Haw Pia vs China Banking Corp. extinguished their obligation to the latter.
extinguished their obligation to the latter. Said payments were made to a person, the
G.R. No. L-554 April 9, 1948
Facts:
Plaintiff-appellants indebtedness to the defendant-appellee China Banking Corporation
in the sum of P5,103.35 by way of overdraft in current account payable on demand
together with its interests, has been completely paid, on different occasions to the
defendant Bank China Banking Corporation through the defendant Bank of Taiwan, Ltd.,
that was appointed by the Japanese Military authorities as liquidator of the China Banking
Corporation.
The trial court held that, as there was no evidence presented to show that the defendant
Bank had authorized the Bank of Taiwan, Ltd., to accept the payment of the plaintiffs debt
to the said defendant, and said Bank of Taiwan, as an agency of the Japanese invading
army, was not authorized under the international law to liquidate the business of the
China Banking Corporation, the payment has not extinguished the indebtedness of the
plaintiff to the said defendant under Article 1162 of the Civil Code.
Issues:
1. Whether or not the Japanese Military Administration had authority to order the
liquidation or winding up of the business of defendant-appellee China Banking
Corporation, and to appoint the Bank of Taiwan liquidator authorized as such to accept
the payment by the plaintiff-appellant to said defendant-appellee; and
2. Whether or not such payment by the plaintiff-appellant has extinguished her obligation
to said defendant-appellee.
Ruling:
1. YES. The Japanese military authorities had power, under the international law, to order
the liquidation of the China Banking Corporation and to appoint and authorize the Bank
of Taiwan as liquidator to accept the payment in question, because such liquidation is not
confiscation of the properties of the bank appellee, but a mere sequestration of its assets
which required the liquidation or winding up of the business of said bank. The
sequestration or liquidation of enemy banks in occupied territories is authorized
expressly by the United States Army and Navy Manual of Military Government and Civil
Affairs F.M. 2710 OPNAV 50-E-3.
2. YES. It having been shown above that the Japanese Military Forces had power to
sequestrate and impound the assets or funds of the China Banking Corporation, and for
that purpose to liquidate it by collecting the debts due to said bank from its debtors, and
paying its creditors, and therefore to appoint the Bank of Taiwan as liquidator with the
consequent authority to make the collection, it follows evidently that the payments by the
debtors to the Bank of Taiwan of their debts to the China Banking Corporation have
Bank of Taiwan, authorized to receive them in the name of the bank creditor under article
1162, of the Civil Code. Because it is evident the words a person authorized to receive it,
as used therein, means not only a person authorized by the same creditor, but also a
person authorized by law to do so, such as guardian, executor or administrator of estate
of a deceased, and assignee or liquidator of a partnership or corporation, as well as any
other who may be authorized to do so by law (Manresa, Civil Code, 4th ed. p. 254.)
The fact that the money with which that debts have been paid were Japanese war notes
does not affect the validity of the payments. The power of the military governments
established in occupied enemy territory to issue military currency in the exercise of their
governmental power is based, not only on the occupants general power to maintain law
and order recognized in article 43 of the Hague Regulations (Feilchenfeld of Belligerent
Occupation, paragraph 6), but on military necessity as shown by the history of the use of
money or currency in wars.
G.R. No. L-1325 April 7, 1947
GEORGE L. TUBB and WESLEY TEDROW, petitioners,
vs.
THOMAS E. GRIESS, respondent.
Justiniano S. Montano for petitioners.
J. A. Wolfson for respondent.
MORAN, C.J.:
This is a petition for habeas corpus filed by George L. Tubb and Wesley Tedrow, citizens
of the United States but residents of the Philippines, under written contract of
employment with the Army of the United States. It appears that sometime between
January 13, 1947, as appearing in the "charge sheet" submitted by respondent, the herein
petitioners were apprehended by the authorities of the United States Army and have
since been held in custody. On January 28, 1947, petitioners were formally charged by
said authorities with violations of Articles of War regarding misappropriation of United
States Government property destined for military use, said acts having been committed
within premises occupied by the United States Army under lease contracts.
Petitioners now come before this Court alleging that they are being unlawfully deprived
of their liberty and that Philippine courts have exclusive jurisdiction over their arrest,
confinement and imprisonment because (1) they are not persons subject to military laws,
(2) martial law is no longer enforced.
In the contract of employment entered into by petitioners with the United States Army, it
is shown that they voluntarily submitted themselves to United States military law while
serving said contract, thereby submitting themselves to the full extent of the authority of
the United States Army in this area. This, coupled with the fact that petitioners are
American citizens, makes their position during the subsistence of said contract no
different from that of enlisted men, enlistment after all being nothing more than a
contract of voluntary service in the armed forces of one's country. Petitioners then, in
relation to the United States Army in the Philippines and during the subsistence of their
employment contract, can be deemed to possess the status of military personnel.
It is a settled principle of International Law that a foreign army allowed to march through
a friendly country or to be stationed in it, by permission of its government or sovereign, is
exempt from the civil and criminal jurisdiction of the place. In applying this rule in the
case of Raquiza vs. Bradford (75 Phil., 50), this Court held that "if a foreign army
permitted to be stationed in a friendly country, "by permission of its government or
sovereign," is exempt from the civil and criminal jurisdiction of the place, with much
more reason should the Army of the United States which is not only permitted by the
Commonwealth Government to be stationed here but has come to the islands and stayed
in them for the express purpose of liberating them, and further prosecuting the war to a
successful conclusion, be exempt from the civil and criminal jurisdiction of this place, at
least for the time covered by said agreement of the two Governments. By analogy, an
attempt of our civil courts to exercise jurisdiction over the United States Army before
such period expires, would be considered as a violation of this country's faith, which this
Court should not be the last to keep and uphold. By exercising it, paraphrasing the
foregoing quotation, the purpose for which the stationing of the army in the islands was
requested or agreed upon may be hampered or prejudiced, and a portion of said military
force would be withdrawn from the control of the sovereign to whom they belong. And,
again, by analogy, the agreement for the stationing of the United States Army or a part of
its forces in the Philippines implies a waiver of all jurisdiction over their troops during
the time covered by such agreement, and permits the allied general or commander-in-
chief to retain that exclusive control and discipline which the government of his army
may require."
The basis of this ruling is the leading case of The Schooner Exchange vs. McFadden (7
Cranch, 116) in which the United States Supreme Court speaking through Chief Justice
Marshall, held that "a third case in which a sovereign is understood to cede a portion of
his territorial jurisdiction is, where he allows the troops of a foreign prince to pass
through his dominions. In such case, without any express declaration waving jurisdiction
over the army to which this right of passage has been granted, the sovereign who should
attempt to exercise it would certainly be considered as violating his faith. By exercising it,
the purpose for which the free passage was granted would be defeated, and a portion of
the military force of a foreign independent nation would be diverted from those national
objects and duties to which it was applicable, and would be withdrawn from the control
of the sovereign whose power and whose safety might greatly depend on retaining the
exclusive command and disposition of this force. The grant of a free passage therefore
implies a waiver of all jurisdiction over the troops during their passage, and permits the
foreign general to use that discipline, and to inflict those punishments which the
government of his army may require."
Since then, this principle has been consistently embodied in treaties of military character
among friendly nations and has been accepted by all the countries of the world. The most
authoritative writers on International Law firmly concur in this rule. To quote
Wheaton. A foreign army or fleet, marching through, sailing over or stationed in the
territory of another State, with whom the foreign sovereign to whom they belong is in
amity, are also, in like manner, exempt from the civil and criminal jurisdiction of the
place. (Elements of International Law, section 95.)
Hall. Military forces enter the territory of a state in amity with that to which they
belong, either when crossing to and fro between the main part of their country and an
isolated piece of it, or as allies passing through for the purposes of a campaign, or
furnishing garrisons for protection. In cases of the former kind, the passage of soldiers
being frequent, it is usual to conclude conventions, specifying the line of road to be
followed by them, and regulating their transit so as to make it as little onerous as possible
to the population among whom they are. Under such conventions offenses committed by
soldiers against the inhabitants are dealt with by the military authorities of the state to
which the former belong; and as their general object in other respects is simply
regulatory of details, it is not necessary to look upon them as intended in any respect to
modify the rights of jurisdiction possessed by the parties to them respectively. There can
be no question that the concession of jurisdiction over passing troops to the local
authorities would be extremely inconvenient; and it is believed that the commanders, not
only of forces in transit through a friendly country with which no convention exists, but
also of forces stationed there, assert exclusive jurisdiction in principle in respect of
offenses committed by persons under their command, though they may be willing as a
matter of concession to hand over culprits to the civil power when they have confidence
in the courts, and when their stay is likely to be long enough to allow of the case being
watched. The existence of a double jurisdiction in a foreign country being scarcely
compatible with the discipline of an army, it is evident that there would be some difficulty
in carrying out any other arrangement. (Emphasis supplied; International Law, 7th ed.,
section 56.)
Lawrence. The universally recognized rule of modern time is that a state must obtain
express permission before its troops can pass through the territory of another state .. .
Permissions may be given as a permanent privilege by treaty for such a purpose as
sending relief to garrisons, or it may be granted as a special favor for the special occasion
on which it is asked. The agreement for passage generally contains provisions for the
maintenance of order in the force by its own officers, and makes them, and the state in
whose service they are, responsible for the good behavior of the soldiers towards the
inhabitants. In the absence of special agreement the troops would not be amenable to the
local law, but would be under the jurisdiction and control of their own commanders, as
long as they remained within their own lines or were away on duty, but not otherwise.
(Principles of International Law, 6th ed., section 107, p. 246.)
Oppenhein. Whenever armed forces are on foreign territory in the service of their
home State, they are considered exterritorial and remain, therefore, under its jurisdiction.
A crime committed on foreign territory by a member of these forces cannot be punished
by the local civil or military authorities, but only by the commanding officer of the forces
or by another authorities of their home State. This rule, however, applies only in case the
crime is committed, either within the place where the force is stationed, or in some place
where the criminal was on duty; it does not apply, if, for example, soldiers belonging to a
foreign garrison of a fortress leave the rayon of the fortress not on duty but for
recreational and pleasure, and then and there commit a crime. The local authorities are in
that case competent to punish them. (International Law, 4th ed., Vol. I, section 445.)
Westlake affirmed Wheaton's view.
Hyde. Strong grounds of convenience and necessity prevent the exercise of jurisdiction
over a foreign organized military force which, with the consent of the territorial
sovereign, enters its domain. Members of the force who there commit offenses are dealt
with by the military or other authorities of the State to whose service they belong, unless
the offenders are voluntarily given up. (I International Law, section 247.)
McNair and Lauterpacht. It is a principle of international law that the armed forces of
one State, when crossing the territory of another friendly country, with the acquiescence
of the latter, is not subject to the jurisdiction of the territorial sovereign, but to that of the
officers and superior authorities of its own command. (Annual of Digest, 1927-1928, Case
No. 114.)
Vattel. . . . the grant of passage includes that of every particular thing connected with
the passage of troops, and of things without which it would not be practicable; such as the
liberty of carrying whatever may be necessary to an army; that of exercising military
discipline on the officers and soldiers . . .. (III, 8, section 130, as quoted in Woolsey's
International Law, 6th ed., section 68.)
Without applying the recent treaty on military bases concluded between the governments
of the Philippines and the United States, it having reference to base sites not involved in
this case, and considering that a part of the United States Army is stationed in the
Philippines with permission of our government, and that petitioners who belong to the
military personnel of that army are charged with violations of Articles of War for offenses
committed in areas under the control of the United States Army, thereby giving said army
jurisdiction over their person and the offenses charged, petition is dismissed, without
costs.
Feria, Pablo, Hilado, Bengzon, Briones, Hontiveros, Padilla and Tuason, JJ., concur.
PARAS, J.:
I concur in the result.
Separate Opinions
PERFECTO, J., dissenting:
Connected as civilian employees with the Manila Engineer Department of the United
States Army depot at the North Harbor, Manila, petitioners George L. Tubb and Wesley
Tedrow were arrested on January 4, 1947, by individuals posing as agents of the CID
(Criminal Investigation Division) and since then they were confirmed, restrained and
deprived of their liberty.
In their petition filed with this Court, dated February 20, 1947, petitioners allege that in
spite of the fact that they had been detained for more than one month, no formal
complaint or information for any specific violation of law has been filed against them, nor
any judicial writ or order for their commitment has at any time been issued so far; that
they did not commit any offenses for which they may be arrested, detained or deprived of
their liberty without formal charges or judicial warrant; that, according to information,
they are detained by the United States Army authorities at the North Habor, Manila, at the
behest and alleged order of a certain Cap. Thomas E. Griess, Security Officer of the Manila
Engineer District, whose office is at Pasay, Rizal; that their detention, according to
information was based on the suspicion of having stolen and disposed of certain
construction materials, explosives, and other miscellaneous items belonging to the United
States Army; that they are not persons subject to military laws and only a competent
court having jurisdiction in the Philippines can order their arrest, detention, and
imprisonment; that there being no martial law in the Philippines, war having been
officially terminated as of December 31, 1946, and the Constitution in the Philippines
being in full force and operation, the detention and confinement of petitioners are utterly
illegal.
Respondent Thomas E. Griess, Captain, Corps of Engineers, United States Army, in his
return averred that respondent, as an officer of the United States Army, pursuant to
orders issued by his superiors and in his official capacity as such officer, has in custody
the petitioners against each of whom charges have been filed, which charges are to be
tried and heard by a general court martial; that petitioners are each civilian employees of
the United States Army in the Philippines, Tubb under a written contract of employment
dated January 30, 1946, clause 26 of which, in part, reads: "The Employee understands he
or she is subject to the United States Military Law while serving under this agreement,"
and the latter (Tedrow) under a written contract of employment dated July 29, 1946,
clause 9 of which, in part, reads: "You are subject to military law whenever it is
established by competent authorities;" that part of the United States Army is stationed in
the Philippines by virtue of the laws of the United States among which is Joint Resolution
No. 93, which provides for the mutual protection of the United States and the Philippines
and, petitioners were engaged as civilian employees of said army; that all persons serving
with the Armies of the United States without the territorial jurisdiction of the United
States are subject to the articles of war of said country; that on January 28, 1947, formal
charges for violation of the 94th Article of War were filed against petitioner Tubb, and on
the same day formal charges for violation of the 96th Article of War were filed against
petitioner Tedrow, and it is by virtue of aforesaid charges and military orders that
respondent has custody of petitioners; that the place at the North Harbor, Manila where
petitioners are in custody is under the jurisdiction of the United States by virtue of duly
executed leases dated June 14, 1955; that petitioners are not confined in any prison or jail
but are confined under surveillance of respondent in their living quarters which are
situated on the leased premises.
At the hearing of this case, which took place on March 7, 1947, Atty. Justiniano S. Montano
appeared and argued for petitioners and Atty. J. A. Wolfson, for respondent. The latter,
accompanied by respondent and two-star generals of the United States Army, garbed in
their military uniform, made the statement that this case has been communicated to
Washington and that the United States Government is interested in its result. The
intimidation implied in the statement compelled counsel for petitioners to make an
impassioned protest against the uncalled-for statement and one of the Justices made the
statement to the effect that this Court shall not allow any outsider to influence it in
deciding this case.
No mention having been made in the decision of the incident, notwithstanding the fact
that it involves a clear attempt to jeopardize the authority and dignity of this Court, we
deem it necessary to state that such kind of attempts should not be allowed to pass
without a rebuke or a more drastic action. The Supreme Court of the Philippines, if it is to
uphold its dignity and prestige and keep the faith and respect of the people, should not be
slow in repressing, correcting, or punishing any and all bullying tactics that any litigant or
attorney should resort to in a pending litigation. It is necessary to make of record that in
the performance of its official functions this Supreme Court will not allow any foreign
government or all the combined armies of the world to cow it and to make it deviate even
an iota from its duty. The interest of justice is all-paramount. It is above all governments
and armies, which, after all, if they should serve the political and ethical purposes for
which they are created and established, are but also instruments to make justice effective.
Upon the undisputed facts in this case, we entertain no doubt that petitioners are illegally
deprived of their personal freedom and, therefore, are entitled to be immediately
released.
The commitment in their contracts of employment to the effect that they are subject to
military law may not repeal the mandates in the Bill of Rights of the Constitution.
Fundamental rights are not goods of commerce. They are not proper subjects of
contracts. Besides, petitioner's commitment can never be construed as a renunciation of
their constitutional rights. Military law is not superior nor equal to the supreme law. The
constitution is always paramount.
At the risk of being repetitious, it is necessary to remind that, under the Constitution, no
person shall be deprived of liberty without due process of law nor shall any person be
denied the equal protection of the laws. The right of the people to be secure in their
persons against unreasonable searches and seizures shall not be violated and no warrant
shall be issued but upon probable cause to be determined by the court after examination
under oath or examination of the complainant and the witnesses he may produce,
particularly describing the place to be searched and the persons or things to be seized.
The liberty of abode and of changing the same within the limits prescribed by law shall
not be impaired. No involuntary servitude in any form shall exist except for the
punishment of crime whereof the party shall have been duly convicted. No person shall
be allowed to answer for a criminal offense without due process of law. All persons shall
before conviction be bailable. Free access to the courts shall not be denied to any person
by reason of poverty.
All these constitutional guarantees are intended to protect not only Filipino citizens, but
all human beings within the territory of our Republic, including American citizens and, if
need be, even against their own government and army. The fundamental law does not use
the word citizens in the Bill of Rights. It invariably use the word person. Due process of
law by which a person may be deprived of his liberty contemplates judicial process. And
judicial process can only be had with the intervention of tribunals. Under Article VIII of
the Constitution, the judicial power shall be vested in one Supreme Court and in such
inferior courts as may be established by law. There cannot be and should not be any
question that petitioners' fundamental rights, as guaranteed by the Constitution of the
Philippines, have been flagrantly violated and this Court will be recreant in not granting
them the expected relief to which they are entitled under the law.
This is one more case in which, by majority vote, this Supreme Court abdicates its powers,
denying the victims of the redress to which they are entitled. In this case the abdication of
judicial power is aggravated by surrender of the sovereignty of the Filipino people.
Without the benefit of ambassadorial negotiations, of senatorial ratifications, or even of a
scrap of treaty or convention, the majority, in fact, accept and recognize extra-
territoriality, only to wash hands in petitioner's case. No dissent is vigorous enough
against such judicial attitude.
Since International Law has been indiscriminatingly and confusingly misapplied in
support of the glaringly erroneous majority opinion in Co Kim Cham vs. Valdez Tan Keh
and Dizon (75 Phil., 113), many have been misled to imitating the example to the extent of
creating a portentous judicial vogue. The fashionable is morbidly contagious. It seems
that one is liable to lose his self-respect if he can not invoke international law once in a
while, although to do it he has to hurriedly scratch the surface of the science and oftenly
misread his authors, an unavoidable risk in litigations were there is no legal issue
between nations. How risky it is shown by the hard time endured by those who
supported the majority opinion in the Co Kim Cham case to explain their international
law pronouncements, which shred counsel for petitioner in Laurel vs. Misa (77 Phil., 856),
had invoked as authority in support of the theory of "suspended allegiance."
Inconsistencies are hard to explain. It is even harder if the only reasonable explanation
that can be given would exact an honest admission of error. The greatness of soul
required to confess an error belongs only to the elite of moral aristocracy.
Here we have a litigation in which the legal issues are centered on the question of the
personal freedom of two individuals, small civilian employees in the service of the Unite
States Army, and who happen to be under the territorial jurisdiction of the Republic of
the Philippines and under the pale of our Constitution. The litigation does not raise any
question involving any nation or group of nations. The fact that petitioners are American
citizens is indifferent. Liberty, as one of the fundamental human rights, is a constitutional
issue, and not international. Notwithstanding this fact, the real and only issue, the
constitutional one, is side-stepped by the majority. International law is used as a
bludgeon to blast petitioner's faith in the inviolability of their constitutional rights.
At the expense of committing tuategory, we are compelled to conclude that cheap
international law has nowadays become a fashion in judicial and legal circles. Under the
spell of international law, the sense of legal values has suffered and is enduring a moral
disturbance, blurring judicial vision. Swayed by the transient infatuation of the new legal
fad, the majority allow themselves to be blindfolded by the fulgour of the newly found
juridical shibboleth to ignore petitioner's clamors for the vindication of their
constitutional rights, as guaranteed by fundamental law, condemning their earnest
prayers for relief to the futility of "vox clamantis in diserto." Such is the glamor of the
resounding international law that it was able to drown and obliterate completely the
humanitarian and lofty tenets stereotyped in the Constitution by the will of the sovereign
people.
Misunderstood, misinterpreted, misapplied, international law has become a sort of
juridical panacea, a universal thesaurus, always at hand for any solution that can be
desired in any ticklish litigation. It is even recognized as endowed with aseity.
The root of this awry judicial attitude lies in a glaring misunderstanding and
misconception of section 3, Article VII of the Constitution which says:
The Philippines renounces war as an instrument of national policy, and adopts the
generally accepted principles of international law as part of the law of the Nation.
There is the mistaken idea that international law had become part of the Constitution and
even superior to the primary principles and fundamental guarantees expressly
enunciated therein. To correct such a mistake, it is necessary to remember the following
basic ideas:
1. That the declaration that the Philippines "adopts the generally accepted principles of
international law as part of the law of the Nation" is an enunciation of a general national
policy but never intended to lay down specific principles, provisions, or rules superior or
even equal to the specific mandates and guarantees in the fundamental law.
2. That "the generally accepted principles of international law" made part of our statute
books are not placed in a higher legal hierarchy than any other law that Congress may
enact.
3. That said "generally accepted principles of international law" are not fixed and
unchangeable but, on the contrary, may undergo development and amplification,
amendment and repeal, that is, the same biological rules that govern all laws, including
the fundamental one.
4. That the general statement made by the Constitution implies that the principles of
international law which should be considered as part of the law of the nation are subject
to determination by the agencies of our government, including courts of justice, and once
determined they may be amended, enlarged or repealed, exactly as any act of Congress.
5. That those principles are to be gathered from many sources treaties and
conventions, court decisions, laws enacted by legislatures, treatises, magazine articles,
historical facts and others and the majority of them must be sifted from conflicting
opinions coming from said sources.
6. That the provisions of the Constitution should always be held supreme and must
always prevail over any contrary law without exempting principles of international law,
no matter how generally or universally they may be accepted.
Under the express provisions of the Constitution, petitioners appear to be
unconstitutionally deprived of their personal liberty and, therefore, are entitled to be set
free.
To deny the petition, the majority invoke international law. In the hypothesis that there is
such a law in support of the majority position, the law must give way to the supremacy of
the Constitution.
The hypothesis happens to be wrong because it is expressly based on pronouncements
made in the case of Raquiza vs. Bradford (75 Phil., 50), which, as we have shown in our
opinion in said case, are completely mistaken.
Said mistaken pronouncements are made to rely on the opinion of Chief Justice Marshall
in The Schooner Exchange vs. McFadden (7 Cranch, 116) which, although rendered by
one considered to be the greatest luminary whoever graced the Supreme Court of the
United States, was written long ago, in the horse-and-buggy age, which, from the cultural
point of view, notwithstanding the inverse difference of years, appears to be millennia
behind from our Atomic Age than the Stone Age was from Marshall's time.
But even accepting the validity of Chief Justice Marshall's pronouncement, there is
nothing in them to support the majority position in this case, because, while the American
jurist recognized the jurisdiction of a foreign army passing through another country over
their "troops during their passage," the majority in this case fail to differentiate
petitioners from said "troops", both parties agreeing that petitioners are civilians, and no
one can pretend that Chief Justice Marshall would commit the lexicographical error of
including "civilians" among the "troops" of an army.
The several quotations in the majority decisions are inapplicable.
Wheaton is quoted by the majority to say that "a foreign army or fleet, marching through,
sailing over, or situated in the territory of another state . . .are . . . exempt from the civil
and criminal jurisdiction of the place." There is nothing in the words of Wheaton to
authorize the majority position. There is nothing in this case to intimate that this
Supreme Court is asked or is trying to exercise any jurisdiction over the United States
Army stationed in Manila. Petitioners are neither an army nor a fleet. They are just a
couple of American civilians.
Hall is the next authority invoked by the majority. The quotation states that "offenses
committed by soldiers" of passing or stationed military forces "against the inhabitants are
dealt with" under concluded "conventions," adding that when there are no such
conventions, "it is believed that the commanders . . . exert exclusive jurisdiction in
principle in respect of offenses committed by persons under their command." It is clear
that Hall offers no support to the majority position. There is absolutely no convention
that the majority may invoke in this case, and what Hall said "it is believed" cannot
seriously be entertained by any court of justice. To accept a conjecture as an authority or
a basis to set a legal rule is below the level of judicial dignity.
"In the absence of a special agreement the troops would not be amenable to the local law
but would be under the jurisdiction and control of their own commanders," so says
Lawrence, the third authority quoted by the majority. Considering that petitioners are
civilians and cannot be classified within the designation of "troops," to apply the words of
lawrence to the present case must necessarily be based on a misreading.
The quotation from Oppenheim, the fourth authority invoked by our brethrens, deals
with "soldiers." Has any one in this case pretended that petitioners are soldiers?
The next authority is Westlake, affirming Wheaton's view, and we have already shown
how this view is absolutely inapplicable to the present case.
The quotation from Hyde, the sixth authority invoked, deals with "organized military
force" and with "members of the force who commit offenses." Here we have another
instance of missing the point, as the words "members" of an "organized military force"
can never be understood to include civilians.
The seventh authority is McNair and Lauterpacht. The quotation deals exclusively with
the jurisdiction on "the armed forces" of a foreign country. Civilians are not a part of
armed forces.
The eight and last authority is Vattel, and the quotation in the majority opinion contains
absolutely no word applicable to the present case. The nearest are where the author says
"that the grant of passage includes . . . that of excising military discipline on the officers
and soldiers." To apply the quotation to the present case, petitioners must first undergo a
metamorphosis to cease being civilians and, through magic, become overnight "officers"
or "soldiers", so the facts in this case can be made to conform to the legal theory intended
to be applied by the majority.
The above analyses of the very quotations inserted in their majority opinion show
conclusively that the pretended principles of international law invoked by the majority in
support of their position happened to be conclusively missing in each and everyone of the
very quotations inserted in their opinion. Only the force of an overpowering auto-
suggestions can permit one to read in those quotations what is not written therein.
Proneness to read in the writings of authorities of international law or even in judicial
decisions any ruling, principle, or doctrine that may justify the trampling down of the
fundamental human rights invoked by petitioners, rights which are specifically
guaranteed in our Constitution and in the constitutions of all democracies and
enlightened countries, must have been corrected once and for all since June 25, 1945,
when the Charter of the United Nations was adopted in San Francisco.
Since then, the principles or rules of international law which may happen to be
incompatible or deviating from the principles and ideals enunciated in the Charter must
be considered obsolete.
In the said Charter, the United Nations asserted their determination:
to save succeeding generations from the scourge of war, which twice in our lifetime has
brought untold sorrow to mankind, and "to reaffirm faith in fundamental human rights, in
the dignity and worth of the human person, in the equal rights of men and women and of
nations large and small, and
to establish conditions under which justice and respect for the obligations arising from
treaties and other sources of international law can be maintained, and
to promote social progress and better standards of life in larger freedom.
Anybody will notice that "fundamental human rights" and "dignity and worth of the
human person" form part of the supreme concern of the United Nations. Neither the
Philippines nor the United States of America can honorably ignore the solemn
commitments entered into by them as members of the United Nations. All the agencies of
their respective governments, including tribunals and armies, are duty bound to respect,
obey and make effective those commitments. The preamble of the charter specifically
provides, "that armed forces shall not be used, save in common interest," the latter
comprehending the basic purposes of the organization of the United Nations, such as
"promoting and encouraging respect for human rights and for fundamental freedoms for
all without distinction as to race, sex, language, or religion."
There is absolutely no reason why we should be afraid, reluctant, or hesitant in
performing our duty to grant petitioners the legal relief to their illegal and
unconstitutional deprivation of personal liberty, because our action may displease the
army or the government of the United States of America, or because the American army
stationed in Manila, may disregard our decision.

Justice is one of the paramount concerns and ideals of humanity. We cannot believe that
any part of the United States Army stationed in the Philippines would dare to challenge a
final decision of this Supreme Court or of any court in the Philippines. We cannot believe
that any responsible officer or soldier of that great army will ever commit an act that may
tarnish the record of brilliant and glorious achievements it accomplished in the battle of
the Philippines. That army fought to help us reconquer our freedom from Japanese
slavery and to obtain justice against the criminal invasion of our soil, and we cannot
believe it will ever do anything to obstruct the efficient functioning of our machinery of
justice.
But whether this litigation has been communicated to Washington, or whether the United
States Government is interested in its outcome, or whether the American army may
ignore any decision we may render in favor of petitioners, or whatever adverse action
may be taken by the all-powerful United States, these are considerations that should not
stop us from doing our duty in the administration of justice. No power in the whole
universe should be allowed to deter us from performing our functions as our conscience
dictates. Others may do as they please, but we cannot have any other alternative but to
keep this tribunal as the veritable bulwark of the Constitution and of the fundamental
rights guaranteed therein. Only by failing to do so may we merit the sneers of shame, the
wrath of our people, the curse of the present and future generations, the scorn of all
humanity. There is no greater mission in life than justice. There is no greater
responsibility than to administer it.
On February 10, 1947, by unanimous vote of all the members of this Court, the petition in
Martin vs. Ramos (L-1290), was summarily dismissed, without the need of requiring any
answer from the respondent. The legal question involved appeared so clear to entertain
any doubt. All the Justices in the Court maintained that the Court of First Instance of
Ilocos Norte has jurisdiction to try Felipe Martin, a guard in the service of the United
States Army in Laoag, for killing Pantaleon Tabac while said Martin was in the
performance of his official duties as a guard. Said court denied the petition of Lt. Walter T.
Bartlett to have Martin delivered to the United States Army.
Now the legal position in the Martin case is reversed with the decision in the present case.
The inconsistency is unquestionable. What is the reason of this change of judicial
criterion in two months time? There is no valid reason. There is no legal justification.
We dissent from such judicial fickleness. The apodeictic self-contradiction involved in the
reversal can not help strengthen popular faith in the decisions of this Court. Judicial
inconsistency is a conclusive evidence that of two inconsistent decisions one is
necessarily wrong and unjust, based on false theory, founded on fallacious doctrine. Who
is going to judge which of the two contradictory decisions is true to justice? Tribunals
enunciate very often the Latin maxim "falsus in unus, falsus in omnibus." By its
inconsistency, is not this Supreme Court being placed in the quandary of seeing the logic
of that maxim hanging upon it as a sword of Damocles?
We refuse to believe that the fact that respondent, an officer of the United States Army, is
vigorously opposing the petition, and that his attorney hurled at our face a menacing
statement which, unfortunately, has not been met, either promptly or belatedly, by
appropriate action from this Court, has anything to do with the reversal. But apparently
stronger reasons than the inapplicable quotations on international law made in the
majority opinion must be adduced to allay all suspicion that judicial supremacy is being
abdicated in favor of military omnipotence. A journalist has recently published this
assertion: "Under prevailing judicial policy our courts are afraid to go against the
theoretical independence of each of the three branches of government, in spite of the
judiciary's function as guardian of the Constitution. That the newspaperman, instead of
using another word, had written "afraid" and once Mr. Justice Ozaeta had to allude to
what he called "judicial timidity" are alarming symptoms that need be quelled, not by
verbal protests, but by positive action, the meaning of which should be conclusive to
everybody.
Large dosage of dynamism and red blood must be injected in judicial thought so as to free
it from all hindering complexities, to emancipate it from all human frailties, to allow it to
loosen all moral shackles that may keep it from resolutely facing its tasks and acting with
Olympian serenity. Formerly no Justice or judge dared to discuss decisions or methods of
their courts believing it offensive to propriety. On March 16, 1947, we delivered before
the College Editors' Guild a speech discussing some decisions and methods of the
Supreme Court. No one suspected then that we were starting a revolution in judicial
attitude. One week later all our brethen released public statements to the press,
addressed to the people at large, wherein, trying to answer our speech, they took
occasion to expose and condemn our alleged individual defects and personal conduct, to
the extent of assuming what our sense of righteousness and personal dignity should
counsel us and of suggesting our resignation.
The freedom of expression of Justices and judges, as one of the fundamental human
rights, achieved a moral victory against the superstitious fear to offend the dreaded sense
of propriety, which, after all, is nothing basic and is but an expression of collective or
individual taste, highly momentary and changeable as any fashion can be. Now all the
members of the Supreme Court are unanimous in the position that we should not be
afraid to exercise our freedom of expression even outside of this Court.
Our brethren's branding our conduct as highly improper and inconsistent with the self-
restraint of members of an appellate court can not prevail upon the significance of their
own course of action in releasing their press statements.
Our duty to interpret, apply and make effective the Constitution must be performed
without any fear nor favor. Must not be deterred by the mistaken idea that there exists
any principle, rule or doctrine of international law that can supersede, supplant, or
overpower the fundamental law. No consideration, should be allowed to deviate us from
that duty.
President Roxas a few days ago made the following statement:

This administration is determined to raise the standard of the judiciary to the highest
level so that the people may have full trust and confidence in our courts. This objective
can only be attained if the judges are men of the highest integrity and moral character, of
unquestioned capacity, and of broadest human sympathies and understanding. They
should not only be familiar with the law but, above all, they should respect and apply it
under all circumstances and never to sacrifice the same for the sake of expediency.
The petition in this case, besides invoking the guarantees of the Constitution, is an appeal
to our "broadest human sympathies and understanding." If, according to President Roxas,
judges should respect and apply the law "under all circumstances and never to sacrifice
the same for the sake of expediency," then there is absolutely no reason why petitioners
should be denied the protection of the law "par excellence," the supreme law, the
Constitution.
Of course, neither the President of the Philippines nor any authority on earth, except the
people from whose sovereignty our powers are derived, may take any hand on how this
Supreme Court is to administer justice, but the sound that we do not see any reason why
it should not be included in our goals.
The decision in this case has a wider and deeper significance than superficial observers
may gather from the insignificance of the individuals concerned. It goes down to shake
the very foundations of human society and reaches far to the destiny of civilization. The
effectiveness of legal and constitutional guarantees of human rights is the one in issue.
The majority decide to set at naught that effectiveness. If the law can not afford effective
protection to individual rights, where shall we look for that protection? Since its more
primitive stages, human society has been able to exist thanks to law as its strongest
foundation. The binding force of law unified the members of a family under its head,
patriarch or matriarch; grouped families into clans and tribes; created towns and cities;
consolidated nations and federations of states. That binding force is the sovereign
talisman that will weld all humanity into the unity essential for the attainment of the ideal
of One World.
There is despair in many hearts. There are many who feel that an upheaval is going to
doom mankind into universal destruction. They think that the very foundations are falling
apart. The harnessing of atomic energy gives them little consolation. While it is
considered as the greatest scientific triumph, the outstanding milestone in human
progress, a source of new light, new warmth, new freedom, new happiness, it also placed
man on the brink of an abyss where only ruin and chaos can exist. The greatest victory in
the conquest of nature may yet prove to be the unhappiest and last tragedy for man. But
these gloomy premonitions, alarms, fears, and despair shall be dispelled once we think
than eventually all the countries, nations and peoples of the world will adhere to, abide
by, and enforce the principle of singleness of the law as the only means of ensuring world
peace. The Charter of the United Nations and the Statute of the International Court of
Justice are the first steps in the right direction. They are laws intended for the majority of
the nations of the earth. We hope that in no distant future will the whole mankind be
ruled by the same laws enacted by a single world authority, representing the world's
collective conscience.
But to attain this ideal we strengthen faith in the law, in its effectiveness, in its vitalizing
social function, in its guarantees of human rights. That faith can not be strengthened by
making of the safeguards of the Constitution a mummery.
The petition must be granted and so we vote.
HERBERT BROWNELL, JR., as Attorney General of the United States vs.
SUN LIFE ASSURANCE COMPANY OF CANADA
G.R. No. L-5731; June 22, 1954
PONENTE: J. LABRADOR
FACTS: This is a petition instituted in the Court of the First Instance of Manila under the
provisions of the Philippine Property Act of the United States against the Sun Life
Assurance Company of Canada, to compel the latter to comply with the demand of the
former to pay him the sum of P310.10, which represents one-half of the proceeds of an
endowment policy (No. 757199) which matured on August 20, 1946, and which is
payable to one Naogiro Aihara, a Japanese national.
Under the policy Aihara and his wife, Filomena Gayapan, were insured jointly for the sum
of P1,000, and upon its maturity the proceeds thereof were payable to said insured, share
and share alike, or P310.10 each.
The defenses set up in the court of origin are:
(1) that the immunities provided in section 5 (b) (2) of the Trading With the Enemy Act of
the United States are of doubtful application in the Philippines, and have never been
adopted by any law of the Philippines as applicable here or obligatory on the local courts;
(2) that the defendant is a trustee of the funds and is under a legal obligation to see it to
that it is paid to the person or persons entitled thereto, and unless the petitioner executes
a suitable discharge and an adequate guarantee to indemnify and keep it free and
harmless from any further liability under the policy, it may not be compelled to make the
payment demanded. The Court of First Instance of Manila having approved and granted
the petition, the respondent has appealed to this Court, contending that the Court of
origin erred in holding that the Trading With the Enemy Act of the United States is
binding upon the inhabitants of this country, notwithstanding the attainment of complete
independence on July 4, 1946, and in ordering the payment prayed for.
On July 3, 1946, the Congress of the United States passed Public Law 485-79th Congress,
known as the Philippine Property Act of 1946. Section 3 thereof provides that "The
Trading with the Enemy Act of October 6, 1917 (40 Stat. 411), as amended, shall continue
in force in the Philippines after July 4, 1946, ...." To implement the provisions of the act,
the President of the United States on July 3, 1946, promulgated Executive Order No. 9747,
"continuing the functions of the Alien Property Custodian and the Department of the
Treasury in the Philippines." Prior to and preparatory to the approval of said Philippine
Property Act of 1946, an agreement was entered into between President Manuel Roxas of
the Commonwealth and U. S. Commissioner Paul V. McNutt whereby title to enemy
agricultural lands and other properties was to be conveyed by the United States to the
Philippines in order to help the rehabilitation of the latter, but that in order to avoid
complex legal problems in relation to said enemy properties, the Alien Property
Custodian of the United States was to continue operations in the Philippines even after
the latter's independence, that he may settle all claims that may exist or arise against the
above-mentioned enemy properties, in accordance with the Trading With the Enemy Act
of the United States. (Report of the Committee on Insural Affairs No. 2296 and Senate
Report No. 1578 from the Committee on Territories and Insular Affairs, to accompany S.
2345, accompanying H. R. 6801, 79th Congress, 2nd Session.) This purpose of conveying
enemy properties to the Philippines after all claims against them shall have been settled
is expressly embodied in the Philippine Property Act of 1946.
SEC. 3. The Trading With the Enemy Act of October 6, 1917 (40 Stat. 411) as amended,
shall continue in force in the Philippines after July 4, 1946, and all powers and authority
conferred upon the President of the United States or the Alien Property Custodian by the
terms of the said Trading With the Enemy Act, as amended, with respect to the
Philippines, shall continue thereafter to be exercised by the President of the United
States, or such officer or agency as he may designate: Provided, That all property vested
in or transferred to the President of the United States, the Alien Property Custodian, or
any such officer or agency as the President of the United States may designate under the
Trading With the Enemy Act, as amended, which was located in the Philippines at the
time of such vesting, or the proceeds thereof, and which shall remain after the satisfaction
of any claim payable under the Trading With the Enemy Act, as amended, and after the
payment of such costs and expenses of administration as may be law be charged against
such property or proceeds, shall be transferred by the President of the United States to
the Republic of the Philippines: Provided further, That such property, or proceeds
thereof, may be transferred by the President of the United States to the Republic of the
Philippines upon indemnification acceptable to the President of the United States by the
Republic of the Philippines for such claims, costs, and expenses of administration as may
by law be charged against such property or proceeds thereof before final adjudication of
such claims, costs and expenses of administration. Provided further, That the courts of
first instance of the Republic of the Philippines are hereby given jurisdiction to make and
enter all such rules as to notice or otherwise, and all such orders and decrees and to issue
such process as may be necessary and proper in the premises to enforce any orders,
rules, and regulations issued by the President of the United States, the Alien Property
Custodian, or such officer or agency designated by the President of the United States
pursuant to the Trading With the Enemy Act, as amended, with such right of appeal
therefrom as may be provided by law: And provided further, That any suit authorized
under the Trading With the Enemy Act, as amended, with respect to property vested in or
transferred to the President of the United States, the Alien Property Custodian, or any
officer or agency designated by the President of the United States hereunder, which at the
time of such vesting or transfer was located with the Philippines, shall after July 4, 1946,
be brought in the appropriate court of first instance of the Republic of the Philippines,
against the officer or agency hereunder designated by the President of the United States
with right of appeal therefrom as may be provided by law. In any litigation authorized
under this section, the officer or administrative head of the agency designated hereunder
may appear personally, or through attorneys appointed by him, without regard to the
requirements of law other than this section.
And when the proclamation of the independence of the Philippines by President Truman
was made, said independence was granted "in accordance with the subject to the
reservations provided in the applicable statutes of the Unites States." The enforcement of
the Trading With the Enemy Act of the United States was contemplated to be made
applicable after independence, within the meaning of the reservations.
On the part of the Philippines, conformity to the enactment of the Philippine Property Act
of 1946 of the United States was announced by President Manuel Roxas in a joint
statement signed by him and by Commissioner Mcnutt. Ambassador Romulo also
formally expressed the conformity of the Philippines Government to the approval of said
act to the American Senate prior to its approval. And after the grant of independence, the
Congress of the Philippines approved Republic Act No. 8, entitled.
AN ACT TO AUTHORIZE THE PRESIDENT OF THE PHLIPPINES TO ENTER INTO SUCH
CONTRACT OR UNDERTAKINGS AS MAY BE NECESSARY TO EFFECTUATE THE
TRANSFER TO THE REPUBLIC OF THE PHILIPPINES UNDER THE PHILIPPINES
PROPERTY ACT OF NINETEEN HUNDRED AND FORTY-SIX OF ANY PROPERTY OR
PROPERTY RIGHTS OR THE PROCEEDS THEREOF AUTHORIZED TO BE TRANSFERRED
UNDER SAID ACT; PROVIDING FOR THE ADMINISTRATION AND DISPOSITION OF SUCH
PROPERTIES ONCE RECEIVED; AND APPROPRIATING THE NECESSARY FUND
THEREFOR.
The Congress of the Philippines also approved Republic Act No. 7, which established a
Foreign Funds Control Office. After the approval of the Philippine Property Act of 1946 of
the United States, the Philippine Government also formally expressed, through the
Secretary of Foreign Affairs, conformity thereto. (See letters of Secretary dated August 22,
1946, and June 3, 1947.) The Congress of the Philippines has also approved Republic Act
No. 477, which provides for the administration and disposition of properties which have
been or may hereafter be transferred to the Republic of the Philippines in accordance
with the Philippines Property Act of 1946 of the United States.
It is evident, therefore, that the consent of the Philippine Government to the application
of the Philippine Property Act of 1946 to the Philippines after independence was given,
not only by the Executive Department of the Philippines Government, but also by the
Congress, which enacted the laws that would implement or carry out the benefits
accruing from the operation of the United States law. The respondent-appellant, however,
contends that the operation of the law after independence could not have actually taken,
or may not take place, because both Republic Act No. 8 and Republic Act No. 477 do not
contain any specific provision whereby the Philippine Property Act of 1946 or its
provisions is made applicable to the Philippines. It is also contended that in the absence
of such express provision in any of the laws passed by the Philippine Congress, said
Philippine Property Act of 1946 does not form part of our laws and is not binding upon
the courts and inhabitants of the country.
There is no question that a foreign law may have extraterritorial effect in a country other
than the country of origin, provided the latter, in which it is sought to be made operative,
gives its consent thereto. This principle is supported by the unquestioned authority.
The jurisdiction of the nation within its territory is necessarily exclusive and absolute. It
is susceptible of no limitation not imposed by itself. Any restriction upon it, deriving
validity from an external source, would imply a diminution of its sovereignty to the extent
of the restriction, and an investment of that sovereignty to the same extent in that power
in which would impose such restriction. All exceptions, therefore, to the full and complete
power of a nation within its own territories, must be traced up to the consent of the
nation itself. They can flow from no other legitimate source. This consent may be either
express or implied. (Philippine Political Law by Sinco, pp. 27-28, citing Chief Justice
Marshall's statement in the Exchange, 7 Cranch 116) In the course of his dissenting
opinion in the case of S. S. Lotus, decided by the Permanent Court of International Justice,
John Bassett Moore said:
1. It is an admitted principle of International Law that a nation possesses and
exercises within its own territory an absolute and exclusive jurisdiction, and that any
exception to this right must be traced to the consent of the nation, either express or
implied (Schooner Exchange vs. McFadden [812], 7 Cranch 116, 136). The benefit of this
principle equally enures to all independent and sovereign States, and is attended with a
corresponding responsibility for what takes place within the national territory. (Digest of
International Law, by Backworth, Vol. II, pp. 1-2)
The above principle is not denied by respondent-appellant. But its argument on this
appeal is that while the acts enacted by the Philippine Congress impliedly accept the
benefits of the operation of the United States law (Philippine Property Act of 1946), no
provision in the said acts of the Philippine Congress makes said United States law
expressly applicable. In answer to this contention, it must be stated that the consent of a
Senate to the operation of a foreign law within its territory does not need to be express; it
is enough that said consent be implied from its conduct or from that of its authorized
officers.
RULING: N515. No rule of International Law exists which prescribe a necessary form of
ratification. Ratification can, therefore, be given tacitly as well as expressly. Tacit
ratification takes place when a State begins the execution of a treaty without expressly
ratifying it. It is usual for ratification to take the form of a document duly signed by the
Heads of the States concerned and their Secretaries for Foreign Affairs. It is usual to draft
as many documents as there are parties to the Convention, and to exchange these
documents between the parties. Occasionally the whole of the treaty is recited verbatim
in the ratifying documents, but sometimes only the title, preamble, and date of the treaty,
and the names of the signatory representatives are cited. As ratification is only the
confirmation of an already existing treaty, the essential requirements in a ratifying
document is merely that it should refer clearly and unmistakably to the treaty to be
ratified. The citation of title, preamble, date, and names of the representatives is,
therefore quite sufficient to satisfy that requirements. (Oppenheim, pp. 818-819;
emphasis ours.)
International Law does not require that agreements between nations must be concluded
in any particular form or style. The law of nations is much more interested in the faithful
performance of international obligations than in prescribing procedural requirements.
(Treaties and Executive Agreements, by Myers S. McDougal and Asher Lands, Yale Law
Journal, Vol. 54, pp. 318-319)
In the case at bar, our ratification of or concurrence to the agreement for the extension of
the Philippine Property Act of 1946 is clearly implied from the acts of the President of the
Philippines and of the Secretary of Foreign Affairs, as well as by the enactment of
Republic Acts Nos. 7, 8, and 477.
We must emphasize the fact that the operation of the Philippine Property Act of 1946 in
the Philippines is not derived from the unilateral act of the United States Congress, which
made it expressly applicable, or from the saving provision contained in the proclamation
of independence. It is well-settled in the United States that its laws have no
extraterritorial effect. The application of said law in the Philippines is based concurrently
on said act (Philippine Property Act of 1946) and on the tacit consent thereto and the
conduct of the Philippine Government itself in receiving the benefits of its provisions.
It is also claimed by the respondent-appellant that the trial court erred in ordering it to
pay the petitioner the amount demanded, without the execution by the petitioner of a
deed of discharge and indemnity for its protection. The Trading With the Enemy Act of
the United States, the application of which was extended to the Philippines by mutual
agreement of the two Governments, contains an express provision to the effect that
delivery of property or interest therein made to or for the account of the United States in
pursuance of the provision of the law, shall be considered as a full acquittance and
discharge for purposes of the obligation of the person making the delivery or payment.
(Section 5(b) (2), Trading With the Enemy Act.) This express provision of the United
States law saves the respondent-appellant from any further liability for the amount
ordered to be paid to the petitioner, and fully protects it from any further claim with
respect thereto. The request of the respondent-appellant that a security be granted it for
the payment to be made under the law is, therefore, unnecessary, because the judgment
rendered in this case is sufficient to prove such acquittance and discharge.
DISPOSITIVE PORTION: The decision appealed from should be as it is hereby affirmed,
with costs against the respondent-appellant.
PIL - #
Lyons vs. USA (1958)
Doctrine:
The general rule is that States cannot be sued unless it has given its consent.
However, an exception to this is when the state enters into a contract. In such case, the
state may be sued even without its consent. But before suing the state, administrative
remedies shall first be exhausted.
Facts:
1. Harry Lyons, Inc. and USA entered into a contract for stevedoring service at the
US Naval Base in Subic Bay. The said contract is valid until June 30, 1956, and was
entered into pursuant to the provisions of Sec. 2 (c) (1) of the Armed Services
Procurement Act of 1947 of the USA.
2. Harry Lyons Inc., brought this action before the CFI Manila to collect several
sums of money arising from the contract.
3. As a defense, the defendant USA filed a motion to dismiss. It argued that the CFI
has no jurisdiction over the defendant and over the subject matter of the action since the
USA is a sovereign state which cannot be sued without its consent. USA also argued that
Lyons failed to exhaust the administrative remedies provided for in Art. XXI of the
contract.
4. On the other hand, Lyons contends that when a sovereign state enters into a
contract with a private person, the state can be sued upon the theory that it has
descended to the level of an individual from which it can be implied that it has given its
consent to be sued under the contract. Lyons used the case of Santos vs. Santos (92 Phil
280) as legal basis.
Issue/s:
1. WON the USA as a sovereign state may be sued when it enters into a contract -
Yes
2. WON CFI erred in dismissing the complaint on the ground that Lyons has failed
to comply with the condition presented in the contract before an action could be taken in
court against the US Government - No
Held/Ratio:
1. Where and when the state or its government enters into a contract, the state
itself may be sued even without its consent.
a. As long as the contract is entered into through its officers or agents, in
furtherance of a legitimate aim and purpose and pursuant to constitutional legislative
authority, whereby mutual or reciprocal benefits accrue and rights and obligations arise
therefrom, and if the law granting the authority to enter into such contract does not
provide for or name the officer against whom action may be brought in the event of a
breach thereof.
b. However, this is only an exception. It is still the general rule that a state cannot
be sued without its consent.
c. In the case at bar, the SC held the contract entered into (for stevedoring and
miscellaneous labor services within the Subic Bay area, a US Navy Reservation) by the US
Government, through its agency at Subic Bay, is a valid one. Thus, Lyons can bring an
action before the Philippine courts for any contractual liability that political entity may
assume under the contract. Therefore, the trial court has jurisdiction over the case.
2. The CFI did not err in dismissing the complaint on the ground that Lyons has
failed to comply with the condition presented in the contract before an action could be
taken in court against the US Government.
a. Art. XXI of the contract (between Lyons & USA) lays down the procedure to be
followed by Lyons should it desire to obtain a remedy under the contract.
i. It provides that the remedy is to file its claim with the Contracting Officer who
is empowered to act and render a decision. An appeal may be filed to the Secretary of the
Navy where the plaintiff will be afforded an opportunity to be heard & present evidence.
This decision by the Secretary of the Navy shall be final unless a court of competent
jurisdiction finds that the decision is fraudulent, arbitrary, capricious or so grossly
erroneous. In other words, it is only after the claim has been decided on appeal by the
secretary that Lyons can resort to a court of competent jurisdiction.
b. It is clear that Lyons did not follow this provision/procedure, thus his failure to
exhaust administrative remedies against USA. The CFI decision is thus affirmed.
UNITED STATES OF AMERICA, CAPT. JAMES E. GALLOWAY, WILLIAM I. COLLINS and
ROBERT GOHIER, petitioners,
vs.
HON. V. M. RUIZ, Presiding Judge of Branch XV, Court of First Instance of Rizal and
ELIGIO DE GUZMAN & CO., INC., respondents.
Facts:
This is a petition to review, set aside certain orders and restrain perpetually the
proceedings done by Hon. Ruiz for lack of jurisdiction on the part of the trial court.
The United States of America had a naval base in Subic, Zambales. The base was one of
those provided in the Military Bases Agreement between the Philippines and the United
States. Sometime in May, 1972, the United States invited the submission of bids for a
couple of repair projects. Eligio de Guzman land Co., Inc. responded to the invitation and
submitted bids. Subsequent thereto, the company received from the US two telegrams
requesting it to confirm its price proposals and for the name of its bonding company. The
company construed this as an acceptance of its offer so they complied with the requests.
The company received a letter which was signed by William I. Collins of Department of
the Navy of the United States, also one of the petitioners herein informing that the
company did not qualify to receive an award for the projects because of its previous
unsatisfactory performance rating in repairs, and that the projects were awarded to third
parties. For this reason, a suit for specific performance was filed by him against the US.
Issues:
Whether or not the US naval base in bidding for said contracts exercise governmental
functions to be able to invoke state immunity.
Discussions:
The traditional role of the state immunity exempts a state from being sued in the courts of
another state without its consent or waiver. This rule is necessary consequence of the
principle of independence and equality of states. However, the rules of international law
are not petrified; they are continually and evolving and because the activities of states
have multiplied. It has been necessary to distinguish them between sovereign and
governmental acts (jure imperii) and private, commercial and proprietary acts (jure
gestionis). The result is that State immunity now extends only to acts jure imperil. The
restrictive application of State immunity is now the rule in the United States, the United
Kingdom and other states in western Europe.
Rulings:
Yes. The Supreme Court held that the contract relates to the exercise of its sovereign
functions. In this case the projects are an integral part of the naval base which is devoted
to the defense of both the United States and the Philippines, indisputably a function of the
government of the highest order, they are not utilized for nor dedicated to commercial or
business purposes.
The restrictive application of state immunity is proper only when the proceedings arise
out of commercial transactions of the foreign sovereign. Its commercial activities of
economic affairs. A state may be 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.
M.H. Wylie v Rarang
G.R. No. 74135, May 28, 1992
FACTS:
Petitioner M.H. Wylie was the assistant administrativeofficer while petitioner Capt. James
Williams was the commanding officer of the US Naval Base in Subic Bay, Olongapo City.
Private Respondent (PR) Aurora Rarang was assigned as merchandise control guard in
the Office of the Provost Marshal M.H. Wylie, in his capacity as asst. admin. Officer,
supervised the publication of the so-called Plan of the Day (POD) published daily by the
US Naval Base Station. The POD featured important announcements, necessary
precautions and general matters of interest to military personnel. One of the regular
features of the POD was the action line inquiry (NAVSTA ACTION LINEINQUIRY), a
telephone answering device in the Office of the Admin Asst intended to provide personnel
access to the Commanding Officer on matters they feel should be brought to his attention
for correction or investigation. On February 3, 1978, the POD under the (NAVSTA) action
line inquiry, published and mentioned a certain AURING as a disgrace to her division
and to the Office of the Provost Marshal. The same article explicitly implied that Auring
was consuming and appropriating for herself confiscated items like like cigarettes and
foodstuffs. The PR was the only one who was named Auring in the Office of the Provost
Marshal. As a result thereof, she was investigated by her superior. The PR commenced an
ACTION FOR DAMAGES in the CFI of Zambales against M.H. Wylie, Capt. James Williams
and the US Naval Base alleging that the article constituted false, injurious, and malicious
defamation and libel tending to impeach her honesty, virtue and reputation exposing her
to public hatred, contempt and ridicule. The TC ruled in favour of the PR and dismissed
the suit against the US Naval Base. The IAC (now,CA) affirmed the judgment of the TC
with modifications as to the amount of damages awarded.
ISSUE:
Whether or not the American naval officers (such as Wylie and Capt. Williams) who
commit a crime or tortious act while discharging official functions still covered by the
principle of state immunity from suit. Does the grant of rights, power, and authority to the
US under the RP-US Bases Treaty cover immunity of its officers from crimes and torts?
HELD:
The general rule is that public officials can be held personally accountable for acts
claimed to have been performed in connection with official duties where they have acted
ultra vires or where there is showing of bad faith (Chavez v. Sandiganbayan).It may be
argued, as a general rule, that Capt. Williams as commanding officer of the naval base was
far removed in the chain of command from the offensive publication and it would be
asking too much to hold him responsible for everything which goes wrong on the base.
However, in this particular case, the records show that the offensive publication was sent
to the commanding officer for approval and that he approved it. ART. 2176, CC prescribes
a civil liability for damages caused by a persons act or omission constituting fault or
negligence, stating that, Whoever by act or omission, causes damage to another, there
being fault or negligence, is obliged to pay for the damage done. Such fault or
negligence,.. Moreover, ART. 2219(7), Civil Code provides that moral damages may be
recovered in case of libel, slander or any other form of defamation.Indeed, the
imputation of theft contained in the POD was a defamation against the character and
reputation of the PR. Petitioner Wylie himself admitted that the Office of the Provost
Marshal explicitly recommended the deletion of the name Auring if the article will be
published. The petitioners, however, were NEGLIGENTbecause under their direction,
they issued thepublication without deleting the said name. Such act or omission was
ULTRA VIRES and CANNOT be deemed part of official duty. It was a TORTIOUS ACT which
ridiculed the PR. As a result of petitioners act, PR suffered besmirched reputation,
serious anxiety, wounded feelings and social humiliation, especially so, since the article
was baseless and false. The petitioners, alone, in their personal capacities, are liable for
the damages they caused the Private Respondent
UNITED STATES OF AMERICA vs. REYES
Petition for Certiorari to Annul & Set Aside RTC Cavite Branch 22 Resolution, 1993
FACTS:
Respondent Nelia Montoya, an American Citizen, worked as an ID checker at the US
Navy Exchange (NEX) at the US Military Assistance Group (JUSMAG) headquarters in
Quezon City. Shes married to Edgardo Montoya, a Filipino-American serviceman
employed by the US Navy & stationed in San Francisco.
Petitioner Maxine is an American Citizen employed at the JUSMAG headquarters as the
activity exchange manager.
Jan. 22, 1987 Montoya bought some items from the retail store Bradford managed,
where she had purchasing privileges. After shopping & while she was already at the
parking lot, Mrs. Yong Kennedy, a fellow ID checker approached her & told her that she
needed to search her bags upon Bradfords instruction. Montoya approached Bradford to
protest the search but she was told that it was to be made on all JUSMAG employees on
that day. Mrs. Kennedy then performed the search on her person, bags & car in front of
Bradford & other curious onlookers. Nothing irregular was found thus she was allowed to
leave afterwards.
Montoya learned that she was the only person subjected to such search that day & she
was informed by NEX Security Manager Roynon that NEX JUSMAG employees are not
searched outside the store unless there is a strong evidence of a wrong-doing. Montoya
cant recall any circumstance that would trigger suspicion of a wrong-doing on her part.
She is aware of Bradfords propensity to suspect Filipinos for theft and/or shoplifting.
Montoya filed a formal protest w/Mr. Roynon but no action was taken.
Montoya filed a suit against Bradford for damages due to the oppressive &
discriminatory acts committed by petitioner in excess of her authority as store manager.
She claims that she has been exposed to contempt & ridicule causing her undue
embarrassment & indignity. She further claims that the act was not motivated by any
other reason aside from racial discrimination in our own land w/c is a blow to our
national pride & dignity. She seeks for moral damages of P500k and exemplary damages
of P100k.
May 13, 1987 Summons & complaint were served on Bradford but instead of filing an
answer, she along with USA government filed a motion to dismiss on grounds that: (1)
this is a suit against US w/c is a foreign sovereign immune from suit w/o its consent and
(2) Bradford is immune from suit for acts done in the performance of her official
functions under Phil-US Military Assistance Agreement of 1947 & Military Bases
Agreement of 1947. They claim that US has rights, power & authority w/in the bases,
necessary for the establishment, use & operation & defense thereof. It will also use
facilities & areas w/in bases & will have effective command over the facilities, US
personnel, employees, equipment & material. They further claim that checking of
purchases at NEX is a routine procedure observed at base retail outlets to protect &
safeguard merchandise, cash & equipment pursuant to par. 2 & 4(b) of NAVRESALEACT
SUBIC INST. 5500.1.
July 6, 1987 Montoya filed a motion for preliminary attachment claiming that Bradford
was about to leave the country & was removing & disposing her properties w/intent to
defraud her creditors. Motion granted by RTC.
July 14, 1987 Montoya opposed Bradfords motion to dismiss. She claims that: (1)
search was outside NEX JUSMAG store thus its improper, unlawful & highly-
discriminatory and beyond Bradfords authority; (2) due to excess in authority and since
her liability is personal, Bradford cant rely on sovereign immunity; (3) Bradfords act
was committed outside the military base thus under the jurisdiction of Philippine courts;
(4) the Court can inquire into the factual circumstances of case to determine WON
Bradford acted w/in or outside her authority.
RTC granted Montoyas motion for the issuance of a writ of preliminary attachment and
later on issued writ of attachment opposed by Bradford. Montoya allowed to present
evidence & Bradford declared in default for failure to file an answer. RTC ruled in favor of
Montoya claiming that search was unreasonable, reckless, oppressive & against
Montoyas liberty guaranteed by Consti. She was awarded P300k for moral damages,
P100k for exemplary damages & P50k for actual expenses. Bradford filed a Petition for
Restraining Order. SC granted TRO enjoining RTC from enforcing decision.
Montoya claims that Bradford was acting as a civilian employee thus not performing
governmental functions. Even if she were performing governmental acts, she would still
not be covered by the immunity since she was acting outside the scope of her authority.
She claims that criminal acts of a public officer/employee are his private acts & he alone
is liable for such acts. She believes that this case is under RP courts jurisdiction because
act was done outside the territorial control of the US Military Bases, it does not fall under
offenses where US has been given right to exercise its jurisdiction and Bradford does not
possess diplomatic immunity. She further claims that RP courts can inquire into the
factual circumstances & determine WON Bradford is immune.
ISSUES/RATIO:
1. WON the case is under the RTCs jurisdiction - YES
Intervention of a third party is discretionary upon the Court. US did not obtain leave of
court (something like asking for Courts permission) to intervene in the present case.
Technically, it should not be allowed to intervene but since RTC entertained its motion to
dismiss, it is deemed to have allowed US to intervene. By voluntarily appearing, US must
be deemed to have subjected itself to RTCs jurisdiction.
2. WON RTC committed a grave abuse of discretion in denying Bradfords motion to
dismiss. - NO
Petitioners failed to specify any grounds for a motion to dismiss enumerated in Sec. 1,
Rule 16, Rules of Court. Thus, it actually lacks cause of action. A cause of action is
necessary so that Court would be able to render a valid judgment in accordance with the
prayer in the complaint. A motion to dismiss w/c fails to state a cause of action
hypothetically admits the truth of the allegations in the complaint. RTC should have
deferred the resolution instead of denying it for lack of merit. But this is immaterial at
this time since petitioners have already brought this petition to the SC.
3. WON case at bar is a suit against the State. - NO
Doctrine of state immunity is expressed in Art. XVI, Sec. 3 of the 1987 Constitution. This
immunity also applies to complaints filed against officials of the state for acts allegedly
performed by them in discharge of their duties since it will require the state to perform
an affirmative act such as appropriation of amount to pay damages. This will be regarded
as a case against the state even if it has not be formally impleaded. But this is not all
encompassing. Its a different matter where the public official is made to account in his
capacity as such for acts contrary to law & injurious to rights of plaintiff. State authorizes
only legal acts by its officers. Action against officials by one whose rights have been
violated by such acts is not a suit against the State w/in the rule of immunity of the State
from suit. The doctrine of state immunity cannot be used as an instrument for
perpetrating an injustice. It will not apply & may not be invoked where the public official
is being sued in his private & personal capacity as an ordinary citizen. This usually arises
where the public official acts w/o authority or in excess of the powers vested in him. A
public official is liable if he acted w/malice & in bad faith or beyond the scope of his
authority or jurisdiction. (Shauf vs. CA) Also, USA vs. Guinto declared that USA is not
conferred with blanket immunity for all acts done by it or its agents in the Philippines
merely because they have acted as agents of the US in the discharge of their official
functions. In this case, Bradford was sued in her private/personal capacity for acts done
beyond the scope & place of her official function, thus, it falls w/in the exception to the
doctrine of state immunity.
4. WON Bradford enjoys diplomatic immunity. - NO
First of all, she is not among those granted diplomatic immunity under Art. 16(b) of the
1953 Military Assistance Agreement creating the JUSMAG. Second, even diplomatic
agents who enjoy immunity are liable if they perform acts outside their official functions
(Art. 31, Vienna Convention on Diplomatic Relations).
HELD: Petition denied. TRO lifted.
JUSMAG Philippines vs. NLRC (Article XVI Sec. 3) (Foreign
Government)
Facts: Florencio Sacramento (private respondent) was one of the 74
security assistance support personnel (SASP) working at the Joint
United States Military Assistance Group to the Philippines (JUSMAG-
Phils.). He had been with JUSMAG from 1969-1992. When dismissed, he
held the position of Illustrator 2 and incumbent Pres. of JUSMAG
Phils.- Filipino Civilian Employees Assoc., a labor org. duly
registered with DOLE. His services were terminated allegedly due to
the abolition of his position.
Sacramento filed complaint w/ DOLE on the ground that he
was illegally suspended and dismissed from service by JUSMAG. He
asked for reinstatement. JUSMAG filed Motion to Dismiss invoking
immunity from suit. Labor arbiter Cueto in an Order dismissed the
complaint "for want of jurisdiction". Sacramento appealed to
NLRC.
NLRC reversed the ruling of the labor arbiter and held that
petitioner had lost its right not to be sued bec. (1) the principle
of estoppel-that JUSMAG failed to refute the existence of employer-
employee rel. (2)JUSMAG has waived its right to immunity from suit
when it hired the services of private respondent. Hence, this
petition.
Issue:W/N JUSMAG has immunity from suit
Held: Yes. When JUSMAG took the services of private respondent, it
was performing a governmental function on behalf of the United
States pursuant to the Military Assistance Agreement between the
Phils. and America* JUSMAG consists of Air, Naval and Army group
and its primary task was to advise and assist the Phils. on air
force, army and naval matters. A suit against JUSMAG is one against
the United States government, and in the absence of any waiver or
consent of the latter to the suit, the complaint against JUSMAG
cannot prosper.
Immunity of State from suit is one of the universally
recognized principles of international law that the Phils.
recognizes and adopts as part of the law of the land. Immunity is
commonly understood as the exemption of the state and its organs
from the judicial jurisdiction of another state and anchored on the
principle of the sovereign equality of states under which one state
cannot assert jurisdiction over another in violation of the maxim
par in parem non habeat imperium (an equal has no power over an
equal)
As it stands now, the application of the doctrine of
immunity from suit has been restricted to sovereign or governmental
activities and does not extend to commercial, private and
proprietary acts.
Case: KHOSROW MINUCHER v. CA and ARTHUR SCALZO (G.R. 142396)
Date: February 11, 2003
Ponente: J. Vitug
Facts:
Minucher is an Iranian national who came to study in UP in 1974 and was
appointed Labor Attache for the Iranian Embasies in Tokyo and Manila; he continued to
stay in the Philippines when the Shah of Iran was deposed by Khomeini, he became a
refugee of the UN and he headed the Iranian National Resistance Movement in the
Philippines.
On the other hand, Scalzo was a special agent of the US Drugs Enforcement
Agency. He conducts surveillance operations on suspected drug dealers in the Philippines
believed to be the source of prohibited drugs shipped to the US and make the actual
arrest.
Minucher and one Abbas Torabian was charged for a violation of Act. 6425
(Dangerous Drugs Act of 1972) before the Pasig RTC, such criminal charge was followed
by a buy-bust operation conducted by the Philippine police narcotic agents to which
Scalzo was a witness for the prosecution. They were acquitted.
Later on, Minucher filed a complaint for damages against Scalzo. It was said
that Minucher and Scalzo came to know of each other thru Jose Iigo; they conducted
some business i.e. the former sold to the latter some caviar and Persian carpets. Scalzo
then represented himself as a special agent of the Drug Enforcement Administration, DOJ
of US.
Minucher expressed his desire to obtain a US Visa for him and his Abbass wife.
Scalzo told him that he could help him for a $2,000 fee per visa. After a series of business
transactions between the two, when Scalzo came to deliver the visas to Minuchers house,
he told the latter that he would be leaving the Philippines soon and requested him to
come out of the house so he can introduce him to his cousin waiting in the cab. To his
surprise, 30-40 armed Filipino soldiers came to arrest him.
In his complaint for damages, he said that some of his properties were missing
like Persian carpets, a painting together with his TV and betamax sets. There was nothing
left in his house. He averred that his arrest as a heroine trafficker was well publicized and
that when we got arrested, he was not given any food or water for 3 days.
In his defense, Scalzo asserted his diplomatic immunity as evidenced by a
Diplomatic Note. He contended that it was recognized by the US Government pursuant to
the Vienna Convention on Diplomatic Relations and the Philippine government itself thru
its Executive Department and DFA.
The courts ruled in favor of Scalzo on the ground that as a special agent of the
US Drug Enforcement Administration, he was entitled to diplomatic immunity. Hence, the
present recourse of Minucher.
Issue: WON Scalzo is entitled to diplomatic immunity
Held: Yes.
Ratio:
The Convention lists the classes of heads of diplomatic missions to include (a)
ambassadors or nuncios accredited to the heads of state, (b) envoys, ministers or
internuncios accredited to the heads of states; and (c) charges d' affairs accredited to the
ministers of foreign affairs. Comprising the "staff of the (diplomatic) mission" are the
diplomatic staff, the administrative staff and the technical and service staff. Only the
heads of missions, as well as members of the diplomatic staff, excluding the members of
the administrative, technical and service staff of the mission, are accorded diplomatic
rank. Even while the Vienna Convention on Diplomatic Relations provides for immunity
to the members of diplomatic missions, it does so, nevertheless, with an understanding
that the same be restrictively applied. The main yardstick in ascertaining whether a
person is a diplomat entitled to immunity is the determination of whether or not he
performs duties of diplomatic nature.
Scalzo was an Assistant Attach of the US diplomatic mission. An attach belongs to a
category of officers in the diplomatic establishment who may be in charge of its cultural,
press, administrative or financial affairs. There could also be a class of attaches belonging
to certain ministries or departments of the government, other than the foreign ministry
or department, who are detailed by their respective ministries or departments with the
embassies such as the military, naval, air, commercial, agricultural, labor, science, and
customs attaches, or the like. Attaches assist a chief of mission in his duties and are
administratively under him, but their main function is to observe, analyze and interpret
trends and developments in their respective fields in the host country and submit reports
to their own ministries or departments in the home government. These officials are not
generally regarded as members of the diplomatic mission, nor are they normally
designated as having diplomatic rank.
Vesting a person with diplomatic immunity is a prerogative of the executive branch of the
government. The government of the United States itself, which Scalzo claims to be acting
for, has formulated its standards for recognition of a diplomatic agent. The State
Department policy is to only concede diplomatic status to a person who possesses an
acknowledged diplomatic title and "performs duties of diplomatic nature."
Supplementary criteria for accreditation are the possession of a valid diplomatic passport
or, from States which do not issue such passports, a diplomatic note formally
representing the intention to assign the person to diplomatic duties, the holding of a non-
immigrant visa, being over twenty-one years of age, and performing diplomatic functions
on an essentially full-time basis. Diplomatic missions are requested to provide the most
accurate and descriptive job title to that which currently applies to the duties performed.
The Office of the Protocol would then assign each individual to the appropriate functional
category.
While the diplomatic immunity of Scalzo might thus remain contentious, it was
sufficiently established that, indeed, he worked for the United States Drug Enforcement
Agency and was tasked to conduct surveillance of suspected drug activities within the
country on the dates pertinent to this case. If it should be ascertained that Arthur Scalzo
was acting well within his assigned functions when he committed the acts alleged in the
complaint, the present controversy could then be resolved under the related doctrine of
State Immunity from Suit.
The precept that a State cannot be sued in the courts of a foreign state is a long-standing
rule of customary international law then closely identified with the personal immunity of
a foreign sovereign from suit and, with the emergence of democratic states, made to
attach not just to the person of the head of state, or his representative, but also distinctly
to the state itself in its sovereign capacity. If the acts giving rise to a suit are those of a
foreign government done by its foreign agent, although not necessarily a diplomatic
personage, but acting in his official capacity, the complaint could be barred by the
immunity of the foreign sovereign from suit without its consent. Suing a representative of
a state is believed to be, in effect, suing the state itself. The proscription is not accorded
for the benefit of an individual but for the State, in whose service he is, under the maxim -
par in parem, non habet imperium - that all states are sovereign equals and cannot assert
jurisdiction over one another.22 The implication, in broad terms, is that if the judgment
against an official would require the state itself to perform an affirmative act to satisfy the
award, such as the appropriation of the amount needed to pay the damages decreed
against him, the suit must be regarded as being against the state itself, although it has not
been formally impleaded.
(T)he doctrine of immunity from suit will not apply and may not be invoked where the
public official is being sued in his private and personal capacity as an ordinary citizen.
The cloak of protection afforded the officers and agents of the government is removed the
moment they are sued in their individual capacity. This situation usually arises where the
public official acts without authority or in excess of the powers vested in him. It is a well-
settled principle of law that a public official may be liable in his personal private capacity
for whatever damage he may have caused by his act done with malice and in bad faith or
beyond the scope of his authority and jurisdiction."
Indeed, a foreign agent, operating within a territory, can be cloaked with immunity from
suit but only as long as it can be established that he is acting within the directives of the
sending state. The consent of the host state is an indispensable requirement of basic
courtesy between the two sovereigns.
While evidence is wanting to show any similar agreement between the governments of
the Philippines and of the United States (for the latter to send its agents and to conduct
surveillance and related activities of suspected drug dealers in the Philippines), the
consent or imprimatur of the Philippine government to the activities of the United States
Drug Enforcement Agency, however, can be gleaned from the facts heretofore elsewhere
mentioned. The official exchanges of communication between agencies of the government
of the two countries, certifications from officials of both the Philippine Department of
Foreign Affairs and the United States Embassy, as well as the participation of members of
the Philippine Narcotics Command in the "buy-bust operation" conducted at the
residence of Minucher at the behest of Scalzo, may be inadequate to support the
"diplomatic status" of the latter but they give enough indication that the Philippine
government has given its imprimatur, if not consent, to the activities within Philippine
territory of agent Scalzo of the United States Drug Enforcement Agency. The job
description of Scalzo has tasked him to conduct surveillance on suspected drug suppliers
and, after having ascertained the target, to inform local law enforcers who would then be
expected to make the arrest. In conducting surveillance activities on Minucher, later
acting as the poseur-buyer during the buy-bust operation, and then becoming a principal
witness in the criminal case against Minucher, Scalzo hardly can be said to have acted
beyond the scope of his official function or duties.
SEAFDEC v. Acosta
G.R. 97468-70
Sept. 2, 1993
Facts:
Two labor cases were filed by the herein private respondents against
petitioner, Southeast Asian Fisheries Development Center (SEAFDEC), before the NLRC of
Iloilo City. In these cases, the private respondents Canto, Baliao, Supetran, Ferrer,
Contrador and Veloso claim that they have been wrongfully terminated from their
employment by the petitioner.
Petitioner contends to be an international inter-government organization
composed of various Southeast Asian countries. They filed a motion to dismiss
challenging the jurisdiction of the public respondent in taking cognizance of the above
cases. Labor arbiter Acosta, herein private respondent, issued an order denying the
motion to dismiss. A motion for reconsideration was subsequently filed but it was
likewise denied. The court then issued a temporary restraining order which sets aside the
order of respondent Labor arbiter.
Private respondents allege that petitioner is not immune from suit and assuming that it is
indeed an international organization, it has impliedly waived its immunity by belatedly
raising the issue of jurisdiction. The instant petition was dismissed along with the lifting
of the issued TRO.
Issue:
Whether or not the Labor Arbiter lacks jurisdiction over the dispute.
Ruling:
SEAFDEC is an international agency enjoying diplomatic immunity and beyond
the jurisdiction of the NLRC. It was established to contribute to the promotion of the
fisheries development in Southeast Asia by mutual cooperation among the member
governments of the Center. Being an intergovernmental organization, SEAFDEC enjoys
functional independence and freedom from control of the state in whose territory its
office is located. Insofar as international commissions are concerned, they are
autonomous and beyond the control of any one State. They have a juridical personality
independent of the municipal law of the State they are situated.
One of the basic immunities of an international organization is immunity from
local jurisdiction. The reason for this is that the subjection of such an organization to the
authority of the local courts would afford a convenient medium thru which the host
government may interfere in their operations or even influence or control its policies and
decisions of the organization. Besides, such objection to local jurisdiction would impair
the capacity of such body to discharge its responsibilities impartially on behalf of its
member-states.
Anent the issue of waiver of immunity, the petitioner has timely raised the
issue of jurisdiction since it has done so before it rested its case and before the
proceedings had been terminated. Hence, the petition is granted due course. The order
denying the motion to dismiss is set aside.
Forbes, Harding, Trowbridge vs. Chuoco Tiaco, Crossfiled
Presidential immunity from suit; president is immune from civil liability and may not
be sued during his tenure.
Facts:
This is an original action commenced in this court to secure a writ of prohibition against
the Hon. A. S. Crossfield, as one of the judges of the Court of First Instance of the city of
Manila, to prohibit him from taking or continuing jurisdiction in a certain case
commenced and PENDING before him in which Chuoco Tiaco (respondent herein) is
plaintiff, and W. Cameron Forbes, J. E. Harding, and C. R. Trowbridge (petitioners herein)
are defendants.
The plaintiffs are W. Cameron Forbes is the Governor-General of the Philippine Islands
and CHIEF OF POLICE J. E. Harding and CHIEF OF THE SECRET SERVICE of the city of
Manila C. R. Trowbridge. Defendant A. S. Crossfield is one of the judges of the Court of
First Instance of the city of Manila. Defendant Chuoco Tiaco is a foreigner of Chinese
nationality and a resident of the Philippine Islands for the last 35 years having a family in
the country and some properties. Chuoco Tiaco filed a case for DAMAGES (monetary)
alleging that defendants forcibly deported the plaintiff to China and forcibly prevented his
return for some months in violation of the right of the said plaintiff herein to be and to
remain in the Philippine Islands as established by law.
Crossfield issued an INHIBITION against Forbes et al from spelling or deporting or
threatening to expel or deport Chuoco Tiaco. Forbes, Harding, and Trowbridge sued for
writs of prohibition against the judge and the respective plaintiffs, alleging that the
expulsion was carried out in the public interest and at the request of the proper
representative of the Chinese government in the Philippines, and was immediately
reported to the Secretary of War. The complaints were demurred to, but the Supreme
Court overruled the demurrers, granted the prohibition, and ordered the actions
dismissed. The judge, having declined to join in the applications for writs of error, was
made a respondent, and the cases are here on the ground that the plaintiffs have been
deprived of liberty without due process of law.
Issue: WON the Governor General, as Chief Executive, can be sued in a civil action.
Ruling:
The principle of nonliability, as herein enunciated, does not mean that the judiciary has
no authority to touch the acts of the Governor-General; that he may, under cover of his
office, do what he will, unimpeded and restrained. Such a construction would mean that
tyranny, under the guise of the execution of the law, could walk defiantly abroad,
destroying rights of person and of property, wholly free from interference of courts or
legislatures. This does not mean, either, that a person injured by the executive authority
by an act unjustifiable under the law has no remedy, but must submit in silence. On the
contrary, it means, simply, that THE GOVERNOR-GENERAL, LIKE THE JUDGES OF THE
COURTS AND THE MEMBERS OF THE LEGISLATURE, MAY NOT BE PERSONALLY
MULCTED IN CIVIL DAMAGES FOR THE CONSEQUENCES OF AN EXECUTED IN THE
PERFORMANCE OF HIS OFFICIAL DUTIES. The judiciary has full power to, and will, when
the matter is properly presented to it and the occasion justly warrants it, declare an act of
the Governor-General illegal and void and place as nearly as possible in status quo any
person who has been deprived of his liberty or his property by such act. This remedy is
assured every person, however humble or of whatever country, when his personal or
property rights have been invaded, even by the highest authority of the state. The thing
which the judiciary can not do is to mulct the Governor-General personally in damages
which result from the performance of his official duty, any more than it can a member of
the Philippine Commission or the Philippine Assembly. Public policy forbids it.
Neither does this principle of nonliability mean that the chief executive may not be
personally sued at all in relation to acts which he claims to perform as such official. On the
contrary, it clearly appears from the discussion heretofore had, particularly that portion
which touched the liability of judges and drew an analogy between such liability and that
of the Governor-General, that the latter is liable when he acts in a case so plainly outside
of his power and authority that he can not be said to have exercised discretion in
determining whether or not he had the right to act. WHAT IS HELD HERE IS THAT HE
WILL BE PROTECTED FROM PERSONAL LIABILITY FOR DAMAGES NOT ONLY WHEN HE
ACTS WITHIN HIS AUTHORITY, BUT ALSO WHEN HE IS WITHOUT AUTHORITY,
PROVIDED HE ACTUALLY USED DISCRETION AND JUDGMENT, THAT IS, THE JUDICIAL
FACULTY, IN DETERMINING WHETHER HE HAD AUTHORITY TO ACT OR NOT. In other
words, he is entitled to protection in determining the question of his authority. If he
decide wrongly, he is still protected provided the question of his authority was one over
which two men, reasonably qualified for that position, might honestly differ; but he is not
protected if the lack of authority to act is so plain that two such men could not honestly
differ over its determination. In such a case, he acts, not as Governor-General, but as a
private individual, and, as such, must answer for the consequences of his act.
Shigenori Kuroda vs Rafael Jalandoni
Shigenori Kuroda was the highest ranking Japanese officer stationed in the Philippines
during the Japanese occupation. He was then charged before the Military Commission,
headed by Major General Rafael Jalandoni, due to the atrocities that were done against
non combatant civilians and prisoners during the war. His trial was in pursuant to
Executive Order No. 68 which established the National War Crimes Office and prescribing
rules and regulations governing the trial of accused war criminals. Kuroda is questioning
the legality of the said EO arguing that the same is not provided for in the Constitution. He
further underscores the fact that the Philippines is not a signatory of the Hague
Convention on the Rules and Regulations Covering Land Warfare hence we cannot
impose against him any criminal charges because it has no laws to base on, national or
international.
ISSUE: Whether or not Kuroda can be charged in Philippine courts?
HELD: Yes. EO No. 68 is constitutional hence the Philippine courts can take cognizance of
the case at bar. EO No 68 is in pursuant to the constitutional provision that states the the Marcos Estate:
Philippines renounces war as an instrument of national policy, and adopts the generally
accepted principles of international law as part of the law of the nation. The Hague receiving their share
Convention and other similar conventions whose principles are generally accepted are
hence considered as part of the law of the land.
HILAO v. ESTATE OF MARCOS
FACTS:
This appeal arises out of post-judgment orders in a case involving nearly 10,000 class
plaintiffs (referred
to hereinafter collectively as Hilao) who suffered (or are family members of those who Ferdinand R. Marcos are
suffered)
torture, disappearance, and summary execution during Ferdinand E. Marcos' tenure as Injunction occurred.
president of the
Philippines.
In 1991, anticipating that Hilao would succeed on the merits, the district court entered a
preliminary
injunction prohibiting the Defendant Estate, and its agents, representatives, aiders and
abettors from
disposing of any assets of the Estate. Hilao subsequently obtained a verdict of liability and
an award of
nearly $2 billion in damages. The district court's final judgment of February 3, 1995 made
the preliminary
injunction permanent.
Hilao moved for contempt, claiming that agreements made in 1992 between the Republic
of the
Philippines and Imelda Marcos and Ferdinand R. Marcos, on behalf of the Estate of
Ferdinand E. Marcos
and themselves as heirs, violated the preliminary injunction by (1) agreeing to transfer
artworks
beneficially owned by the Defendant Estate from the United States to the Philippines; and
(2) agreeing to
divide all assets owned by the Estate between the Republic and the Appellants.
The district court ordered Hilao to conduct discovery regarding the allegations in the
contempt motion.
Depositions of Imelda Marcos and Ferdinand R. Marcos were scheduled for March 16 and
17, 1995.
Deponents were instructed to produce all agreements with the Republic. They failed to
appear and
produce documents.
In April 1995, additional agreements between Appellants and the Republic were publicly
revealed. These
agreements had been signed in 1993 and provided more specifically for the division of
75 percent would go to the Republic, and 25 percent to Appellants, with Appellants
free of Philippine taxes.
Hilao filed a Supplemental Motion for Contempt identifying the 1993 agreements as
additional violations.
As a sanction for failing to appear, testify and produce documents at their depositions the
Court deemed
established Plaintiffs allegations in their contempt motions and thus held Defendants to
be in contempt.
Appellants appeal from the orders of contempt, denying that Imelda Marcos and
appropriate subjects of a contempt motion and denying that any violation of the
ISSUE:
Whether or not Defendant-Appellants violated the preliminary injunction issued by the
district court on
February 3, 1995 and should be held in contempt.
HELD:
YES, Defendant-Appellants violated the preliminary injunction order of the court and
should be held in
contempt.
Following Appellants' failure to appear for their depositions and to produce documents,
Hilao moved for
sanctions under Rule 37 of the Federal Rules of Civil Procedure. Failure to appear for a
deposition may
be sanctioned by n order that, designated facts shall be taken to be established... the
district court
sanctioned the Appellants' failure to appear by deeming the factual allegations in Hilao's
motion for
contempt to be established. The sanction imposed is one explicitly authorized by Rule 37
for failure to
appear at a deposition, and Appellants do not contest their failure to appear. The fact that
Appellants have
made no attempt to explain or excuse their failure to appear suggests that the failure was
deliberate. We
conclude that the district court did not err in deeming the allegations of Hilao's motions
for contempt to
be established.
Appellants argue that Hilao has shown no evidence that Ferdinand E. Marcos had an
estate; no evidence
of any assets belonging to any such estate; no evidence that Appellants have any control
over any such
assets; and no evidence of an agreement between the Republic of the Philippines and
Imelda Marcos and
Ferdinand R. Marcos on behalf of either such an estate or themselves. All of those facts,
however, are
established either through the findings of the district court contained in the final
judgment granting the
permanent injunction or through the Rule 37 sanction imposed by the district court in the
contempt
proceedings.
The injunction (in both its preliminary and permanent forms) states:
The defendant Estate, and its agents, representatives, aiders and abettors are, until
satisfaction of the
judgment herein, permanently enjoined and restrained from directly or indirectly:
(1) transferring, conveying, encumbering, dissipating, converting, concealing, or
otherwise disposing
of in any manner any funds, assets, claims or other property or assets owned actually,
equitably or
beneficially by, or in the possession or custody of or held by or in any way on behalf of or
for the
benefit of the Estate of Ferdinand E. Marcos.
Clearly the agreement entered into by Appellants in 1993 with the Republic violates the
injunction order.
Appellants also argue that they are non-parties which make them incapable of being in
contempt and
violating the injunction. It is without merit. Rule 25(a)(1) of the Federal Rules of Civil
Procedure
provides that if a party dies and the claim is not thereby extinguished, the court may
order substitution of
the proper parties. The substituted party steps into the same position as original party.
As properly
substituted parties in this case, Appellants obviously are not non-parties.
Appellants also argue about the authenticity of the 1992 and 1993 agreements. The
authenticity of the
agreements is an established and unchallenged fact found by the district court. The
district court has made
an unchallenged finding of fact that the Appellants entered into those agreements on
behalf of the
defendant Estate and themselves as heirs. It is true that the injunction did not explicitly
forbid attempts
to transfer assets of the Estate. The district court, however, found that the Appellants
made a deal with
the Republic to transfer and split the Estate assets. The district court was thus well
within its discretion
in finding that the 1992 and 1993 agreements violated the injunction.
Appellants also argue that the sale of Art works did not violate the injunction because the
Art works were
personal property of Imelda Marcos and did not belong to the Estate. However, an
allegation of the
Estate's ownership of the art works was included in Hilao's motion for contempt and is
consequently
deemed established by operation of the discovery sanctions. Imelda Marcos voluntarily
agreed to the
consent orders, which provided for the sale of the art works and for distribution of the
proceeds according
to a settlement agreed upon by the parties in the New York action. Since Imelda Marcos
negotiated a
settlement and consented to an order that directly violated the injunction without
informing Judge Connor
of the injunction, she cannot now claim that the consent order was an act of the court
which excuses the
violation.
Regina v. Bartle and Commissioner of Police, Ex parte Pinochet
Brief Fact Summary. Siting his status as a former head of state, Pinochet (D) claimed that
he was immune from prosecution.
Synopsis of Rule of Law. The provision of the Torture Convention is not consistent with
the notion of continued immunity for former head of states.
Facts. 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.
Discussion. Under common law, a former head of state enjoys immunity for official acts
done while in office, this implies that the court also took cognizance of common law in
this case. Ensuring that no safe haven is available to torturers is the primary aim of the
Torture Convention.
Clinton v. Jones
Brief Fact Summary. The Respondent, Paula Jones Corbin (Respondent), filed a complaint
containing four counts against the Petitioner, President Clinton (Petitioner), alleging the
Petitioner made unwanted sexual advances towards her when he was the Governor of
Arkansas.
Synopsis of Rule of Law. The United States Constitution (Constitution) does not
automatically grant the President of the United States immunity from civil lawsuits based
upon his private conduct unrelated to his official duties as President.
Facts. The Respondent filed a complaint against the Petitioner alleging that the Petitioner
made unwanted sexual advances towards her when he was the Governor of Arkansas.
The Petitioner filed motions asking the district court to dismiss the case on grounds of
presidential immunity and to prohibit the Respondent from re-filing the suit until after
the end of his presidency. The district court rejected the presidential immunity argument,
but held that no trial would take place until the Petitioner was no longer president. Both
parties appealed to the United States Supreme Court (Supreme Court), which granted
certiorari.
Issue. Whether the President can be involved in a lawsuit during his presidency for
actions that occurred before the tenure of his presidency and that were not related to
official duties of the presidency?
Held. Affirmed.
The President of the United States can be involved in a lawsuit during his tenure for
actions not related to his official duties as President.
It was an abuse of discretion of the District Court to order a stay of this lawsuit until after
the Presidents tenure. The District Courts decision to order a stay was premature and a
lengthy and categorical stay takes no account whatsoever of the Respondents interest in
bringing the suit to trial.
Concurrence. It is important to recognize that civil lawsuits could significantly interfere
with the public duties of an official. The concurring judge believed that ordinary case-
management principles were likely to prove insufficient to deal with private civil
lawsuits, unless supplemented with a constitutionally based requirement that district
courts schedule proceedings so as to avoid significant interference with the Presidents
ongoing discharge of his official responsibilities.
Discussion. A sitting President of The United States does not have immunity from civil
lawsuits based on the Presidents private actions unrelated to his public actions as
President. The doctrine of separation of powers does not require federal courts to stay all
private actions against the President until he leaves office. The doctrine of separation of
powers is concerned with the allocation of official power among the three co-equal
branches of government
Belgium v. Senegal
Court International Court of Justice, The Netherlands
Decision title Questions Relating to the Obligation to Prosecute or Extradite
Decision date 20 July 2012
Parties
Kingdom of Belgium
Republic of Senegal
Categories Crimes against humanity
Keywords crimes against humanity, jurisdiction, torture
Links
Questions Relating to the Obligation to Prosecute or Extradite
Other countries involved
Chad
Summary
Hissne Habr, currently a resident of Senegal, was the President of the Republic of Chad
from 1982 until 1990. During that time, he established a brutal dictatorship which, by the
bias of its political police, the Bureau of Documentation and Security (Direction de la
Documentation et de la Scurit (DDS)) caused the deaths of tens of thousands of
individuals.
Proceedings have commenced and failed against him in the Republic of Chad, Senegal, and
most recently in Belgium. The latter State issued an international arrest warrant for
Habr in 2005 for charges of crimes against humanity, war crimes, torture and serious
violations of international humanitarian law. The request was never complied with; the
Court of Appeal of Dakar in Senegal held that Habr enjoyed immunity and it was
incompetent to rule on the validity of the arrest warrant for a former Head of State.
Belgium instituted proceedings before the International Court of Justice (ICJ) alleging that
Senegal was in violation of its obligation to prosecute or extradite Habr under the
Convention Against Torture.
The present decision by the ICJ is the culmination of these proceedings. In its decision, the
ICJ ruled that Senegal was indeed in breach of its obligations under the Convention and
should proceed without further delay to the prosecution of Habr. It cannot rely on its
internal law or financial difficulties to evade the implementation of this obligation.
Procedural history
On 30 November 2000, a Belgian national of Chadian origin filed a complaint with civil-
party application against Habr with a Belgian investigating judge. By 11 December 2001,
some 20 additional persons had filed similar complaints before the same judge.
On 19 September 2005, the Belgian investigating judge issued an international arrest
warrant for Habr as perpetrator or co-perpetartor of serious violations of international
humanitarian law, torture, genocide, crimes against humanity and war crimes.
On 25 November 2005, the Court of Appeal of Dakar in Senegal ruled that it did not have
jurisdiction to investigate or prosecute a Head of State for crimes allegedly committed in
the exercise of his functions, and that Habr enjoys jurisdictional immunity. The Court
concluded that it could therefore adjudicate the lawfulness of the proceedings and the
validity of the arrest warrant.
On 26 November 2006, Senegal referred to the African Union the issue of instituting
proceedings against Habr.
On 19 February 2009, Belgium instituted proceedings against Senegal before the
International Court of Justice in respect of a dispute concerning Senegals obligation to
prosecute or extradite Hissne Habr pursuant to the 1984 Convention Against Torture
and customary international law. On that same date, Belgium requested the Court to
indicate provisional measures requiring Senegal to take all steps within its power to keep
Habr under the control and surveillance of the Senegalese judicial authorities.
By an order of 28 May 2009, the Court declined the request.
Related developments
On 22 August 2012, Senegal and the African Union signed an agreement to establish the
Extraordinary African Chambers in Senegal to prosecute, amongst others, Habr for
crimes committed by his regime in Chad.
Human Rights Watch, 'Senegal: New Court to Try Chad Ex-Dictator in Senegal', 22 August
2012;
Agence France Press, 'Senegal Signs Accord to Try Ex-Chadian Dictator Habre', 22 August
2012;
Al Jazeera, 'AU and Senegal Ink Deal to Try Ex-Chad Leader', 23 August 2012; and
D. Taglioli, 'African Union, Senegal Create Special Tribunal to Try Former Chad Dictator',
Jurist, 23 August 2012.
Habre (again) brought a suit at the ECOWAS Court seeking an order for the immediate
suspension of all investigations and proceedings, alleging that the EAC were an
illegitimate court and that his trial would be unfair. However, on 5 November 2013, the
Court held that since the EAC was established pursuant to a treaty between Senegal and
the AU, it had no jurisdiction to rule on the case. The case was dismissed, clearing the way
for the trial to start.
Legally relevant facts
Hissne Habr was the President of Chad from 1982 until his overthrow in 1990. During
his eight year rule, large scale violations of human rights were allegedly committed
including arrests of actual or presumed political opponents, detentions without trial or
detentions under inhumane conditions, mistreatments, torture extrajudicial executions
and enforced disappearances (para. 16).
He has since resided in Senegal where he was granted political asylum from the
Senegalese Government (para. 16).
Core legal questions
What is the nature and meaning of the obligation to prosecute laid down in Article 7(1) of
the Convention Against Torture?
What is the temporal scope of the obligation to prosecute? Can it apply to acts committed
before the entry into force of the Convention in 1987?
Can Senegal rely on the decision of the Court of Justice of the Economic Community of the
States of West Africa (ECOWAS) or its financial difficulties to justify a failure to initiate
proceedings against Habr?
back to top
Specific legal rules and provisions
Articles 5(2), 6(2) and 7(1) of the Convention Against Torture.
back to top
Court's holding and analysis
The Court considers that Article 7(1) obliges the State concerned to submit the case to its
competent authorities for the purpose of prosecution, irrespective of the existence of a
prior request for the extradition of the suspect. This obligation may or may not result in
the institution of proceedings, in light of the evidence before the authorities (para. 94).
However, if the State in whose territory the suspect is present has received a request for
extradition, it can relieve itself of its obligation to prosecute by acceding to that request.
Extradition is an option offered to the State by the
Convention, whereas prosecution is an international obligation under the Convention, the
violation of which is a wrongful act engaging the responsibility of the State (para. 95).
Although the prohibition of torture is a norm of jus cogens and customary international
law (para. 99), the obligation to prosecute alleged perpetrators of acts of torture under
the Convention only applies to facts that have occurred after the entry into force of the
Convention for the State concerned (para. 100). Thus, Senegals obligation to prosecute
does not apply to acts allegedly committed before the Convention entered into force for
Senegal on 26 June 1987 (para. 102).
Senegals duty to comply with its Convention obligations is not affected by the decision of
the Court of Justice of ECOWAS (para. 111) nor can its failure to comply be justified by
financial difficulties (para. 112) or its internal law (para. 113). It is implicit in Article 7(1)
that the obligation to prosecute must be implemented within a reasonable time, in a
manner compatible with the object and purpose of the Convention (para. 114).
Having failed to adopt all measures necessary for the implementation of its obligation
under Article 7(1) as soon as possible, in particular, once the first complaint had been
filed in 2000, Senegal has breached and remains in breach of its obligations under Article
7(1) (para. 117).
Name of the Case: Arrest Warrant of 11 April 2000 (Democratic Republic of Congo
vs Belgium); Year of the decision: 2002; and Court: ICJ.
Overview: A Belgium Judge issued and circulated, internationally, an arrest warrant
against the incumbent Foreign Minister of Congo based on universal jurisdiction. Congo
asked the Court to decide that Belgium violated international law because it did not
respect the inviolability and immunities of the foreign minister from criminal process
before Belgian courts.
Facts of the Case:
On 11 April 2000, a Belgian Magistrate issued an international arrest warrant against Mr.
Yerodia. At the time, Yerodia was the Foreign Minister of Congo. The Court issued the
warrant based on universal jurisdiction. It accused Yerodia of inciting racial hatred. These
speeches, allegedly, incited the population to attack Tutsi residents in Rwanda, which
resulted in many deaths. The warrant alleged Yerodia committed grave breaches of the
Geneva Conventions of 1949 and its Additional Protocols and crimes against humanity.
Belgium sent the arrest warrant to Interpol and circulated it to all States, including to
Congo. The warrant asked States to arrest, detain, and extradite Yerodia to Belgium. After
Belgium issued the warrant, in November 2000, Yerodia became the Education Minister.
At the time of the judgement, he did not hold a Ministerial post in Congo.
Questions before the Court:
Did Belgium violate customary international law principles concerning the absolute
inviolability and immunity from criminal process of an incumbent Foreign Minister, when
it issued and internationally circulated the arrest warrant? If yes, did it violate the
principle of sovereign equality amongst States, does this unlawfulness preclude States
who received the warrant from exercising it, should the Court order reparations and
should Belgium recall and cancel its arrest warrant?
[NB: Congo placed two separate legal questions before the Court at the time of it made its
application to the ICJ. It contested Belgiums basis of jurisdiction universal jurisdiction
stating that it violated the principle of sovereign equality (see para 17). Both Congo and
the Court did not discuss this in its final submissions and judgement (see paras 41 43,
45, 46). Several judges in their separate opinions discussed the issue (see below).]
Belgiums Objections:
Belgium raised four objections to the jurisdiction of the Court. One argument was that
there was no longer a legal dispute because Yerodia was no longer the Foreign Minister.
The Court rejected all four objections (see paras 23 40, 44).
The Courts Decision:
The issuance and circulation of the arrest warrant violated Belgiums international
obligations towards Congo. Belgium failed to respect, and infringed, Yerodias immunity
and the inviolability enjoyed by him under international law.
Relevant Findings of the Court:
1. It is an established principle of international law that Heads of States and Governments,
Foreign Ministers and Diplomatic and Consular agents enjoys immunities from civil and
criminal jurisdictions of other States.
2. In the absence of treaty law, customary international law determines the immunities of
Ministers of Foreign Affairs. These immunities are not given for their personal benefit;
but to ensure the effective performance of their functions of behalf of theirStates. The
functions of the Foreign Minister require frequent travel to other countries. International
law recognizes him as a representative of the State solely by virtue of his office. The
functions of a Foreign Minister are such that during his tenure he enjoys absolute
immunity from criminal jurisdiction and inviolability when he is abroad.
3. As the incumbent Foreign Minister, Yerodia enjoys immunity (during his tenure) for
acts performed, both, in an official capacity and in a private capacity. The immunity
applies regardless of whether the Minister is on foreign territory in an official visit or
private visit. This immunity extends not only to his actions during his tenure; but, also to
his actions before he became Foreign Minister.
Thus, if a Minister for Foreign Affairs is arrested in another State on a criminal charge, he
or she is thereby prevented from exercising the functions of his or her office. The
consequences of such impediment to the exercise of those official functions are equally
serious. Furthermore, even the mere risk that, by travelling to or transiting another
State a Minister for Foreign Affairs might be exposing himself or herself to legal
proceedings could deter the Minister from travelling internationally when required to do
so for the purposes of the performance of his or her official functions.
4. The Court rejected Belgiums argument that the Minister does not enjoy immunity
because he is accused of having committed war crimes or crimes against humanity.
(Belgium relied on the Pinochet Case (decided by the House of Lords, UK), the Qaddafi
Case (decided by the French Court of Cassation) and Statutes of International Criminal
Court and Tribunals.) The Court held that there was no exception in customary
international law to the absolute immunity of an incumbent Foreign Minister.
It (the Court) has been unable to deduce from this practice that there exists under
customary international law any form of exception to the rule according immunity from
criminal jurisdiction and inviolability to incumbent Ministers of Foreign Affairs, when
they are suspected of having committed war crimes or crimes against humanityThe
Court has also examined the rules concerning the immunity or criminal responsibility of
persons having an official capacity contained in the legal instruments creating
international criminal tribunals, and which are specifically applicable It finds that these
rules likewise do not enable it to conclude that any such an exception exists in customary
international law in regard to national courts.
5. International Conventions give jurisdiction to national Courts over various crimes and,
at times, requires them to exercise this jurisdiction [for example, the Torture
Convention]. This requirement does not affect the immunities given to Foreign Ministers
under international law. Despite international conventions establishing domestic
jurisdiction, Foreign Ministers are immune before foreign courts.
6. Immunity does not mean impunity. The person continues to be individually responsible
for the crime he committed.
While jurisdictional immunity is procedural in nature, criminal responsibility is a
question of substantive law. Jurisdictional immunity may well bar prosecution for a
certain period or for certain offences; it cannot exonerate the person to whom it applies
from all criminal responsibility.
7. The Court set out four situations where an incumbent or former Foreign Minister could
be prosecuted:
a. Prosecution in his own country according to the domestic law (the international law of
immunity is not recognized before a persons national courts);
b. If his country waives his immunity, prosecution before a foreign court;
c. Once he ceases to be the Foreign Minister, he no longer enjoys immunity before foreign
courts for private acts committed during his tenure as Foreign Minister; and for all acts
committed before or after his tenure in office; and
d. Prosecution before an international criminal body, with the necessary jurisdiction (for
example the ICC).
8. The ICJ concluded that the issuance and circulation of the arrest warrant violated
Belgiums obligations towards Congo, in that it failed to respect the immunity of that
Minister and, more particularly infringed the immunity from criminal jurisdiction and the
inviolability enjoyed by him under international law. It did not matter that Yerodia was
never arrested.
Since Mr. Yerodia was called upon in that capacity to undertake travel in the
performance of his duties, the mere international circulation of the warrant could have
resulted, in particular, in his arrest while abroad. The Court observes Mr. Yerodia, on
applying for a visa to go to two countries, [apparently] learned that he ran the risk of
being arrested as a result of the arrest warrant issued against him by Belgium the
arrest warrant sometimes forced Minister Yerodia to travel by roundabout routes.
9. Congo asked the Court to rule that the unlawfulness of the arrest warrant precludes
States who received the warrant from exercising it. The Court refused to indicate what
the judgments implications might be for third States. Its determination is limited to
Congo and Belgium. [NB: the Statute of the ICJ requires that its rulings should not create
binding obligations on States who are not parties to the dispute.]
10. On reparation, the Court held that the issuance and circulation of the arrest warrant
engaged Belgiums international responsibility. The Court considers that Belgium
must, by means of its own choosing, cancel the warrant in question and so inform the
authorities to whom it was circulated. The Court did not order any other reparations.
John Doe I, et al., v. UNOCAL Corp., et al., 395 F.3d 932 (9 Cir. 2002)
Complaint alleged that Myanmar's military subjected villagers to forced labor, rape,
torture and murder with the knowledge and support of Unocal, a U.S. oil and gas
corporation, which created liability under the Alien Tort Claims Act (ACTA)[1]; Whether
to be liable under ATCA a non-state actor must engage in state action; Whether Unocal
was liable for aiding and abetting the Myanmar military in subjecting villagers to forced
labor, rape, murder and torture; Scope of the legal liability of transnational corporations
for violations of human rights under ATCA.
[1] The Alien Tort Claims Act (ATCA) provides non-citizens of the United States the
opportunity to bring a civil suit in US courts for a tort (injury) committed in violation of
the law of nations (international law).
Forum:
US Court of Appeals - Ninth Circuit
Type of Forum:
Domestic
Summary:
During Unocal's construction of an oil pipeline in Myanmar, it hired Myanmar's military
for security while the pipeline was built. The villagers in the area where the pipeline was
being constructed alleged the military forcefully evicted them, forced them to work on the
project and raped, murdered and tortured them. They subsequently brought two cases in
the District Court in California, both of which were decided in favor of Unocal through
summary judgment.[1] The claimants appealed the decision and in 2002, the United
States Court of Appeals for the Ninth Circuit reversed the District Court's decision by
dismissing the summary judgment orders and determined the lawsuit against Unocal
should go forward to trial. As the basis for this decision, the Court of Appeals held that
liability under ATCA does not require the rights violation to have been committed
through state action (by the state or as an extension of state authority) if the violation
was committed in furtherance of crimes which themselves do not require state action to
establish liability, such as war crimes, genocide and slavery. The Court determined that
forced labor is a modern form of slavery, therefore individuals, including corporations,
such as Unocal, could be found liable under ATCA. Consequently, the tribunal determined
that Unocal could be held liable under ACTA for aiding and abetting (or providing willing
support) to the Myanmar Military in establishing a system of forced labor, murder and
rape because it could be reasonably shown that Unocal knew the military was carrying
out the violations and provided support. Evidence in the record did not support the same
liability for acts of torture. Based on these findings the Court found enough evidence for
the case to move forward to trial.
Keywords: John Doe I, et al., v. UNOCAL Corp., et al., 395 F.3d 932 (9 Cir. 2002), Land,
Right, Natural, Resources
[1] Summary judgments are court decisions made on the merits of the entire case or of
particular legal issues without a full trial.
Enforcement of the Decision and Outcomes:
In 2005, before the jury trial began, the parties agreed to a settlement and the case was
dismissed with the requirement that it cannot be brought to court again in the future
(Doe I v. Unocal, 403 F.3d 708 [9 Cir. 2005]). Unocal agreed to compensate the 14
surviving plaintiffs for an undisclosed amount and EarthRights International, who was
involved in the case, has confirmed that this compensation has taken place and that
community programs to improve living conditions, health care and education and protect
the rights of people in the pipeline region are in development.
Groups involved in the case:
Paul L. Hoffman (Schonbrun, Desimome, Seplow, Harris & Hoffman LLP); Dan Stormer
and Anne Richardson (Hadsell & Stormer, Inc.); William Goodman, Jennifer M. Green, and
Beth Stephens (Center for Constitutional Rights); Katharine J. Redford and Richard Herz
(Earthrights International); Judith Brown Chomsky; Julie Shapiro; Dilan Esper (Stein &
Flugge, LLP) for plaintiffs-appellants Doe. Terrence P. Collingsworth and Natacha Thys
(International Labor Rights Fund); Christopher E. Krafchak and Kenderton S. Lynch III
(Krafchak & Associates); Martin J. DUrso, Hilary Cohen, and Nadia Ezzelarab (Kohn, Swift
& Graf, P.C.); Christobal Bonifaz and John C. Bonifaz (Law Offices of Christobal Bonifaz)
for plaintiffs-appellants Roe.
Significance of the Case:
The most important legal precedent set during the Unocal litigation is that US
corporations, like individuals, can be liable under ATCA for complicity in egregious
human rights violations. However, because the parties settled, the appropriate standard
for determining third party liability was never conclusively determined. There have been
several other cases involving corporate complicity in human rights violations that have
gone forward, such as Wiwa v. Royal Dutch Shell, 226 F.3d 88 (2000) which extended
corporate liability under ATCA to foreign corporations if they maintained "continuous
and systematic ties to the US." In 2009, Shell settled with the claimants in the Wiwa case
for $15.5 million. In 2004, during the Supreme Court hearing of Sosa v. Alvarez-Machain
542 U.S. 692 (2004), 331 F.3d 604 [reversed], the Bush Administration submitted
numerous amicus curiae arguing against ATCA's application to corporations. While the
Supreme Court's decision in Sosa affirmed that corporate liability exists under ATCA, they
limited its application to violations of laws of nations, which are "specific, universal, and
obligatory" - without further elaboration or example - therefore providing little guidance
for lower courts moving forward. An important case is approaching which may provide
additional opportunities for elaboration of corporate liability under ATCA: Khulumani v.
Barclays, et al, which is still awaiting trial date in the Court of Appeals for the Second
Circuit in New York.
Name of the Case: Jurisdictional Immunities of the State (Germany vs Italy); Year of the
decision: 2012; and Court: ICJ.
Overview: Italian Courts allowed civil claims to be brought against Germany based on
violations of international humanitarian law committed by Germany from 1943 1945
against Italian citizens. Italian courts also permitted the enforcement of a judgement of
the Greek courts in Italy against Germany and took measures of constraint against a
German property in Italy. Did Italys actions violate the customary international law right
of jurisdictional immunity of Germany?
Facts of the Case:
In 1940, Italy entered the Second World War as an ally of the German Reich. In 1943, Italy
surrendered to the Allies and declared war against Germany. At the time, German forces
occupied significant Italian territory. It committed many crimes against civilians and
soldiers, including massacres, deportations and forced labour. After the end of the war,
Germany enacted several laws to facilitate the payment of compensation to these victims.
However, thousands of former Italian military internees did not fall within these laws and
they could not get compensation in Germany (paras 20 27). These internees brought
civil cases against Germany in Italian Courts to claim compensation. Germany objected to
the proceedings on the basis of jurisdictional immunity before foreign courts. Italian
Courts held that jurisdictional immunity is not absolute and that in cases of
crimes under international law, the jurisdictional immunity of States should be set aside.
(paras 27 29).
Greek courts also set aside the immunity of Germany, in a similar situation, and ordered
Germany to pay damages. Germany refused to pay on the basis that these Greek judicial
decisions could not be recognized within the German legal order because they have been
given in breach of Germans entitlement of State Immunity. The judgement could not be
given effect to in Greece due to a decision of the executive. The Greek claimants then
asked Italian courts to enforce the Greek judgement. Italian courts ordered a legal charge
over a property of Germany in Italy as a measure of enforcement (paras 30 36).
Questions before the Court:
Is jurisdictional immunity available to a State for acts committed by its armed forces in
the conduct of an armed conflict? If so, did Italy violate this immunity by allowing civil
claims against Germany to be brought before its courts and by enforcing the Greek
judgement in Italy? Did Italy violate its international law obligations relating to
Germanys jurisdictional immunities when it took measures of constraint against German
property in Italy?
The Courts Decision:
Italy violated its obligation to respect Germanys immunity under international law by
allowing civil claims to be brought against Germany based on violations of international
humanitarian law committed by the German Reich between 1943 and 1945, by declaring
enforceable in Italy decisions of Greek courts and by taking measures of constraint
against German property in Italy.
The Court requested Italy to enact legislation, or resort to other methods of its choosing,
to ensure that the decisions of its courts and those of other judicial authorities infringing
the immunity which Germany enjoys under international law cease to have effect.
Relevant Findings of the Court:
Did the ICJ have jurisdiction to hear this case?
ICJs jurisdiction was on the basis of the European Convention for the Peaceful Settlement
of Disputes. Article 27(a) of the Convention states that the Convention did not apply to
disputes relating to facts or situations prior to the entry into force of this Convention as
between the parties to the dispute. The relevant year of entry into force was 1961. The
Court held that the subject matter of the dispute the crimes for which reparations are
sought occurred during between 1943 and 1945. However, the facts or situations State is entitled to immunity from the jurisdiction of another States courts in respect of a
which have given rise to the (present) dispute before the Court are constituted by Italian
judicial decisions that denied Germany the jurisdictional immunity and by measures of
constraint applied to property belonging to Germany This occurred between 2004 and
2011. The ICJ had jurisdiction to hear the case.
Is jurisdictional immunity available to a State for acts committed by its armed forces
during an armed conflict?
The ICJ affirmed that jurisdictional immunities are available to a State before foreign
courts, for acts of its armed forces, which were committed during the conduct of an
armed conflict. In coming to this conclusion, the ICJ analysed:
(1) the customary nature of State immunity
State immunity derives from the principle of sovereign equality found in Article 2(1) of
the UN Charter. It is one of the fundamental pillars of the international legal order. As
between Italy and Germany this right is derived from customary international law, in the
absence of a treaty to that effect. Based on its analysis of State practice and opinio juris,
the ICJ said, practice shows that, whether in claiming immunity for themselves or
according it to others, States generally proceed on the basis that there is a right to
immunity under international law, together with a corresponding obligation on the part
of other States to respect and give effect to that immunity. (paras 55 56).
(2) the relationship between jurisdictional immunity and the territorial sovereignty of
the forum State
This principle [of State immunity] has to be viewed together with the principle that each
State possesses sovereignty over its own territory and that there flows from that
sovereignty the jurisdiction of the State over events and persons within that territory.
Exceptions to the immunity of the State represent a departure from the principle of
sovereign equality. Immunity may [also] represent a departure from the principle of
territorial sovereignty and the jurisdiction which flows from it (para 57).
(3) the classification of acts as falling under jus imperii or jus gestionis.
The ICJ discussed jus imperii (law governing the exercise of sovereign power) and jus
gestionis (law relating to non-sovereign activities of a State, especially private and
commercial activities). A domestic court has to assert the nature of the act (whether
imperii or gestionis) before it hears the case; because, this will determine if the State is
entitled to immunity before the domestic court (para 59 -60).
The acts of the German armed forces and other State organs which were the subject of
the proceedings in the Italian courts clearly constituted acta jure
imperiinotwithstanding that they were unlawful. To the extent that this distinction
(between jus imperii and jus gestionis) is significant for determining whether or not a
particular act, it has to be applied before that jurisdiction can be exercised, whereas the
legality or illegality of the act is something which can be determined only in the exercise
of that jurisdiction (para 60. Emphasis added).
The Court concluded that German enjoyed jurisdictional immunity before foreign courts
for acts committed by its armed forces.
Did Italy violate the jurisdictional immunity of Germany by allowing civil claims against
Germany before its courts?
Itay argued that Germany was not entitled to immunity or that its immunity before Italian
courts was restricted because of the: (1) territorial tort principle (see below) and (2)
fact that the rules that were violated were of jus cogens nature and, if Germany was to
succeed in its claim of immunity, no alternative means of redress was available (para 61).
Italys First Argument: Territorial Tort Principle
Italy argued that under customary international law Germany was not entitled to
immunity for acts causing death, personal injury or damage to property in the territory of
the forum State (in this case italy) even if the acts in question falls within jus imperii.
The ICJ disagreed.
The ICJ based its determination on an analysis of the European Convention on State
Immunities, the UN convention on Jurisdictional Immunities, work of the International
Law Commission on State Immunity, national legislation and national judicial decisions (
paras 64 -76) and concluded that
State immunity for acta jure imperii continues to extend to civil proceedings for acts
occasioning death, personal injury or damage to property committed by the armed forces
and other organs of a State in the conduct of armed conflict, even if the relevant acts take
place on the territory of the forum State In light of the foregoing, the Court considers
that customary international law continues to require that a State be accorded
immunity
Italys Second Argument: The Jus Cogens Nature of the Crime
Italy argued that Germany was not entitled to immunity because: (1) the acts which gave
rise to the claims constituted war crimes and crimes against humanity i.e. serious
violations of IHL; (2) these rules of international law were peremptory norms (jus
cogens); (3) these individuals were denied all other forms of redress (for example, before
German and Greek Courts) and, therefore, the exercise of jurisdiction by the Italian courts
was necessary as a last resort; and in its oral arguments Italy argued that Italian courts
could deny Germany immunity because of the combined effect of all three arguments. The
ICJ disagreed.
Denial of immunity on the basis that Acts amount to war crimes and crimes against
humanity
Italy argued that international law does not give immunity to a State, or at least restricts
its right to immunity, when that State has committed serious violations of IHL. The ICJ
held that Italys argument did not reflect customary international law. This was
supported by decisions of courts in Canada, France, Slovenia and the United Kingdom,
which rejected similar arguments relating to human rights law, war crimes or crimes
against humanity.
The ICJ said that the availability of immunity would not depend on the gravity of the
unlawful act or its jus cogens nature. The ICJ said that jurisdictional immunity is
preliminary in nature it determines if a State can be subjected to trial by a domestic
court of another country before the domestic court looks at the merits (and the gravity)
of the case.
Consequently, a national court is required to determine whether or not a foreign State is
entitled to immunity as a matter of international law before it can hear the merits of the
case brought before it and before the facts have been established. If immunity were to be
dependent upon the State actually having committed a serious violation of international
human rights law or the law of armed conflict, then it would become necessary for the
national court to hold an enquiry into the merits in order to determine whether it had
jurisdiction If, on the other hand, the mere allegation that the State had committed such
wrongful acts were to be sufficient to deprive the State of its entitlement to immunity,
immunity could, in effect be negated simply by skilful construction of the claim.
Distinction from Pinochet case
The Court distinguished this case from the Pinochet case. As you would recall in the
Pinochet case Lord Brownie-Wilinson said the notion of continued immunity for ex-
heads of state is inconsistent with the provisions of the Torture convention
he ICJ, in this case said that:
The Court does not consider that the United Kingdom judgment in Pinochet is relevant
Pinochet concerned the immunity of a former Head of State from the criminal jurisdiction
of another State, not the immunity of the State itself in proceedings designed to establish
its liability to damages. The distinction between the immunity of the official in the former
type of case and that of the State in the latter case was emphasized by several of the
judges in Pinochet In its later judgment in Jones v. Saudi Arabia, the House of Lords
further clarified this distinction, Lord Bingham describing the distinction between
criminal and civil proceedings as fundamental to the decision in Pinochet (para. 32).
Moreover, the rationale for the judgment in Pinochet was based upon the specific
language of the 1984 United Nations Convention against Torture, which has no bearing
on the present case. In reaching that conclusion, the Court must emphasize that it is
addressing only the immunity of the State itself from the jurisdiction of the courts of
other States; the question of whether, and if so to what extent, immunity might apply in
criminal proceedings against an official of the State is not in issue in the present case.
Denial of Immunity on the Basis of a Violation of a Jus Cogens Norm
Italy argued Germanys acts constituted violations of IHL rules, which were peremptory
norms (jus cogens). Therefore, there was a conflict between jus cogens rules and
according immunity to Germany. Since jus cogens rules always prevail over any
inconsistent rule of international law, whether contained in a treaty or in customary
international law and since the rule which accords one State immunity before the courts
of another does not have the status of jus cogens, the rule of immunity must give way.
The ICJ said that there was no conflict between jus cogens norms and granting immunity.
This argument therefore depends upon the existence of a conflict between a rule, or
rules, of jus cogens, and the rule of customary law, which requires one State to accord
immunity to another. In the opinion of the Court, however, no such conflict exists.
Assuming for this purpose that the (relevant) rulesare rules of jus cogens, there is no
conflict between those rules and the rules on State immunity. The two sets of rules
address different matters. The rules of State immunity are procedural in character and
are confined to determining whether or not the courts of one State may exercise
jurisdiction in respect of another State. They do not bear upon the question whether or
not the conduct in respect of which the proceedings are brought was lawful or unlawful.
The ICJ emphasised that recognizing the immunity of a foreign State does not amount to
recognizing as lawful a situation created by the breach of a jus cogens rule.
To the extent that it is argued that no rule which is not of the status of jus cogens may be
applied, if to do so would hinder the enforcement of a jus cogens rule, even in the absence
of a direct conflict, the Court sees no basis for such a proposition. A jus cogens rule is one
from which no derogation is permitted but the rules which determine the scope and
extent of jurisdiction and when that jurisdiction may be exercised do not derogate from
those substantive rules which possess jus cogens status, nor is there anything inherent in
the concept of jus cogens which would require their modification or would displace their
application. The Court has taken that approach in two cases, notwithstanding that the
effect was that a means by which a jus cogens rule might be enforced was rendered
unavailable. In Armed Activities (on the Territory of the Congo case), it held that the fact
that a rule has the status of jus cogens does not confer upon the Court a jurisdiction which
it would not otherwise possess. In Arrest Warrant, the Court held, albeit without express
reference to the concept of jus cogens, that the fact that a Minister for Foreign Affairs was
accused of criminal violations of rules which undoubtedly possess the character of jus
cogens did not deprive the Democratic Republic of the Congo of the entitlement which it
possessed as a matter of customary international law to demand immunity on his behalf
The Court considers that the same reasoning is applicable to the application of the
customary international law regarding the immunity of one State from proceedings in the
courts of another.
The ICJ analysed national legislation and case law to determine that even on the
assumption that the proceedings in the Italian courts involved violations of jus cogens
rules, the applicability of the customary international law on State immunity was not
affected. a jus cogens norm cannot displace State immunity. [NB: The ICJ avoided a
discussion on the jus cogens status of the rules mentioned by Italy].
Denial of Immunity on Basis that Italian Courts were the Last Resort
Italy also argued that the alleged shortcomings in Germanys legislation in giving
reparations to Italian victims entitled the Italian courts to deprive Germany of
jurisdictional immunity.
In addition national courts have to determine questions of immunity at the outset of
the proceedings, before consideration of the merits. Immunity cannot, therefore, be made
dependent upon the outcome of a balancing exercise of the specific circumstances of each
case to be conducted by the national court before which immunity is claimed. The third
and final strand of the Italian argument is that the Italian courts were justified in denying
Germany the immunity to which it would otherwise have been entitled, because all other
attempts to secure compensation for the various groups of victims involved in the Italian
proceedings had failed.+
The ICJ held that there is no customary international law that makes the entitlement of a
State to immunity dependent upon the existence of effective alternative means of
securing redress.
Germanys obligations
The Court did not agree with the fact that Germany decided to deny compensation to a
group of victims through the operation and interpretation of its legislation.
Moreover, as the Court recalled that the immunity of State officials from criminal
proceedings, the fact that immunity may bar the exercise of jurisdiction in a particular
case does not alter the applicability of the substantive rules of international law. In that
context, the Court would point out that whether a State is entitled to immunity before the
courts of another State is a question entirely separate from whether the international
responsibility of that State is engaged and whether it has an obligation to make
reparation It [the ICJ] considers however that the claims arising from the treatment of
the Italian military internees together with other claimscould be the subject of further
negotiation involving the two States concerned, with a view to resolving the issue.
Did Italy violate the customary international law obligation to respect the jurisdictional
immunity of Germany when it declared enforceable in Italy the judgement of the
Greek courts against Germany?
The court held that in this situation, Italy violated its obligation to respect Germanys
immunity. In its findings, the ICJ focused on:
(1) The ability of a national court (Italy) to determine if a judgement of a foreign court
(Greece) was made in violation of the jurisdictional immunity of a third State (Germany)

The ICJ said that there is nothing to prevent national courts from ascertaining that a
foreign judgment has not breached the immunity of a third State, before looking to
enforce a judgement against that third state. The ICJ justified this on the basis that, when
an enforcement measure is requested against a third state, the national court is itself
being called upon to exercise its jurisdiction in respect of the third State. in granting or
refusing exequatur, the court exercises a jurisdictional power which results in the foreign
judgment being given effects corresponding to those of a judgment rendered on the
merits in the requested State.
the court seised of an application for exequatur of a foreign judgment rendered against
a third State has to ask itself whether the respondent State enjoys immunity from
jurisdiction having regard to the nature of the case in which that judgment was given
before the courts of the State in which exequatur proceedings have been instituted. In
other words, it has to ask itself whether, in the event that it had itself been seised of the
merits of a dispute identical to that which was the subject of the foreign judgment, it
would have been obliged under international law to accord immunity to the respondent
State.
The ICJ held that, in this case, it would not rule on the legality of the decisions of the Greek
courts because Greece was not a party to the current proceedings. It would confine itself
to the question whether Italy, when declaring enforceable the judgement of the Greek
courts, violated international law.
Therefore, before taking any measure of constraint against a property of a third State, the
court must be satisfied:
(1) that the property in question must be in use for an activity not pursuing government
non-commercial purposes, or
(2) that the State which owns the property has expressly consented to the taking of a
measure of constraint, or
(3) that that State has allocated the property in question for the satisfaction of a judicial
claim
The ICJ held that in the present case the property which was the subject of the measure
of constraint at issue is being used for governmental purposes that are entirely non-
commercial and hence for purposes falling within Germanys sovereign functions. The
court held that Italy violated Germanys immunity in this respect.
Judge Cancado Trindade's dissent was unequivocal - "... my firm position is that
there is no State immunity for international crimes, for grave violations of human
rights and of international humanitarian law. In my understanding, this is what the
International Court of Justice should have decided in the present Judgment."

(2) The need for waiver of immunity before enforcement of a judgement

In doing its analysis as mentioned above, the national court may find that the judgement
did not violate the immunity of a third State. For example, in certain situations, the third
State may waive its immunity before the courts hearing the merits of the case. However, a
waiver of immunity at the trial stage does not imply that the State has waived immunity
in the exequatur proceedings (enforcement proceedings).

The rules of customary international law governing immunity from enforcement and
those governing jurisdictional immunity (understood stricto sensu as the right of a State
not to be the subject of judicial proceedings in the courts of another State) are distinct,
and must be applied separately. Even if a judgment has been lawfully rendered against a
foreign State, in circumstances such that the latter could not claim immunity from
jurisdiction (NB: for example acts falling under jus gestionis), it does not follow ipso facto
that the State against which judgment has been given can be the subject of measures of
constraint on the territory of the forum State or on that of a third State, with a view to
enforcing the judgment in question. Similarly, any waiver by a State of its jurisdictional
immunity before a foreign court does not in itself mean that that State has waived its
immunity from enforcement as regards property belonging to it situated in foreign
territory.