Public International Law Cases

Hue Feng v. People, GR No. 125865, March 26,

2001
FACTS:
Petitioner is an economist working with the Asian Development
Bank (ADB). Sometime in 1994, for allegedly uttering defamatory
words against fellow ADB worker Joyce Cabal, he was charged
before the MeTC of Mandaluyong City with two counts of oral
defamation. Petitioner was arrested by virtue of a warrant issued
by the MeTC. After fixing petitioners bail, the MeTC released him
to the custody of the Security Officer of ADB. The next day, the
MeTC judge received an office of protocol from the DFA stating
that petitioner is covered by immunity from legal process under
section 45 of the Agreement between the ADB and the Philippine
Government regarding the Headquarters of the ADB in the
country. Based on the said protocol communication that petitioner
is immune from suit, the MeTC judge without notice to the
prosecution dismissed the criminal cases. The latter filed a motion
for reconsideration which was opposed by the DFA. When its
motion was denied, the prosecution filed a petition for certiorari
and mandamus with the RTC of Pasig City which set aside the
MeTC rulings and ordered the latter court to enforce the warrant
of arrest it earlier issued. After the motion for reconsideration was
denied, the petitioner elevated the case to the SC via a petition
for review arguing that he is covered by immunity under the
Agreement and that no preliminary investigation was held before
the criminal case.
ISSUES:
(1) Whether or not the petitioners case is covered with
immunity from legal process with regard to Section 45 of the
Agreement between the ADB and the Philippine Govt.
(2) Whether or not the conduct of preliminary investigation was
imperative.
HELD:
(1) NO. The petitioners case is not covered by the immunity.
Courts cannot blindly adhere to the communication from the DFA
that the petitioner is covered by any immunity. It has no binding
effect in courts. The court needs to protect the right to due
process not only of the accused but also of the prosecution.
Secondly, the immunity under Section 45 of the Agreement is not
absolute, but subject to the exception that the acts must be done
in official capacity. Hence, slandering a person could not
possibly be covered by the immunity agreement because our laws
do not allow the commission of a crime, such as defamation, in
the name of official duty.
(2) NO. Preliminary Investigation is not a matter of right in cases
cognizable by the MeTC such as this case. Being purely a
statutory right, preliminary investigation may be invoked only
when specifically granted by law. The rule on criminal procedure
is clear that no preliminary investigation is required in cases
falling within the jurisdiction of the MeTC.
Hence, SC denied the petition.

Quatar v. Bahrain (ICJ 1994)

Maritime Delimitation and Territorial Questions between Qatar and
Bahrain
(Qatar v. Bahrain)
On 8 July 1991, Qatar filed an Application instituting proceedings
before the Court against Bahrain concerning certain disputes
relating to sovereignty over the Hawar islands, sovereign rights
over the shoals of Dibal and Quit'at Jaradah, and the delimitation
of the maritime areas of the two states. Qatar founded the
jurisdiction of the Court upon two agreements between the
parties dated December 1987 and December 1990. The subject
and scope of the commitment to jurisdiction were to be
determined by a formula proposed by Bahrain to Qatar in October
1988 and accepted by Qatar in December 1990. Bahrain
contested the jurisdiction of the Court arguing that none of the
documents referred to by Qatar contained a commitment to have
the dispute settled by the Court.
In 1987, the Parties accepted, in an exchange of letters, proposals
by Saudi Arabia which provided for a settlement by the Court of
all matters in dispute between the parties. These proposals
included the formation of a Tripartite Committee, composed of
representatives from Bahrain, Qatar and the Kingdom of Saudi
Arabia, "for the purpose of approaching the International Court of
Justice and satisfying the necessary requirements to have the
dispute submitted to the Court in accordance with its regulations
and instructions so that a final ruling, binding upon both parties,
be issued."
In 1988, Bahrain transmitted a text to Qatar (the "Bahraini
formula") in which the Parties request the Court "to decide any
matter of territorial right or title or interest which may be a matter
of difference between their respective maritime areas of seabed,
subsoil and superjacent waters." At the 1990 annual meeting of
the Co-operation Council of Arab States of the Gulf, Qatar let it be
known that it was ready to accept the Bahraini formula. The
minutes of the meeting (Doha Minutes) show the two parties
reaffirmed what was agreed previously between them: that they
continue to use the good offices of Saudi Arabia until May 1991,
following which date the matter may be submitted to the Court in
accordance with the Bahraini formula. Bahrain contends that
neither the 1987 agreements nor the 1990 minutes constitute
legally binding instruments which allow for a unilateral seizure of
the Court.
In its judgement of 1 July 1994, the Court concluded that the 1987
exchange of letters and the 1990 minutes were international
agreements binding upon the parties. The Court found that the
minutes were not only a simple record of negotiations, but
enumerated commitments to which the parties had consented.
They thus created rights and duties in international law for the
parties.
As to the content of the agreements, the Court held that already
in 1987 the parties had committed themselves to submit all
disputed matters to the Court. The determination of "disputed
matters", according to the Court, was settled by the 1990
minutes, in which Qatar consented to the Bahraini formula.
Therefore, both parties had accepted that the Court, once seized,
should decide "any matter of territorial right or other title or
interest which may be a matter of difference between [the
Parties]; and should "draw a single maritime boundary between
their respective maritime areas of seabed, subsoil and
superjacent waters". While permitting the presentation of distinct
claims by each of the Parties, the Bahraini formula, nonetheless,
pre-supposed that the whole of the dispute would be submitted to
the Court.
As the Court had before it only an Application by Qatar and since
Bahrain claimed that this Application did not comprise the whole
dispute, the Court decided to afford the Parties an opportunity to
ensure that the whole of the dispute as comprehended by the
1990 minutes and the Bahraini formula be submitted. The Parties
were given until 30 November 1994 to do this jointly or by
separate acts.
In it's judgement of 15 February 1995, the Court decided finally
on the questions of jurisdiction and admissibility. On 30 November
1990, Qatar filed a document entitled "Act to comply with
paragraphs (3) and (4) of operative paragraph 41 of the
Judgement of the Court dated 1 July 1994". In this document
Qatar referred to the absence of an agreement between the
parties to act jointly and declared that therefore Qatar was
submitting to the Court "the whole of the dispute between Qatar
and Bahrain as circumscribed by the text ... referred to in the
1990 Doha Minutes as the Bahraini formula." Qatar enumerated
the subjects which, in its view, fell within the Court's jurisdiction:
"1 The Hawar Islands, including the island of Janan;
.

2. Fasht al Dibal and Qit'at Jaradah;

3. The archipelagic baselines;

4. Zubarah;

5. The areas for fishing for pearls and for fishing for
swimming fish and other matters connected with maritime
boundaries."
On 30 November 1994, the Registry of the Court received a
document from Bahrain entitled "Report of the State of Bahrain to
the International Court of Justice on the attempt by the Parties to
implement the Court's Judgement of 1st July, 1994". In that
document Bahrain argued that the Judgement of 1 July 1994
required a consensual submission of the whole of the dispute. Yet,
the documents presented by Qatar rested within the unilateral
Application of 8 July 1991. In its observations of 5 December 1994
regarding Qatar's Act of 30 November 1994, Bahrain argued that
the Court did not declare in its Judgement of 1 July 1994 that it
had jurisdiction. Bahrain submitted that the Court lacked
jurisdiction at that time because of the unilateral application of
Qatar. According to Bahrain, as the Act of 30 November 1994
presented by Qatar rested within the framework of the initial
unilateral application the Court still lacked jurisdiction. The Court
therefore had to decide whether the exchange of letters or the
1990 Doha Minutes permitted a unilateral application.
The Court held that the exchange of letters, together with the
Doha Minutes, constituted an agreement between the parties to
submit the whole of the dispute to the Court. Concerning the
modalities of application, the parties had different views on the
interpretation of the arabic term "al-tarafan". Bahrain argued that
it meant both parties whereas Qatar understood it as meaning
"each party". The Court interpreted the term in the light of its
context and its aim and came to the conclusion that it meant an
alternative, not cumulative seisen. Therefore, the Court
understood the Doha Minutes to allow a unilateral application by
each of the parties.
As to the question of whether the "whole of the dispute" was
submitted, the Court held that with the Act of 30 November 1994
Qatar had indeed submitted the whole of the dispute. The Court
therefore considered that it had jurisdiction and that the case was
admissible.
Five Judges appended dissenting opinions. According to Judge
Schwebel, the Court did not examine thoroughly enough the
drafting of the 1990 Doha Minutes during which the explicit
possibility for each party to seize the Court was amended to a
text which only meant "the parties". This element of the "travaux
prparatoires" led Judge Schwebel to the conclusion that a
unilateral application was excluded. Judge Oda repeated his
opinion from the first judgement where he considered the Doha
Minutes not to constitute an agreement within Article 36 (1) of the
Court's Statute. Judge Koroma and judge ad-hoc Valticos were of
the opinion that the term "al-tarafan" and the drafting history
must lead to the conclusion that a unilateral application was not
intended by the parties. Since no joint action by Bahrain and
Qatar was taken they considered that the Court had no
jurisdiction.

Air France v. Saks (470 US 392)

AIR FRANCE v. SAKS, (1985)
No. 83-1785
Argued: January 15, 1985 Decided: March 4, 1985
Article 17 of the Warsaw Convention makes air carriers liable for
injuries sustained by a passenger "if the accident which caused
the damage so sustained took place on board the aircraft or in the
course of any of the operations of embarking or disembarking."
Respondent, while a passenger on petitioner's jetliner as it
descended to land in Los Angeles on a trip from Paris, felt severe
pressure and pain in her left ear, and the pain continued after the
jetliner landed. Shortly thereafter, respondent consulted a doctor
who concluded that she had become permanently deaf in her left
ear. She then filed suit in a California state court, alleging that her
hearing loss was caused by negligent maintenance and operation
of the jetliner's pressurization system. After the case was
removed to Federal District Court, petitioner moved for summary
judgment on the ground that respondent could not prove that her
injury was caused by an "accident" within the meaning of Article
17, the evidence indicating that the pressurization system had
operated in a normal manner. Relying on precedent that defines
the term "accident" in Article 17 as an "unusual or unexpected"
happening, the District Court granted summary judgment to
petitioner. The Court of Appeals reversed, holding that the
language, history, and policy of the Warsaw Convention and the
Montreal Agreement (a private agreement among airlines that has
been approved by the Federal Government) impose absolute
liability on airlines for injuries proximately caused by the risks
inherent in air travel; and that normal cabin pressure changes
qualify as an "accident" within the definition contained in Annex
13 to the Convention on International Civil Aviation as meaning
"an occurrence associated with the operation of an aircraft."
Held:
Liability under Article 17 arises only if a passenger's injury is
caused by an unexpected or unusual event or happening that is
external to the passenger, and not where the injury results from
the passenger's own internal reaction to the usual, normal, and
expected operation of the aircraft, in which case it has not been
caused by an accident under Article 17. Pp. 396-408.
(a) The text of the Warsaw Convention suggests that the
passenger's injury must be so caused. The difference in the
language of Article 17 imposing liability for injuries to passengers
caused by an "accident" and [470 U.S. 392, 393] Article 18
imposing liability for destruction or loss of baggage by an
"occurrence," implies that the drafters of the Convention
understood the word "accident" to mean something different than
the word "occurrence." Moreover, Article 17 refers to an accident
which caused the passenger's injury, and not to an accident which
is the passenger's injury. The text thus implies that, however
"accident" is defined, it is the cause of the injury that must satisfy
the definition rather than the occurrence of the injury alone. And,
since the Warsaw Convention was drafted in French by continental
jurists, further guidance is furnished by the French legal meaning
of "accident" - when used to describe a cause of injury, rather
than the event of injury - as being a fortuitous, unexpected a
unusual, or unintended event. Pp. 397-400.
(b) The above interpretation of Article 17 is consistent with the
negotiating history of the Warsaw Convention, the conduct of the
parties thereto, and the weight of precedent in foreign and
American courts. Pp. 400-405.
(c) While any standard requiring courts to distinguish causes that
are "accidents" from causes that are "occurrences" requires
drawing a line that may be subject to differences as to where it
should fall, an injured passenger is only required to prove that
some link in the chain of causes was an unusual or unexpected
event external to the passenger. Enforcement of Article 17's
"accident" requirement cannot be circumvented by reference to
the Montreal Agreement. That Agreement while requiring airlines
to waive "due care" defenses under Article 20(1) of the Warsaw
Convention, did not waive Article 17's "accident" requirement. Nor
can enforcement of Article 17 be escaped by reference to the
equation of "accident" with "occurrence" in Annex 13, which, with
its corresponding Convention, expressly applies to aircraft
accident investigations and not to principles of liability to
passengers under the Warsaw Convention. Pp. 405-408.
724 F.2d 1383, reversed and remanded.
O'CONNOR, J., delivered the opinion of the Court, in which all
other Members joined, except POWELL, J., who took no part in the
consideration or decision of the case.
Stephen C. Johnson argued the cause for petitioner. With him on
the briefs was Lawrence N. Minch.
Carroll E. Dubuc argued the cause for the Republic of France as
amicus curiae urging reversal. With him on the brief was Peter
Hoenig. [470 U.S. 392, 394]
Bennett M. Cohen argued the cause for respondent. With him on
the brief were Daniel U. Smith and Albert R. Abramson. *
[ Footnote * ] Briefs of amici curiae urging reversal were filed for
the United States by Solicitor General Lee, Acting Assistant
Attorney General Willard, Deputy Solicitor General Geller, Alan I.
Horowitz, and Mark H. Gallant; and for the International Air
Transport Association by Randal R. Craft, Jr.
JUSTICE O'CONNOR delivered the opinion of the Court.
Article 17 of the Warsaw Convention 1 makes air carriers liable for
injuries sustained by a passenger "if the accident which caused
the damage so sustained took place on board the aircraft or in the
course of any of the operations of embarking or disembarking."
We granted certiorari, 469 U.S. 815 (1984), to resolve a conflict
among the Courts of Appeals as to the proper definition of the
word "accident" as used in this international air carriage treaty.
I
On November 16, 1980, respondent Valerie Saks boarded an Air
France jetliner in Paris for a 12-hour flight to Los Angeles. The
flight went smoothly in all respects until, as the aircraft
descended to Los Angeles, Saks felt severe pressure and pain in
her left ear. The pain continued after the plane landed, but Saks
disembarked without informing any Air France crew member or
employee of her ailment. Five days later, Saks consulted a doctor
who concluded that she had become permanently deaf in her left
ear.
Saks filed suit against Air France in California state court, alleging
that her hearing loss was caused by negligent maintenance and
operation of the jetliner's pressurization system. App. 2. The case
was removed to the United States District Court for the Central
District of California. After extensive [470 U.S. 392,
395] discovery, Air France moved for summary judgment on the
ground that respondent could not prove that her injury was
caused by an "accident" within the meaning of the Warsaw
Convention. The term "accident," according to Air France, means
an "abnormal, unusual or unexpected occurrence aboard the
aircraft." Id., at 9. All the available evidence, including the
postflight reports, pilot's affidavit, and passenger testimony,
indicated that the aircraft's pressurization system had operated in
the usual manner. Accordingly, the airline contended that the suit
should be dismissed because the only alleged cause of
respondent's injury - normal operation of a pressurization system
- could not qualify as an "accident." In her opposition to the
summary judgment motion, Saks acknowledged that "[t]he sole
question of law presented . . . by the parties is whether a loss of
hearing proximately caused by normal operation of the aircraft's
pressurization system is an `accident' within the meaning of
Article 17 of the Warsaw Convention . . . ." Id., at 30. She argued
that "accident" should be defined as a "hazard of air travel," and
that her injury had indeed been caused by such a hazard.
Relying on precedent which defines the term "accident" in Article
17 as an "unusual or unexpected" happening, see DeMarines v.
KLM Royal Dutch Airlines, 580 F.2d 1193, 1196 (CA3 1978), the
District Court granted summary judgment to Air France. See also
Warshaw v. Trans World Airlines, Inc., 442 F. Supp. 400, 412-413
(ED Pa. 1977) (normal cabin pressure changes are not "accidents"
within the meaning of Article 17). A divided panel of the Court of
Appeals for the Ninth Circuit reversed. 724 F.2d 1383 (1984). The
appellate court reviewed the history of the Warsaw Convention
and its modification by the 1966 Montreal Agreement, a private
agreement among airlines that has been approved by the United
States Government. Agreement Relating to Liability Limitations of
the Warsaw Convention and the Hague Protocol, Agreement CAB
18900, 31 Fed. Reg. 7302 (1966), note following 49 U.S.C. App.
1502. The court [470 U.S. 392, 396] concluded that the
language, history, and policy of the Warsaw Convention and the
Montreal Agreement impose absolute liability on airlines for
injuries proximately caused by the risks inherent in air travel. The
court found a definition of "accident" consistent with this history
and policy in Annex 13 to the Convention on International Civil
Aviation, Dec. 7, 1944, 61 Stat. 1180, T. I. A. S. No. 1591, 15 U. N.
T. S. 295; conformed to in 49 CFR 830.2 (1984): "an occurrence
associated with the operation of an aircraft which takes place
between the time any person boards the aircraft with the
intention of flight and all such persons have disembarked . . . ."
724 F.2d, at 1385. Normal cabin pressure changes qualify as an
"accident" under this definition. A dissent agreed with the District
Court that "accident" should be defined as an unusual or
unexpected occurrence. Id., at 1388 (Wallace, J.). We disagree
with the definition of "accident" adopted by the Court of Appeals,
and we reverse.
II
Air France is liable to a passenger under the terms of the Warsaw
Convention only if the passenger proves that an "accident" was
the cause of her injury. MacDonald v. Air Canada, 439 F.2d 1402
(CA1 1971); Mathias v. Pan Am World Airways, Inc., 53 F. R. D. 447
(WD Pa. 1971). See 1 C. Shawcross & K. Beaumont, Air Law
VII(147) (4th ed. 1984); D. Goedhuis, National Airlegislations and
the Warsaw Convention 199 (1937). The narrow issue presented is
whether respondent can meet this burden by showing that her
injury was caused by the normal operation of the aircraft's
pressurization system. The proper answer turns on interpretation
of a clause in an international treaty to which the United States is
a party. "[T]reaties are construed more liberally than private
agreements, and to ascertain their meaning we may look beyond
the written words to the history of the treaty, the negotiations,
and the practical construction adopted by the parties." Choctaw
Nation of Indians v. United States, 318 U.S. 423, 431 -432 (1943).
The [470 U.S. 392, 397] analysis must begin, however, with the
text of the treaty and the context in which the written words are
used. See Maximov v. United States, 373 U.S. 49, 53 -54 (1963).
A
Article 17 of the Warsaw Convention establishes the liability of
international air carriers for harm to passengers. Article 18
contains parallel provisions regarding liability for damage to
baggage. The governing text of the Convention is in the French
language, and we accordingly set forth the French text of the
relevant part of Articles 17 and 18 in the margin. 2 The official
American translation of this portion of the text, which was before
the Senate when it ratified the Convention in 1934, reads as
follows:
"Article 17
"The carrier shall be liable for damage sustained in the event of
the death or wounding of a passenger or any other bodily injury
suffered by a passenger, if the accident which caused the damage
so sustained took place on board the aircraft or in the course of
any of the operations of embarking or disembarking.
"Article 18
"(1) The carrier shall be liable for damage sustained in the event
of the destruction or loss of, or of damage to, any checked
baggage or any goods, if the occurrence [470 U.S. 392,
398] which caused the damage so sustained took place during
the transportation by air." 49 Stat. 3018-3019.
Two significant features of these provisions stand out in both the
French and the English texts. First, Article 17 imposes liability for
injuries to passengers caused by an "accident," whereas Article
18 imposes liability for destruction or loss of baggage caused by
an "occurrence." This difference in the parallel language of
Articles 17 and 18 implies that the drafters of the Convention
understood the word "accident" to mean something different than
the word "occurrence," for they otherwise logically would have
used the same word in each article. See Goedhuis, supra, at 200-
201; M. Milde, The Problems of Liabilities in International Carriage
by Air 62 (Caroline Univ. 1963). The language of the Convention
accordingly renders suspect the opinion of the Court of Appeals
that "accident" means "occurrence."
Second, the text of Article 17 refers to an accident which caused
the passenger's injury, and not to an accident which is the
passenger's injury. In light of the many senses in which the word
"accident" can be used, this distinction is significant. As Lord
Lindley observed in 1903:
"The word `accident' is not a technical legal term with a clearly
defined meaning. Speaking generally, but with reference to legal
liabilities, an accident means any unintended and unexpected
occurrence which produces hurt or loss. But it is often used to
denote any unintended and unexpected loss or hurt apart from its
cause; and if the cause is not known the loss or hurt itself would
certainly be called an accident. The word `accident' is also often
used to denote both the cause and the effect, no attempt being
made to discriminate between them." Fenton v. J. Thorley & Co.,
1903. A. C. 443, 453.
In Article 17, the drafters of the Warsaw Convention apparently
did make an attempt to discriminate between "the cause and the
effect"; they specified that air carriers would [470 U.S. 392,
399] be liable if an accident caused the passenger's injury. The
text of the Convention thus implies that, however we define
"accident," it is the cause of the injury that must satisfy the
definition rather than the occurrence of the injury alone. American
jurisprudence has long recognized this distinction between an
accident that is the cause of an injury and an injury that is itself
an accident. See Landress v. Phoenix Mutual Life Ins. Co., 291 U.S.
491 (1934).
While the text of the Convention gives these two clues to the
meaning of "accident," it does not define the term. Nor is the
context in which the term is used illuminating. See Note, Warsaw
Convention - Air Carrier Liability for Passenger Injuries Sustained
Within a Terminal, 45 Ford. L. Rev. 369, 388 (1976) ("The language
of Article 17 is stark and undefined"). To determine the meaning
of the term "accident" in Article 17 we must consider its French
legal meaning. See Reed v. Wiser, 555 F.2d 1079 (CA2), cert.
denied, 434 U.S. 922 (1977); Block v. Compagnie Nationale Air
France, 386 F.2d 323 (CA5 1967), cert. denied, 392 U.S.
905 (1968). This is true not because "we are forever chained to
French law" by the Convention, see Rosman v. Trans World
Airlines, Inc., 34 N. Y. 2d 385, 394, 314 N. E. 2d 848, 853 (1974),
but because it is our responsibility to give the specific words of
the treaty a meaning consistent with the shared expectations of
the contracting parties. Reed, supra, at 1090; Day v. Trans World
Airlines, Inc., 528 F.2d 31 (CA2 1975), cert. denied, 429 U.S.
890 (1976). We look to the French legal meaning for guidance as
to these expectations because the Warsaw Convention was
drafted in French by continental jurists. See Lowenfeld &
Mendelsohn, The United States and the Warsaw Convention, 80
Harv. L. Rev. 497, 498-500 (1967).
A survey of French cases and dictionaries indicates that the
French legal meaning of the term "accident" differs little from the
meaning of the term in Great Britain, Germany, or the United
States. Thus, while the word "accident" is often [470 U.S. 392,
400] used to refer to the event of a person's injury, 3 it is also
sometimes used to describe a cause of injury, and when the word
is used in this latter sense, it is usually defined as a fortuitous,
unexpected, unusual, or unintended event. See 1 Grand Larousse
de La Langue Francaise 29 (1971) (defining "accident" as
"Evenement fortuit et facheux, causant des dommages corporels
ou materiels"); Air France v. Haddad, Judgment of June 19, 1979,
Cour d'appel de Paris, Premiere Chambre Civile, 1979 Revue
Francaise de Droit Aerien 327, 328, appeal rejected, Judgment of
February 16, 1982, Cour de Cassation, 1982 Bull. Civ. I 63. This
parallels British and American jurisprudence. See Fenton v. J.
Thorley & Co., supra; Landress v. Phoenix Mutual Life Ins. Co.,
supra; Koehring Co. v. American Automobile Ins. Co., 353 F.2d 993
(CA7 1965). The text of the Convention consequently suggests
that the passenger's injury must be caused by an unexpected or
unusual event.
B
This interpretation of Article 17 is consistent with the negotiating
history of the Convention, the conduct of the parties to the
Convention, and the weight of precedent in foreign and American
courts. In interpreting a treaty it is proper, of course, to refer to
the records of its drafting and negotiation. Choctaw Nation of
Indians v. United States, 318 U.S., at 431 . In part because the
"travaux preparatoires" of the Warsaw Convention are published
and generally available to litigants, courts frequently refer to
these materials to resolve ambiguities in the text. See Trans World
Airlines, Inc. v. Franklin Mint Corp., 466 U.S. 243, 259 (1984);
Maugnie v. Companie Nationale Air France, 549 F.2d 1256 (CA9
1977); Fothergill v. Monarch Airlines, Ltd., 1980. 2 All E. R. 696 (H.
L.). [470 U.S. 392, 401]
The treaty that became the Warsaw Convention was first drafted
at an international conference in Paris in 1925. The protocol
resulting from the Paris Conference contained an article
specifying: "The carrier is liable for accidents, losses, breakdowns,
and delays. It is not liable if it can prove that it has taken
reasonable measures designed to pre-empt damage . . . ." 4 The
protocol drafted at Paris was revised several times by a
committee of experts on air law, 5 and then submitted to a
second international conference that convened in Warsaw in
1929. The draft submitted to the conference stated:
"The carrier shall be liable for damage sustained during carriage:
"(a) in the case of death, wounding, or any other bodily injury
suffered by a traveler;
"(b) in the case of destruction, loss, or damage to goods or
baggage;
"(c) in the case of delay suffered by a traveler, goods, or
baggage." International Conference on Air Law Affecting Air
Questions, Minutes, Second International Conference on Private
Aeronautical Law, October 4-12, 1929, Warsaw 264-265 (R.
Horner & D. Legrez trans. 1975).
Article 22 of this draft, like the original Paris draft, permitted the
carrier to avoid liability by proving it had taken reasonable
measures to avoid the damage. Id., at 265. None of the early
drafts required that an accident cause the passenger's injury. [470
U.S. 392, 402]
At Warsaw, delegates from several nations objected to the
application of identical liability rules to both passenger injuries
and damage to baggage, and the German delegation proposed
separate liability rules for passengers and baggage. Id., at 36. The
need for separate rules arose primarily because delegates
thought that liability for baggage should commence upon delivery
to the carrier, whereas liability for passengers should commence
when the passengers later embark upon the aircraft. Id., at 72-74
(statements of French, Swiss, and Italian delegates). The Reporter
on the Preliminary Draft of the Convention argued it would be too
difficult to draft language specifying this distinction, and that such
a distinction would be unnecessary because "Article 22
establishes a very mitigated system of liability for the carrier, and
from the moment that the carrier has taken the reasonable
measures, he does not answer for the risks, nor for the accidents
occur[r]ing to people by the fault of third parties, nor for accidents
occur[r]ing for any other cause." Id., at 77-78 (statement of
Reporter De Vos). The delegates were unpersuaded, and a
majority voted to have a drafting committee rework the liability
provisions for passengers and baggage. Id., at 83.
A few days later, the drafting committee proposed the liability
provisions that became Articles 17 and 18 of the Convention.
Article 20(1) of the final draft contains the "necessary measures"
language which the Reporter believed would shield the carrier
from liability for "the accidents occur[r]ing to people by the fault
of third parties" and for "accidents occur[r]ing for any other
cause." Nevertheless, the redrafted Article 17 also required as a
prerequisite to liability that an accident cause the passenger's
injury, whereas the redrafted Article 18 required only that an
occurrence cause the damage to baggage. Although Article 17
and Article 18 as redrafted were approved with little discussion,
the President of the drafting committee observed that "given that
there are entirely different liability cases: death or wounding,
disappearance [470 U.S. 392, 403] of goods, delay, we have
deemed that it would be better to begin by setting out the causes
of liability for persons, then for goods and baggage, and finally
liability in the case of delay." Id., at 205 (statement of Delegate
Giannini) (emphasis added). This comment at least implies that
the addition of language of causation to Articles 17 and 18 had a
broader purpose than specification of the time at which liability
commenced. It further suggests that the causes of liability for
persons were intended to be different from the causes of liability
for baggage. The records of the negotiation of the Convention
accordingly support what is evident from its text: A passenger's
injury must be caused by an accident, and an accident must
mean something different than an "occurrence" on the plane. Like
the text of the Convention, however, the records of its negotiation
offer no precise definition of "accident."
Reference to the conduct of the parties to the Convention and the
subsequent interpretations of the signatories helps clarify the
meaning of the term. At a Guatemala City International
Conference on Air Law in 1971, representatives of many of the
Warsaw signatories approved an amendment to Article 17 which
would impose liability on the carrier for an "event which caused
the death or injury" rather than for an "accident which caused"
the passenger's injury, but would exempt the carrier from liability
if the death or injury resulted "solely from the state of health of
the passenger." International Civil Aviation Organization, 2
Documents of the International Conference on Air Law, Guatemala
City, ICAO Doc. 9040-LC/167-2, p. 189 (1972). The Guatemala City
Protocol of 1971 and the Montreal Protocols Nos. 3 and 4 of 1975
include this amendment, see S. Exec. Rep. No. 98-1 (1983), but
have yet to be ratified by the Senate, and therefore do not govern
the disposition of this case. The statements of the delegates at
Guatemala City indicate that they viewed the switch from
"accident" to "event" as expanding the scope of carrier liability to
passengers. The Swedish [470 U.S. 392, 404] Delegate, for
example, in referring to the choice between the words "accident"
and "event," emphasized that the word "accident" is too narrow
because a carrier might be found liable for "other acts which
could not be considered as accidents." See International Civil
Aviation Organization, 1 Minutes of the International Conference
on Air Law, ICAO Doc. 9040-LC/167-1, p. 34 (1972). See also
Mankiewicz, Warsaw Convention: The 1971 Protocol of Guatemala
City, 20 Am. J. Comp. L. 335, 337 (1972) (noting that changes in
Article 17 were intended to establish "strict liability").
In determining precisely what causes can be considered
accidents, we "find the opinions of our sister signatories to be
entitled to considerable weight." Benjamins v. British European
Airways, 572 F.2d 913, 919 (CA2 1978), cert. denied, 439 U.S.
1114 (1979). While few decisions are precisely on point, we note
that, in Air France v. Haddad, Judgment of June 19, 1979, Cour
d'appel de Paris, Premiere Chambre Civile, 1979 Revue Francaise
de Droit Aerien, at 328, a French court observed that the term
"accident" in Article 17 of the Warsaw Convention embraces
causes of injuries that are fortuitous or unpredictable. European
legal scholars have generally construed the word "accident" in
Article 17 to require that the passenger's injury be caused by a
sudden or unexpected event other than the normal operation of
the plane. See, e. g., O. Riese & J. Lacour, Precis de Droit Aerien
264 (1951) (noting that Swiss and German law require that the
damage be caused by an accident, and arguing that an accident
should be construed as an event which is sudden and
independent of the will of the carrier); 1 C. Shawcross & K.
Beaumont, Air Law VII(148) (4th ed. 1984) (noting that the Court
of Appeals for the Third Circuit's definition of accident accords
with some English definitions and "might well commend itself to
an English court"). These observations are in accord with
American decisions which, while interpreting the term "accident"
broadly, Maugnie v. Compagnie Nationale Air France, 549 F.2d, at
1259, nevertheless [470 U.S. 392, 405] refuse to extend the
term to cover routine travel procedures that produce an injury
due to the peculiar internal condition of a passenger. See, e. g.,
Abramson v. Japan Airlines Co., 739 F.2d 130 (CA3 1984) (sitting in
airline seat during normal flight which aggravated hernia not an
"accident"), cert. pending, No. 84-939; MacDonald v. Air Canada,
439 F.2d 1402 (CA5 1971) (fainting while waiting in the terminal
for one's baggage not shown to be caused by an "accident");
Scherer v. Pan American World Airways, Inc., 54 App. Div. 2d 636,
387 N. Y. S. 2d 580 (1976) (sitting in airline seat during normal
flight which aggravated thrombophlebitis not an "accident").
III
We conclude that liability under Article 17 of the Warsaw
Convention arises only if a passenger's injury is caused by an
unexpected or unusual event or happening that is external to the
passenger. This definition should be flexibly applied after
assessment of all the circumstances surrounding a passenger's
injuries. Maugnie, supra, at 1262. For example, lower courts in
this country have interpreted Article 17 broadly enough to
encompass torts committed by terrorists or fellow passengers.
See Evangelinos v. Trans World Airlines, Inc., 550 F.2d 152 (CA3
1977) (en banc) (terrorist attack); Day v. Trans World Airlines, Inc.,
528 F.2d 31 (CA2 1975) (en banc) (same), cert. denied, 429 U.S.
890 (1976); Krystal v. British Overseas Airways Corp., 403 F. Supp.
1322 (CD Cal. 1975) (hijacking); Oliver v. Scandinavian Airlines
System, 17 CCH Av. Cas. 18,283 (Md. 1983) (drunken passenger
falls and injures fellow passenger). In cases where there is
contradictory evidence, it is for the trier of fact to decide whether
an "accident" as here defined caused the passenger's injury. See
DeMarines v. KLM Royal Dutch Airlines, 580 F.2d 1193 (CA3 1978)
(contradictory evidence on whether pressurization was normal).
See also Weintraub v. Capitol International Airways, Inc., 16
CCH [470 U.S. 392, 406] Av. Cas. 18,058 (N. Y. Sup. Ct., 1st
Dept., 1981) (plaintiff's testimony that "sudden dive" led to
pressure change causing hearing loss indicates injury was caused
by an "accident"). But when the injury indisputably results from
the passenger's own internal reaction to the usual, normal, and
expected operation of the aircraft, it has not been caused by an
accident, and Article 17 of the Warsaw Convention cannot apply.
The judgment of the Court of Appeals in this case must
accordingly be reversed.
We recognize that any standard requiring courts to distinguish
causes that are "accidents" from causes that are "occurrences"
requires drawing a line, and we realize that "reasonable [people]
may differ widely as to the place where the line should fall."
Schlesinger v. Wisconsin, 270 U.S. 230, 241 (1926) (Holmes, J.,
dissenting). We draw this line today only because the language of
Articles 17 and 18 requires it, and not because of any desire to
plunge into the "Serbonian bog" that accompanies attempts to
distinguish between causes that are accidents and injuries that
are accidents. See Landress v. Phoenix Mutual Life Ins. Co., 291
U.S., at 499 (Cardozo, J., dissenting). Any injury is the product of a
chain of causes, and we require only that the passenger be able
to prove that some link in the chain was an unusual or
unexpected event external to the passenger. Until Article 17 of
the Warsaw Convention is changed by the signatories, it cannot
be stretched to impose carrier liability for injuries that are not
caused by accidents. It remains "[o]ur duty . . . to enforce the . . .
treaties of the United States, whatever they might be, and . . . the
Warsaw Convention remains the supreme law of the land." Reed,
555 F.2d, at 1093.
Our duty to enforce the "accident" requirement of Article 17
cannot be circumvented by reference to the Montreal Agreement
of 1966. It is true that in most American cases the Montreal
Agreement expands carrier liability by requiring airlines to waive
their right under Article 20(1) of the Warsaw Convention to defend
claims on the grounds that [470 U.S. 392, 407] they took all
necessary measures to avoid the passenger's injury or that it was
impossible to take such measures. Because these "due care"
defenses are waived by the Montreal Agreement, the Court of
Appeals and some commentators have characterized the
Agreement as imposing "absolute" liability on air carriers. See
Lowenfeld & Mendelsohn, 80 Harv. L. Rev., at 599. As this case
demonstrates, the characterization is not entirely accurate. It is
true that one purpose of the Montreal Agreement was to speed
settlement and facilitate passenger recovery, but the parties to
the Montreal Agreement promoted that purpose by specific
provision for waiver of the Article 20(1) defenses. They did not
waive other provisions in the Convention that operate to qualify
liability, such as the contributory negligence defense of Article 21
or the "accident" requirement of Article 17. See Warshaw, 442 F.
Supp., at 408. Under the Warsaw Convention as modified by the
Montreal Agreement, liability can accordingly be viewed as
"absolute" only in the sense that an airline cannot defend a claim
on the ground that it took all necessary measures to avoid the
injury. The "accident" requirement of Article 17 is distinct from the
defenses in Article 20(1), both because it is located in a separate
article and because it involves an inquiry into the nature of the
event which caused the injury rather than the care taken by the
airline to avert the injury. While these inquiries may on occasion
be similar, we decline to employ that similarity to repeal a treaty
provision that the Montreal Agreement on its face left unaltered.
Nor can we escape our duty to enforce Article 17 by reference to
the equation of "accident" with "occurrence" in Annex 13 to the
Convention on International Civil Aviation. The definition in Annex
13 and the corresponding Convention expressly apply to aircraft
accident investigations, and not to principles of liability to
passengers under the Warsaw Convention. See B. Cheng, The Law
of International Air Transport 106-165 (1962). [470 U.S. 392,
408]
Finally, respondent suggests an independent ground supporting
the Court of Appeals' reversal of the summary judgment against
her. She argues that her original complaint alleged a state cause
of action for negligence independent of the liability provisions of
the Warsaw Convention, and that her state negligence action can
go forward if the Warsaw liability rules do not apply. Expressing no
view on the merits of this contention, we note that it is unclear
from the record whether the issue was raised in the Court of
Appeals. We leave the disposition of this claim to the Court of
Appeals in the first instance. See Hoover v. Ronwin, 466 U.S. 558,
574 , n. 25 (1984).
The judgment of the Court of Appeals is reversed, and the case is
remanded for further proceedings consistent with this opinion.
It is so ordered.
JUSTICE POWELL took no part in the consideration or decision of
this case.

Fisheries Jurisdiction Case (United Kingdom v.

Iceland)(ICJ Rep 1973 3)
Citation. I.C.J., 1973 I.C.J. 3
Brief Fact Summary. Because some circumstances changed,
Iceland (D) claimed that a fishing treaty it had with the United
Kingdom (P) was no longer applicable.
Synopsis of Rule of Law. In order that a change of circumstances
may give rise to the premise calling for the termination of a
treaty, it is necessary that it has resulted in a radical
transformation of the extent of the obligations still to be
performed.
Facts. Icelands (D) claim to a 12-mile fisheries limit was
recognized by the United Kingdom (P) in 1961 in return for
Icelands (D) agreement that any dispute concerning Icelandic
fisheries jurisdiction beyond the 12-mile limit be referred to the
International Court of Justice. An application was filed before the
I.C.J. when Iceland (D) proposed to extend its exclusive fisheries
jurisdiction from 12 to 50 miles around its shores in 1972. By
postulating that changes in circumstances since the 12-mile limit
was now generally recognized was the ground upon which Iceland
(D) stood to argue that the agreement was no longer valid.
Iceland (D) also asserted that there would be a failure of
consideration for the 1961 agreement.
Issue. In order that a change of circumstances may give rise to a
ground for invoking the termination of a treaty, is it necessary
that it has resulted in a radical transformation of the extent of the
obligation still to be performed?
Held. Yes. In order that a change of circumstances may give rise
to the premise calling for the termination of a treaty, it is
necessary that it has resulted in a radical transformation of the
extent of the obligations still to be performed.
The change of circumstances alleged by Iceland (D) cannot be
said to have transformed radically the extent of the jurisdictional
obligation that was imposed in the 1961 Exchange of Notes.
Discussion. Recourse to the I.C.J. in the event of a dispute was the
original agreement between the parties. The economy of Iceland
(D) is dependent on fishing. The merit of Iceland (D) argument
was not reached by the Court in this case, however, but rather
dealt with the jurisdictional issues.

Namibia Case (ICJ Rep 1971 16)

Brief Fact Summary. Under a claim of right to annex Namibia,
South Africa occupied its territory in violation of a United Nations
(U.N.) Security Council Mandate which though later terminated
due to South Africas breach, empowered the Security Council to
enforce its terms.
Synopsis of Rule of Law. Member States of the United Nations are
bounded by its mandates and violations or breaches results in a
legal obligation on the part of the violator to rectify the violation
and upon the other Member States to recognize the conduct as a
violation and to refuse to aid in such violation.
Facts. Under a claim of right to annex the Namibian territory and
under the claim that Namibias nationals desired South Africas
(D) rule, South Africa (D) began the occupation of Namibia. South
Africa was subject to a U.N. Mandate prohibiting Member States
from taking physical control of other territories because it was a
Member State of the United Nations.
The Resolution 2145 (XXI) terminating the Mandate of South
Africa (D) was adopted by the U.N and the Security Council
adopted Resolution 276 (1970) which declared the continuous
presence of South Africa (D) in Namibia as illegal and called upon
other Member States to act accordingly. An advisory opinion was
however demanded from the International Court of Justice.
Issue. Issue: are mandates adopted by the United Nations binding
upon all Member States so as to make breaches or violations
thereof result in a legal obligation on the part of the violator to
rectify the violation and upon other Member States to recognize
the conduct as a violation and to refuse to aid in such violations?
Held. Yes. Member States of the United Nations are bounded by
its mandates and violations or breaches results in a legal
obligation on the part of the violator to rectify the violation and
upon the other Member States to recognize the conduct as a
violation and to refuse to aid in such violation. As Member States,
the obligation to keep intact and preserve the rights of other
States and the people in them has been assumed.
So when a Member State does not toll this line, that State cannot
be recognized as retaining the rights that it claims to derive from
the relationship. In this particular case, the General Assembly
discovered that South Africa (D) contravened the Mandate
because of its deliberate actions and persistent violations of
occupying Namibia.
Hence, it is within the power of the Assembly to terminate the
Mandate with respect to a violating Member State, which was
accomplished by resolution 2145 (XXI) in this case. The
resolutions and decisions of the Security Council in enforcing
termination of this nature are binding on the Member States,
regardless of how they voted on the measure when adopted.
South Africa (D) is therefore bound to obey the dictates of the
Mandate, the resolution terminating it as to South Africa (D), and
the enforcement procedures of the Security Council.
Once the Mandate has been adopted by the United Nations, it
becomes binding upon all Member States and the violations or
breaches of this Mandate result in legal obligations on the part of
the violator to rectify the violation, and upon the other Member
States to recognize the conduct as a violation and to refuse to aid
in such violation.
Discussion. Despite agreeing to restore independence to Namibia
with the United Nations, South Africa (D) did not. A number of
mandatory sanctions for enforcement were now adopted by the
General Assembly and the action of South Africa (D) was strongly
condemned.

Danube Dam Case (Hungary v. Slovakia) (37 ILM

162) (1998)
Citation. 1997 I.C.J. 7, reprinted in 37 I.L.M. 162 (1998)
Brief Fact Summary. Hungary (P) claimed that Czechoslovakia (D)
violated the provisions of a treaty when it appropriated the waters
of the Danube River to construct a dam.
Synopsis of Rule of Law. Watercourse states shall participate in
the use, development and protection of an international
watercourse in an equitable and reasonable manner.
Facts. In 1977, Hungary (P) and Czechoslovakia (D) signed a
Treaty for the construction of dams and other projects along the
Danube River that bordered both nations. Czechoslovakia (D)
began work on damming the river in its territory when Hungary
(P) stopped working on the project and negotiation could not
resolve the matter which led Hungary (P) to terminate the Treaty.
Hungary (P) based its action on the fact that the damming of the
river had been agreed to only on the ground of a joint operation
and sharing of benefits associated with the project, to which
Czechoslovakia (D) had unlawfully unilaterally assumed control of
a shared resource.
Issue. Shall watercourse states participate in the use,
development and protection of an international watercourse in an
equitable and reasonable manner?
Held. Yes. Watercourse states shall participate in the use,
development and protection of an international watercourse in an
equitable and reasonable manner. Hungary (P) was deprived of its
rights to an equitable and reasonable share of the natural
resources of the Danube by Czechoslovakia (D) and also failed to
respect the proportionality that is required by international law.
Cooperative administration must be reestablished by the parties
of what remains of the project.
Discussion. The Courts decision was that the joint regime must
be restored. In order to achieve most of the Treatys objectives,
common utilization of shared water resources was necessary.
Hence, the defendant was not authorized to proceed without the
plaintiffs consent.

Manila Prince Hotel v. Government Service

Insurance System, GR No. 122156, February 3,
1997
267 SCRA 408 Political Law Constitutional Law Supremacy of
the Constitution Filipino First Policy
Self-Executing Provisions of the Constitution Par. 2, Sec. 10, Art.
XII
Pursuant to the privatization program of the government, the
Government Service Insurance System (GSIS) decided to sell 30-
51% of the Manila Hotel Corporation. Two bidders participated,
Manila Prince Hotel (MPH) and the Malaysian Firm Renong Berhad
(RB). MPHs bid was at P41.58/per share while RBs bid was at
P44.00/share. RB was the highest bidder hence it was logically
considered as the winning bidder but is yet to be declared so.
Pending declaration, MPH matches RBs bid and invoked the
Filipino First Policy enshrined under par. 2, Sec. 10, Art. XII of the
1987 Constitution which provides:
Section 10. The Congress shall, upon recommendation of the
economic and planning agency, when the national interest
dictates, reserve to citizens of the Philippines or to corporations or
associations at least sixty per centum of whose capital is owned
by such citizens, or such higher percentage as Congress may
prescribe, certain areas of investments. The Congress shall enact
measures that will encourage the formation and operation of
enterprises whose capital is wholly owned by Filipinos.
In the grant of rights, privileges, and concessions covering the
national economy and patrimony, the State shall give preference
to qualified Filipinos.
The State shall regulate and exercise authority over foreign
investments within its national jurisdiction and in accordance with
its national goals and priorities.
But GSIS refused to accept said offer. In turn MPH filed a petition
for TRO against GSIS to avoid the perfection/consummation of the
sale to RB. TRO was granted.
RB then assailed the TRO issued in favor of MPH arguing among
others that:
Par. 2, Sec. 10, Art. XII of the 1987 Constitution needs an
implementing law because it is merely a statement of principle
and policy (not self-executing);
Even if said passage is self-executing, Manila Hotel does not fall
under national patrimony.
ISSUE: Whether or not RB should be admitted as the highest
bidder and hence be proclaimed as the legit buyer of shares.
HELD: No. MPH should be awarded the sale pursuant to Art 12 of
the 1987 Const. This is in light of the Filipino First Policy.
Par. 2, Sec. 10, Art. 12 of the 1987 Constitution is self
executing. The Constitution is the fundamental, paramount and
supreme law of the nation, it is deemed written in every statute
and contract.
Manila Hotel falls under national patrimony. Patrimony in its plain
and ordinary meaning pertains to heritage. When the Constitution
speaks of national patrimony, it refers not only to the natural
resources of the Philippines, as the Constitution could have very
well used the term natural resources, but also to the cultural
heritage of the Filipinos. It also refers to our intelligence in arts,
sciences and letters. Therefore, we should develop not only our
lands, forests, mines and other natural resources but also the
mental ability or faculty of our people. Note that, for more than 8
decades (9 now) Manila Hotel has bore mute witness to the
triumphs and failures, loves and frustrations of the Filipinos; its
existence is impressed with public interest; its own historicity
associated with our struggle for sovereignty, independence and
nationhood.
Herein resolved as well is the term Qualified Filipinos which not
only pertains to individuals but to corporations as well and other
juridical entities/personalities. The term qualified Filipinos
simply means that preference shall be given to those citizens who
can make a viable contribution to the common good, because of
credible competence and efficiency. It certainly does NOT
mandate the pampering and preferential treatment to Filipino
citizens or organizations that are incompetent or inefficient, since
such an indiscriminate preference would be counter productive
and inimical to the common good.
In the granting of economic rights, privileges, and concessions,
when a choice has to be made between a qualified foreigner
and a qualified Filipino, the latter shall be chosen over the
former.

Head Eye Money Cases (Edye v. Robertson, 112 US

580 {1884})
Facts
In 1882 the Congress passed an act providing that a duty of fifty
cents should be collected for each and every passenger who was
not a citizen of the United States, coming from a foreign port to
any port within the United States. Individuals and steamship
companies brought suit against the collector of customs at New
York, Mr. WH Robertson, for the recovery of the sums of money
collected. The act was challenge on the grounds that it violated
numerous treaties of the US government with friendly nations.
Issue:
WON the act is void because of the conflict with the treaty.
Ruling:
A treaty is a compact between independent nations, which
depends for its enforcement upon the interest and honor of the
governments that are parties to a treaty. Treaties that regulate
the mutual rights of citizens and subjects of the contracting
nations are in the same category as acts of Congress. When these
rights are of such a nature as to be enforced by a court of justice,
the court resorts to the treaty as it would to a statute. However, a
constitution gives a treaty no superiority over an act on congress.
In short, so far as a treaty made by the United States with any
foreign nation can become the subject of judicial cognizance in
the courts of this country, it is subject to such acts as Congress
may pass for its enforcement, modification, or repeal.

Whitney v. Robertson, 124 US 190 (1888)

Citation. 124 U.S. 190 (1888)
Brief Fact Summary. The claim which Whitney (P) brought before
the court was that a treaty between the U.S and the Dominican
Republic guaranteed that no higher duty would be assessed on
goods from the Dominican Republic than was assessed on goods
from any other country and that duties had been wrongfully
assessed on his sugar imports.
Synopsis of Rule of Law. Where a treaty and an act of legislation
conflict, the one last in date will control.
Facts. The claim which Whitney (P) brought before the court was
that a treaty between the U.S and the Dominican Republic
guaranteed that no higher duty would be assessed on goods from
the Dominican Republic than was assessed on goods from any
other country and that duties had been wrongfully assessed on
his sugar imports.
Issue. Where a treaty and an act of legislation conflict, will the
one last in date control?
Held. (Field, J.). Yes. The one with a later date will control where a
treaty and an act of legislation conflict. The act of congress under
which the duties were collected was passed after the treaty and
therefore is controlling. Affirmed.
Discussion. A later inconsistent statute does not abrogate or
repeal a treaty. The treaty still exists as an international obligation
although the terms of the treaty may not be enforceable.

The Tinoco Arbitration (Great Britain v. Costa Rica

[1923])
Citation. 1 U.N. Rep. Intl Arb. Awards 369 (1923)
Brief Fact Summary. The Tinoco regime, which was the former
government of Costa Rica, was alleged by Great Britain to have
granted oil concession to a British company that had to be
honored by the present regime.
Synopsis of Rule of Law. A government need not conform to a
previous constitution if the government had established itself and
maintained a peaceful de facto administration and non-
recognition of the government by other government does not
destroy the de facto status of the government.
Facts. The Tinoco regime that had seized power in Costa Rica by
coup was not recognized by Great Britain and the United States.
When the regime was removed, the new government nullified all
Tinococ contract including an oil concession to a British company.
The claim of Great Britain (P) was that the contract could not be
repudiated because the Tinoco government was the only
government in existence at the time of the contract was signed.
This view was not shared by Costa Rica (D) who claimed that
Great Britain (P) was estopped from enforcing the contract by its
non-recognition of the Tinoco regime. The matter was sent for
arbitration.
Issue. Does a government need to conform to a previous
constitution if the government had established itself and
maintained a peaceful de facto administration and does non-
recognition of the government by other government destroy the
de facto status of the government?
Held. (Taft, C.J., Arb). No. A government need not conform to a
previous constitution if the government had established itself and
maintained a peaceful de facto administration and non-
recognition of the government by other government does not
destroy the de facto status of the government. The non-
recognition of the Tinoco regime by Great Britain did not dispute
the de facto existence of that regime. There is no estoppel since
the successor government had not been led by British non-
recognition to change its position.
Discussion. Estoppel was not found by the arbitrator. The
evidence of the de facto status of the Tinocos regime was not
outweighed by the evidence of non-recognition. This implies that
valid contracts may be formed by unrecognized government.

Upright v. Mercury Business Machines Co.

Walter Upright, Appellant, v. Mercury Business Machines Co., Inc.,
Respondent
Appellate Division of the Supreme Court of the State of New York,
First Department.
April 11, 1961.
Attorney(s) appearing for the Case
David W. Kahn for appellant.
Kenneth Simon of counsel (Taylor, Scoll & Simon, attorneys), for
respondent.
RABIN, STEVENS and EAGER, JJ., concur with BREITEL, J. P.;
STEUER, J., concurs in result in opinion.
[13 A.D.2d 37]
BREITEL, J. P.
Plaintiff, an individual, sues as the assignee of a trade acceptance
drawn on and accepted by defendant in payment for business
typewriters sold and delivered* to it by a foreign corporation. The
trade acceptance is in the amount of $27,307.45 and was
assigned to plaintiff after dishonor by defendant.
Involved on this appeal is only the legal sufficiency of the first
affirmative defense. It alleges that the foreign corporation is the
creature of the East German Government, a government not
recognized by the United States. It alleges, moreover, that such
corporation is an enterprise controlled by and that it is an arm
and instrument of such government.
[13 A.D.2d 38]
On motion addressed to its sufficiency Special Term sustained the
defense. For the reasons that follow the defense should have
been stricken as legally insufficient pursuant to subdivision 6 of
rule 109 of the Rules of Civil Practice.
A foreign government, although not recognized by the political
arm of the United States Government, may nevertheless have de
facto existence which is juridically cognizable. The acts of such
a de facto government may affect private rights and obligations
arising either as a result of activity in, or with persons or
corporations within, the territory controlled by such de
facto government. This is traditional law (Russian Reinsurance Co.
v. Stoddard, 240 N.Y. 149; Salimoff & Co. v. Standard Oil Co., 262
N.Y. 220; Texas v. White, 74 U.S. 700, 733, overruled in
part Morgan v. United States, 113 U.S. 476, 496; cf. United States
v. Rice, 4 Wheat. [17 U. S.] 246, involving the effect of enemy
occupation of United States territory; 1 Hyde, International Law
[2d rev. ed., 1945], pp. 195-197; 48 C. J. S., International Law, 5,
pp. 8-10).
In the Russian Reinsurance Co. case, LEHMAN, J., later Chief
Judge, summarized the principles (p. 158): "The fall of one
governmental establishment and the substitution of another
governmental establishment which actually governs; which is able
to enforce its claims by military force and is obeyed by the people
over whom it rules, must profoundly affect all the acts and duties,
all the relations of those who live within the territory over which
the new establishment exercises rule. Its rule may be without
lawful foundation; but lawful or unlawful, its existence is a fact
and that fact cannot be destroyed by juridical concepts. The State
Department determines whether it will recognize its existence as
lawful, and until the State Department has recognized the new
establishment, the court may not pass upon its legitimacy or
ascribe to its decrees all the effect which inheres in the laws or
orders of a sovereign. The State Department determines only that
question. It cannot determine how far the private rights and
obligations of individuals are affected by acts of a body not
sovereign or with which our government will have no dealings.
That question does not concern our foreign relations. It is not a
political question, but a judicial question. The courts in
considering that question assume as a premise that until
recognition these acts are not in full sense law. Their conclusion
must depend upon whether these have nevertheless had such an
actual effect that they may not be disregarded. In such case we
deal with result rather than cause. We do not pass upon what
such an unrecognized governmental authority may do, or upon
the right or wrong of what
[13 A.D.2d 39]
it has done; we consider the effect upon others of that which has
been done, primarily from the point of view of fact rather than of
theory."
So, too, only limited effect is given to the fact that the political
arm has not recognized a foreign government. Realistically, the
courts apprehend that political nonrecognition may serve only
narrow purposes. While the judicial arm obligates itself to follow
the suggestions of the political arm in effecting such narrow
purposes, nevertheless, it will not exaggerate or compound the
consequences required by such narrow purposes in construing
rights and obligations affected by the acts of unrecognized
governments (Sokoloff v. National City Bank of N. Y., 239 N.Y.
158; Salimoff & Co. v. Standard Oil Co., supra). Thus, in Sokoloff v.
National City Bank of N. Y., CARDOZO, J., later Chief Judge, said (p.
165): "Juridically, a government that is unrecognized may be
viewed as no government at all, if the power withholding
recognition chooses thus to view it. In practice, however, since
juridical conceptions are seldom, if ever, carried to the limit of
their logic, the equivalence is not absolute, but is subject to self-
imposed limitations of common sense and fairness."
The principles last discussed are the same as those presented by
so authoritative a compiler as Hackworth as governing the effect
of nonrecognition (1 Hackworth, Digest of International Law, p.
364 et seq.).
Applying these principles, it is insufficient for defendant merely to
allege the nonrecognition of the East German Government and
that plaintiff's assignor was organized by and is an arm and
instrumentality of such unrecognized East German Government.
The lack of jural status for such government or its creature
corporation is not determinative of whether transactions with it
will be denied enforcement in American courts, so long as the
government is not the suitor.* (Actually, on the present pleadings
no issue is raised that plaintiff assignee is that government, or is
an arm of that government, or that the assignment to him of the
trade acceptance is invalid or does not represent a genuine
transfer.)
The extent to which courts will recognize the legal effect of
transactions within the territory of an unrecognized government,
even where the transaction is materially affected by the action of
such government, has been dramatically demonstrated.
In Salimoff & Co. v. Standard Oil Co. (262 N.Y. 220, supra) it
[13 A.D.2d 40]
was held that one who took property by purchase from the
unrecognized Russian government which had confiscated such
property from its rightful owners nevertheless had good title as
against the onetime lawful owners.
Indeed, in the Salimoff case it was said (p. 227): "Such conduct
[confiscation of property] may lead to governmental refusal to
recognize Russia as a country with which the United States may
have diplomatic dealings. The confiscation is none the less
effective. The government may be objectionable in a political
sense. It is not unrecognizable as a real governmental power
which can give title to property within its limits."
Consequently, Luther v. Sagor & Co. ([1921] 1 K. B. 456, revd. on
other grounds 3 K. B. 532), cited by defendant, was not viewed as
authoritative (to the same effect, see, Banque de France v.
Equitable Trust Co., 33 F.2d 202; cf. Sokoloff v. National City Bank
of N. Y., 239 N.Y. 158, 164, supra). On the contrary, in both
the Salimoff and Banque de France cases it was held that
confiscatory decrees of an unrecognized Russian government
might, in proper circumstances, be deemed valid and effective in
altering private rights. A fortiori, the internal acts of the East
German Government, insofar as they concern the parties here,
should be given effect generally. At least, this is so in the absence
of allegation that defendant's property was expropriated by
wrongful governmental force, or that for other reasons the
transaction in suit or that directly underlying it violates public or
national policy.
This case does not involve the issues, tendered by defendant in
its argument, of jural status of the East German corporation, or of
its incapacity to transfer title, or even of its capacity to sue in our
courts. These have been long recognized as issues to be resolved
by reference to the actual facts the realities of life occurring
in the territory controlled by a de facto government, unless, of
course, the contemplated juridical consequences of such "facts"
can be properly related as inimical to the aims and purposes of
our public or national policy (Russian Reinsurance Co. v.
Stoddard, supra; Petrogradsky M. K. Bank v. National City Bank of
N. Y., 253 N.Y. 23; Moscow Fire Ins. Co. v. Bank of New York & Trust
Co., 280 N.Y. 286, affd. by equally divided court 309 U.S. 624,
overruled in United States v. Pink, 315 U.S. 203; Thorington v.
Smith, 75 U.S. 1). Even the power of a rebel government in one of
the Confederate States to create a corporation with capacity to
sue the United States Government was admitted where such
creation was not directly in furtherance of the rebellion (United
States v. Insurance Cos., 89 U.S. 99).
[13 A.D.2d 41]
It is a false notion, if it prevail anywhere, that an unrecognized
government is always an evil thing and all that occurs within its
governmental purview are always evil works. There are many
things which may occur within the purview of an unrecognized
government which are not evil and which will be given customary
legal significance in the courts of nations which do not recognize
the prevailing de facto government. In a time in which
governments with established control over territories may be
denied recognition for many reasons, it does not mean that the
denizens of such territories or the corporate creatures of such
powers do not have the juridical capacity to trade, transfer title,
or collect the price for the merchandise they sell to outsiders,
even in the courts of nonrecognizing nations (cf. Sokoloff v.
National City Bank of N. Y., 239 N.Y. 158, 165-166, supra).
Of course, nonrecognition is a material fact but only a preliminary
one. The proper conclusion will depend upon factors in addition to
that of nonrecognition. Such is still the case even though an entity
involved in the transaction be an arm or instrumentality of the
unrecognized government. Thus, in order to exculpate defendant
from payment for the merchandise it has received, it would have
to allege and prove that the sale upon which the trade
acceptance was based, or that the negotiation of the trade
acceptance itself, was in violation of public or national policy.
Such a defense would constitute one in the nature of illegality and
if established would, or at least might, render all that ensued from
the infected transaction void and unenforcible. Defendant buyer
cannot escape liability merely by alleging and proving that it dealt
with a corporation created by and functioning as the arm of and
instrumentality of an unrecognized government.
Put more concretely: The public policy which denies juridical
recognition to the East German Government is determined by the
refusal of the political arm to recognize it. That means the East
German Government cannot sue in our courts. The question
whether its corporate instrumentality can sue is not so clear.
Perhaps it could sue. But another, not otherwise lacking in
capacity to sue, may, by way of transfer or other mesne
assignment, sue on the underlying transaction, unless such
transaction itself or the assignment is shown to violate the
national or public policy. In order for such transaction or the
assignment to violate national or public policy, it must be shown
either to violate our laws or some definite policy. If the national
government does not administratively forbid, or if it facilitates,
the purchase and delivery into this country of East German
[13 A.D.2d 42]
typewriters, and no law forbids it, then defendant buyer will be
hard put to show the "illegality" of the underlying transaction, or
the assignment, and thereby avoid payment of the price for such
merchandise.
Moreover, the status of the East German territory is that of
territory, once belligerent, but now occupied by a wartime ally,
the Soviet Union, with the consent of the other allies.
Nonrecognition, in the past, of the East German Government
simply meant that, pending a reunification plan and free secret
elections, the State Department refused to recognize the
displacement of the Soviet Union as the power responsible for the
territory and for the conduct of affairs there.
All of this explains why defendant's pleading should be required to
depend on a sound theory. The effect of nonrecognition, used by
defendant as some sort of umbrella to protect it from liability is
not the answer.
Accordingly, the order of Special Term should be reversed, on the
law, and the motion to strike the first affirmative defense granted,
with $20 costs to plaintiff-appellant, with leave, however, to
defendant if it is so advised, to serve an amended answer within
20 days containing an affirmative defense asserting a violation of
public policy with respect either to the underlying sale or the
transfer of the trade acceptance in accordance with the views
expressed in this opinion, or depending on any other theory not
now passed upon.
STEUER, J. (concurring).
I concur in the result. As pointed out in the learned majority
opinion, an unrecognized government lacks the capacity to sue.
So does a branch or arm of that government, whether it be a
corporation or any other entity. Concededly also, there is an
infinite variety of relationship between governments and their
corporate creations. By a branch of the government is meant an
entity that performs governmental functions acting in its
particular sphere as the alter ego of the government. Whether a
particular corporation falls into that classification is a political
rather than a juridical question, and the determination of the
State Department on that question is conclusive.
As a matter of pleading, it is a sufficient allegation that the
corporation in question, the plaintiff's assignor, is a branch of an
unrecognized government. It is not necessary to plead that our
State Department has found that allowing it access to the courts
is inimical to our policy. Such would have to be the proof, but, at
this moment, we are not concerned with the proof. So lacking the
factor of the assignment, the pleading would be sufficient.
[13 A.D.2d 43]
The assignment presents several questions which do not call for
decision at this point. Conceivably, a naked assignment might
leave the assignee in a different position from that he would
occupy if the assignment were a transfer of a bona fide interest in
the claim. A different public policy might determine the result and
different legal principles might well ensue. The pleading ignores
the assignment. To that extent it does not meet the issue
tendered by the complaint, and the defense, to that extent, is
insufficient.
Order entered on September 16, 1960, denying plaintiff's motion
to strike out the first defense pleaded in the defendant's answer,
reversed, on the law, with $20 costs and disbursements to the
appellant, and the motion to strike the first affirmative defense
granted, with $10 costs, with leave, however, to defendant if it is
so advised, to serve an amended answer within 20 days after
service of a copy of the order entered herein, with notice of entry,
containing an affirmative defense asserting a violation of public
policy with respect either to the underlying sale or the transfer of
the trade acceptance in accordance with the views expressed in
the opinion of this court filed herein, or depending on any other
theory not now passed upon.
FootNotes

* It was stated in the argument, without contradiction, that the

merchandise was shipped openly and passed regularly through
United States Customs.
* For, if the unrecognized government were allowed to sue, this
would be deemed recognition of jural status (Russian Republic v.
Cibrario, 235 N.Y. 255). Note that the corporation perhaps could
sue (see United States v. Insurance Cos., 89 U.S. 99, infra).
Corfu Channel Case (UK v. Albania [1949])
Citation. I.C.J. 1949 I.C.J 4. 22
Brief Fact Summary. The fact that the Albanian (P) authorities did
not make the presence of mines in its waters was the basis of the
United Kingdom (D) claim against them.
Synopsis of Rule of Law. International obligations in peace time
are created through elementary consideration.
Facts. The explosion of mines in the Albanian (P) waters resulted
in the death of a British naval personnel. It was on this basis that
the United Kingdom (D) claimed that Albania (P) was
internationally responsible for damages.
Issue. Are international obligations in time of peace created
through elementary consideration?
Held. Yes. International obligations in peace time are created
through elementary consideration. Every state has an obligation
not to knowingly allow its territory to be used for acts contrary to
the rights of other states.
Discussion. In this case, the Court found that the Hague
Convention of 1907 could not be applied but the Convention was
applicable only in time of war. It was on the basis of the principle
of freedom of maritime communication that this case was
decided.