Republic of the Philippines v. Marcos. 806 F.

2d 344
Author(s): Monroe Leigh
Source: The American Journal of International Law, Vol. 81, No. 2 (Apr., 1987), pp. 417-419
Published by: Cambridge University Press
Stable URL: https://www.jstor.org/stable/2202415
Accessed: 19-04-2022 23:38 UTC

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418 THE AMERICAN JOURNAL OF INTERNATIONAL LAW [Vol. 81

Although jurisdiction was not contested by the parties, the court closely
reviewed whether federal jurisdiction was proper in what would otherwise
be a cause of action for conversion under state law. First, the court relied
on several act of state cases discussing the importance of a uniform federal
law of foreign relations to "support" the existence of federal jurisdiction
in this case. The court noted that the question posed was whether "the
federal common law in the area of foreign affairs is so 'powerful,' or im-
portant, as to displace a purely state cause of action."2 The court concluded
that an action by a foreign government against its former head of state
probably arises under federal common law "because of the necessary im-
plications of such an action for United States foreign relations."3 The court
held that regardless of whether the overall claim is reviewed as one of federal
or state common law, federal jurisdiction was present because the claim
requires a U.S. court to review a foreign government request to freeze prop-
erty in the United States. Thus, the court concluded that the claim arose
under the federal common law of foreign relations.
Turning to appellants' arguments, the court first concluded that the case
was justiciable since it was "[no] more unmanageable . . . than . . . any
other case involving theft, misappropriation, corporate veils, and constructive
trusts."4 The court relied on a statement of interest filed by the Department
of Justice, with the concurrence of the State Department's Office of the
Legal Adviser, as well as a declaration by a State Department official, to
conclude that the executive branch would not fear embarrassment should
U.S. courts adjudicate disputes between the current Philippine Government
and Marcos.
As to appellants' contention that the act of state doctrine precluded judicial
review, the court found that the appellants had failed to discharge their
burden of proving the requisite acts of state at this stage of the litigation.
The court observed that appellants did not distinguish between Marcos's
acts as head of state, which may be protected from judicial scrutiny even if
illegal under Philippine law, and his purely private acts. Recognizing that
the burden was on the appellants to present evidence demonstrating that
such acts were in fact public, the court indicated that the district court should
closely scrutinize any additional evidence submitted on the public nature of
Marcos's acts.
In dicta, however, the court suggested at least two reasons why the act
of state doctrine might be inapplicable even to Marcos's public acts. First,
given the separation-of-powers rationale for the act of state doctrine, the
fact that Marcos's acts were those of a government no longer in power greatly
diminished "the danger of interference with the Executive's conduct of for-
eign policy."5 The court acknowledged that the Second Circuit had previ-
ously applied the doctrine to the acts of former governments,6 but questioned

2806 F.2d 344, 354. 3 Id.

41d. at 356. 5Id. at 359.
6 See Bernstein v. Van Heyghen F
772 (1947); Banco de Espana v. Federal Reserve Bank of New York, 114 F.2d 438 (2d Cir.
1940).

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 1987] JUDICIAL DECISIONS 419

the continued vitality of those cases in light of the Supreme Court's statement
in Banco Nacional de Cuba v. Sabbatino,7 that "[t]he balance of relevant con-
siderations may also be shifted if the government which perpetrated the
challenged act of state is no longer in existence, as in the Bernstein case, for
the political interest of this country may, as a result, be measurably altered."8
Second, the court noted that to the extent the act of state doctrine reflects
respect for foreign states, its application may well be less justified when a
foreign state asks U.S. courts to scrutinize its actions.
Turning to appellants' claim that the newly formed Philippine Govern-
ment was attempting to confiscate Marcos's property in violation of U.S.
law, the court stated that no confiscation had yet taken place and that the
plaintiffs sought recovery of property illegally taken, not confiscation of
property legally owned. Furthermore, according to the court, the claim that
future proceedings in the Philippines to recover property would not satisfy
due process was not ripe since no confiscatory decrees had been issued and
the court had "every reason to believe . . . that any Philippine decree will
comport with due process of law as the courts of the United States would
envisage it."9
Finally, the court concluded that appellants had no standing to assert
sovereign immunity as a defense to this action. Even if appellants had stand-
ing, the court questioned the appropriateness of applying the doctrine to a
former head of state's private acts. The court reasoned, "The rationale
underlying sovereign immunity-avoiding embarrassment to our govern-
ment and showing respect for a foreign state-may well be absent when the
individual is no longer head of state and the current government is su-
ing him."'"

The decision of the court of appeals may shift the focus of this dispute
back to the Philippines, where the Philippine Government is attempting to
compile evidence to demonstrate the allegations of Marcos's unlawful takings.
However, since the district court may be required to adjudicate whether
Marcos is the owner of the New York properties in question, the proceedings
before the district court will continue to be a central focus of efforts to
recover allegedly embezzled funds. Whether any subsequent confiscatory
action of the Philippine Government will be recognized in the United States
is an open question.

Federal jurisdiction-mining in Nicaraguan waters-political question doctrine

CHASER SHIPPING CO. v. UNITED STATES. 649 F.Supp. 736.

U.S. District Court, S.D.N.Y., December 11, 1986.

Plaintiffs, a Norwegian shipping company and its Norwegian subrogee,

brought a tort action against the United States under the Suits in Admiralty

7 376 U.S. 398 (1964). 8 Id. at 428.

9 806 F.2d at 360. '0 Id.

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