Etalin, Lady Lee R.

LAW 312A – Public International Law

Digest
(Topic 2)

1. Haile Selassie vs. Cable Wireless (1938)

Facts
In this case, it raises questions relating to both to the
impleading of a foreign sovereign and to the legal status of
sovereigns de facto and de jure. In this case the excited Emperor of
Ethiopia, who at the time was still recognized by the British
Government as de jure sovereign of Ethiopia, claimed from the
defendant company a balance due under a concessionary contract
entered into in 1934 with a department of the Ethiopian Government
representing the plaintiff in his capacity of sovereign of Ethiopia. The
defendant company admitted the sum due from them, but produced
letters from the Italian Ambassador in London in which the Italian
Government claimed the money and also refused to have its claim
determined in the English Court. The defendants argued that the King
of Italy, by virtue of recognition as de facto sovereign of Ethiopia, had
acquired the right to the money, and that therefore payment to Haile
Selassie would not discharged the debt. Bennet J. declined to
express an opinion on the question of law thus raised. He held that
the action must be stayed because “the right of the plaintiff to recover
judgment cannot be determined without determining whether the
claim put forward by or on behalf of His Majesty the King of Italy is
well founded.”
The plaintiff appealed against this decision, contending that
property in regard to which a foreign sovereign was entitled to claim
immunity must be actually or notionally in his possession. The
authorities upon the question of impleading a foreign sovereign had

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recently been considered by the House of Lords in The Cristina. As
Green M.R. expressed it, “where the property which is not proved or
admitted to belong to or to be in the possession of a foreign
sovereign or his agent is in the possession of a third party, and the
plaintiff claims it from that third party belongs to the plaintiff or the
foreign sovereign, the very question to be decided is one which
requires to be answered in favour of the sovereign’s title before it can
be asserted that the title is being questioned.” In other words a
foreign sovereign must establish his title to a chose in action before
he can claim immunity. The action was therefore remitted to Bennett
J. for a decision on the merits.

Issue:
Does the fact that the Italian Government has been and is
recognized by the British Government as a de facto government of
Ethiopia vest in the Italian Government the right to sue for and obtain
judgment in an English Court for a debt formerly due to and
recoverable by the plaintiff as the sovereign authority of Ethiopia, the
debt being due to the plaintiff as Emperor of Ethiopia, and the British
Government recognizing the plaintiff as the de jure Emperor of
Ethiopia?

Held:
The recognition of a de facto government extends to all acts in
relation to persons or property in the territory which the authority is
recognized as governing in fact. But there is was the validity of acts
committed within the territory of the de facto jurisdiction which were in
question, whereas this case was concerned with the title to a chose in
action, a debt recoverable in England.
The limitation of recognition to recognition de facto deprives the
de facto sovereign of none of the legal attributes of sovereignty. It
seems to follow that the continued recognition of a de jure sovereign

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as well must be regarded as merely political act, without juridical
consequences. In this view, the recognition by His Majesty’s
Government that the King of Italy had in fact become sovereign of
Ethiopia would of itself operate to preclude Haile Selassie from
maintaining in the English courts a claim as sovereign.

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 2. Holy See vs. Del Rosario
238 SCRA 524
Facts:
Petitioner is the Holy See who exercises sovereignty over the
Vatican City in Rome, Italy, and is represented in the Philippines by
the Papal Nuncio; Private respondent, Starbright Sales Enterprises,
Inc., is a domestic corporation engaged in the real estate business.
This petition arose from a controversy over a parcel of land consisting
of 6,000 square meters located in the Municipality of Paranaque
registered in the name of petitioner. Said lot was contiguous with two
other lots registered in the name of the Philippine Realty Corporation
(PRC).
The three lots were sold to Ramon Licup, through Msgr.
Domingo A. Cirilos, Jr., acting as agent to the sellers. Later, Licup
assigned his rights to the sale to private respondent.
In view of the refusal of the squatters to vacate the lots sold to private
respondent, a dispute arose as to who of the parties has the
responsibility of evicting and clearing the land of squatters.
Complicating the relations of the parties was the sale by petitioner of
Lot 5-A to Tropicana Properties and Development Corporation
(Tropicana).
Private respondent filed a complaint with the Regional Trial
Court, Branch 61, Makati, Metro Manila for annulment of the sale of
the three parcels of land, and specific performance and damages
against petitioner, represented by the Papal Nuncio, and three other
defendants: namely, Msgr. Domingo A. Cirilos, Jr., the PRC and
Tropicana petitioner and Msgr. Cirilos separately moved to dismiss
the complaint for lack of jurisdiction based on sovereign immunity
from suit, and Msgr. Cirilos for being an improper party. An opposition
to the motion was filed by private respondent.
The trial court issued an order denying, among others, petitioner’s
motion to dismiss after finding that petitioner “shed off its sovereign

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immunity by entering into the business contract in question” Petitioner
forthwith elevated the matter to us. In its petition, petitioner invokes
the privilege of sovereign immunity only on its own behalf and on
behalf of its official representative, the Papal Nuncio.

Issue:
Whether the Holy See is immune from suit insofar as its
business relations regarding selling a lot to a private entity

Held:
The Republic of the Philippines has accorded the Holy See the
status of a foreign sovereign. The Holy See, through its Ambassador,
the Papal Nuncio, has had diplomatic representations with the
Philippine government since 1957. This appears to be the universal
practice in international relations.
There are two conflicting concepts of sovereign immunity, each
widely held and firmly established. According to the classical or
absolute theory, a sovereign cannot, without its consent, be made a
respondent in the courts of another sovereign. According to the
newer or restrictive theory, the immunity of the sovereign is
recognized only with regard to public acts or acts jure imperii of a
state, but not with regard to private acts or acts jure gestionis
If the act is in pursuit of a sovereign activity, or an incident thereof,
then it is an act jure imperii, especially when it is not undertaken for
gain or profit.
In the case at bench, if petitioner has bought and sold lands in
the ordinary course of a real estate business, surely the said
transaction can be categorized as an act jure gestionis. However,
petitioner has denied that the acquisition and subsequent disposal of
Lot 5-A were made for profit but claimed that it acquired said property
for the site of its mission or the Apostolic Nunciature in the
Philippines. Private respondent failed to dispute said claim.

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Lot 5-A was acquired by petitioner as a donation from the
Archdiocese of Manila. The donation was made not for commercial
purpose, but for the use of petitioner to construct thereon the official
place of residence of the Papal Nuncio. The right of a foreign
sovereign to acquire property, real or personal, in a receiving state,
necessary for the creation and maintenance of its diplomatic mission,
is recognized in the 1961 Vienna Convention on Diplomatic Relations
(Arts. 20-22). This treaty was concurred in by the Philippine Senate
and entered into force in the Philippines on November 15, 1965.
The decision to transfer the property and the subsequent disposal
thereof are likewise clothed with a governmental character. Petitioner
did not sell Lot 5-A for profit or gain. It merely wanted to dispose off
the same because the squatters living thereon made it almost
impossible for petitioner to use it for the purpose of the donation. The
fact that squatters have occupied and are still occupying the lot, and
that they stubbornly refuse to leave the premises, has been admitted
by private respondent in its complaint
Private respondent is not left without any legal remedy for the redress
of its grievances. Under both Public International Law and
Transnational Law, a person who feels aggrieved by the acts of a
foreign sovereign can ask his own government to espouse his cause
through diplomatic channels.
Private respondent can ask the Philippine government, through the
Foreign Office, to espouse its claims against the Holy See. Its first
task is to persuade the Philippine government to take up with the
Holy See the validity of its claims. Of course, the Foreign Office shall
first make a determination of the impact of its espousal on the
relations between the Philippine government and the Holy See
(Young, Remedies of Private Claimants Against Foreign States,
Selected Readings on Protection by Law of Private Foreign
Investments 905, 919 [1964]). Once the Philippine government
decides to espouse the claim, the latter ceases to be a private cause.

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 3. The Republic of Nicaragua vs. The United States of
America (1986) ICJ Rep 14
Facts:
The United States challenged the jurisdiction of the I.C.J when
it was held responsible for illegal military and paramilitary activities in
and against Nicaragua in the suit the plaintiff brought against the
defendant in 1984. Though a declaration accepting the mandatory
jurisdiction of the Court was deposited by the United States in a 1946,
it tried to justify the declaration in a 1984 notification by referring to
the 1946 declaration and stating in part that the declaration “shall not
apply to disputes with any Central American State….”
Apart from maintaining the ground that the I.C.J lacked jurisdiction,
the States also argued that Nicaragua failed to deposit a similar
declaration to the Court. On the other hand, Nicaragua based its
argument on its reliance on the 1946 declaration made by the United
states due to the fact that it was a “state accepting the same
obligation” as the United States when it filed charges in the I.C.J.
against the United States.  Also, the plaintiff intent to submit to the
compulsory jurisdiction of the I.C.J. was pointed out by the valid
declaration it made in 1929 with the I.C.J’s predecessor, which was
the Permanent Court of International Justice, even though Nicaragua
had failed to deposit it with that court. The admissibility of Nicaragua’s
application to the I.C.J. was also challenged by the United States.

Issues:
 (1) Is the jurisdiction to entertain a dispute between two states,
if they both accept the Court’s jurisdiction, within the jurisdiction of the
International Court of Justice?
(2) Where no grounds exist to exclude the application of a
state, is the application of such a state to the International Court of
Justice admissible?

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Held:
(1) Yes. The jurisdiction of the Court to entertain a dispute
between two states if each of the States accepted the Court’s
jurisdiction is within the jurisdiction of the International Court of
Justice. Even though Nicaragua declaration of 1929 was not
deposited with the Permanent Court, because of the potential effect it
had that it would last for many years, it was valid.
Thus, it maintained its effect when Nicaragua became a party to the
Statute of the I.C.J because the declaration was made
unconditionally and was valid for an unlimited period. The intention of
the current drafters of the current Statute was to maintain the greatest
possible continuity between it and the Permanent Court. Thus, when
Nicaragua accepted the Statute, this would have been deemed that
the plaintiff had given its consent to the transfer of its declaration to
the I.C.J.
(2) Yes. When no grounds exist to exclude the application of a
state, the application of such a state to the International Court of
Justice is admissible. The five grounds upon which the United States
challenged the admissibility of Nicaragua’s application were that the
plaintiff failed because there is no “indispensable parties” rule when it
could not bring forth necessary parties, Nicaragua’s request of the
Court to consider the possibility of a threat to peace which is the
exclusive province of the Security Council, failed due to the fact that
I.C.J. can exercise jurisdiction  which is concurrent with that of the
Security Council, that the I.C.J. is unable to deal with situations
involving ongoing armed conflict and that there is nothing compelling
the I.C.J. to decline to consider one aspect of a dispute just because
the dispute has other aspects due to the fact that the case is
incompatible with the Contadora process to which Nicaragua is a
party.

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 4. Underhill vs. Hernandez
168 U.S. 250; November 29, 1897

Facts:
George F. Underhill was a citizen of the United States, who had
constructed a waterworks system for the City of Bolivar, under a
contract with the government, and was engaged in supplying the
place with water, and he also carried on a machinery repair business.
Sometime after the entry of Gen. Hernandez, Underhill applied to
him, as the officer in command, for a passport to leave the City.
Hernandez refused this request, and requests made by others in
Underhill’s behalf, until October 18th, when a passport was given, and
Underhill left the country.
This action was brought to recover damages for the detention
caused by reason of the refusal to grant the passport, for the alleged
confinement of Underhill to his own house, and for certain alleged
assaults and affronts by the soldiers of Hernandez’s army.
The cause was tried in the circuit of the united States for the
Eastern district of New York, and on the conclusion of plaintiff’s case
the circuit court ruled that upon the facts plaintiff was not entitled to
recover, and directed a verdict for defendant, on the ground that
because the acts of defendant were those of military commander,
representing a de facto government in the prosecution of a war, he
was not civilly responsible therefore. Judgment having been rendered
for defendant, the case was taken to the circuit court of appeals, and
by the court affirmed, upon the ground that the acts of the defendant
were acts of the government of Venezuela, and as such are not
properly the subject of adjudication in the courts of another
government.

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Issue:
Whether or not the acts of the defendant were the acts of the
government of Venezuela and as such are not properly the subject of
adjudication in the courts of another government?

Held:
Every sovereign state is bound to respect the independence of
every other sovereign state, and the courts of one country will not sit
in judgment on the acts of the government of another, done within its
own territory. Redress of grievances by reason of such acts must be
obtained through the means open to be availed of by sovereign
powers as between themselves.
The immunity of individuals from suits brought in foreign
tribunals for acts done within their own states, in the exercise of
governmental authority, whether as civil officers or as a military
commanders, must necessarily extend to the agents of governments
ruling by paramount force as matter of fact.
Gen. Hernandez was carrying on military operations in support
of the revolutionary party. It may be that adherents of that side of the
controversy in the particular locality where Hernandez was the leader
of the movement entertained a preference for him as the future
executive head of the nation, but that is beside the question. The acts
complained of where the acts of military commander representing the
authority of the revolutionary party as a government, which
afterwards succeeded, and was recognized by the United States. The
circuit court of appeals was justified in concluding that the acts of the
defendant were the acts of the government of Venezuela, and as
such are not properly the subject of adjudication in the courts of
another government.

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