mcrae readings post-midterms

8/2/2019 McRae Readings Post-Midterms

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Public International Law P a g e | 1

IMMUNITY from JURISDICTION

THE TATE LETTER

2 conflicting concepts of Sovereign Immunity:1. CLASSICAL or ABSOLUTE theory a sovereign, cannot, without his

consent, be made a respondent in the courts of another sovereign2. NEWER or RESTRICTIVE theory immunity of sovereign is recognized

with regard to sovereign or public acts ( jure imperii) of a state, butnot with respect to private acts (jure gentionis)

Sovereign immunity should not be claimed or granted in action with respect to1. Real property diplomatic and perhaps consular property excepted2. Disposition of the property of a deceased person even though a foreign

sovereign is the beneficiary

VICTORY TRANSPORT v. COMISARIA GENERAL de ABASTECIMIENTOS yTRANSPORTES

Facts:Victory Transport chartered a ship to a branch of the Ministry of Commerce ofthe Spanish Government. The ship was damaged while discharging cargo atSpanish ports. The charter agreement contained the New York ProduceArbitration clause that should any dispute arise, the matter should be referredto 3 persons at New York. Victory Transport brought suit to compel arbitrationunder United States Arbitration Act.

The company secured an ex parte order from the District Court permittingservice of its petition by registered mail at the Madrid office of ComisariaGeneral. Comisaria General moved to vacate the service on the ground that theCourt lacked in personam jurisdiction because of the extraterritorial serviceand because of the sovereign immunity from suit. It presented an affidavit

stating that it was a branch of the Spanish Government.

Held:The Victory Transports motion to compel arbitration must be granted becausethe claim arose out of a commercial operation of the Spanish government, andthe defense of sovereign immunity was not available.

The State department announced that it would generally adhere to therestrictive theory of sovereign immunity. But the Tate Letter offers noguidelines or criteria for differentiating between a sovereigns private andpublic acts. Some have looked to the

1. Nature of the transaction, categorizing as sovereign acts only activitywhich could not be performed by individuals

2. Purpose of the transaction, categorizing asjure imperii all activities inwhich the object of performance is public in character

The purpose of the restrictive theory is to try to accommodate the interest ofindividuals doing business with foreign Governments in having their legal rightsdetermined by the courts.

We are disposed to deny a claim of sovereign immunity that has not been

recognized and allowed by the State department unless it is plain that theactivity in question falls within one of the categories of strictly political orpublic acts about which sovereigns have traditionally been quite sensitive. Suchacts are generally limited to the following categories:

1. Internal administrative acts, such as expulsion of aliens2. Legislative acts, such as nationalization3. Acts concerning the armed forces4. Acts concerning diplomatic activity5. Public loans

The Commisaria Generals chartering of the appellees ship to transport apurchase of wheat is not a strictly public or political act; it partakes far moreof the character of a private commercial act than a public or political act, andone of the most significant indicators of the private commercial nature of thischarter is the inclusion of the arbitration clause.

If the wartime transportation of rice to civilian and military personnel is not anact jure imperii, a fortiori the peacetime transportation of wheat forpresumptive resale is not an actjure imperii.

GOVERNMENT OF CONGO v. VENNE

Facts:This is an appeal from a judgment of the CA of Quebec which it disallowed the

appellants declinatory exception whereby it had claimed that, by reason of itsstatus as a sovereign State, it could not be impleaded in the Quebec courts.

The respondent is an architect who claims to have been retained, on behalf ofthe appellant, for the purpose of making preliminary studies and preparingsketches is relation to the national pavilion which the Republic of Congoproposed to build at Expo 67.

The respondent prepared a bill of $20,000 for services rendered which wasreduced to $$12,00 and was not paid because the Congo decided not toproceed with the pavilion.

The record indicates that the Judges of the CA simply accepted the finding of

the trial court and did not consider the material upon which it was based. It


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discloses nothing more than that the contract here in question was made inpursuance of the desire of a foreign sovereign State to construct a nationalpavilion at an international exhibition and to be thereby presented at thatexhibition which was registered by the Council of the Bureau of InternationalExhibitions.

Mr. Leduc, and consequently the CA, adopted the view that the nature of thetransaction here at issue was to be determined entirely on the basis that the

respondent was a Montreal architect claiming against his employer and that thematter was therefore a purely private one. But, even if the theory ofrestrictive sovereign immunity were applicable, the question would not bewhether the contractor was engaged in a private act of commerce, butwhether or not the Government of Congo, acting as a visiting sovereign Statethrough its duly accredited diplomatic representatives, was engaged in theperformance of a public sovereign act of State.

Held:The request for the respondents services was made not only by the dulyaccredited diplomatic representatives of the Congo who were CommissionersGeneral of the Exhibition, but also by the representative of the DFA of thatcountry. In preparing for the construction of its national pavilion, it wasengaged in the performance of a public sovereign act of State on behalf oftheir country and that the employment of the respondent was a step taken inthe performance of that sovereign act.

Appellant could not be impleaded in the Courts of this country even if the so-called doctrine of restrictive sovereign immunity has been adopted in ourCourts.

DESSAULLES v. REPUBLIC OF POLAND [LASKIN (DISSENTING)]

There is no doubt that a Sovereign State cannot be sued before foreign Courts.

This is based upon the independence and dignity of States, and internationalcourtesy has always respected it.

2 observations on this statement:1. The absolute doctrine is not today part of the domestic law2. Neither independence nor the dignity of States, nor international

comity require vindication through a doctrine of absolute immunity

Independence as a support for absolute immunity is inconsistent with theabsolute territorial jurisdiction of the host State; and dignity, which is aprojection of independence or sovereignty, does not impress when regard ishad to the submission of States to suit in their own Courts. SC of US hasexposed the frailty of these considerations by allowing a counterclaim to be

pursued against a sovereign State which invoked the jurisdiction of a domestic

court. Nor is comity any more realistic a foundation for absolute immunity,unless it be through treaty.

The Present case had to do with a claim to immunity from local taxation ofa. Personality, of which legal title was in the US, andb. Leasehold interests, beneficially owned by that foreign State

All the property was used in the construction of a radar defense system in

Canada, pursuant to an agreement between Canada and US.

On the facts of the case, involving a visit for a particular mutual purpose ofprotection, it was a reasonable conclusion that public taxing legislation shouldnot be applied to property used in the joint venture, especially when the workcarried on by either Government on its own land would be untaxable.

The considerations which make it preferable to consider immunity from thestandpoint of function rather than status do not rest simply on a rejection ofthe factors which had formerly been said to underlie it. There is the

a. simple matter of justice to a plaintiffb. reasonableness of recognizing equal accessibility to domestic Courts by

those engaged in transnational activities, although one of the partiesto a transaction may be a foreign State or an agency thereof

c. promotion of international legal order by making certain disputeswhich involve a foreign State amendable to judicial processes, eventhough domestic, and

d. expansion of the range of activities and services in which the variousStates today are engaged has blurred the distinction betweengovernmental and non-governmental functions or acts, so as to make itunjust to rely on status alone to determine immunity from theconsequences of State action.

US v. ESTATE OF MARCOS

Facts:PNB petitions this court for a writ of mandamus to prevent the district courtfrom pursuing contempt and discovery proceedings against the Bank because ofthe Banks transfer of funds to the Philippines pursuant to a judgment of thePhil. SC. We conclude that the district courts orders violated the act of statedoctrine, and we accordingly issue the writ.

In an earlier case, we dealt with the attempt of class plaintiffs to reach assetsof the Marcos estate located in Swiss banks. The Swiss assets had been frozenby the Swiss government at the request of the Republic. The class plaintiffobtained an injunction from the district court requiring the Swiss banks to holdthe assets for the benefits of the class plaintiffs. We held that the injunctionviolated the act of state doctrine, which precludes our courts from declaringinvalid a foreign sovereigns official act.


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Thereafter, the Swiss government released the funds frozen for transfer to thePNB in escrow pending a determination of proper disposal by a competentcourt in the Philippines. PNB deposited the funds in Singapore. Phil. SCsubsequently held that the assets were forfeited to the Philippines.

The district court then issued the orders ruling that the Phil. SC had violateddue process by any standard and that its judgment was entitled to nodeference.

The district court then issued an Order to Show Cause against PNB, which wasnot a party to the litigation in the district court.

Issues and Held:1. w/n the proceeding against PNB for its transfer of funds violated the

act of state doctrine

The act of state doctrine every sovereign state is bound to respect theindependence of every other sovereign state, and the courts of one country willnot sit in judgment on the acts of the government of another, done within itsown territory. The district courts orders in issue violated this principle.

2. w/n the doctrine is directed at the executive and legislative branchesof foreign government, and does not apply to judicial decisions

Although the act of state doctrine is normally inapplicable to court judgmentsarising from private litigation, there is no inflexible rule preventing a judgmentsought by a foreign government from qualifying as an act of State. Theforfeiture action was not a mere dispute between private parties; it was anaction initiated by the Phil. Government pursuant to its statutory mandate torecover property allegedly stolen from the treasury. The subject matter of the forfeiture action thus qualifies for treatment as an act of State.

3. w/n the act of state doctrine is inapplicable because the judgment ofthe Phil. SC did not concern matters within its own territory

The act of the Phil. SC was not wholly external. Its judgment was issued in thePhilippines and much of its force upon PNB arose from the fact that the Bank isa Phil. Corporation. Even if we assume for purposes of decision that the assetswere located in Singapore, we conclude that this fact does not precludetreatment of the Phil. Judgment as an act of state in the extraordinarycircumstances of this case. The act of state doctrine is to be appliedpragmatically and flexibly, with reference to its underlying considerations. Theunderlying governmental interest of the Philippines supports treatment of thejudgment as an act of state.

CONGRESO DEL PARTIDOFacts:A contract for sale of sugar was made between a Cuban state tradingenterprise, as seller and a Chilean company, as buyers. One shipment wascarried on Playa Larga, a Cuban flag vessel, owned by Cuba and operated byMambusa, a state trading enterprise which manages and operates all Cubanstate-owned ships. It is not an emanation or department of the Cuban state;it has independent legal existence.

The other shipment was carried on Marble Islands, owned by Blue SeasShipping, a Liechtenstein corporation, and flew the Somali flag. It waschartered to Mambisa on a demise charter and sub-charterred by Mambisa toCubazucar for the voyage to Chile.

On that day, a coup detat took place in Chile and diplomatic relationsbetween Chile and Cuba were terminated. There seems to have been noviolence at Valparaiso, and nothing occurred to prevent Playa Larga fromcontinuing to discharge, however, it was ordered by Mambisa, which had itselfbeen so instructed by the Cuban government, to leave Valparaiso and joinMarble Islands.

Playa Larga met Marble Islands at sea, and, on instructions, both vesselsproceeded to Callao in Peru. Playa Larga left Callao and returned to Cubawhere it discharged the balance cargo and where it was later sold by Mambisa.

Marble Islands left Callao intending to return to Cuba, but it was arrested atthe Panama Canal on the application of the Buyer. It broke arrest and sailedwest for North Vietnam. In the course of its voyage, her ownership and flagwere transferred to the Republic of Cuba.

Issue:w/n a plea of state immunity can be raised so as to deny jurisdiction

Held:The restrictive doctrine should be applied to the present case. That basis onwhich one State is considered to be immune from the territorial jurisdiction ofthe courts of another State is that of par in parem sovereign or governmentalacts of one State are not matters on which the courts of other States willadjudicate.

The relevant exception arises from the willingness of States to enter intocommercial, or other private law, transactions with individuals. It appears tohave 2 main foundations:

1. it is necessary in the interest of justice to individuals having suchtransactions with States to allow them to bring such transactionsbefore the courts


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2. to require a State to answer a claim based on such transactions doesnot involve a challenge to or inquiry into any act of sovereignty orgovernmental act of that State

The court must consider the whole context in which the claim against the Stateis made, with a view to deciding whether the relevant acts on which the claimis based should, in that context, be considered as fairly within an area ofactivity, trading or commercial or otherwise of a private law character, in

which the State has chosen to engage or whether the relevant acts should beconsidered as having been done outside that area and within the sphere ofgovernmental or sovereign activity.

Playa Larga was owned by Republic of Cuba, operated by Mambisa, andchartered by Mambisa to Cubazucar under a charter probably governed byCuban law. The decision not to complete unloading at Valparaiso, or todischarge at Callao, was a political decision taken by the government of Cubafor political and non-commercial reasons.

Everything done by Cuba in relation to Playa Larga could have been done, andso far as evidence goes, was done, as owners of the ship; it did not exercise,and had no need to exercise, sovereign powers. It acted as any owner of theship would act, through Mambisa, the managing operators. It invoked nogovernmental authority.

However, I cannot agree that there was ever any purely commercial obligationon the Cuba or any binding commercial obligation: the Republic never assumedany such obligation; it never entered the trading sea; the cargo owners neverentered into a commercial relation with it. The acts of Cuba were andremained in their nature purely governmental.

The fact is that if any wrong was done as regards the cargo, it was done byMambisa. Unfortunately, Mambisa turned out not to be the owners of ICongreso, so a fresh action had to be brought against Cuba, who were the

owners of that ship. The acts complained of as regards Cuba were acts jureimperii and so covered by immunity.

TRENDTEX TRADING CORP v. CENTRAL BANK OF NIGERIAFacts:The Central Bank of Nigeria issued a letter of credit drawn on the Midland Bankin London in favor of Trendtex, a Swiss company, to pay for cement sold byTrendtex to an English company. The bank assured Trendtex that the letter ofcredit was reliable. However, the bank refused to pay, and Trendtex broughtthis action. The banks defense is that, as an arm or department of theNigerian government, it was entitled to sovereign immunity.

Held:It was suggested that the original contracts for cement were made by theMinistry of Defense of Nigeria, and that the cement was for building of barracksfor the army. The contracts of purchase were acts of a governmental natureand not of a commercial nature. But I do not think that this should affect thequestion of immunity. If a government department goes into the market placesof the world and buys boots or cement, as a commercial transaction, thatgovernment should be subject to all the rules of the market place.

The plaintiffs here are not suing on the contracts of purchase. They areclaiming on the letter of credit which was a straightforward commercialtransaction. The letter of credit was issued in London through a London bank inthe ordinary course of commercial dealings. It is completely within theterritorial jurisdiction of our courts.

I have found it difficult to decide whether or not the Central Bank of Nigeriashould be considered in international law a department of the Federation ofNigeria, even though it is a separate legal entity. But, on the whole, I do notthink it should be. There is no immunity in respect of commercial transactions,even for a government department.

US DIPLOMATIC AND CONSULAR STAFF IN TEHRAN (US v. IRAN)

The events fall into 2 phases:1. The arm attacked on the US Embassy by militants, the overrunning of

its premises, the seizure of its inmates as hostages, the appropriationof its property and archives and the conduct of the Iranian authoritiesin the face of those occurrences.

2. The completion of the occupation of US Embassy by the militants, andthe seizure of the Consulates at Tabriz and Shiraz

On the first phase, it was an operation which continued without any body of

police, any military unit or any Iranian official intervening to try to stop orimpeded it from being carried through to its completion. However, there wasno suggestion that the militants, when they executed their attack, had anyform of official status as recognized agents or organs of the Iranian State.Their conduct cannot, therefore, be regarded as imputable to that State.

But it doesnt mean that Iran is free from any responsibility. Iran was placedunder the most categorical obligations, as a receiving State, to takeappropriate steps to ensure the protection of US Embassy and Consulates.

The inaction of the Iranian government by itself constituted clear and seriousviolation of Irans obligations to US under the Vienna Convention on DiplomaticRelation and on Vienna Convention on Consular Relations.


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On the second phase, the duty of Iran was to restore the Consulates at Tabrizand Shiraz to US control, and in general, to re-establish the status quo and tooffer reparation for the damage. However, no such step was taken by theIranian authorities.

Therefore, the Iranian government is ordered to immediately take all steps toredress the situation and to make reparation to the US government. Also, nomember of the US diplomatic or consular staff may be kept in Iran to be

subjected to any form of judicial proceedings or to participate in them as awitness.

RE REGINAS AND PALACIOSFacts:The respondent had been a duly-accredited member of the diplomatic staff ofthe Embassy of Nicaragua. He resided in Ottawa. The Nicaraguan Embassyadvised the Department of External Affairs that the respondent hadterminated his duties at this mission as of that date. The respondent leftCanada for a temporary visit to US, when he returned to Canada, he was brieflydetained by the police.

Issues and Held:1. w/n the respondent is protected by diplomatic immunity

Entitlement to diplomatic immunity by the responded depends on theinterpretation placed on the Vienna Convention on Diplomatic Relation of 1961.When the functions of a person enjoying privileges and immunities have cometo an end, such privileges and immunities shall normally cease at the momentwhen he leaves the country, or on expiry of a reasonable period in which to doso, but shall subsist until that time, even in case of armed conflict.

Under the customary rules, immunity is not limited in time to the dates onwhich the diplomat takes up his duties and relinquishes them. it extends to

protect him from the time he enters the host country for the purpose of takingup his duties and for a reasonable time after their termination in order toenable him to wind up his affairs and leave the country.

The Convention must be interpreted so as to give to its purpose which is toaffirm and secure diplomatic privileges and immunities. The meaning of thewords leaves the country refer to permanent departure from the hostcountry.

2. w/n mandamus is available to the CrownThe purpose of the writ of mandamus is to compel an inferior court to proceedwith its determination of criminal charges on their merits where the court has

erred in refusing to do so. It is a discretionary remedy and ordinarily does notlie if other remedies are available.

To know if there is availability of mandamus, the question is not whether ajudge had jurisdiction to decide the matter in controversy but rather whetherhe made an error in law in reaching a decision on it which prevented thedetermination of the charges on their merits.

In this case, the learned provincial judge did not err in holding the respondentto be entitled to diplomatic immunity and as a result, mandamus should notgo.

DIPLOMATIC BAG

The Nigerian Ministry of External Affairs delivered notes to the heads ofdiplomatic and consular missions accredited to Nigeria, informing them that inorder to combat trafficking in Nigerian currency, for a period of 6 weeks, allpersons and goods, without exception, entering Nigeria by air, land or sea shallbe carefully searched by the customs authorities with a view to ensuring thatNigerian currency is not imported into the country.

The American Embassy protested stating that under the Vienna Convention onDiplomatic Relations, to which Nigeria is a party:

a. the receiving State shall permit and protect free communication onthe part of the Mission for all official purposes

b. the official correspondence of the Mission shall be inviolable. Officialcorrespondence means all correspondence relating to the Mission andits functions

c. the diplomatic bad shall not be opened or detainedAs regards consular communications, international law does not permit thereceiving State to detain any pouch, nor to request the opening of any pouch,

unless its authorities have serious reason to believe that a particular pouchcontains something other than correspondence exclusively for official use, andthen only with the consent of the sending State, failing which the pouch is tobe returned to its place of origin.

SANDERS v. VIRIDIANOFacts:Petitioner Sanders was the special services director of the U.S. Naval Station(NAVSTA) in Olongapo City. Petitioner Moreau was the commanding officer ofthe Subic Naval Base, which includes the said station. Private respondent Rossiis an American citizen with permanent residence in the Philippines, as so wasprivate respondent Wyer, who died two years ago. They were both employed

as gameroom attendants in the special services department of the NAVSTA.


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The private respondents were advised that their employment had beenconverted from permanent full-time to permanent part-time. They protestedand the result was a recommendation for the reinstatement of the privaterespondents to permanent full-time status plus backwages. The report on thehearing contained the observation that "Special Services management practicesan autocratic form of supervision."

In a letter addressed to petitioner Moreau, Sanders disagreed with the hearing

officer's report and asked for the rejection of the recommendation. The lettercontained the statements that:

a. Mr. Rossi tends to alienate most co-workers and supervisorsb. Messrs. Rossi and Wyers have proven, according to their immediate

supervisors, to be difficult employees to supervise, andc. Even though the grievants were under oath not to discuss the case with

anyone, they placed the records in public places where others notinvolved in the case could hear

Before the start of the grievance hearings, a-letter purportedly coming frompetitioner Moreau was sent to the Chief of Naval Personnel explaining thechange of the private respondent's employment status and requestingconcurrence therewith. The letter did not carry his signature but was signed byW.B. Moore, Jr. "by direction," presumably of Moreau.

The plaintiffs claimed that the letters contained libelous imputations that hadexposed them to ridicule and caused them mental anguish and that theprejudgment of the grievance proceedings was an invasion of their personaland proprietary rights.

Issue:w/n petitioners were performing their official duties when they did the acts forwhich they have been sued for damages by the private respondents

Held:

It is stressed at the outset that the mere allegation that a governmentfunctionary is being sued in his personal capacity will not automatically removehim from the protection of the law of public officers and, if appropriate, thedoctrine of state immunity. By the same token, the mere invocation of officialcharacter will not suffice to insulate him from suability and liability for an actimputed to him as a personal tort committed without or in excess of hisauthority. These well-settled principles are applicable not only to the officersof the local state but also where the person sued in its courts pertains to thegovernment of a foreign state, as in the present case.

It is abundantly clear in the present case that the acts for which the petitionersare being called to account were performed by them in the discharge of theirofficial duties. Sanders, as director of the special services department of

NAVSTA, undoubtedly had supervision over its personnel, including the private

respondents, and had a hand in their employment, work assignments,discipline, dismissal and other related matters. It is not disputed that the letterhe had written was in fact a reply to a request from his superior, the otherpetitioner, for more information regarding the case of the private respondents.Moreover, even in the absence of such request, he still was within his rights inreacting to the hearing officer's criticismin effect a direct attack againsthim-that Special Services was practicing "an autocratic form of supervision."

As for Moreau, what he is claimed to have done was write the Chief of NavalPersonnel for concurrence with the conversion of the private respondents' typeof employment even before the grievance proceedings had even commenced.This act is clearly official in nature, performed by Moreau as the immediatesuperior of Sanders and directly answerable to Naval Personnel in mattersinvolving the special services department of NAVSTA. In fact, the letter dealtwith the financial and budgetary problems of the department and containedrecommendations for their solution, including the re-designation of the privaterespondents. There was nothing personal or private about it.

Given the official character of the above-described letters, we have toconclude that the petitioners were, legally speaking, being sued as officers ofthe United States government. As they have acted on behalf of thatgovernment, and within the scope of their authority, it is that government, andnot the petitioners personally, that is responsible for their acts.

There should be no question by now that such complaint cannot prosper unlessthe government sought to be held ultimately liable has given its consent to' besued. So we have ruled not only in Baer but in many other decisions where weupheld the doctrine of state immunity as applicable not only to our owngovernment but also to foreign states sought to be subjected to the jurisdictionof our courts.

The practical justification for the doctrine, as Holmes put it, is that "there canbe no legal right against the authority which makes the law on which the right

depends. 16 In the case of foreign states, the rule is derived from the principleof the sovereign equality of states which wisely admonishes that par in paremnon habet imperium and that a contrary attitude would "unduly vex the peaceof nations."

A final consideration is that since the questioned acts were done in theOlongapo Naval Base by the petitioners in the performance of their officialduties and the private respondents are themselves American citizens, it wouldseem only proper for the courts of this country to refrain from takingcognizance of this matter and to treat it as coming under the internaladministration of the said base.


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US v. GUINTOFacts:These cases have been consolidated because they all involve the doctrine ofstate immunity. The United States of America was not impleaded in thecomplaints below but has moved to dismiss on the ground that they are ineffect suits against it to which it has connection with the bidding conducted bythem for contracts for barber services in the said base.

In G.R. No. 76607, the private respondents are suing several officers of the U.S.Air Force stationed in Clark Air Base in connection with the bidding conductedby them for contracts for barber services in the said base.

In G.R. No. 79470, Genove filed a complaint for damages against petitioners forhis dismissal as cook in the U.S. Air Force Recreation Center at the John HayAir Station in Baguio City. It had been ascertained after investigation, thatGenove had poured urine into the soup stock used in cooking the vegetablesserved to the club customers.

In G.R. No. 80018, Luis Bautista, who was employed as a barracks boy in CampO' Donnell, an extension of Clark Air Base, was arrested following a buy-bustoperation conducted by the individual petitioners herein, officers of the U.S.Air Force and special agents of the Air Force Office of Special Investigators(AFOSI). On the basis of the sworn statements made by them, an informationfor violation of the Dangerous Drugs Act, was filed against Bautista in the RTCof Tarlac. As a result of the filing of the charge, Bautista was dismissed fromhis employment. He then filed a complaint for damages against the individualpetitioners herein claiming that it was because of their acts that he wasremoved.

In G.R. No. 80258, a complaint for damages was filed by the privaterespondents against the herein petitioners for injuries allegedly sustained bythe plaintiffs as a result of the acts of the defendants.

Held:The rule that a state may not be sued without its consent, now expressed inArticle XVI, Section 3, of the 1987 Constitution, is one of the generallyaccepted principles of international law that we have adopted as part of thelaw of our land under Article II, Section 2.

As applied to the local state, the doctrine of state immunity is based on thejustification given by Justice Holmes that "there can be no legal right againstthe authority which makes the law on which the right depends." In the case ofthe foreign state sought to be impleaded in the local jurisdiction, the addedinhibition is expressed in the maxim par in parem, non habet imperium. Allstates are sovereign equals and cannot assert jurisdiction over one another. Acontrary disposition would, in the language of a celebrated case, "unduly vex

the peace of nations."

While the doctrine appears to prohibit only suits against the state without itsconsent, it is also applicable to complaints filed against officials of the statefor acts allegedly performed by them in the discharge of their duties. The ruleis that if the judgment against such officials will require the state itself toperform an affirmative act to satisfy the same, such as the appropriation of theamount needed to pay the damages awarded against them, the suit must beregarded as against the state itself although it has not been formallyimpleaded. In such a situation, the state may move to dismiss the complaint on

the ground that it has been filed without its consent.

The consent of the state to be sued may be manifested expressly or impliedly.Express consent may be embodied in a general law or a special law. Consent isimplied when the state enters into a contract or it itself commences litigation.As for the filing of a complaint by the government, suability will result onlywhere the government is claiming affirmative relief from the defendant.

In the case of the United States of America, the customary rule of internationallaw on state immunity is expressed with more specificity in the RP-US BasesTreaty. Article III thereof provides as follows:

It is mutually agreed that the United States shall have the rights, powerand authority within the bases which are necessary for the establishment,use, operation and defense thereof or appropriate for the control thereofand all the rights, power and authority within the limits of the territorialwaters and air space adjacent to, or in the vicinity of, the bases which arenecessary to provide access to them or appropriate for their control.

It is clear from a study of the records of G.R. No. 80018 that the individually-named petitioners therein were acting in the exercise of their official functionswhen they conducted the buy-bust operation against the complainant andthereafter testified against him at his trial.

In G.R. No. 79470, the Court can assume that the restaurant services offered at

the John Hay Air Station partake of the nature of a business enterpriseundertaken by the United States government in its proprietary capacity. Theconsequence of this finding is that the petitioners cannot invoke the doctrineof state immunity to justify the dismissal of the damage suit against them byGenove. The reason is that by entering into the employment contract withGenove in the discharge of its proprietary functions, it impliedly divested itselfof its sovereign immunity from suit.

But these considerations notwithstanding, we hold that the complaint againstthe petitioners in the court below must still be dismissed. While suable, thepetitioners are nevertheless not liable. It is obvious that the claim for damagescannot be allowed on the strength of the evidence before us, which we havecarefully examined.


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Concerning G.R. No. 76607, we also find that the barbershops subject of theconcessions granted by the United States government are commercialenterprises operated by private person's. They are not agencies of the UnitedStates Armed Forces nor are their facilities demandable as a matter of right bythe American servicemen. These establishments provide for the groomingneeds of their customers. This being the case, the petitioners cannot plead anyimmunity from the complaint filed by the private respondents in the courtbelow. The contracts in question being decidedly commercial. The Court would

have directly resolved the claims against the defendants as we have done inG.R. No. 79470, except for the paucity of the record in the case at hand.

REPUBLIC OF INDONESIA v. VINZONSFacts:Petitioner, Republic of Indonesia, entered into a Maintenance Agreement withrespondent James Vinzon, sole proprietor of Vinzon Trade and Services. TheMaintenance Agreement stated that respondent shall, for a consideration,maintain specified equipment at the Embassy Main Building and the WismaDuta, the official residence of petitioner Ambassador Soeratmin. It is likewisestated therein that the agreement shall be effective for a period of four yearsand will renew itself automatically unless cancelled by either party by givingthirty days prior written notice from the date of expiry.

Petitioners claim that sometime prior to the date of expiration of the saidagreement, they informed respondent that the renewal of the agreement shallbe at the discretion of the incoming Chief of Administration. When MinisterCounsellor Kasim assumed the position of Chief of Administration, he allegedlyfound respondents work and services unsatisfactory and not in compliancewith the standards set in the Maintenance Agreement. Hence, the IndonesianEmbassy terminated the agreement.

On the other hand, respondent claims that the aforesaid termination wasarbitrary and unlawful. Hence, on respondent filed a complaint against

petitioners. Petitioners filed a Motion to Dismiss, alleging that the Republic ofIndonesia, as a foreign sovereign State, has sovereign immunity from suit andcannot be sued as a party-defendant in the Philippines.

Issue:w/n CA erred in sustaining the trial courts decision that petitioners havewaived their immunity from suit by using as its basis the abovementionedprovision in the Maintenance Agreement

Held:The provision states that any legal action arising out of this MaintenanceAgreement shall be settled according to the laws of the Philippines and by theproper court of Makati City, Philippines.

The mere entering into a contract by a foreign State with a private partycannot be construed as the ultimate test of whether or not it is an act jureimperii or jure gestionis. Such act is only the start of the inquiry. Is theforeign State engaged in the regular conduct of a business? If the foreign Stateis not engaged regularly in a business or commercial activity, and in this case ithas not been shown to be so engaged, the particular act or transaction mustthen be tested by its nature. If the act is in pursuit of a sovereign activity, oran incident thereof, then it is an act jure imperii.

Hence, the existence alone of a paragraph in a contract stating that any legalaction arising out of the agreement shall be settled according to the laws ofthe Philippines and by a specified court of the Philippines is not necessarily awaiver of sovereign immunity from suit. The aforesaid provision containslanguage not necessarily inconsistent with sovereign immunity. On the otherhand, such provision may also be meant to apply where the sovereign partyelects to sue in the local courts, or otherwise waives its immunity by anysubsequent act. The applicability of Philippine laws must be deemed toinclude Philippine laws in its totality, including the principle recognizingsovereign immunity. Hence, the proper court may have no proper action, byway of settling the case, except to dismiss it.

Submission by a foreign state to local jurisdiction must be clear andunequivocal. It must be given explicitly or by necessary implication. We findno such waiver in this case.

There is no dispute that the establishment of a diplomatic mission is an actjure imperii. A sovereign State does not merely establish a diplomatic missionand leave it at that; the establishment of a diplomatic mission encompasses itsmaintenance and upkeep. Hence, the State may enter into contracts withprivate entities to maintain the premises, furnishings and equipment of theembassy and the living quarters of its agents and officials. It is therefore clearthat petitioner Republic of Indonesia was acting in pursuit of a sovereignactivity when it entered into a contract with respondent for the upkeep or

maintenance of the air conditioning units, generator sets, electrical facilities,water heaters, and water motor pumps of the Indonesian Embassy and theofficial residence of the Indonesian ambassador.

On the matter of whether or not petitioners Ambassador Soeratmin andMinister Counsellor Kasim may be sued herein in their private capacities,Article 31 of the Vienna Convention on Diplomatic Relations provides:

A diplomatic agent shall enjoy immunity from the criminal jurisidiction ofthe receiving State. He shall also enjoy immunity from its civil andadministrative jurisdiction, except in the case of:

a. a real action relating to private immovable property situated in theterritory of the receiving State, unless he holds it on behalf of the

sending State for the purposes of the mission;


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b. an action relating to succession in which the diplomatic agent isinvolved as executor, administrator, heir or legatee as a privateperson and not on behalf of the sending State;

c. an action relating to any professional or commercial activityexercised by the diplomatic agent in the receiving State outside hisofficial functions.

The act of petitioners Ambassador Soeratmin and Minister Counsellor Kasim in

terminating the Maintenance Agreement is not covered by the exceptionsprovided in the abovementioned provision.

The Solicitor General believes that said act may fall under subparagraph (c)thereof, but said provision clearly applies only to a situation where thediplomatic agent engages in any professional or commercial activity outsideofficial functions, which is not the case herein.

MUNICHER v. CAFacts:An Information for violation of the Dangerous Drugs Act of 1972, was filedagainst petitioner Khosrow Minucher and one Abbas Torabian. The criminalcharge followed a buy-bust operation conducted by the Philippine policenarcotic agents in the house of Minucher, an Iranian national, where a quantityof heroin, a prohibited drug, was said to have been seized. The presidingJudge Eutropio Migrino rendered a decision acquitting the two accused.

Minucher filed a civil case for damages on account of what he claimed to havebeen trumped-up charges of drug trafficking made by Arthur Scalzo.

Scalzo contends that the Vienna Convention on Diplomatic Relations, to whichthe Philippines is a signatory, grants him absolute immunity from suit,describing his functions as an agent of the United States Drugs EnforcementAgency as conducting surveillance operations on suspected drug dealers in the

Philippines believed to be the source of prohibited drugs being shipped to theU.S., and having ascertained the target, he then would inform the Philippinenarcotic agents to make the actual arrest.

Issue:w/n Arthur Scalzo is indeed entitled to diplomatic immunity.

Held:The Vienna Convention lists the classes of heads of diplomatic missions toinclude

a. ambassadors or nuncios accredited to the heads of stateb. envoys, ministers or internuncios accredited to the heads of statesc. charges d' affairs accredited to the ministers of foreign affairs

Comprising the "staff of the (diplomatic) mission" are the diplomatic staff, theadministrative staff and the technical and service staff. Only the heads ofmissions, as well as members of the diplomatic staff, excluding the members ofthe administrative, technical and service staff of the mission, are accordeddiplomatic rank. Even while the Vienna Convention on Diplomatic Relationsprovides for immunity to the members of diplomatic missions, it does so,nevertheless, with an understanding that the same be restrictively applied.

Only "diplomatic agents," under the terms of the Convention, are vested withblanket diplomatic immunity from civil and criminal suits. The Conventiondefines "diplomatic agents" as the heads of missions or members of thediplomatic staff, thus impliedly withholding the same privileges from allothers. It might bear stressing that even consuls, who represent theirrespective states in concerns of commerce and navigation and perform certainadministrative and notarial duties, such as the issuance of passports and visas,authentication of documents, and administration of oaths, do not ordinarilyenjoy the traditional diplomatic immunities and privileges accorded diplomats,mainly for the reason that they are not charged with the duty of representingtheir states in political matters. Indeed, the main yardstick in ascertainingwhether a person is a diplomat entitled to immunity is the determination ofwhether or not he performs duties of diplomatic nature.

Scalzo asserted, particularly, that he was an Assistant Attach of the UnitedStates diplomatic mission and was accredited as such by the PhilippineGovernment. An attach belongs to a category of officers in the diplomaticestablishment who may be in charge of its cultural, press, administrative orfinancial affairs. There could also be a class of attaches belonging to certainministries or departments of the government, other than the foreign ministryor department, who are detailed by their respective ministries or departmentswith the embassies such as the military, naval, air, commercial, agricultural,labor, science, and customs attaches, or the like. Attaches assist a chief ofmission in his duties and are administratively under him, but their mainfunction is to observe, analyze and interpret trends and developments in their

respective fields in the host country and submit reports to their own ministriesor departments in the home government. These officials are not generallyregarded as members of the diplomatic mission, nor are they normallydesignated as having diplomatic rank.

Concededly, vesting a person with diplomatic immunity is a prerogative of theexecutive branch of the government. The State Department policy is to onlyconcede diplomatic status to a person who possesses an acknowledgeddiplomatic title and performs duties of diplomatic nature. Supplementarycriteria for accreditation are the possession of a valid diplomatic passport or,from States which do not issue such passports, a diplomatic note formallyrepresenting the intention to assign the person to diplomatic duties, theholding of a non-immigrant visa, being over twenty-one years of age, and

performing diplomatic functions on an essentially full-time basis.


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subjects of another State due to the recognition of extraterritorial immunitygiven to such bodies as visiting foreign armed forces.

Applying, however, the provisions of VFA, the Court finds that there is adifferent treatment when it comes to detention as against custody. Themoment the accused has to be detained, e.g., after conviction, the rule thatgoverns is the following provision of the VFA:

Art. 5, Sec. 10. The confinement or detention by Philippine authorities ofUnited States personnel shall be carried out in facilities agreed on byappropriate Philippines and United States authorities. United Statespersonnel serving sentences in the Philippines shall have the right to visitsand material assistance.

It is clear that the parties to the VFA recognized the difference betweencustody during the trial and detention after conviction, because they providedfor a specific arrangement to cover detention. And this specific arrangementclearly states not only that the detention shall be carried out in facilitiesagreed on by authorities of both parties, but also that the detention shall beby Philippine authorities. Therefore, the Romulo-Kenney Agreements, whichare agreements on the detention of the accused in the United States Embassy,are not in accord with the VFA itself because such detention is not byPhilippine authorities.

Respondents should therefore comply with the VFA and negotiate withrepresentatives of the United States towards an agreement on detentionfacilities under Philippine authorities as mandated by Art. V, Sec. 10 of theVFA.

SECOND REPORT ON STATE RESPONSIBILITY

Whenever a State is guilty of an internationally wrongful act against another

State, international responsibility is established immediately as between the 2States.

No State may escape the responsibility arising out of the exercise of an illicitaction from the viewpoint of the general principles of international law

A justification for the existence of this fundamental rule has usually beenfound in the actual existence of an international legal order and in the legalnature of the obligations it imposes on its subjects.

In the international order, State responsibility derives from the fact that Statesmutually recognize each other as sovereign. The rules establishingresponsibility would then be the necessary corollary to the principle of the

equality of States.

Grotius: in the law of nations, maleficium was an independent source of legalobligations. This amounts to saying that internationally wrongful acts by Statescreate new international legal relations characterized by subjective legalsituations distinct from those which existed before the acts took place.

INTERNATIONAL CRIMES AND INTERNATIONAL DELICTS

International crime = an internationally wrongful act which results from thebreach by a State of an international obligation so essential for the protectionof fundamental interests of the international community that the breach isrecognized as a crime by the community as a whole

International crime may result from:a. Serious breach for the maintenance of international peace and security

(prohibiting aggression)b. Serious breach of the rights of self-determination of peoples

(prohibiting the establishment or maintenance by force of colonialdomination)

c. Serious breach on a widespread scale for safeguarding the human being(prohibiting slavery, genocide, and apartheid)

d. Serious breach of safeguarding and preservation of the humanenvironment (prohibiting massive pollution of the atmosphere or of theseas)

International delict = any internationally wrongful act not constituting aninternational crime

CHATTIN v. MEXICOFacts:This claim is made by US against the United Mexican State on behalf of Chattin

who was arrested at Mazatlan on a charge of embezzlement. Chattin was tried,convicted, and sentenced to 2 years imprisonment but was released from jailas a consequence of disturbances caused by the Madero revolutions. It isalleged that the arrest, trial and sentence were illegal, that the treatment injail was inhuman, and that Chatting was damages to the extent of $50k, whichamount Mexico should pay.

Issues and Held:1. w/n US has forfeited its right to protect its national

Mexico contends that not only has Chattin, as a fugitive from justice, lost hisright to invoke as against Mexico protection by US, but even that the latter isbound by such forfeiture of protection and may not interpose in his behalf.


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It is true that more than once in international cases statements have beenmade to the effect that a fugitive from justice loses his right to invoke and toexpect protection but this would seem not to imply that his government as wellloses its right to espouse its subjects claim in its discretion.

2. w/n the trial of Chattin was held in illegal mannerThe whole of the proceedings discloses a most astonishing lack of seriousness

on the part of the Court. Neither during the investigation nor during thehearings in open court was any such thing as an oral examination or cross-examination of any importance attempted.

If the wholesome rule of international law as to respect for the judiciary ofanother country shall stand, it would seem of the utmost necessity thatappellate tribunals when, in exceptional cases, discovering proceedings of thistype would take against them the strongest measures possible underconstitution and laws, in order to safeguard their country's reputation.

From the record, there is not convincing evidence that the proof againstChattin, scanty and weak it may have been, was not such as to warrant aconviction. The allegation that the Court in this matter was biased againstAmerican citizens would seem to be contradicted by the fact that, togetherwith the 4 Americans, 5 Mexicans were indicted as well.

3. w/n there was mistreatment in the jailThe allegation of the claimant regarding mistreatment in the jail refers tofilthy and unsanitary conditions, bad food, and frequent compulsion to witnessthe shooting of the prisoners.

The hot climate of Mazatlan would explain in a natural way many of thediscomforts experienced by the prisoners.

4. w/n Mexico is responsible for the alleged actsBringing the proceedings of Mexican authorities against Chattin to the test ofinternational standards, there can be no doubt of their being highlyinsufficient. Since this is a case of alleged responsibility of Mexico for injusticecommitted by its judiciary, it is necessary to inquire whether the treatmentamounts even to an outrage, bad faith, willful neglect of duty, or to aninsufficiency of governmental action recognizable by very unbiased man.

An illegal arrest of Chattin is not proven. Irregularity of court proceedings isproven with reference to absence of proper investigations, insufficiency ofconfrontations, withholding from the accused the opportunity to know all ofthe charges brought against him, undue delay of the proceedings, making the

hearings in open court a mere formality, and a continued absence ofseriousness on the part of the court.

WESTERN AND PASSE OR ALIVE AND UNIVERSAL

In the present article, it s proposed to examine the major criticisms which havebeen made of the approach reflected in the Universal Declaration and to not of

the most significant developments in human rights thinking which have takeplace over the last generation.

1. The Declarations Philosophical Roots are exclusively Western and itsvalues are therefore inapplicable to other societies

The Eastern European input into the Declarations drafting was sufficient toensure the inclusion of economic, social and cultural rights as well as the use oflanguage in the Preamble referring not only to individuals but also to peoplesand organs of society.

Moreover, most of the concerns dealt with in the Declaration had long beenrecognized within the varying conceptions of human dignity which are anintegral part of the worlds major religious and cultural traditions. Thus, whilethe specific terminology of rights may be alien to, for example Islamic,Confucian, Hindu or African approaches, the concerns underlying it are not.

2. Third World participation in the Drafting of the Declaration wasNegligible

While it is true that the great majority of Third World States were still undercolonial rule and were unable to contribute to the UN human rights debate andadoption of the Declaration, the contribution of the Third World was by nomeans negligible.

Most convincing is the fact that the basic principles enunciated in theDeclaration have repeatedly been affirmed in instruments reflecting thedeepest aspirations of the Third World such as the 160 Declaration on theGranting of Independence to Colonial Countries and Peoples, and in a variety ofregional and sub-regional treaties.

At the national level, the Declaration has been expressly referred to in theConstitutions of a large number of Third World States.

3. The Declaration enshrines an Individualistic approach to human rightswhich is unacceptable in non-Western societies


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The vagueness and flexibility of the language used in the Declaration hasenabled the notion of collective rights to be significantly developed withoutdoing violence to the basic text.

The most notable of these is the emergence of a category of peoples rightswhich have been proclaimed alongside human rights in the African Charter ofHuman and Peoples Rights. They include the right to economic, social andcultural development, the right to national and international peace and

security, and the right to a generally satisfactory environment.

4. The Declaration pays scant regard to economic rights4 year later, of the Declarations 25 paragraphs dealing with specific rights, 6were devoted to economic, social and cultural rights. In principle, theemphasis attached to these rights by the socialist and some other countries hadbeen recognized.

While the recent development of concern with economic rights has beeninterpreted by some commentators as resulting in the elimination of civil andpolitical rights from serious international consideration, an attempt to restorebalance into the treatment of the 2 sets of rights had in fact been longoverdue. The Universal Declaration is predicated upon the equal importance ofthe 2 sets of rights and recent endeavours are thus consistent with the visionwhich it represents.

5. The Declaration does not take adequate account of the traditions andneeds of the Third World

May developing countries justifiably feel that the periods of colonialism andneo-colonialism have in many cases imposed cultural system sand developmentmodels upon them which are completely alien. They therefore wish to ridthemselves of all vestiges of cultural hegemony and to encourage theemergence or re-emergence of traditional and self-reliant approaches to

development as well as to human rights.

An assessment of the appropriateness or rather applicability of the UniversalDeclaration in a given society requires the consideration of 2 separate issues:

1. Relates to the rights themselves2. Concerns the manner of implementation of the rights

It must also be noted that the language used in the Declaration is sufficientlyflexible to allow each State a margin of appreciation in interpreting therequirements of any particular right.

Although the Declaration, unlike the Covenants, imposes no specific obligationsupon States which respect to measures of implementation, its general approach

is clearly more attuned to a society with a highly developed legal system and a

sophisticated judicial structure than to one with a more traditional andinformal system of justice.

In the implementation of human rights, the methods used should take accountof the traditions and culture of each society as well as of its legal system.

Contribution to the implementation of international standards on human rightsat the domestic level may also be made through various bodies including

conciliatory agencies, such as human rights commissions, peoplesorganizations, and grass-roots organizations, such as village tribunals.

6. The Declaration overlooks the importance of International SolidarityOne of the most striking examples of this is to be found in the present dayendeavours to extend the reach of, or to internationalize, States obligationsto take measures for the promotion and protection of human rights.

The right implies a positive duty for rich States to make regular transfers offinancial and perhaps other resources to those States that are at presentunable to ensure the satisfaction of the fundamental human rights of theircitizens.

In the present context, the point is that, rather than constituting a dramaticexpansion of basic human rights principles, efforts towards aninternationalization of responsibility for the promotion of respect for humanrights basically amount to giving substance to Art. 28 of the UniversalDeclaration which provides that everyone is entitled to a social andinternational order in which the rights and freedoms setforth in thisDeclaration can be fully realized.

7. ConclusionSince 1948, when the Universal Declaration of Human Rights was proclaimed,profound and enduring changes have occurred in the composition of theinternational community. The most decisive of these resulted from the wave ofdecolonization which swept the world to a shift in voting power.

In 1983, the UDHR stands out as a beacon in a fog of community. Yet theDeclaration does not support to offer a single unified conception of the worldas it should be nor does it purport to offer some sort of comprehensive recipefor the attainment of an ideal world.

In addition to their admitted moral and political authority, the justiciableprovisions of the Declaration, those enunciated in Articles 1-21, have now

acquired the force of law as part of the customary law of nations.


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SOUTH WEST AFRICA CASES

Facts:The discretionary power of the Mandatory however, is not unlimited. TheMandatory is subject to the Charter of the UN as a member State, thecustomary international law, general principles of law and other sources ofinternational law.

Under apartheid, the status, rights, duties, opportunities and burdens of thepopulation are determined and allotted arbitrarily on the basis of race, colorand tribe, in a pattern which ignores the needs and capacities of the groupsand individuals affected, and subordinates the interests and rights of the greatmajority of the people to the preferences of a minority.

The Applicants contend that such policy runs counter to modern conception ofhuman rights, dignities and freedom, irrespective of race, color or creed.

From the point of the Applicant, the violation of the norm of non-discrimination is established if there exists a simple fact of discriminationwithout regard to the intent of oppression on the part of the Mandatory.

On the other hand, the Respondent does not recognize the existence of thenorm of non-discrimination of an absolute character and seeks to prove thenecessity of group differentiation in the administration of a multi-racial, multi-national, or multi-lingual community.

Issue:w/n the policy of racial discrimination or separate development is per seincompatible with the well being and social progress of the inhabitants

Held:The principle of equality before the law is philosophically related to theconcepts of freedom and justice. The most fundamental point in the equality

principle is that all human beings as persons have an equal value in themselves,that they are the aim itself and not the means for others, and that, therefore,slavery is denied.

The principle of equality is binding upon administrative organs. Thediscretionary power exercised on considerations of expediency by theadministrative organs is restricted by the norm of equality and theinfringement of this norm makes an administrative measure illegal.

The principle of equality being in the nature of natural law and therefore of asupra-constitutional character, is placed at the summit of hierarchy of thesystem of law, and that all positive laws including the Constitution shall be inconformity with this principle.

What is the criterion to distinguish a permissible discrimination from animpermissible one?

In the case of minorities, the norm of non-discrimination as a reverse side ofthe notion of equality before the law prohibits a State to exclude members of aminority group from participating in rights, interests and opportunities which amajority population group can enjoy. On the other hand, a minority group shallbe granted the exercise of their own religious and education activities.

It is possible that the different treatment in certain aspects is reasonablyrequired by the differences of religion, language, education, custom, etc., notby reason of race or color.

The policy of apartheid or separate development which allots status, rights,privileges or burdens on the basis of membership in a group, class or racerather than on the basis of individual merit, capacity or potential is illegalwhether the motive be bona fide or mala fide, oppressive or benevolent,whether its effect or result be good or bad for the inhabitants.

INTER-AMERICAN COURT OF HUMAN RIGHTS

The Inter-American Court of Human Rights was established by the AmericanConvention on Human Rights and ratified by 17 of the 29 member states of theOrganization of American States. The Court consists of 7 judges, nominated andelected by the states parties to the Convention. The judges must be nationalsof an OAS member state; the regular term of the judges is 6 years; they may bereelected for one additional term.

The norms governing the exercise of the Courts functions are set out in 2instruments:

1. Convention Statute of Court shall be drafter and approved by the OASGeneral Assembly

2.

Statute of Court3. Rules of ProcedureThe Courts Jurisdiction

1. Adjudicatory jurisdiction to decide disputes involving charges that astate party has violated the human rights guaranteed by theConvention

2. Advisory empowers the Court to interpret the Convention and otherhuman rights instruments at the request of OAS member states andvarious OAS organs

Adjudicatory JurisdictionThe Courts power to decide a case referred to it is conditioned on the

acceptance of its jurisdiction by the States parties to the dispute. A State is


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not deemed to have accepted the jurisdiction of the Court merely by ratifyingthe Convention. It requires a separate declaration or a special agreement.

All States parties to the Convention may permit the Court at any time, on ad adhoc basis, to adjudicate a specific dispute relating to the application of theConvention.

Only the State Parties and the Commission shall have the right to submit a case

to the Court. Individuals have no standing to do so.

Before one State party may bring charges against another State party, bothstates must have made a separate declaration recognizing the competence ofthe Commission to receive and examine interstate complaints.

Procedures dealing with a submitted complaint:1. Commission determines whether the petition is admissible2. Commission seeks to ascertain the factual allegation by holding

hearings, examining documents, and carrying out investigationso At this stage, Commission explores possibilities for reaching a

friendly settlement of the disputeo If no friendly settlement is reached, proceed to 3rd stage

3. Commission has the duty to draw up a report setting forth the factsand stating its conclusionsa. The report is transmitted to the States concernedb. Within a period of 3 months following the transmittal of the

report, the case may be referred to the Court either by theCommission or by the State concerned

The Court concluded that the procedures before the Commission have not beencreated for the sole benefit of the States, but also in order to allow for theexercise of important individual rights, and that therefore, the power to waivethese procedures did not belong to the States alone.

The right of individuals to file petitions with and to appear before theCommission are important safeguards that enable the private parties to play anactive role in the investigatory, conciliatory, and quasi-adjudicatory processesby which the Commission exercises its functions.

The proceedings before the Court in a contentious case terminate with ajudgment. The Court has the power to enter a declaratory judgment and toaward damages.

Judgment that stipulates compensatory damages may be executed in thecountry concerned in accordance with domestic procedure governing theexecution in the country concerned in accordance with domestic proceduregoverning the execution of judgments against the State.

The decisions of the Court, and of its President, as soon as they have beencommunicated to the appropriate administrative or judicial authorities of theRepublic, shall have the same effect and executory force as those adopted byCosta Rican courts.

The Court has the power to grant an extraordinary remedy in the nature of atemporary injunction in cases of extreme gravity and urgency, and whennecessary to avoid irreparable damage to persons, at the request of the

Commission.

Temporary injunction is available in 2 distinct circumstances:1. For cases already pending before the Court request may be made at

any time after the case has been submitted to Court or evensimultaneously with the filing

2. For cases being dealt with by the Commission that have not yet beenreferred to the Court for adjudication the Court would obtainjurisdiction only for the purpose of dealing with the request forprovisional measures

Advisory AdjudicationThe scope of the advisory power of the Court is more extensive that that

enjoyed by any international tribunal in existence today:1. Standing to request an advisory opinion from the Court is not limited to

the States parties to the Convention; it extends to any OAS memberstate

2. Courts advisory jurisdiction applies not only to the Convention butalso to the interpretation of any other treaty concerning theprotection of human rights in the American States

3. Right to seek advisory opinions extends to all OAS organs4. All OAS member states may also request opinions from the Court

regarding the compatibility of their domestic laws with the Conventionor with any of the human rights treaties

National courts may request an advisory opinion from the Court but the requestmust come from the State through the government rather than directly fromnational tribunals.

The matter could also be dealt with by appropriate agreements between theCourt and governments authorizing national tribunals to deal directly with theCourt in certain cases.

The courts advisory opinion is not binding.


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UNITED NATIONS DECLARATION ON PERMANENT SOVEREIGNTY OVERNATURAL RESOURCES

As a basic constituent of the right to self-determination, due regard should bepaid to the rights and duties of States under international law and to theimportance of encouraging international cooperation in the economicdevelopment of developing countries.

Any measure in this respect must be based on the recognition of the inalienableright of all States freely to dispose of their natural wealth and resources inaccordance with their national interests, and on respect for the economicindependence of States.

It is desirable to promote international cooperation for the economicdevelopment of developing countries.

Nationalization, expropriation or requisitioning shall be based on grounds orreasons of public utility, security or the national interest which are recognizedas overriding purely individual or private interests, both domestic and foreign.

Owner shall be paid appropriate compensation in accordance with the rules in

force in the State taking such measures in the exercise of its sovereignty and inaccordance with international law.

When question of compensation gives rise to a controversy, the nationaljurisdiction of the State taking such measures shall be exhausted. However,upon agreement, settlement may be made through arbitration or internationaladjudication.

CHARTER OF ECONOMIC RIGHTS AND DUTIES OF STATES

Economic, political and other relations among States shall be governed by:

a.

Sovereignty, territorial integrity and political independence of Statesb. Sovereign equality of all Statesc. Non-aggressiond. Non-interventione. Mutual and equitable benefitf. Peaceful co-existenceg. Equal rights and self-determination of peoplesh. Peaceful settlement of disputesi. Remedying of injustice brought about by force and which deprive a

nation of the natural means for its normal developmentj. Fulfillment in good faith of international obligationsk. Respect for human rights and fundamental freedomsl. No attempt to seek hegemony and spheres of influencem. Promotion of international social justice

n. International cooperation for developmento. Free access to and from the sea by land-locked countries

TEXACO OVERSEAS PETROLEUM COMPANY v. GOVERNMENT OF LIBYA

Facts and Held:Dispute between Libya and 2 international oil companies arising out of decrees

of nationalization promulgated by Libya.

Libya promulgated decrees purporting to nationalize all of the rights, interestsand property of the 2 oil companies.

The Sole Arbitrator delivered an Award on the Merits in favor of theCompanies. He held that

a. The deeds of concession are binding on the partiesb. By adopting the measures of nationalization, the Libyan government

breached its obligation in the Deeds of Concessionc. Libyan government is legally bound to perform the Deeds and to give

them their full force and effect

An arbitral tribunal held that the injured parties were entitled to restitutio inintegrum and that the sovereign state was obliged to perform specifically itscontractual obligations with private foreign investors.

In addition, the arbitral tribunal, after reviewing the legal effect ininternational law of the UN General Assembly resolutions concerningpermanent sovereignty over natural wealth and resources, concluded that suchresolutions could not be used by the State to violate its contractual obligationsin commercial transactions.

INTERNATIONAL LEGAL MATERIALS (RENE-JEAN DUPREY)

Sovereignty is not negated by the conclusion of a treaty but, quite thecontrary, that the conclusion of a treaty is a manifestation of such sovereignty.

This observation has logically the same scope and significance in the case of anagreement entered into by a given State with a foreign private company. Thisagreement is not a treaty commitment but it is an agreement which falls withinthe international legal order since the contracting State agreed to submit theagreement not to the exclusive, and unlimited in time, application of itsmunicipal law, but to rules falling at least in part within the framework ofinternational law or of general principles of law.

State, by entering into an international agreement with any partner, exercises

its sovereignty whenever the State is not subject to duress and where the State


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has freely committed itself through an untainted consent. It is notincompatible for a State to grant a concession while desiring not to alienate itssovereignty.

However, sovereignty cannot invoke its sovereignty to disregard commitmentsfreely undertaken through the exercise of this same sovereignty and cannot,through measures belonging to its internal order, make null and void the rightsof the contracting party which has performed its various obligations under the

contract.

The international responsibility of the nationalizing State is brought into playwhen it nationalizes a foreign enterprise in violation of an obligation freely andprecisely assumed by it in an international agreement.

In respect of the international law of contracts, a nationalization cannotprevail over an internationalized contract containing a stabilization clauses,entered into between a State and a foreign country.

The situation could be different only if one were to conclude that the exerciseby a State of its right to nationalize places that State on a level outside of andsuperior to the contract and also to the international legal order itself, andconstitutes an act of government which is beyond the scope of any judicialredress or any criticism.

Assuming that jus cogens should be extended to agreements entered intobetween States and foreign private companies, it is nevertheless true that thisconcept should not apply to any treaty or any contract simply because suchconcerns the exploitation of natural resources; in each particular case,verification should be made as to whether the act considered does in factalienate the sovereignty of the State over such resources.

TRAIL SMELTER ARBITRATION (previous case)

THE CORFU CHANNEL CASE (previous case)

THE FREEDOM OF THE SEAS

The use of the sea as a dumping ground is among the traditional uses whichman has made of the maritime environment.

The existing law of the sea rests on 2 traditional legal concepts:1. Of the high seas where the freedom of the sea prevails states have

been subject exclusively to the jurisdiction of the flag state

2. Of the territorial sea which is under the sovereignty of the coastalstate the coastal state has the right to exercise jurisdiction andcontrol over ships of whatever flag but is subject to certain limitations

The 1954 London Convention prohibited the intentional discharge of oil and oilymixtures into the sea within certain zones extending generally 50 miles fromland. Offenses under such were made punishable only under the laws of theflag state of the offending ship, except that the coastal state remained free to

take enforcement action against all ships within its territorial sea.

Another major weakness of the Convention is that it does not make compulsorythe adoption of techniques and the use of equipment which could helpconsiderably to eliminate the deliberate discharge of oil and oily mixtures intothe sea.

The 1958 Geneva Convention on the High Seas requires States to draw upregulations to prevent pollution of the sea by discharges of oil from ships orpipelines or resulting from the exploitation of the seabed, and its subsoil,taking account of existing treaty provisions on the subject.

As regards the Public Law Convention:

1. It provides that coastal states may take such measures on the high seasas may be necessary to protect their coastline or related interests frompollution of the sea

2. It relates to oil pollution only3. It provides that the measures taken by coastal state must be such as

are reasonable or proportionate to the actual or threatened damage4. It establishes that coastal state must submit to binding international

arbitration

The Public International Convention codifies the right of the coastal state tointervene on the high seas against a ship threatening to pollute its coastalenvironment and serves to establish a principle applicable to any pollution

incident despite the fact that the convention is limited to pollution by oil.

As regards Private Law Convention:1. It imposes strict liability on the owner of any oil-carrying ship from

which oil has escaped after an incident at sea except fora. Acts of war or natural catastrophesb. International acts of a third partyc. Negligence on the part of those responsible for the maintenance of

navigational aids2. It provides that shipowner, unless the incident occurred as a result of

his fault or with his privity, may limit his liability for pollution damages3. Restricted to liability for damage occurring on the territory or in the

territorial waters of a contracting state


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The Private Law Convention, although it does not provide for adequatecompensation for the innocent victims of oil pollution incidents and does notcover damage suffered to important interests beyond the territorial sea,nevertheless fixes the liability of ships for oil pollution damage at double theamount formerly available.

US V. UNITED MEXICAN STATES

Facts:It is put forward by US on behalf of North American Dredging Company for therecovery of the sum suffered by claimant for breaches of a contract fordredging at the port of Salina Cruz, which contract was entered into betweenthe claimant and the Government of Mexico.

Article 18, incorporated by Mexico as an indispensable provision, not separablefrom the other provisions of the contract as subscribed to by the claimant forthe purpose of securing the award of the contract, states that, the Contractorand all persons are consequently deprived of any rights as aliens, and under noconditions shall the intervention of foreign diplomatic agents be permitted, inany matter related to this contract.

The jurisdiction of the Commission is challenged based on that Calvo clausewhich deprives the party of the right to submit any claims connected with hiscontract to an international commission.

Issue:w/n the Calvo clause violates any rule of international law

Held:The Calvo clause is neither upheld by all outstanding authorities and by thesoundest among international awards nor is it universally rejected.

The present stage of international law imposes upon every international

tribunal the solemn duty of seeking for a proper and adequate balancebetween the sovereign right of national jurisdiction, on the one hand, and thesovereign right of national protection of citizens on the other.

The contested provision is part of a contract and must be upheld unless it berepugnant to a recognized rules of international law. What must be establishedis not that the Calvo clause is universally accepted or recognized, but thatthere exists a generally accepted rule of international law condemning Calvoclause.

Under the rules of international law, an individual can make a promise not tocall upon his own Government to intervene on his behalf in connection with anycontroversy, but he cannot deprive the Government of his nation of its

undoubted right of applying international remedies to violations ofinternational law committed to his damage.

When the claimant subscribed to Article 18, it waived its rights to:a. Conduct himself as if no competent authorities existed in Mexicob. He did not waive any right which he possessed as an American citizen

as to any matter not connected with the contractc. He did not waive his undoubted right as an American citizen to apply

to his Government for protection in general or to extend to him itsprotection against breaches of international law

The claimant, after having solemnly promised in writing that it would notignore the local laws, remedies and authorities, behaved from the verybeginning as if Art. 18 of its contract had no existence in fact. Where aclaimant has expressly agreed in writing, he will be bound by his contract andthe Commission will not take jurisdiction of such claim.

INTERNATIONAL FISHERIES CO. (Judge Nielsen, Dissenting)

The Commissions discussion of the restriction on interposition was

characterized by failure of recognition and application of fundamentalprinciples of law with respect to several subjects. Principally among them are:

a. Nature of international law as a law between nations whose operationis not controlled by acts of private individuals

b. Nature of an international reclamation as a demand of a governmentfor retirees from another government and not a private litigation

c. Remarkable confusion between substantive rules of international lawthat a nation may invoke in behalf of itself or its nationals againstanother nation

International law recognizes the right of the nation to intervene to protect itsnationals in foreign countries through diplomatic channels and through

instrumentalities such as are afforded by international tribunals.

The Commission seemed to indicate some view to the effect that thecontractual stipulations (Calvo Clasue) in question were in harmony withinternational law because they required the exhaustion of local remedies. TheCommission ignored the effect of Art. 5 of the Convention conclude betweenUS and Mexico, stipulating that claim should not be rejected for failure toexhaust local remedies.

No rule can be abolished, or amplified or restricted in its operation, by a singlenation or by a few nations or by private individuals or by private individualsacting in conjunction with a government. no action taken by a privateindividual can contravene a treaty or a rule of international law, although it is

the duty of a government to control the action of individuals with a view to


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preventing contravention of rules of international law or treaties. Andassuredly, no nation can by a contract with private individual relieve itself ofits obligations under international law nor nullify the rights of another nationunder that law.

While signing of the contract with a private concern would scarcely in preciselanguage be declared a violation of international law, certainly any attempt tofrustrate another nations rights of interposition secured by international law

would not be in harmony with that law.

Except by expatriation, a private person can by no act of his own forfeit ordestroy his Governments right to protect him. His acts may of course give riseto considerations of policy which may influence the attitude of his Governmentwith respect to his appeal for assistance.

It was the duty of the Commission to give effect to the clearly expressed intentof Art. 5 of the arbitration agreement. The intent and clear legal effect is thatclaim shall not be dismissed because of failure of claimants to resort to localremedies.

The Commission also said that the claimant could not rightfully present this

claim to the Government of US for interposition. The Commissions connotationof the term rightfully is not explained. As Dr. Borchard says, with respect tothe duty of protection, whether such a duty exists toward the citizen is amatter of municipal law. A claimants right to protection from his Governmentis determined by the law of the Government; while, the right of theGovernment to extend protection is secured by international law.

TATTLER (US v. Britain)Facts:This is a claim with interest on account of a seizure of the schooner Tattlerandits detention for 6 days by the Canadian authorities on a charge of alleged

violation of Canadian fisheries laws and the Treaty of 1818 between US andGreat Britain.

The owners entered into the following undertakings: in consideration of therelease of the American schooner Tattler, we hereby guarantee his MajestyKing Edward 7th, against any and all claims made or to be made on account ofor in respect to such detention, hereby waiving all such claims and right of libelor otherwise before any court or Tribunal in respect to said detention or tosuch or any of such claims or for loss or damage in the premises.

Issue:w/n such declaration is binding on the US

Held:The renunciation of and guarantee against any claims are not binging upon USwhich presents the claim.

In this case, the only right US is supporting is that of its national, and it canrely on no legal ground other than those which would have been open to itsnational. Hence, the claim must be dismissed.

THE PANEVEZYS RAILWAY CASE (Estonia v. Lithuania)Facts:A company was founded at St. Petersburg under the name of the First Companyof Secondary Railways in Russia. By an Imperial decree, the Company wasauthorized to construct and operate a railway between the station atSventziany, on the St. Petersburg-Warsaw railway, and the station atPanevezys, on the Libau-Romny railway. The Company also possessed otherlines in various parts of the Russian Empire, in particular in the Baltic provincesand in the Ukraine.

The Bolshevist revolution took place, and a decree of the Central ExecutiveCommittee concerning the nationalization

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