causing any damage through fumes as long as the present
conditions of air pollution exist in Washington.
So, in pursuance of the Article III of the convention existing
between the two nations, the indemnity for damages should be
determined by both governments.
Finally, a regime or measure of control shall be applied to the
operations of the smelter since it is probable in the opinion of the
tribunal that damage may occur in the future from the operations of
the smelter unless they are curtailed.

Blackmer vs. US
Facts:
Blackmer (D), a U.S. (P) citizen who was residing in France, was served
subpoenas to appear in court as a witness in a criminal trial in the U.S.
Contempt proceedings were initiated against Blackmer (D) when he
failed to respond to the subpoenas and he was found guilty and fined.

Blackmer (D) appealed on the ground that the federal statute was
unconstitutional.
Issue:
Must there be due process for the exercise of judicial jurisdiction in
personam?
Held:
Yes. There must be due process for the exercise of judicial jurisdiction
in personam. The court may adjudge the witness guilty of contempt if
the witness fails to comply with the court order. Congress acted
pursuant to its authority in enacting the statute and it could prescribe
a penalty to enforce it.
Chief Justice Hughes, in delivering the opinion of the Court, stated
"[n]or can it be doubted that the United States possesses the power
inherent in sovereignty to require the return to this country of a citizen,
resident elsewhere, whenever the public interest requires it, and to
penalize him in case of refusal." Also, "[i]t is also beyond controversy
that one of the duties which the citizen owes to his government is to
support the administration of justice by attending its courts and giving
his testimony whenever he is properly summoned."

NOTTEBOHM CASE
Liechtienstein vs. Guatemala
Facts:
Nottebohn (P), a German by birth, lived in Guatemala (D) for 34 years,
retaining his German citizenship and family and business ties with it.
He however applied for Liechtenstein (P) citizenship a month after the
outbreak of World War II. Nottebohm (P) had no ties with Liechtenstein
but intended to remain in Guatemala. The naturalization application
was approved by Liechtenstein and impliedly waived its three-year.
After this approval, Nottebohm (P) travelled to Liechtenstein and upon
his return to Guatemala (D), he was refused entry because he was
deemed to be a German citizen. His Liechtenstein citizenship was not
honored. Liechtenstein (P) thereby filed a suit before the International
Court to compel Guatemala (D) to recognize him as one of its national.

Guatemala (D) challenged the validity of Nottebohms (P) citizenship,

the right of Liechtenstein (P) to bring the action and alleged its belief
that Nottebohm (P) remained a German national.
Issue:
Must nationality be disregarded by other states where it is clear that it
was a mere device since the nationality conferred on a party is
normally the concerns of that nation?
Held:
NO. issues relating to citizenship are solely the concern of the granting
nation. This is the general rule. But it does not mean that other states
will automatically accept the conferring states designation unless it
has acted in conformity with the general aim of forging a genuine bond
between it and its national aim. In this case, there was no relationship
between Liechtenstein (P) and Nottebohm (P). the change of
nationality was merely a subterfuge mandated by the war. Under this
circumstance, Guatemala (D) was not forced to recognize it.

MEJOFF vs. DIRECTOR OF PRISONS

Facts:
Boris Mejoff, a Russian, was captured as a Japanese spy by the
US Army Counter Intelligence Corps on March 18, 1948. He was turned
over to the Phil Commonwealth Government for appropriate
disposition. His case was decided on by the Board of Commissioners of
Immigration who declared him as an illegal alien. The Board ordered
his immediate deportation. In the meantime, he was placed in prison
awaiting the ship that will take him back home to Russia. Two Russian
boats have been requested to bring him back to Russia but the
masters refused as they had no authority to do so.
Two years passed and Mejoff is still under detention awaiting the
ship that will take him home. This case is a petition for habeas corpus.
However, the respondent held that the Mejoff should stay in temporary
detention as it is a necessary step in the process of exclusion or
expulsion of undesirable aliens. It further states that is has the right to
do so for a reasonable length of time.
Issue:

Whether or not Mejoff should be released from prison awaiting his

deportation.
Ruling:
The Supreme Court decided that Mejoff be released from custody but
be placed under reasonable surveillance of the immigration authorities
to insure that he keep peace and be available when the Government is
ready to deport him. In the doctrine of incorporation, the Philippines in
its constitution adopts the generally accepted principles of
international law as part of the law of Nations. Also, the Philippines has
joined the United Nations in its Resolution entitled Universal
Declaration of Human Rights in proclaiming that life and liberty and all
other fundamental rights shall be applied to all human beings.

FILARTIGA vs. PENA-IRALA

The suit was brought by an alien residing in the United States against a
former official of Paraguay then visiting the United States. The
complaint alleged torture of the plaintiff's brother (see below) leading
to his death. The court of appeals ruled that deliberate torture
perpetrated by a person invested with official authority was a violation
of customary law supporting the jurisdiction of the district courts over
"a civil action by an alien for a tort only, committed in violation of the
law of nations." (see 28 U.S.C. 1350) The court further declared that
"indeed, for purposes of civil liability, the torturer has become like the
pirate and slave trader before him hostis humani generis, an enemy of
all mankind" (at 890). The court found that torture perpetrated by a
person invested with official authority violates universally accepted
human rights norms, regardless of the nationality of the parties.
Whenever an alleged torturer is found and served with process by an
alien within US territory, 28 U.S.C. 1350 applies and provides federal
jurisdiction.
ATTORNEY GENERAL OF ISRAEL vs. EICHMANN
The Appellant, Adolf Eichmann, was an Austrian by birth who
volunteered to work for the Security Service (SD) in Berlin. He rose
through the ranks and eventually occupied the position of Head of
Section (Referant) for Jewish Affairs charged with all matters related to
the implementation of the Final Solution to the Jewish Question. In this

capacity, he oversaw the transport and deportation of Jewish persons,

set up and personally ran an operations centre in Hungary in order to
implement the Final Solution there, organised the transfer of money
from evacuated Jews to the State and was responsible for the
administration of the camps at Terezin and Bergen-Belsen.
He was captured by Israeli Security Forces in Argentina and handed
over to the District Court of Jerusalem to stand trial for war crimes,
crimes against humanity and crimes against the Jewish people. He was
convicted of all 15 counts and sentenced to death by the District Court
of Jerusalem. His appeal was rejected by the Supreme Court of Israel
and he was executed by hanging a few minutes before midnight on 31
May 1962.
There is no rule of general customary international law, which prohibits
the enactment of retroactive penal legislation. Furthermore, the
argument that to punish an individual for conduct which was not yet
criminal at the time of its commission would be unethical loses its force
in face of the odious crimes committed by the Appellant. The
Appellants contention that the Law of 1950 is therefore contrary to the
principle of non-retroactivity and cannot therefore apply to the
Appellant is rejected (para. 8).
There is no rule of general customary international law that the
principle of territorial sovereignty prohibits the enactment of a criminal
law applicable to extra-territorial crimes committed by a foreign
national. The Appellants second ground of appeal must also be
rejected (para. 9).
These findings are reinforced by positive international law: the crimes
for which the Appellant was convicted were international crimes under
international law entailing individual criminal responsibility at the time
that they were committed (para. 11), and their universal character is
such that each State is vested with the power to try and punish anyone
who assisted in their commission (para. 12).
Finally, the Appellant contends that his crimes were Acts of the State,
the responsibility for which rests with the State alone and another
State has no right to punish the person who committed the act, save
with the consent of the state whose mission he carried out. This ground
of appeal was rejected by the Supreme Court as there is no basis for

applying the doctrine to acts prohibited by international

particularly in cases of such heinous international crimes.

law,

US vs. Fawaz Yuniz

US vs Alvarez-Machain
Facts:
Respondent, a citizen and resident of Mexico, was forcibly
kidnaped from his home and flown by private plane to Texas, where he
was arrested for his participation in the kidnaping and murder of a
Drug Enforcement Administration (DEA) agent and the agent's pilot.
Mter concluding that DEA agents were responsible for the abduction,
the District Court dismissed the indictment on the ground that it

violated the Extradition Treaty between the United States and Mexico
(Extradition Treaty or Treaty), and ordered respondent's repatriation.
The Court of Appeals affirmed. Based on one of its prior decisions, the
court found that, since the United States had authorized the abduction
and since the Mexican Government had protested the Treaty violation,
jurisdiction was improper.
Held:
The fact of respondent's forcible abduction does not prohibit his
trial in a United States court for violations of this country's criminal
laws. Pp. 659-670.
(a) A defendant may not be prosecuted in violation of the terms of an
extradition treaty. United States v. Rauscher, 119 U. S. 407. However,
when a treaty has not been invoked, a court may properly exercise
jurisdiction even though the defendant's presence is procured by
means of a forcible abduction. Ker v. Illinois, 119 U. S. 436. Thus, if the
Extradition Treaty does not prohibit respondent's abduction, the rule
of Ker applies and jurisdiction was proper. Pp. 659-662.
(b) Neither the Treaty's language nor the history of negotiations and
practice under it supports the proposition that it prohibits abductions
outside of its terms. The Treaty says nothing about either country
refraining from forcibly abducting people from the other's territory or
the consequences if an abduction occurs. In addition, although the
Mexican Government was made aware of theKer doctrine as early as
1906, and language to curtail Ker was drafted as early as 1935, the
Treaty's current version contains no such clause. Pp. 663-666.
(c) General principles of international law provide no basis for
interpreting the Treaty to include an implied term prohibiting
international abductions. It would go beyond established precedent
and practice to draw such an inference from the Treaty based on
respondent's argument that abductions are so clearly prohibited in
international law that there was no reason to include the prohibition in
the Treaty itself. It was the practice of nations with regard to
extradition treaties that formed the basis for this Court's decision
in Rauscher, supra, to imply a term in the extradition treaty between
the United States and England. Respondent's argument, however,

would require a much larger inferential leap with only the most general
of international law principles to support it. While respondent may be
correct that his abduction was "shocking" and in violation of general
international law principles, the decision whether he should be
returned to Mexico, as a matter outside the Treaty, is a matter for the
Executive Branch.

SECRETARY OF JUSTICE vs. LANTION

Facts:
On June 18, 1999, the Department of Justice received from the
Department of Foreign Affairs of the United States requesting for the
extradition of Mark Jimenez for various crimes in violation of US laws.
In compliance with the related municipal law, specifically Presidential
Decree No. 1069 Prescribing the Procedure for Extradition of Persons
Who Have committed Crimes in a Foreign Country and the established
Extradition Treaty Between the Government of the Philippines and the
Government of the United States of America, the department
proceeded with the designation of a panel of attorneys to conduct a
technical evaluation and assessment as provided for in the presidential
decree and the treaty. The respondent requested for a copy of the
official extradition request as well as the documents and papers
submitted therein.
The petitioner denied the request as it alleges that such information is
confidential in nature and that it is premature to provide such
document as the process is not a preliminary investigation but a mere
evaluation. Therefore, the constitutional rights of the accused are not
yet available.
Issue:
Whether or not private respondent, Mark B. Jimenez, shall be granted
access to the official extradition request and documents with an
opportunity to file a comment on or opposition thereto
Held:
NO. The extraditee's right to know is momentarily withheld during
the evaluation stage of the extradition process to accommodate the
more compelling interest of the State to prevent escape of potential
extraditees which can be precipitated by premature information of the
basis of the request for his extradition. No less compelling at that
stage of the extradition proceedings is the need to be more deferential

to the judgment of a co-equal branch of the government, the

Executive, which has been endowed by our Constitution with greater
power over matters involving our foreign relations. Needless to state,
this balance of interests is not a static but a moving balance which
can be adjusted as the extradition process moves from the
administrative stage to the judicial stage and to the execution stage
depending on factors that will come into play. In sum, we rule that
the temporary hold on private respondent's privilege of notice and
hearing is a soft restraint on his right to due process which will not
deprive him of fundamental fairness should he decide to resist the
request for his extradition to the United States. There is no denial of
due process as long as fundamental fairness is assured a
party.

REGINA vs. BARTLE

Pinochet (D), the former head of state of Chile, was considered by the
House of Lords (P) to have contravened the provisions of the Torture
Convention. This convention became law on the 8th of December 1988
and Chile, Spain and the United Kingdom were all parties to it. But
Pinochet (D), siting the fact that he was a former head of state, he was
immune under the principle of international law.
Issue:
Is the provision of the Torture Convention consistent with the notion of
continued immunity for former head of states?

Held:
Yes. The provision of the Torture Convention is not consistent with the
notion of continued immunity for former head of states. Pinochet (D)
was not acting in any capacity that gives rise to immunity if as alleged;
he masterminded and authorized torture after the 8th of December
1988 because these acts clearly contravene international law. Hence,
the torture proceedings brought against the defendant should only
continue on the allegation that torture in pursuance of a conspiracy to
commit torture was being committed by the defendant after he lost his
immunity in December 1988.

REPUBLIC OF INDONESIA vs. VINZON

FACTS: Petitioner Vinzon entered into a Maintenance Agreement with
respondent. The maintenance agreement includes the following
specific equipments: air conditioning units, generator sets, electrical
facilities, water heaters and water motor pumps. The agreement shall
be effective for 4 years.
The new Minister Counsellor allegedly found respondent's work and
services unsatisfactory and not in compliance with the standards set in
the Agreement. The respondent terminated the agreement with the
respondent. The latter claim that it was unlawful and arbitrary.
Respondent filed a Motion to Dismiss alleging that the Republic of
Indonesia, as a foreign state, has sovereign immunity from suit and
cannot be sued as party-defendant in the Philippines.
ISSUE: W/N the CA erred in sustaining the trial court's decision that
petitioners have waived their immunity from suit by using as its basis
the provision in the Maintenance Agreement.
HELD: The mere entering into a contract by a foreign state with a
private party cannot be construed as the ultimate test of whether or
not it is an act juri imperii or juri gestionis. Such act is only the start of
the inquiry. There is no dispute that the establishment of a diplomatic
mission is an act juri imperii. The state may enter into contracts with
private entities to maintain the premises, furnishings and equipment of
the embassy. The Republic of Indonesia is acting in pursuit of a
sovereign activity when it entered into a contract with the respondent.
The maintenance agreement was entered into by the Republic of
Indonesia in the discharge of its governmental functions. It cannot be
deemed to have waived its immunity from suit.
US vs. TEHRAN
Facts:
In November 4, 1974, student militants of the group Muslim Student
Followers of the Imam's Line barged into the US Embassy in Tehran and
held US diplomats and consulars hostage for 444 days. The cause of
the Iranian students action against the US was believed to be the

latters grant of medical asylum to Shah Mohammad Reza Pahlavi and

its refusal to turn the Shah over for trial.
The US sought recourse before the international court, asking that the
hostages be freed and that reparations be given to the US by the
Iranian government for the latters failure to carry its international
legal obligations. US averred that Iran was responsible due to its initial
inaction to the crisis and its subsequent statement of support to the
seizure.
Issue:
Whether or not Iran was liable to the United States for the seizure of
the US embassy and the hostage-taking of the US nationals by the
Iranian militants.
Ruling:
Iran was under obligation to make reparations for the injury caused to
the United States.
Irans failure to take appropriate steps to protect the US embassy and
Consulates was a violation of its obligations under the 1961 Vienna
Convention on Diplomatic Relations, the 1963 Vienna Convention on
Consular Relations, and 1955 Treaty of Amity, Economic Relations and
Consular Rights between Iran and the United States. Iran had the
international legal responsibility to keep the embassy inviolable. Iran
was fully aware of its obligations but it did nothing to prevent the take
over and the captivity of the US nationals.
Although the take-over of the embassy was not held to have been an
act of the state, the consequent detention of the US nationals was
attributed to Iran because of its approval and support to said
detention, such act was a violation of the provisions in the aforenamed
conventions and treaty. Once organs of the Iranian State had thus
given approval to the acts complained of and decided to perpetuate
them as a means of pressure on the United States, those acts were
transformed into acts of the Iranian State: the militants became agents
of that State, which itself became internationally responsible for their
acts.
For its breaches, the Islamic Republic of Iran had incurred responsibility

towards the United States of America. Iran is obliged to make

reparations and to endeavor for the release of the hostages.

CASE
Mighell vs. Sultan of Johore

DOCTRINE
The Sultan of Johore was sued for
breach of promise to marry in a
British court. The subject of the
suit therefore was a private
matter, not a state matter. Upon
verification of his being a sitting
foreign sovereign, the case was
dismissed. The immunity that is
recognized here is absolute for a
sitting head of state.

Pinochet Case

Pinochet did not enjoy immunity

from prosecution as a former head
of state and could be extradited to
Spain.

The
Schooner
MacFaddon

Exchange

v. Chief Justice Marshall noted that

the nation within its own territory
is
necessarily
exclusive
and
absolute. It is susceptible of no
limitation not imposed by itself.
However, he immediately added
that absolute territorial jurisdiction
would not seem to contemplate
foreign
sovereigns
nor
their
sovereign rights as its objects.
One sovereign being in no respect
amenable to another; and being
bound by obligations of the
highest character not to degrade
the dignity of his nation, by
placing himself or its sovereign
rights within the jurisdiction of
another, can be supposed to enter
a foreign territory ... in the

confidence that the immunities

belonging to his independent
sovereign station, though not
expressly stipulated, are reserved
by implication, and will be
extended to him.
Dralle
v.
Czechoslovakia

Republic

of

It can no longer be said that by

international law so-called acta
gestionis
are
exempt
from
municipal
jurisdiction.
This
subjection of the acta gestionis
to the jurisdiction of States has its
basis in the development of the
commercial activity of States.

United States of America v. Hon.

V.M. Ruiz

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.

United States v. Hon. Luis Reyes

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.

Holy See v. Eriberto Rosario, Jr.

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.
Underhill v. Hernandez

Banco National
Sabbatino

de

Every sovereign state is bound to

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

v. The act of state doctrine does,

however, have constitutional
underpinnings. It arises out of the
basic
relationships
between
branches of government in a
system of separation of powers. It
concerns the competency of
dissimilar institutions to make and
implement particular kinds of
decisions
in
the
area
of
international
relations.
The
doctrine as formulated in past
decisions expresses the strong
sense of the Judicial Branch that
its engagement in the task of
passing on the validity of foreign
acts of state may hinder rather
than further this countrys pursuit
of goals both for itself and for the

community of nations as a whole

in the international sphere
Alfred Dunhill of London, Inc. v. The concept of an act of state
Cuba
should not be extended to include
the repudiation of a purely
commercial obligation owed by a
foreign sovereign or by one of its
commercial instrumentalities.
Kirkpatrick Co. v. Environmental
Tectonics Corp

The act of state doctrine does not

establish an exception for cases
and
controversies
that
may
embarrass foreign governments,
but merely requires that, in the
process of deciding, the acts of
foreign sovereigns taken within
their own jurisdictions shall be
deemed valid. That doctrine has
no application to the present case
because the validity of a foreign
sovereign act is not at issue.