PUBLIC INTERNATIONAL LAW

Pre-finals Notes (Atty. DBL Transcript, Digests from the

internet, Some provisions and definitions)
Prof: Atty. D.B. Largo
G. JURISDICTION

Forms of Jurisdiction
Jurisdiction of National Courts
Conflicts of Jurisdiction
Jurisdiction. There are three categories of Jurisdiction class
around the world. Of course all these would have to affect
persons, acts, events, or transactions, all of these, ok. So
there is what we called jurisdiction to prescribe law, meaning
to say that a particular conduct of a citizen or an individual is
governed by this particular law where ever he goes. Although
States makes its policy, when we say policy, its a rule of
conduct applicable to persons or activities. This is best
exemplified by the US, I told you to read the US statement on
foreign relations. Because thats where we will see a good
discussion on international law.
We also have jurisdiction to adjudicate. So that is a different
type of jurisdiction. That is the authority of the state to
subject particular persons or things to these courts. Probably
thats the usual jurisdiction that comes to mind when we hear
the word jurisdiction.
In international law, what is jurisdiction? In international law
we distinguish between jurisdiction to prescribe law by asking
our citizens to behave in a particular manner on the basis of
domestic law for example. Like our family law, status, our
family code requires that we should be at least eighteen
before we can validly contract marriage. So personal laws
follow our citizen. So if you go to other states, this becomes
complicated because we also have conflict of laws. Your
capacity to marry is largely based on nationality principle. So
the policy is for you to marry you have to be 18. That is
jurisdiction to prescribe law. Jurisdiction to adjudicate to clear
the case and lastly, jurisdiction to enforce. This two of course
have various controversial issues which we will discuss later
on.

consequences to the social or economic order inside their

territory which had been used by the US a lot of times.
So if this is the situation, we have Canada and US kay
adjacent man sila, suddenly Canada fires a gun and then hit
someone in the US. So how do you apply subjective and
objective territorial principle? The US is... in objective because
the effect of the crime is felt in its territory. So mens rea is in
Canada, then the actus rios is completed in the US. Mens rea
is criminal intent, actus rios is the overt act. The pulling of the
trigger is not what constitutes the crime. What constitute the
crime is the killing and then for the death of the victim. The
overt act is the pulling of the trigger and then the death of the
victim. Objective for US. Subjective, Canada would have
jurisdiction. Because the act commenced within Canada.

And then I asked someone about the case of US vs. VasquezVelasco. Gatuo man gud ni silang Vasquez-Velasco ba nga
katong ilang gipang-pusil mga agents sa US Drug
Enforcement Agency, it turned out nga dili. Ang arguments sa
taga Mexico, the crime was committed in Mexico and the
victims were not agents mistaken identity lang. Aww dili sad
mistaken identity but they thought, ang ako lang, dili kaha to
fabricated nga evidence on the part of US so that it can justify
extra..ambot lang kay dili man lagi nato kaso so wala tay
background so we can only have to perhaps surmise. But
since it was an attemptagainst the national security of the US,
the attack was intended to be committed against the US
through DEA then it must have threatened US national
interest justifying extra-territorial application of penal law in
the US. This is what the US Court said,
Extra-territorial application of a penal statute to the
murder of the US citizen mistaken as a federal agent is
consistent with the principle of international law. International
law generally permits the exercise of extra-territorial
jurisdiction under the objective territorial principle under
which jurisdiction is asserted over acts performed outside the
US that produced detrimental effects within the US.
It was also justified in protective principle because according
to the US court it was an act committed outside the US that
may impede on the territorial security or political
independence of the US. Dia ra oh.

Concern with the authority of the states to use their resources

of government we compel compliance with these laws. But
probably, if we are to talk of jurisdiction, we talk about
criminal jurisdiction. Mao man nay usual concern when it
comes to jurisdiction.

Despite the fact that the crimes in this case did

not include murder of a DEA agent, extra-territorial
jurisdiction is still appropriate because according to the
governments theory, the crime was directed against the US.

You must have read territorial principle, nationality principle,

protective principle, and universality principle. Territorial
principle may be subjective or objective. If the act is done
within the territory the court will have jurisdiction over the
crime. That is criminal jurisdiction. But crimes are committed
with differing elements, differing mens rea, differing actus
rios. So the problem here is what if mens rea is present
outside the territory, but the effect of the actus rios is in your
territory. How are you going to solve that? So thats why we
distinguish between subjective and objective.

Mao ni akong giingon. Wala kaha ni gihilot2x lang jud ba

during trial nga naa sila ana nga theory. The court said that
the crime was directed against the US. Mao ra nay ilang
interest, it was directed against US because it was against US
interest. US interest is prejudiced, threatened, underattacked. Naa silay mga ing ana noh. Sige lang, ma president
gani ka Brendale kinahanglan mo assert sad ka sa atong
extra-territorial jurisdiction. Unsa man, ipa kidnap nato si
Amarillo sa Malaysia? We talked about that noh. The
possibility of it coming out in the exam is 95%.

TERRITORIAL PRINCIPLE

By the way, jurisdiction over the person includes jurisdiction

over the person. Person man japon. This case of Hartford Fire
Insurance, US claimed that there was deliberate act on the
part of certain insurance companies outside of the US by
violating the Anti-trust laws of the US. Kay restrictive kayo
ang coverage and therefore prejudicing the economy of the
US. Ingon ang court, you have a local law, Sherman Act as
applied abroad! Meaning as applied on the acts committed
abroad. Kanus-a pa kaha ta maabot ana nga type nga we can
assert our laws, na dapat i-obey and i-observe outside. Ahh
this is US by the way noh but it shows an illustration of the
principle.

We go to territorial jurisdiction, you were right. States have

jurisdiction over persons, properties, acts or events occurring
within its territory. Applied to criminal jurisdiction, then State
has jurisdiction over acts, or crimes committed within its
territory. This stipulation is applicable to territorial jurisdiction
in general. Like taxation for example is territorial. With few
exceptions when the case of resident citizens working abroad
for example. But in criminal law, the crime is committed
within its territory. These are the two kinds of principles about
territorial
jurisdiction.
Subjective
territorial
principle
commence within. In objective, its the effect no, commenced
abroad but consummated within their territory, no. one.
Second, it will take rest producing gravely harmful
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Effects Doctrine regardless of where the crime was

committed, if it affected the state, then it has objective
territorial jurisdiction. Enunciated in the cases of US vs.
Vasquez-Velasco and the Hartfordfire Case.

Hartford Fire Insurance Co. v. California, 509 US 764 (1993).

Defendants, acting in London, were charged with

conspiring to restrict the terms of certain kinds of
insurance available in the US, in violation of the
Sherman Act

Issue: is there prescriptive jurisdiction to apply the

Sherman Act, or any US law, to conduct that occurs
in another country?

CASE BRIEFS
United
15
Procedural
Appeal

States

v.
F.3d

of

criminal

Vasquez-Velasco
833
History:
conviction.

Overview:
-Javier Vasquez-Velasco (D), a member of a drug cartel in
Guadalajara, and several other members, beat and killed
(John] Walker [an American citizen writing a novel in Mexico]
and [Alberto] Radelat [a photographer and U.S. legal
resident].
-D was convicted under U.S. law. On appeal, Vasquez-Velasco
(D) argued that U.S. penal laws do not apply extraterritorially.
United States v. Felix-Gutierrez, 940 F.2d 1200 (9th Cir. 1991),
cert. denied, 508 U.S. 906 (1993), a case in which a defendant
was convicted of kidnapping and murdering Enrique
Camarena, an American Drug Enforcement Agency (DEA)
agent, and Alfredo Zavala, a DEA informant, was the basis for
the appeal by the defendant in this case, Javier VasquezVelasco (D). Vasquez-Velasco (D), a member of a drug cartel in
Guadalajara, and several other members, beat and killed
(John] Walker [an American citizen writing a novel in Mexico]
and [Alberto] Radelat [a photographer and U.S. legal
resident].
-At trial, the U.S. government (P) argued that Vasquez-Velasco
(D) and his three co-defendants committed the crimes to
further their positions in a Guadalajara drug cartel. The
murders Velasco (D) was charged with were allegedly
retaliatory
actions
against
a
DEA
crackdown.
-He was convicted in a jury trial of committing violent crimes
in aid of a racketeering enterprise in violation of 18 U.S.C.
1959. On appeal, Vasquez-Velasco (D) argued that U.S. penal
laws
do
not
apply
extraterritorially.

The Sherman Act has typically been

interpreted according to the objective
territorial principle it deals with conduct
that occurs outside the US but has a
substantial and harmful effect inside the
United States

Previous decisions found that he Sherman

Act extended overseas; the new question
was how far the Sherman Act extended

Majority Opinion (Souter): the Sherman Act does

apply to the acts in question
o

Issue:
Is the extraterritorial application of a penal statute to the
murder of a U.S. citizen mistaken for a federal agent
consistent
with
principles
of
international
law?
Rule:
Extraterritorial application of a penal statute to the murder of
a US citizen mistaken for a federal agent is consistent with the
principles
of
intl.
law.
Analysis:
-The objective territorial and protective principles apply
because the defendant in this case murdered the two U.S.
citizens on the mistaken belief they were DEA agents, and
their murders might intimidate the DEA and local police and
drug agencies, who might otherwise cooperate with the DEA.
-The case therefore turns on the defendants subjective
beliefs; if the government had been unsuccessful in its
argument that the murders were committed as retaliation
against the DEA, extraterritorial jurisdiction would be harder
to
apply.
Outcome:
-Yes. Extraterritorial application of a penal statute to the
murder of a U.S. citizen mistaken for a federal agent is
consistent
with
principles
of
international
law.
-International law generally permits the exercise of
extraterritorial jurisdiction under the objective territorial
principle, under which jurisdiction is asserted over acts
performed outside the United States (P) that produce
detrimental effects within the United States (P), and the
protective principle, under which jurisdiction is: asserted over
foreigners for an act committed outside .the United States (P)
that may impinge on the territorial integrity, security, or
political independence of the United States (P).
-Extraterritorial application of 18 U.S.C. 1959 to violent
crimes associated with drug trafficking is reasonable under
international law principles, since it is a serious and
universally condemned offense. Despite the fact that the
crimes in this case did not involve the murder of a DEA agent,
extraterritorial jurisdiction is still appropriate because,
according to the governments theory, the cartel members
mistook
Walker
and
Radelat
for
DEA
agents.
-As in Felix-Gutierrez, the crime was directed against the
United States (P) .
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Does not address international law in depth;

he merely addresses comity

He frames the question as whether

principles of comity ought to lead
the court to exercise judicial
restraint
and
not
exercise
jurisdiction
over
the
London
insurance companies

He says that there is only an issue where

the laws of two states conflict in such a way
that one cannot comply with the laws of one
country without violating the laws of the
other country: The only substantial
question in this case is whether there is in
fact a true conflict between domestic and
foreign law.

He finds that there is no conflict

between US and British law (seems
though he almost jumps right to
the third part of the Restatement
test in Section 403)

Though the US made illegal what

was legal in England, compliance
with US law would not require
violation of British law, so its ok

Is Souter right in suggesting that this is the

only question that needs to be addressed?

The Restatement reasonableness

test says no you still have to
establish 1) that there is a
recognized basis for prescriptive
jurisdiction, and then 2) that it is
reasonable for the state to exercise
jurisdiction in the given case (look
to
reasonableness
factors
in
Restatement); then you would
perform Souters analysis

- See more at:

http://www.lawschoolcasebriefs.net/2012/01/hartford-fireinsurance-co-v-california.html#sthash.A9spbfM7.dpuf

NATIONALITY PRINCIPLE
Foreign conduct that was meant to produce and does in fact
produce substantial effect in the US may be covered by their
own law. Tan-awa ra gud ang sentence class oh,
International committee would not prevent a US court from

exercising jurisdiction in the circumstances alleged here. Ang

ponencia ni ha. Committee ra man sad gud, wala man siya
miingon nga customary international law would not prevent.
Kana kulba kaayo na declaration on the part of the US court.
Okay so that territorial jurisdiction, objective and passive. We
have nationality principle in jurisdiction. We also have active
and passive. Active, state may regulate the conduct of their
national wherever they are in the world. We have personal
law, whether or not you are married, you are governed by our
personal laws even if they are outside our territory, our
capacity to contract marriage, what else.. Status usually noh.
There is what we call passive nationality however. The state
may prescribe a law for situations where the states nationals
are victims of the act being regulated. Sa active nationality,
ang link is that you are a national and therefore you can be
reached by the domestic law wherever you are. We are not
saying that, by following thate, all rules should be applied. It
depends on the domestic law of course. As I have said, diba in
our case, an example is in the case of our personal laws. In
passive nationality, the link however is that a victim is a
national. Sa passive nationality man gud class, the jurisdiction
is applied to the offender. In active nationality, the jurisdiction
is applied to the citizen. Nga ikaw your capacity to contract
marriage is based on our law, whether you are married or not,
the basis is our law. So you are governed by our law. In a
passive nationality, the jurisdiction is applied to the offender
by reason of the fact that the victim is a national of that state.
Okay, so passive and active. We have cases here diba?
Passive nationality however may encroach the idea of
diplomatic protection because in the case of Nottebohm, well
this case is the leading case on effective nationality theory.
Does the state have the right to determine its own citizenship
laws? Mao ni ingon sa ICJ, ikaw Philippines you have your own
set of citizenship laws. But just because a person is your
citizen does not necessarily mean that you already have the
right to exercise diplomatic protection in favor of the citizen.
So citizenship is not enough if you are to exercise diplomatic
protection because what will matter is your real and effective
claim to a particular territory.
Guatemala and Germany and probably Nottebohm was
threatened and asked for citizenship in Liechtenstein and he
was immediately granted. Whether or not he was a national of
Liechtenstein for purposes of diplomatic protection, the ICJ
found out that he was not able to establish that he was not
effectively linked because he was not there most of his
lifetime. So we cannot say that since you are a citizen, the
state that grants you that citizenship already has the right to
exercise diplomatic protection. It must likewise be established
that there is a real and effective link between the espousing
state and the national.
And we have the US case of US vs. Columba-Collela, British
citizen living in Mexico sold a car that was actually stolen in
Texas. Pero lain ang gakawat, dili ang British guy. Where was
the crime committed? Texas. The crime of stealing. The car
was stolen in Texas but the offender is not the British guy.
Lain ang offender. The supposed culpability of the British guy
is the selling of the stolen car. Can he be prosecuted under US
law? So if you apply the different principles, lets take a lookat
the different principles. Protective principle is irrelevant
because this case does not involve national security or
directly interfering with governmental operations.
Protective principle for example is irrelevant because this
case does not involve national security or interfering with
government operations. In fact, tawag niya, simple offense
carnapping. This has a very narrow scope. That is why in our
problem we distinguish between drug trafficking and money
laundering. But in this case, 1 car, fencing, not even a
syndicated crime. The protective principle is not readily
accepted here.
What about objective territoriality principle? Nationality
principle will not apply here. Universality principle will not
apply here. What is the test? Effect on the US. Why did not
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apply? The act of stealing which happened in Texas was not

perpetrated by this guy. This connection to harm to the US is
too attenuated with minimal effect.
Passive Nationality? No. Because it covers a narrow category
of crimes. In this case it does not even include murder, let
alone car fencing.
Effective Nationality Principle as Enunciated in the Nottebohm
Case
Nottebohm

Case

(Liechtenstein

v.

Guatemala)

Procedural
History:
Appeal by a state from the refusal of another state to admit
one
of
its
nationals.
Overview:
Nottebohm (P), a German citizen, lived in Guatemala (D) for
34 years and applied for Liechtenstein (P) citizenship one
month after the start of World War II. Nottebohm (P) was a
German by birth. Nottebohm (P) lived in Guatemala (D) for 34
years, retaining his German citizenship and family and
business ties with it. One month after the outbreak of World
War II, Nottebohm {P) applied for citizenship with
Liechtenstein {P), a neutral country. Nottebohm (P) had no
ties with Liechtenstein {P) and intended to remain in
Guatemala (D). Liechtenstein (P) approved the naturalization
application and impliedly waived its three-year residency
requirement. Nottebohm (P) briefly visited Liechtenstein (P)
and, on his return to Guatemala (D), was refused admittance,
being deemed a German national. Nottebohms (P)
Liechtenstein (P) citizenship was not honored. Liechtenstein
{P) brought an action before the International Court to compel
Guatemala (D) to recognize Nottebohm (P) as one of its
nationals. Guatemala (D) challenged the validity of
Nottebohms (P) citizenship, the right of Liechtenstein (P) to
bring the action and alleged its belief that Nottebohm (P)
remained
a
German
national.
Issue:
Must a nation
conferred
on

automatically
a
party

recognize the citizenship

by
another
nation?

Outcome:
-No. As a general rule, matters concerning citizenship are
solely the concern of the granting nation. It alone will
normally bear the burdens or attain the benefits from the
conferral of citizenship on a party. However, the conferring
state may not require other states to automatically accept its
designation unless it has acted in conformity with the general
aim of forging a genuine bond between it and its national.
Here, no relationship exists between Liechtenstein {P) and
Nottebohm (P). There was never an intent to reside in
Liechtenstein (P), no business or family connections, no
acceptance of traditions and the severing of old ties, etc. The
change in nationality was a mere convenience/subterfuge
mandated by the war. Under such circumstances, Guatemala
(D)
was
not
forced
to
recognize
it.
Dismissed.
Rule:
while nationality conferred on a party is normally only the
concern of that nation, such nationality may be disregarded
by other states where it is clear that it was a mere
device/subterfuge.
Analysis:
A state putting forth a claim must establish a locus standi for
that purpose. This is almost exclusively a showing of
nationality of the claimant The real claimant must have
continuously and without interruption from the time of the
injury to the making of an award been a national of the state
making the claim and must not have been a national of the
state against whom the claim has been filed. International
Law 347 (8th Ed. 1955) Vol. 1. - See more at:
http://www.lawschoolcasebriefs.net/2012/04/nottebohm-caseliechtenstein-v.html#sthash.jaYhbEzR.dpuf

PROTECTIVE PRINCIPLE
Protective Principle? A state can legislate crimes that it
considers a threat to security, integrity on economic interests.
In some books, focuses only on security, and independent
sovereignty. Bust most books authored by Americans,
includes economic interests. Different cultures in different

jurisdictions. Counterfeiting of bills a common example.

Basis? For the US, in their Restatement. This is an illustration
of a practice in protective jurisdiction. Do not quote as a
definition of protective principle. You can cite it as a practice
of the US. It has a very narrow scope. Terrorism is still a
question mark. I think states can now validly argue on the
basis of terrorism.
In the old case of US vs. Bowman which was cited in Bin
Laden case. They purchased 1000 tonnes of fuel oil and sabot
sila na 600 ra ang ilang isaka sa barko. The vessel was owned
by the US, that is the link. A criminal statute that deals with
acts that are directly injurious to the govt and capable of
perpetration without regard to particular locality is to be
construed as to be applicable to the citizens of the US even
committed in the high seas, or even on a foreign country,
even if there is no express declaration to that effect.
US vs. Romero Galue, US applied protective principle. The
protective principle permits a nation to assert jurisdiction over
a person whose conduct outside the nations territory
threatens the nations security or could potentially interfere
with the operation of its governmental functions. US exercised
jurisdiction over a foreign ship, which was in the high seas,
but carrying marijuana, prohibited drugs. There was a
POTENTIAL, the intent to distribute. Drug problem is now an
international concern.
UNIVERSALITY PRINCIPLE
Eichmann was abducted in Argentina without the consent.
Karun gani, dili na abduct. Pusil diretso. In international law,
abduction is a violation of the sovereignty of the other state.
How much more if killing.
What Eichmann did ,of course, you know what
happened to Israel. Israel passed Nazis and Nazi
collaborators Punishment Law. The Nazis who were trying to
eliminate or exterminate committing the crime of genocide
against the Jewish people. So giprosecute si Eichmann on the
basis of that law. So giquestion ni Eichmann na nganu mana?
Why do Israel have jurisdiction over me nga number one I was
abducted against international law in Argentina because there
was no consent on the part of Argentinian government.

dictator of Chile. Anyway, so universal, passive? Pwede

because there were Spanish citizens who were killed also and
subjected to torture under the instruction and order and was
admitted by Pinochet. He was forced to argue that he ordered
it para kuno maapil sa act of state and therefore dapat
immune as we will be talking about later on. Immune siya
from suit. Diba ang former head of state immune siya sa suit.
Absolute ang immunity during the incumbency. Pero after
incumbency, iqualify na if the acts committed in official
capacity, an act committed outside their official capacity. But
the acts committed in official capacity, immune siya. For acts
committed outside or not within their authority, the former
head of states are not immune. So namugos si Pinochet nga
iya to order and that therefore part to sa ako government.
No territorial obvious because it happened in Chile
not in Spain because Spain exercised jurisdiction here. No
active because Pinochet was not a Spanish citizen, no
protective principle because torture man it does not involve
national security from Spain, narrow scope of protective
principle. So its not a catch-all principle, very limited in
scope. If it did not involve national security, cannot be
protective principle. Related to all this, exercise of jurisdiction
of course is a discussion on extradition.
CASE BRIEFS AND SOME DEFINITIONS
Protective principle is a rule of international law that allows
a sovereign state to assert jurisdiction over a person whose
conduct outside its boundaries threatens the states security
or interferes with the operation of its government functions.
The following is an example of a case law on protective
principle:
Under international law, the "protective principle" gives a
country the jurisdiction to prescribe a rule of law attaching
legal consequences to conduct outside its territory that
threatens its security as a state or the operation of its
governmental functions, provided the conduct is generally
recognized as a crime under the law of states that have
reasonably developed legal systems. [United States v. Zehe,
601 F. Supp. 196 (D. Mass. 1985)]

From the point of view of International law, the

power of the state of Israel in to enact the law in question is
based with other statement on a dual foundation: 1) universal
character of a crime and 2) their specific character intended
to exterminate the Jewish people. So could a case of aside
from universal theory there is also the protective theory.

UNITED STATES v. BOWMAN.

The passive nationality principle is increasily

accepted as applied to terrorist and other organized attacks
of the states nationals or by reason of their nationality. Then
universal jurisdiction is also increasily accepted for certain
acts of terrorism. However, acts of terrorism class pwede na
sya mu-come in sa protective principle.

This is a writ of error under the Criminal Appeals Act (34 Stat.
c. 2564, p. 1246 Comp. St. 1704) to review the ruling of the
District Court sustaining a demurrer of one of the defendants
to an indictment for a conspiracy to defraud a corporation in
which the United States was and is a stockholder, under
section 35 of the Criminal Code, as amended October 23,
1918 ( 40 Stat. 1015 Comp. St. Ann. Supp. 1919, 10199).

260 U.S. 94 (43 S.Ct. 39, 67 L.Ed. 149)

Mr. Chief Justice TAFT delivered the opinion of the Court.

UNIVERSAL JURISDICTION
Have you read the case of Pinochet? Suppose that
will be the problem in the exam and if you are to apply all
theories. Youll just have to say whether it is applicable or not.
Can you do that? Is passive nationality principle applicable in
Pinochet? If you are to analyze a problem, kung may
jurisdiction, you have to also apply all theories whether or not
exercise of jurisdiction can be justified under any of those
theories.
Active nationality, dili? Why not? What about
protective principle? If you have no plans to read all the cases
yaw lang pud kalimte Pinochet ha? We were talking about
Pinochet case, in most international law discussion this case is
the most widely studied so take note of this.
Universal principle because of what Pinochet did
because he committed torture. Pinochet was the former
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During the period covered by the indictment, i. e., between

October, 1919, and January, 1920, the steamship Dio
belonged to the United States. The United States owned all
the stock in the United States Shipping Board Emergency
Fleet Corporation. The National Shipping Corporation agreed
to operate and manage the Dio for the Fleet Corporation,
which under the contract was to pay for fuel, oil, labor, and
material used in the operation. The Dio was on a voyage to
Rio Janeiro under this management. Wry was her master,
Bowman was her engineer, Hawkinson was the agent of the
Standard Oil Company at Rio Janeiro, and Millar was a
merchant and ship repairer and engineer in Rio. Of these four,
who were the defendants in the indictment, the first three
were American citizens, and Millar was a British subject.
Johnston & Co. were the agents of the National Shipping
Corporation at Rio. The indictment charged that the plot was
hatched by Wry and Bowman on board the Dio before she

reached Rio. Their plan was to order, through Johnston & Co.,
and receipt for, 1,000 tons of fuel oil from the Standard Oil
Company, but to take only 600 tons aboard, and to collect
cash for a delivery of 1,000 tons through Johnston & Co., from
the Fleet Corporation, and then divide the money paid for the
undelivered 400 tons among the four defendants. This plan
was to be, and was, made possible through the guilty
connivance of the Standard Oil agent, Hawkinson, and Millar,
the Rio merchant, who was to, and did, collect the money.
Overt acts charged included a wireless telegram to the
agents, Johnston & Co., from the Dio while on the high seas
ordering the 1,000 tons of oil. The Southern District of New
York was the district into which the American defendants were
first brought and were found, but Millar, the British defendant,
has not been found.
The first count charged a conspiracy by the defendants to
defraud the Fleet Corporation, in which the United States was
a stockholder, by obtaining and aiding to obtain the payment
and allowance of a false and fraudulent claim against the
Fleet Corporation. It laid the offense on the high seas, out of
the jurisdiction of any particular state, and out of the
jurisdiction of any district of the United States, but within the
admiralty and maritime jurisdiction of the United States. The
second count laid the conspiracy on the Dio on the high seas
and at the port of Rio Janeiro, as well as in the city. The third
count laid it in the city of Rio Janeiro. The fourth count was for
making and causing to be made in the name of the Standard
Oil Company, for payment and approval, a false and
fraudulent claim against the Fleet Corporation in the form of
an invoice for 1,000 tons of fuel oil, of which 400 tons were
not delivered. This count laid the same crime on board the Dio
in the harbor of Rio Janeiro. The fifth count laid it in the city,
and the sixth at the port and in the city.
No objection was made to the indictment or any count of it for
lack of precision of fulness in describing all the elements of
the crimes denounced in section 35 of the Criminal Code as
amended. The sole objection was that the crime was
committed without the jurisdiction of the United States or of
any state thereof and on the high seas or within the
jurisdiction of Brazil. The District Court considered only the
first count, which charged the conspiracy to have been
committed on the Dio on the high seas, and, having held that
bad for lack of jurisdiction, a fortiori it sustained the demurrer
as the others.
The court in its opinion conceded that under many authorities
the United States as a sovereign may regulate the ships under
its flag and the conduct of its citizens while on those ships,
and cited to this point Crapo v. Kelly, 16 Wall. 610, 623-632,
21 L. Ed. 430; United States v. Rodgers, 150 U. S. 249, 260,
261, 264, 265, 14 Sup. Ct. 109, 37 L. Ed. 1071; The Hamilton,
207 U. S. 398, 403, 405, 28 Sup. Ct. 133, 52 L. Ed. 264;
American Banana Co. v. United Fruit Co., 213 U. S. 347, 29
Sup. Ct. 511, 53 L. Ed. 826, 16 Ann. Cas. 1047; Wilson v.
McNamee, 102 U. S. 572, 574, 26 L. Ed. 234; United States v.
Smiley, 6 Sawyer, 640, 645, Fed Cas. No. 16,317. The court
said, however, that while private and public ships of the
United States on the high seas were constructively a part of
the territory of the United Statesindeed, peculiarly so, as
distinguished from that of the StatesCongress had always
expressly indicated it when it intended that its laws should be
operative on the high seas. The court concluded that, because
jurisdiction of criminal offenses must be conferred upon
United States courts and could not be inferred, and because
section 35, like all the other sections of chapter 4 (Comp. St.
10191-10252), contains no reference to the high seas as a
part of the locus of the offense defined by it, as the sections in
chapters 11 and 12 of the Criminal Code (Comp. St. 1044510483a) do, section 35 must be construed not to extend to
acts committed on the high seas. It confirmed its conclusion
by the statement that section 35 had never been invoked to
punish offenses denounced, if committed on the high seas or
in a foreign country.

402 ShineBrightLikeADiamond

Page

We have in this case a question of statutory construction. The

necessary locus, when not specially defined, depends upon
the purpose of Congress as evinced by the description and
nature of the crime and upon the territorial limitations upon
the power and jurisdiction of a government to punish crime
under the law of nations. Crimes against private individuals or
their property, like assaults, murder, burglary, larceny,
robbery, arson, embezzlement, and frauds of all kinds, which
affect the peace and good order of the community must, of
course, be committed within the territorial jurisdiction of the
government where it may properly exercise it. If punishment
of them is to be extended to include those committed out side
of the strict territorial jurisdiction, it is natural for Congress to
say so in the statute, and failure to do so will negative the
purpose of Congress in this regard. We have an example of
this in the attempted application of the prohibitions of the
antitrust law to acts done by citizens of the United States
against other such citizens in a foreign country. American
Banana Co. v. United Fruit Co., 213 U. S. 347, 29 Sup. Ct. 511,
53 L. Ed. 826, 16 Ann. Cas. 1047. That was a civil case, but as
the statute is criminal as well as civil, it appears an analogy.
But the same rule of interpretation should not be applied to
criminal statutes which are, as a class, not logically
dependent on their locality for the government's jurisdiction,
but are enacted because of the right of the government to
defend itself against obstruction, or fraud wherever
perpetrated, especially if committed by its own citizens,
officers, or agents. Some such offenses can only be
committed within the territorial jurisdiction diction of the
government because of the local acts required to constitute
them. Others are such that to limit their locus to the strictly
territorial jurisdiction would be greatly to curtail the scope and
usefulness of the statute and leave open a large immunity for
frauds as easily committed by citizens on the high seas and in
foreign countries as at home. In such cases, Congress has not
thought it necessary to make specific provision in the law that
the locus shall include the high seas and foreign countries, but
allows it to be inferred from the nature of the offense. Many of
these occur in chapter 4, which bears the title 'Offenses
against the Operation of the Government.' Section 70 of that
chapter (Comp. St. 10238) punishes whoever as consul
knowingly certifles a false invoice. Clearly the locus of this
crime as intended by Congress is in a foreign country, and
certainly the foreign country in which he discharges his official
duty could not object to the trial in a United States court of a
United States consul for crime of this sort committed within its
borders. Forging or altering ship's papers is made a crime by
section 72 of chapter 4 (Comp. St. 10240). It would be going
too far to say that because Congress does not fix any locus it
intended to exclude the high seas in respect of this crime. The
natural inference from the character of the offense is that the
sea would be a probable place for its commission. Section 42
of chapter 4 (Comp. St. 10206) punishes enticing desertions
from the naval service. Is it possible that Congress did not
intend by this to include such enticing done aboard ship on
the high seas or in a foreign port, where it would be most
likely to be done? Section 39 (Comp. St 10203) punishes
bribing a United States officer of the civil, military, or naval
service to violate his duty or to aid in committing a fraud on
the United States. It is hardly reasonable to construe this not
to include such offenses when the bribe is offered to a consul,
ambassador, and army or a naval officer in a foreign country
or on the high seas, whose duties are being performed there,
and when his connivance at such fraud must occur there. So,
too, section 38 of chapter 4 (Comp. St. 10202) punishes the
willfully doing or aiding to do any act relating to the bringing
in, custody, sale or other disposition of property captured as
prize, with intent to defraud, delay or injure the United States
or any captor or claimant of such property. This would
naturally often occur at sea, and Congress could not have
meant to confine it to the land of the United States. Again, in
section 36 of chapter 4 (Comp. St. 10200), it is made a
crime to steal, embezzle, or knowingly apply to his own use
ordinance, arms, ammunition, clothing, subsistence stores,
money or other property of the United States furnished or to
be used for military or naval service. It would hardly be

reasonable to hold that if any one, certainly if a citizen of the

United States, were to steal or embezzle such property which
may properly and lawfully be in the custody of army or naval
officers either in foreign countries, in foreign ports or on the
high seas, it would not be in such places an offense which
Congress intended to punish by this section.
What is true of these sections in this regard is true of section
35, under which this indictment was drawn. We give it in full
in the margin. 1
It is directed generally against whoever presents a false claim
against the United States, knowing it to be such, to any officer
of the civil, military or naval service or to any department
thereof, or any corporation in which the United States is a
stockholder, or whoever connives at the same by the use of
any cheating device, or whoever enters a conspiracy to do
these things. The section was amended in 1918 to include a
corporation in which the United States owns stock. Tiis was
evidently intended to protect the Emergency Fleet
Corporation in which the United States was the sole
stockholder, from fraud of this character. That corporation was
expected to engage in, and did engage in, a most extensive
ocean transportation business, and its ships were seen in
every great port of the world open during the war. The same
section of the statute protects the arms, ammunition, stores,
and property of the army and navy from fraudulent devices of
a similar character. We cannot suppose that when Congress
enacted the statute or amended it, it did not have in mind
that a wide field for such frauds upon the government was in
private and public vessels of the United States on the high
seas and in foreign ports and beyond the land jurisdiction of
the United States, and therefore intended to include them in
the section.
Nor can the much-quoted rule that criminal statutes are to be
strictly construed avail. As said in United States v. Lacher, 134
U. S. 624, 629, 10 Sup. Ct. 625, 627 (33 L. Ed. 1080), quoting
with approval from Sedgwick, Statutory and Const. Law (2d.
Ed.) 288:

Section 35 of the Criminal Code, as amended October 23,

1918 ( 40 Stat. 1015), is as follows:
Whoever shall make or cause to be made or present or cause
to be presented, for payment or approval, to or by any person
or officer in the civil, military, or naval service of the United
States, or any department thereof, or any corporation in which
the United States of America is a stockholder, any claim upon
or against the government of the United States, or any
department or officer thereof, or any corporation in which the
United States of America is a stockholder, knowing such claim
to be false, fictitious, or fraudulent; or whoever, for the
purpose of obtaining or aiding to obtain the payment or
approval of such claim, or for the purpose and with the intent
of cheating and swindling or defrauding the government of
the United States, or any department thereof, or any
corporation in which the United States of America is a
stockholder, shall knowingly and willfully falsify or conceal or
cover up by any trick, scheme, or device a material fact, or
make or cause to be made any false or fraudulent statements
or representations, or make or use or cause to be made or
used any false bill, receipt, voucher, roll, account, claim,
certificate, affidavit or deposition, knowing the same to
contain any fraudulent or fictitious statement or entry; or
whoever shall take and carry away or take for his own use or
for the use of another, with intent to steal or purloin, any
personal property of the United States, or any branch or
department thereof, or any corporation in which the United
States of America is a stockholder; or whoever shall enter into
any agreement, combination, or conspiracy to defraud the
government of the United States, or any department or officer
thereof, or any corporation in which the United States of
America is a stockholder, by obtaining or aiding to obtain the
payment or allowance lowance of any false or fraudulent
claim; and whoever, having charge, possession, custody, or
control of any money or other public property used or to be
used in the military or naval service, with intent to defraud
the United States, or any department thereof,

The three defendants whe were found in New York were

citizens of the United States, and were certainly subject to
such laws as it might pass to protect itself and its property.
Clearly it is no offense to the dignity or right of sovereignty of
Brazil to hold them for this crime against the government to
which they owe allegiance. The other defendant is a subject of
Great Britain. He has never been apprehended, and it will be
time enough to consider what, if any, jurisdiction the District
Court below has to punish him when he is brought to trial.

or any corporation in which the United States of America is a

stockholder, or willfully to conceal such money or other
property, shall deliver or cause to be delivered to any person
having authority to receive the same any amount of such
money or other property less than that for which he received
a certificate or took a receipt; or whoever, being authorized to
make or deliver any certificate, voucher, receipt, or other
paper certifying the receipt of arms, ammunition, provisions,
clothing, or other property so used or to be used, shall make
or deliver the same to any other person without a full
knowledge of the truth of the facts stated therein and with
intent to defraud the United States, or any department
thereof, or any corporation in which the United States of
America is a stockholder, shall be fined not more than
$10,000 or imprisoned not more than ten years, or both. And
whoever shall purchase, or receive in pledge, from any person
any arms, equipment, ammunition, clothing, military stores, or
other property furnished by the United States, under a
clothing allowance or otherwise, to any soldier, sailor, officer,
cadet, or midshipman in the military or naval service of the
United States or of the National Guard or Naval Militia, or to
any person accompanying, serving, or retained with the land
or naval forces and subject to military or naval law, having
knowledge or reason to believe that the property has been
taken from the possession of the United States or furnished by
the United States under such allowance, shall be fined not
more than $500 or imprisoned not more than two years, or
both.

The judgment of the District Court is reversed, with directions

to overrule the demurrer and for further proceedings.

UNITED STATES v. ROMERO-GALUE

TJOFLAT, Circuit Judge:

CC | Transformed by Public.Resource.Org

Section 955a(c) of Title 21 of the United States Code makes it

a crime "for any person on board any vessel within the
customs waters of the United States to knowingly or
intentionally ... possess with intent to ... distribute" marijuana.
This appeal questions whether the Congress, in enacting this

'Penal provisions, like all others, are to be fairly construed

according to the legislative intent as expressed in the
enactment.'
They are not to be strained either way. It needs no forced
construction to interpret section 35 as we have done.
Section 41 of the Judicial Code (Comp. St. 1023) provides
that:
'The trial of all offenses committed upon the high seas, or
elsewhere out of the jurisdiction of any particular state or
district, shall be in the district where the offender is found, or
into which he is first brought.'

402 ShineBrightLikeADiamond

Page

statute, intended to reach the possession of marijuana by

foreigners aboard a foreign vessel on the high seas. 1 The
district court held that Congress did not so intend and
dismissed the indictment.2 We reverse.
I.
On January 7, 1984, the U.S. Coast Guard cutter Escape, while
patrolling an area in the Caribbean Sea known as the
Mysteriosa Bank of the Yucatan Pass, a thoroughfare used to
transport marijuana from Colombia, South America to the
United States, sited a shrimp boat, the El Don, lying dead in
the water, apparently having engine trouble. The Coast Guard
suspected that the El Don was a smuggling vessel; she was
not rigged for fishing, flew no flag, and bore no markings
indicating her home port. Exercising the "right of approach," 3
the Escape pulled alongside the El Don, and several Coast
Guardsmen boarded her to examine her registration papers
and determine her identity. In the course of accomplishing
this, the Coast Guardsmen discovered a cargo in excess of
four and one-half tons of marijuana in the vessel's hold.
The Coast Guardsmen determined that the El Don was of
Panamanian registry. This information was relayed to the U.S.
State Department which, in turn, communicated with the
Panamanian government. Thereafter, the Coast Guard,
presumably with Panama's approval, instructed the Escape to
seize the El Don and its crew and to take them to Key West,
Florida for prosecution. The Escape followed this instruction.

that count II failed to state an offense because the

defendants' possession of marijuana had taken place on a
foreign vessel located on the high seas, i.e., beyond the
territorial waters of the United States, and section 955a(c) did
not reach such conduct. The government now appeals.
Before addressing the merits of the government's appeal, we
should point out the issues that are not before us. First, we
need not consider whether the provisions of the Marijuana on
the High Seas Act underpinning the indictment are
unconstitutional. The district court did not hold that they are,
and the issue has not been presented in the parties' briefs.
Second, we need not consider the sufficiency of counts III, IV
and V of the indictment because the defendants concede their
sufficiency to state federal offenses. Accordingly, these counts
will not be discussed. Third, the district court, in view of its
disposition of the defendants' motions to dismiss the
indictment, did not pass on the validity of the Coast Guard's
search and seizure of the El Don. We likewise do not pass on
the issue.11
This leaves two questions for us to decide. First, did the
Congress, in enacting section 955a(c) of the Marijuana on the
High Seas Act, intend to reach foreign flag vessels on the high
seas? If not, count II was properly dismissed. Second, and
apart from the first question, does count I of the indictment
allege a section 955c conspiracy?
II.

On January 20, 1984, in the Southern District of Florida, the El

Don's crew, the appellees here, were indicted under the
Marijuana on the High Seas Act of 1980 4 and the
Comprehensive Drug Abuse Prevention and Control Act of
19705 in five
[757 F.2d 1150]
counts, as follows. Count I charged the defendants under 21
U.S.C. 955c (1982)6 with conspiring to possess marijuana in
United States customs waters in violation of 21 U.S.C.
955a(c) (1982).7 Count II charged the defendants with the
substantive offense, violating section 955a(c). Count III
charged the defendants, again under 21 U.S.C. 955c, with
conspiring to possess marijuana with intent to import it, or
knowing that it will be imported, into the United States in
violation of 21 U.S.C. 955a(d) (1982), 8 and count IV charged
the substantive section 955a(d) offense. Count V charged the
defendants with conspiring, in violation of 21 U.S.C. 963
(1982), to import marijuana into the United States from a
place outside thereof in violation of 21 U.S.C. 952(a) and
960(a)(1) (1982).9
The defendants moved the district court to dismiss all five
counts of the indictment on the ground that the sections of
the Marijuana on the High Seas Act on which the counts were
based were so vague and overbroad as to violate the due
process clause of the fifth amendment. They attacked counts I
and II on an additional ground; Congress did not intend to
make it a crime for a person not a United States citizen to
conspire to possess, or to possess, marijuana on a foreign
vessel on the high seas. The defendants also moved the court
to suppress the marijuana the Coast Guard had taken from
the El Don, claiming that the seizure violated the fourth
amendment.
The district court, on March 30, 1984, convened a hearing on
the defendants' motions. At that and subsequent hearings,
the parties produced the facts we have recited, albeit in
somewhat greater detail, on the issue of the validity of the
Coast Guard's search and seizure of the El Don. Following the
hearings, the court, in a memorandum order, dismissed the
indictment. The court gave no reasons for its action, except as
to count II.10 It concluded

It is unlawful for any person on board any vessel within the

customs waters of the United States to knowingly or
intentionally ... possess with intent to ... distribute
[marijuana].
The "customs waters of the United States" are defined 12 as:
[757 F.2d 1152]
The term "customs waters" means, in the case of a foreign
vessel subject to a treaty or other arrangement between a
foreign government and the United States enabling or
permitting the authorities of the United States to board,
examine, search, seize, or otherwise to enforce upon such
vessel upon the high seas the laws of the United States, the
waters within such distance of the coast of the United States
as the said authorities are or may be so enabled or permitted
by such treaty or arrangement and, in the case of every other
vessel, the waters within four leagues of the coast of the
United States [i.e., within the twelve mile limit].
Count II of the indictment alleges that the defendants
possessed the marijuana in this case "within the customs
waters of the United States," meaning that the possession
occurred either within twelve miles of the coastline of the
United States, the area normally considered as the customs
waters, or within such area on the high seas beyond the
twelve mile limit as the United States and a foreign
government have, by "treaty or other arrangement,"
designated as an area in which the United States can board,
seize, or search a vessel flying the flag of such foreign
government for the purpose of enforcing the laws of the
United States. Count I charged the defendants with conspiring
to possess the marijuana within such customs waters. The
district court dismissed counts I and II because the evidence
adduced at the suppression hearing disclosed that the El Don
and the defendants were seized at a point hundreds of miles
from the United States and therefore, the district court
assumed, far beyond the "customs waters" Congress
contemplated under section 955a(c).
The district court erred in making this assumption. To be sure,
the El Don was beyond the twelve mile limit and thus outside

[757 F.2d 1151]

402 ShineBrightLikeADiamond

A.
Section 955a(c) states:

Page

the statutorily measured customs waters. But this did not end
the inquiry. The court should have recognized that the point
on the high seas of the El Don's seizure could have been
"customs waters" designated by the United States and
Panama, by "treaty or other arrangement," as a place where
the United States could seize and prosecute under section
955a(c) those in possession of marijuana aboard a
Panamanian vessel. The court should have allowed the
government to prove such a designation at trial. The
legislative history of the section 955b(a) customs waters
definition makes it clear that Congress intended section
955a(c) to reach foreign citizens aboard foreign flag vessels in
areas on the high seas designated by the United States and
the nation whose flag the vessel flies as places where the laws
of the United States will be enforced.13
Congress first formulated the definition of "customs waters"
when it passed the Anti-Smuggling Act of 1935, 19 U.S.C.
1701-1711 (1982),14 to reduce the smuggling of liquor into the
United States in contravention of our revenue laws. Prior to
the passage of the Anti-Smuggling Act, the government could
only prosecute smugglers in vessels seized within the
statutory twelve-mile customs waters area; smuggling vessels
could hover beyond that twelve-mile limit with impunity. The
United States did have liquor treaties with sixteen nations,
which allowed it to seize a treaty nation's vessel and to
enforce the anti-smuggling laws if the vessel was caught
within one hour's sailing distance of the coast of the United
States, but these treaties were not self-executing. Absent
statutory authority, the United States lacked the power to
apply its penal laws to
[757 F.2d 1153]
a treaty nation's vessel located outside the twelve-mile limit,
yet within one hour's sailing distance from the shore. H.R.Rep.
No. 868, 74th Cong., 1st Sess. 4 (1935); S.Rep. No. 1036, 74th
Cong., 1st Sess. 4 (1935). Congress solved this problem by
passing the Anti-Smuggling Act. The Act created customs
enforcement areas15 that extended into the high seas beyond
the twelve-mile limit; "customs waters" means "twelve miles
in the case of domestic or nontreaty foreign vessels [and]
treaty distance ... in the case of foreign treaty vessels."
H.R.Rep. No. 868, 74th Cong., 1st Sess. 7 (1935); S.Rep. No.
1036, 74th Cong., 1st Sess. 11 (1935).
Anticipating that smuggling vessels flying the flag of a treaty
nation would attempt to avoid seizure and prosecution under
the Act by hovering just beyond a one hour's sailing distance
from our shore, Congress provided that the one hour sailing
distance could be extended by an "arrangement" between the
United States and the treaty nation. What Congress
contemplated was that the Executive Branch could arrange
with a treaty nation to create instantaneously a customs
enforcement area for one hundred miles16 around a particular
hovering vessel; such an arrangement would be in the nature
of an "executive agreement."17 Congress therefore inserted
the term "arrangement" in its definition of "customs waters"
to ensure that the United States would have a means of
combatting smugglers trolling just beyond the treaty
extended customs waters, waiting for a chance to strike. 18
[757 F.2d 1154]
Congress' goal when it enacted section 955a(c) of the
Marijuana on the High Seas Act was not unlike the one
Congress had in mind when it passed the Anti-Smuggling Act;
both statutes authorize the prosecution of smugglers hovering
on the high seas beyond the twelve mile limit. Under section
955a(c), the government can now reach narcotics smugglers
aboard vessels of nontreaty nations within twelve miles of our
coast and those aboard vessels of treaty nations within the
area on the high seas designated by treaty or other
arrangement. Whether such a treaty or other arrangement
existed between the United States and Panama concerning

402 ShineBrightLikeADiamond

Page

the El Don is a mixed question of fact and law which the

government should be entitled to address at trial. 19
The defendants argue that Congress did not intend that
"customs waters" be established in areas as remote as the
one in which the El Don was seized, because this would
transgress principles of international law. It is true that
Congress did not intend to transgress international law; it
limited the reach of the Marijuana on the High Seas Act,
declaring that the Act was "designed to prohibit all acts of
illicit trafficking in controlled substances on the high seas
which the United States can reach under international law." 20
H.R.Rep. No. 323, 96th Cong., 1st Sess. 11 (1979). This
limitation, however, would not have precluded the
designation, by treaty or other arrangement, of the place
where the El Don was seized as "customs waters."
Nothing in international law prohibits two nations from
entering into a treaty, which may be amended by other
arrangement, to extend the customs waters and the reach of
the domestic law of one of the nations into the high seas. The
defendants cite no authority to the contrary. Even absent a
treaty or arrangement, the United States could, under the
"protective principle" of international law, prosecute foreign
nationals on foreign vessels on the high seas for possession of
narcotics. The protective principle permits a nation to assert
jurisdiction over a person whose conduct outside the nation's
territory threatens the nation's security or could potentially
interfere with the operation of its governmental functions.
United States v. Marino-Garcia, 679 F.2d 1373, 1381 & n. 14
(11th Cir.1982), cert. denied, 459 U.S. 1114, 103 S.Ct. 748, 74
L.Ed.2d 967 (1983); United States v. Columba-Colella, 604
F.2d 356, 358 (5th Cir.1979); Rivard v. United States, 375 F.2d
882, 885, n. 7 (5th Cir.1967), cert. denied, 389 U.S. 884, 88
S.Ct. 151, 19 L.Ed.2d 181 (1967). 21 The defendants' argument
is thus without merit. Count II of the indictment stated a
section 955a(c) offense, and the district court erred in
dismissing it.
B.
The defendants' attack on count II having collapsed, it follows
that their challenge to count I, alleging a conspiracy to violate
section 955a(c), must also fail. Section
[757 F.2d 1155]
955c22 does not require the government to prove an overt act;
it must only establish that the defendants intended to possess
marijuana, for example, within "customs waters." These
waters, as we have indicated, include those within the twelve
mile limit and those beyond which are established by treaty or
other arrangement. Cf. United States v. Jonas, 639 F.2d 200,
205 (5th Cir.1981); United States v. DeWeese, 632 F.2d 1267,
1271 (5th Cir.1980), cert. denied, 454 U.S. 878, 102 S.Ct. 358,
70 L.Ed.2d 188 (1981); United States v. Ricardo, 619 F.2d
1124, 1129 (5th Cir.), cert. denied, 449 U.S. 1063, 101 S.Ct.
789, 66 L.Ed.2d 607 (1980) (all interpreting the drug
smuggling conspiracy provisions of the Comprehensive Drug
Abuse Prevention and Control Act of 1970, 21 U.S.C. 846,
963 (1982)); accord United States v. Bodden, 736 F.2d 142
(4th Cir.1984) (affirming conspiracy conviction pursuant to 21
U.S.C. 955c of defendants arrested on the high seas). As
with count II, the Government should have the opportunity to
establish the elements of count I at trial, including whether
the defendants conspired to possess the marijuana with intent
to distribute while in customs waters.
The judgment of the district court is reversed and the case is
remanded for further proceedings.
REVERSED and REMANDED.
Eichmann and Pinochet Cases: Embodiment of the
Principle of Universal Jurisdiction
By
Mansha
Khemka
|
15th
November,
2013

Universal jurisdiction also called the universality principle

enables nations to prosecute offenders of certain crimes, even
though they dont have any nexus to the crime, the alleged
offender and the victim. As a concept it was historically
developed on the maritime legal principle of hostis humani
generis (enemy of the humankind) to address the issue of
piracy, which caused considerable destruction of international
trade.[1] However, today this principle is applied to prosecute
perpetrators of crimes against humanity. This principle also
operates on the international concept of jus cogens which
argues that certain obligations under international law are
binding on all states and therefore they cannot be altered by a
treaty. The Eichmann Trial and the Pinochet Case both have
been very significant points in international legal history
emphasizing the universality principle.

In the Eichmann trial, the judiciary in Israel set a substantial

and contemporary precedent towards the advancement of
universal jurisdiction. The court in a detailed verdict appealed
to the idea of the natural law to find universal jurisdiction
applied.[2] The accused in this case, Adolf Eichmann was
appointed to the Jewish Section of the Security Services (SS)
in 1934 and later on became extremely involved in Hitlers
formulation and operation of the Final Solution. At the end of
World War II, many top officials of the Nazi Party were tried at
Nuremberg Trials. In 1950, Eichmann escaped to Argentina
like many other members of the Nazi Party and lived there
under assumed name and identity with his wife and children
joining him two years later. A decade later in 1960, Mossad,
the Israeli Secret Service learned of his presence in Argentina
and in May that year he was captured as a part of a covert
operation and brought to Tel Aviv to face trial.[3] Eichmann's
trial began in April, 1961 at the Jerusalem District Court. It
gave rise to international interest and brought the atrocities
committed by the Nazis to the frontline of the world news. The
trial was broadcasted over radio live in Israel and was
encouraged to be broadcasted around the world by the Israeli
government. Many of the Holocaust survivors were sharing
their experiences for the very first time through their
testimonies in this trial. An approximate total of 110 witnesses
testified at the trial. Dr. Robert Servatius, a German Lawyer
known for defending Nazis in the Nuremberg Trials was
appointment as his defense lawyer. Israeli Attorney General,
Gideon Hausner was the Chief Prosecutor on the case.
Eichmann was indicted on 15 criminal charges, which included
war crimes, crimes against Jewish people and membership of
an outlawed organization.

There were a number of controversies that surfaced before,

during and after the Eichmann Case. Eichmann was forcibly
abducted from Argentina to be tried under an infrequent
extraterritorial and retroactive law. The Legal basis of the Trial
was an Israeli law passed in 1950 called the Nazi and Nazi
Collaborators (Punishment) Law.[4] Section 1 of the Nazi and
Nazi Collaborators (Punishment) Law, provides that any
person who has done, during the period of the Nazi regime, in
an enemy country, an act constituting a crime against the
Jewish people" or an "act constituting a crime against
humanity" or "an act constituting a war crime" is liable to the
death penalty. The court reasoned and relied upon both the
international and the domestic law when applying he principle
of universality. Legal issues involved whether Israel could try
Eichmann under such circumstances, can Israel try Eichmann
under a statute enacted in 1950 for acts were committed
before 1945 and lastly the legal validity of Israel trying a
Eichmann who was not a citizen of Israel for the offenses
which were committed outside Israel against the individuals
who were not citizens of Israel at the time of commission of
these offenses?[5] In the decision, the court mentioned that
the crimes dealt with in this case are not crimes under Israeli
law alone, but are in essence offences against the law of
nations. Indeed, the crimes in question are not a free creation
of the legislator who enacted the law for the punishment of
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Nazis and Nazi collaborators, but have been stated and

defined in that law according to a precise pattern of
international laws and conventions which define crimes under
the law of nations.[6] This puts emphasis on the fact that
Israel was under an obligation to prosecute those who commit
crimes outside of its jurisdiction. Additionally, under
international law, territorial veracity of a sovereign state is
sacrosanct. If Eichmann was in fact arbitrarily arrested by
Israeli intelligence in the absence of knowledge and consent
of Argentina, the Israel had committed an international tort.
[7]
The defense lawyers did not cross examine any of the
witnesses from the prosecution. The defense started its case
by putting Eichmann on the stand, who told the court that he
did not dispute any of the facts of what had ensued during the
Holocaust, he however insisted in his defense that he was
only following orders, relinquishing his conscience in order to
follow the government policies and orders. While cross
examination of Eichmann, Hausner asked him if he considered
himself guilty of the murder of millions of Jewish People. He
replied in the negative, denying any legal liability however he
said that humanely he was guilty of having deported them.
Hausner produced evidence referring to a quote by Eichmann
in 1945 stating: "I will leap into my grave laughing because
the feeling that I have five million human beings on my
conscience is for me a source of extraordinary satisfaction."
Eichmann countered the claim saying that he was referring
only to "enemies of the Reich"[8]
The trial lasted 14 weeks with more than a 1000 documents
produced as evidence, 110 prosecution witnesses and about a
dozen defense depositions from multiple countries. The
judges after deliberations in seclusion came out with a guilty
verdict and imposed a death sentence. After the trial
Eichmann appealed the Israeli Supreme Court and then to the
President of Israel for clemency however both were rejected
and his death sentence was carried out by hanging in the
summer of 1962. Argentina after unsuccessful negotiations
with Israel, requested an urgent meeting of the United Nations
Security Council to protest what Argentina regarded as a gross
violation of their Sovereign rights. Later the Security Council
passed a resolution requesting Israel to make appropriate
repatriations.[9] However, if Eichmann was forcibly taken by
private individuals acting voluntarily without any previous
consent and knowledge of the Government of Israel, then the
actions of these individuals cannot considered the
international responsibility of the Israel. However, these
actions do violate international laws of Argentina. However,
the delegate of Argentina took a different view to the matter
but Israeli delegate pointed out that it was unsubstantiated in
international law.[10]

While the Eichmann case generated great public interest, the

Pinochet case captivated wider emphasis on the notion of
universal jurisdiction. The world turned its focus on the idea of
Universal Jurisdiction when former Chilean Dictator, Augusto
Pinochet was detained in London on extradition request from
Spain. Pinochet, was the Commander in Chief of the Chilean
military; who within a month of his appointment orchestrated
a coup and overthrew President Salvador Allende and Chiles
elected Socialist government in the year 1973. Consequently,
the next year he was appointed the President of Chile by the
military junta. Pinochets dictatorship was colored by cruelty
and violence which ranged from unforgiving treatment of
political opponents to campaigns of terrorizing and
eradicating soviet political thought through military
intelligence operation. A death squad of Chilean military also
known as The Caravan of Death traveled from prison to
prison carrying out executions of political dissidents.
Operation Condor, indiscriminately and violently suppressed
soviet political ideology in the South American region was
carried out during his regime. The Rettig Report and other
such reports estimated an approximate of 3,428 cases[11] of
disappearance, killing, torture and kidnapping, including short

accounts of nearly all victims whose stories it heard. A

controversial plebiscite in year 1980 gave Pinochets
seventeen year rule the legal structure it needed; approving a
fresh Constitution drafted by a government appointed
commission. While he stepped down as the President of Chile
in 1990, Pinochet remained intricately involved with the
government and held substantive power in the Chilean
government.

Pinochet entered the United Kingdom in 1997 to receive

medical treatment. The next year, he was arrested for human
rights violations in London in what quickly became a
controversial issue in the press and politics. This arrest took
place after a Spanish judge Baltasar Garzon indicted Pinochet
for crimes against humanity allegedly committed in Chile
under the universality principle. Pinochet was charged of one
count of conspiracy to commit torture, the assassination of
Carmelo Soria, a Spanish-Chilean diplomat and 94 counts of
torture on Spanish citizens.
In his defense, Pinochet filed a writ of Habeas Corpus in the
United Kingdom High Court claiming immunity from
prosecution on the grounds that he is a former head of State
and as such he is protected under the State Immunity Act of
1978[12] and customary international law. Meanwhile, The
Spanish Supreme Court decided that the Spanish Judicial Law
by way of Article 23.4[13] allows Spain to prosecute those
who are not citizens of Spain, for certain crimes committed
outside Spain. These include terrorism, genocide and other
crimes under international law pursuant to treaties ratified by
Spain.[14] Thereafter, Spain issued a formal extradition
request to the United Kingdom and an arrest order was issued
by a Magistrate under section 8 of the Extradition Act of
1989[15], which enables states to issue provisional arrest
warrants as long as the authorities believe that there is
justifiable reason and information for the same pursuant the
European Convention on Extradition.
Upon reaching the House Lords, the issue of whether Pinochet
should be extradited to Spain was to be decided.[16] The
Court denied Pinochet Sovereign Immunity in a 3-2
decision[17] reasoning that certain crimes such as murder
and torture are crimes against humanity and are not covered
by the State Immunity Act. They further stated that these acts
did not fall under the definition of public function and thus,
Functional Immunity cannot protect state heads or former
state heads of such crimes.

Unsurprisingly, Pinochet appealed this decision on the basis

that one of the judges presiding in the case had ties to
Amnesty International[18], which had in fact brought the case
against Pinochet in the first place and the initial decision by
the House of Lords was dismissed and heard again. In this
fresh hearing[19], the original ruling was upheld and the court
ordered that Pinochet shall be extradited to Spain and stand
trial. The court denied Pinochet immunity underthe State
Immunity Act of 1978. It was the first time that a domestic
court had denied immunity to a head of state or a former
head of state with the reasoning no one can be immune to
prosecution of certain crimes against humanity. However,
before the extradition could be carried out, United Kingdoms
Home Secretary stated that Pinochet was not medically fit to
stand trial.[20] At the time of his arrest he was 83 years old.
Many believed that this was a move to ease the political
strains this incident had caused between the UK and Chile;
further accumulating considerable attention and controversy.
Eventually, Pinochet was released and allowed to return to
Chile in 2000. Later, there were numerous attempts by the
Chilean government to hold him accountable for his actions,
they were unsuccessful in prosecuting him and he died in
2006. Despite numerous attempts, Pinochet was never stood
trial for all the crimes he allegedly committed. This case
marked the first time in international legal history that a
former Head of State was arrested on principle of universal
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10

jurisdiction. Later, international tribunals such as those in

Nuremberg, Former Yugoslavia, Rwanda and International
Criminal court are all seen asserting the principle of universal
jurisdiction and individuals who are responsible and
answerable for the crimes defined under international statues
and are prosecuted outside their states jurisdiction and
regardless of where these atrocities occurred.
Both cases have asserted the principle of universal jurisdiction
in their own way. It can be seen as an attempt by independent
States to commit themselves to protection of human rights
and the rule of law when they embrace international legal
principles such as universal jurisdiction, as seen in the case of
the Pinochet and the Eichman Trial.
The term universal jurisdiction refers to the idea that a
national court may prosecute individuals for any serious crime
against international law such as crimes against humanity,
war crimes, genocide, and torture based on the principle
that such crimes harm the international community or
international order itself, which individual States may act to
protect. Generally, universal jurisdiction is invoked when
other, traditional bases of criminal jurisdiction do not exist, for
example: the defendant is not a national of the State, the
defendant did not commit a crime in that States territory or
against its nationals, or the States own national interests are
not adversely affected.
The definition and exercise of universal jurisdiction varies
around the world. A national or international courts authority
to prosecute individuals for international crimes committed in
other territories will depend on the relevant sources of law
and jurisdiction, such as national legislation or an
international agreement, which may, for example, require that
only individuals within the countrys national territory may be
subject to prosecution.
IVAN THE TERRIBLE
PROCEEDINGS

IN

THE

USA

(1977

1986)

On 25 August 1977, the US Ministry of Justice initiated

proceedings against John Demjanjuk to strip him of his US
citizenship. Demjanjuk was charged with having unlawfully
concealed his true identity upon arrival in the USA. This
charge was based on statements by concentration camp
survivors who reportedly recognized Demjanjuk on a
photograph
as
being
Ivan
the
Terrible.
On 25 June 1981, his US citizenship was revoked because the
District Court for the Northern District of Ohio held proof that
he had lied in his application with respect to his past as a
warden in Treblinka and Sobibo and concerning his training to
join
the
SS
in
Trawniki.
In October 1983, Israel asked for Demjanjuks extradition. He
was
extradited
on
26
February
1986.
PROCEEDINGS
IN
ISRAEL
The proceedings against Demjanjuk were opened on 16
February 1987 in Jerusalem. These were initiated based on the
1950 Israeli law termed "Nazis and Nazi Collaborators
(Punishment) Law, 5710-1950" (NNCL). This law is itself based
on the London Agreement of 1945 which established the
International Military Court of Nuremberg and the Criminal
Code
Ordinance
(CCO)
of
1936.
According to the indictment, Demjanjuk was to be held
accountable
for:
- crimes against the Jewish people (Sect. 1. (a)(1) NNCL);
- crimes against humanity (Sect.1.(a)(2) NNCL); and
- crimes against persecuted people (Sect. 2 NNCL).
The public prosecutor tried mainly to establish Demjanjuks
identity as Ivan the Terrible. The evidence provided was in
the form of statements from witnesses, and his official identity
card which showed his photograph and his personal data.

Furthermore, traces of SS tattoo marks which had not been

totally removed were to be seen under his arms.
Demjanjuk confirmed having had this tattoo and confirmed
that the photograph on the identity card was his. However his
defence argued that this identity card had been forged by the
Soviet Secret Service in order to discredit him. Also, his
defence claimed that Demjanjuk had been a prisoner of war in
the German camps of Chelm (Poland) until the spring of 1944,
after which he would have been forced into membership in
the
SS.
On 18 April 1988, Demjanjuk was found guilty on all counts
and on 25 April 1988 he was sentenced to death by hanging.
Demjanjuk appealed this judgment on 29 July 1988.

On 11 March 2009 the District Court (Amtsgericht) of Munich

issued an arrest warrant against Demjanjuk on the strong
suspicion that he had participated in the murder of at least
20.000 Jews in the Sobibor extermination camp.
On 10 April 2009, Demjanjuk failed in his attempt to have his
extradition stayed. Four days later, US officials took him into
custody. However, his deportation was prevented at the very
last moment by a temporary injunction by a US Court of
Appeals. Demjanjuk then returned home. On 16 April 2009,
the deportation proceedings were suspended for a few days in
order to allow time for Demjanjuk to undergo a medical checkup. Subsequently, doctors confirmed that it was fit enough to
fly
to
Germany.

On 17 August 1993, the Supreme Court of Israel rescinded

this judgment and acquitted Demjanjuk, who until then had
been on death row. The reason for this was based on new
declarations from former wardens which had come to light
and from documents from the Soviet Secret Service (KGB)
that Ivan the Terribles name was not Ivan Demjanjuk but
Ivan Marchenko. The judges of the Supreme Court therefore
came to the conclusion that there was insufficient evidence to
safely establish that Ivan Demjanjuk was truly Ivan the
Terrible. Since this accusation was the basis of his extradition
from the USA as well as the basis for his conviction in Israel,
the court did not investigate Demjanjuks participation in
other crimes in the concentration camps. On 22 September
1993, Demjanjuk was freee to return to the USA.

On 1 May 2009, a Federal Court of Appeals in Cincinnati Ohio

denied his petition to stop the extradition process. Six days
later, Demjanjuks petition to the Supreme Court to prevent
his
extradition
failed.

PROCEEDING

From the outset, Demjanjuk pleaded not-guilty on all counts

with
which
he
was
charged.

IN

THE

USA

(1993-2008)

On 17 November 1993, a US court determined that the

Ministry of Justice had withheld evidence on purpose which
showed that Demjanjuk was not Ivan the Terrible. Thus it
rescinded the ruling which had allowed Demjanjuks
extradition. On 20 February 1993, his US citizenship was
restored.

On 11 May 2009, the Higher Administrative Court of BerlinBrandenburg denied Demjanjuks petition to stop the
extradition and, the same day, he was finally extradited to
Germany. Upon arrival on 12 May 2009, he was at once taken
into
custody
pending
trial.
Because of his state of health, it became questionable as to
whether Demjanjuk would be fit to stand trial, leading to
proceedings
being
dismissed.

On 13 July 2009, the Munich Public Prosecutor filed an

indictment concerning Demjanjuks participation in the
murder of at least 27.900 people, allegedly committed during
his time as warden in the Sobibor extermination camp in
1943.
The
trial
began
on
30
November
2009.

The following year, on 19 May 1999 the Ministry of Justice

initiated a new series of proceedings against Demanjuk to
strip him of his citizenship. He was no longer charged with
being Ivan the Terrible but to have worked as a warden in
different concentration camps and to have been an SSmember in Poland. Thus, on 21 February 2002, his US
citizenship was again taken away from him by the District
Court
for
the
Northern
District
of
Ohio.

On 22 March 2011, the German Prosecutor called for a sixyear sentence for the murder of 27,900 Jews at the Sobibor
death
camp
during
his
time
as
a
guard.

On 30 April 2004 the Federal Court of Appeals in Cleveland

denied his appeal against the ruling and confirmed the
withdrawal
of
his
citizenship.

He died on 17 March 2012 in a rest-home in Bavaria.

On 20 June 2005, an immigration court ordered his extradition

to Ukraine. On 28 December 2005, the court dismissed
Demjanjuk's claim that he would be subject to torture if
extradited to the Ukraine. The court also ordered that
Demjanjuk was to be extradited to Poland or Germany in the
case that Ukraine would be unwilling to take him in. The
Appeals Chamber of the Immigration Authority confirmed this
ruling
on
21
December
2006.
Demjanjuk and his lawyers then appealed this decision to the
Federal Court of Appeals in Cleveland requesting that the
extradition procedure against him be rescinded. The court
ruled on 30 January 2008 denying this request.
In April 2008, Demjanjuk filed an appeal against this ruling to
the Supreme Court of the USA. On 19 May 2008 the Supreme
Court denied this appeal without stating reasons thereby
rendering
the
permission
to
extradite
final.
On 22 May 2008, an investigation in Poland against
Demjanjuk, which had been underway for many years, was
terminated
for
lack
of
evidence.
PROCEEDINGS

IN

GERMANY

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2009)
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11

The verdict was rendered on 12 May 2011 with Demjanjuk

being sentenced to 5 years imprisonment. Given his age and
time already in custody it is unlikely that he will serve out this
sentence.

United States v. Usama Bin Laden case brief, 92 F.

Supp. 2d 189 (S.D.N.Y. 2000)
United States v. Usama Bin Laden, 92 F. Supp. 2d 189 (S.D.N.Y.
2000)
Defendants are charged with a variety of crimes
stemming from the August 1998 bombings of the US
Embassies
in
Nairobi,
Kenya
This case is in the book under universal jurisdiction, but
she says it is a better example of the protective principle
Rules to remember from this case:

Although Congress has the power to regulate

conduct performed outside the US, courts are to
presume that statutes written by Congress apply
only to acts performed within US territory unless
Congress manifests an intent to reach act performed
outside US territory

In determining whether a statute is meant to be

applied extraterritorially, courts should look to the
text, structure, and legislative history of the statute

There is a limited exception to this standard

approach for criminal statutes, which are, as a class,
not logically dependent on their locality for the

Governments jurisdiction, but are enacted because

of the right of the Government to defend itself
against obstruction, or fraud wherever perpetrated,
especially is committed by its own citizens, officers,
or agents. United States v. Bowman, 260 US 94, 98
(1922). (This principle, called the Bowman rule, is
most directly related to the protective principle of
jurisdiction.)

Nexus argument: the Davis court announced that in

order to apply extraterritorially a federal criminal
statute to a defendant consistently with due process,
there must be a sufficient nexus between the
defendant and the United States, so that such
application would not be arbitrary or fundamentally
unfair. 905 F.2d 245, 248-249 (9th Cir. 1990)
o

This court concludes that where an

attempted transaction is aimed at causing
criminal acts within the United States, there
is a sufficient basis for the United States to
exercise jurisdiction.

The court also concludes that if the

extraterritorial application of a statute is
justified by the protective principle, such
application accords with due process

The court notes that

o

The
passive
personality
principle
is
increasingly
accepted
as
applied
to
terrorists and other organized attacks on a
states nationals by reason of their
nationality, or to assassination of a states
diplomatic
representatives
or
other
officials. (citing Restatement 402, cmt.
g.)
universal
jurisdiction
is
increasingly
accepted for certain acts of terrorism.
(citing Restatement 404, cmt. a.)

both universal jurisdiction and the protective

principle are bases for jurisdiction by the United
States over the death of foreign citizens

the case goes through a reasonableness analysis to

determine whether it would be unreasonable for the
US to apply a specific law to the deaths of ordinary
foreign nationals on foreign soil (see p. 707 for
details), and finds that such application is reasonable

double or dual criminality principle. In most cases, kung naa

mo time i-check ninyo mga extradition treaties naa ni sila
didto.
Why should there be double or dual criminality
principle in the extradition treaties? What is the reason why
extradition treaties provide for the double or dual criminality
principle? So not all offenses ha? So number 1) listed, 2)
tapos dapat all extradition treaties must have this clause
double or dual criminality principle which means an offense is
extraditable if it is an offense in both contracting states. Why
is that? Because there is a need to make extradition treaties
stable and flexible in the sense that it can easily adapt to
changing penal system of a contracting party. Kung maglisted
raka, the following year naa nay bag-o nga crime nga
gipublish si state A di makig negotiate nasad siya ni state B
nga oi state B naa nasad mi gipublish nga bag-o nga crime
called cybercrime we have this in our treaty so we wanted
this to be included so makig negotiate nasad ka nya 5 years
after na nasad bag-o gipublish so negotiate nasad ka. Ayaw
na there is no need for renegotiation kay listed na gud nya
naa pa jud mga offenses nga common. So kung naa tong
duha then there is really no need for renegotiation.
And very quickly, you have to take note of this basic
provisions, all these came out in bar exam questions. These
are the important principles in extradition:
a.

b.

c.

EXTRADITION
In one bar examination question, extradition was
distinguished from deportation. You should also be ready to
distinguish these two.
Deportation however class does not require a treaty.
It is a unilateral act on the part of any state. It is a principle
and agreed by most states that the presence of aliens in their
respective territories will have to be subject to certain
conditions. It is more of a privilege rather than a right. In fact
in our case going back to the Philippines, in the case of
marcos vs. manglapus, it was even considered by the Court
as also a privilege rather than a right. How much more for
aliens, states even can deport no need of a treaty. Its an
exercise of a sovereign act of the state.
Destination of the deportee is irrelevant in a case of
a deportation. In extradition, specific, the requesting state
must get the person subject of extradition. Common question
in bar examination is kaning dependent siya sa treaty class as
you will see later on that there is no duty to extradite until
and unless there is a treaty. The person to be extradited must
have been charged or convicted of an extraditable offense,
charged or convicted. So that you can invoke the provisions
on the treaty, you must charge the person first. Then the
extraditable offense should either be listed or covered by
402 ShineBrightLikeADiamond

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12

d.

e.

No treaty no obligation to extradite, the

most that you can do is request and if it is
not followed then probably you go to
another channel.
Pacta sunt servanda applies meaning once
you are committed to extradite you should
extradite and you cannot therefore invoke a
domestic or internal law that will violate
your commitment under the treaty. So if you
refuse to extradite on the basis of an
internal law then the other can complain.
These are of course the purposes of
extradition: 1) prosecution in the case of
those who are already been charged but
they have to be brought to the court kay wa
may case nga muprosper class kung walay
jurisdiction over the person so the person
must be brought to the court. Or 2) there is
already a judgment for purposes of
execution. Should they cover political
offenses? It says it shouldnt cover political
offenses. No, because the right to asylum is
erga omnes. Its jus cogens. If you have
been prosecuted politically, and you seek
asylum you cannot say asylum set aside
extradition will prevail because asylum is a
right in international law. The killing of
heads of state will not necessarily be
considered as political offense kay mao
mana ang himuon sad.
The rule on specialty what is this? The rule
on specialty in extradition? Magrequest ka
for extradition for the crime let say
kidnapping. Mao na imo girequest, ihatag
sad sa other state kay gicharge man kaha
ug kidnapping. Nikiha bitaw ug murder. So
di pwede. If you ask for extradition, you
specify that offense then you can only
prosecute that person only for that offense
to be fair and to afford that person also due
process.
Extradition is not a criminal law proceeding
and therefore ex post facto law will not
apply. Example, the crime was committed in
2005, the extradition treaty, when 2010,
unya imong crime was committed in 2005.
Covered ka sa extradition treaty which was
in 2010? Yes, because the usual argument
sa pikas kay ah ex post facto law the
extradition treaty should not be given a
retroactive effect kay ang crime committed
2005, the extradition treaty executed in
2010 so should not be given retroactive
effect. That not a good argument. Ex post
facto law as argument is not proper
because it is not a penal law except that for
purposes of affording individuals rights or in

the case of Government of Hongkong vs.

Olalia Jr., in our case in the Philippines,
Justice Puno emphasized the significance of
individuals in international law kay in
extradition proceeding although it is not a
criminal proceeding it is not also correct to
say that the individual has no right to bail
because of this right or freedom given in
international law.

LEGALITY OF ABDUCTION OF CRIMINALS IN FOREIGN

TERRITORY
One of the most controversial topic in PIL, with reference to
the exercise of jurisdiction, is the matter of the legality of
abduction of criminals in foreign territory. This is basically an
issue, considering that not a lot of states practice this. You
only have a few states who have attempted to, or in fact,
completed the abduction of certain alleged criminals abroad.
We have the case of Eichmann for example by Israel. We also
have the case of Alvarez-Machain in the US. We have the case
of Spain serving a warrant of arrest in London against
Pinochet. Indeed, it is a controversial issue if there is an extraterritorial exercise of jurisdiction. But what is most
controversial is when that is done via abduction and not just
the service of due process.
Most authors agree that abduction per se may be considered
as a violation of the sovereignty of one state because that
would qualify as intervention prohibited under Article 2,
paragraph 4 of the UN Charter. But the question is, the fact
that it is a violation of the UN Charter, therefore it is an
intervention, will it affect the jurisdiction of the prosecuting
state. There is no specific, comprehensive, or consistent
practice about the matter. What we do have is US
jurisprudence as well as some cases mentioned earlier that
affirmed the validity of the exercise of jurisdiction not
withstanding that abduction actually, maybe considered as
intervention under the UN Charter. Its intervention but not
necessarily affecting jurisdiction. As you will see later on that
the US Supreme Court will say, ok, that may be. But whether
or not this court will emphasize jurisdiction depends largely
on what the court will say. Who will decide jurisdiction?
International Law will not decide on jurisdiction but it is the
laws of the domestic courts.
But, It has been observed that the way to probably strike a
balance is to allow the exercise of jurisdiction even if it is via
abduction provided that there is no accompanying torture,
brutality and other similar outrageous conduct. What do you
think is the reason for this? In Ker vs. Illinois and Frisbie case,
what do you think was the justification of the US Supreme
Court in saying that there is no problem even if the accused
had been unlawfully abducted from a foreign territory? The
illegal apprehension will not affect jurisdiction of the
apprehending state. Let us focus on this first, what do you
think is a valid justification why the illegality of the abduction
will not affect the jurisdiction of the court? In every criminal
prosecution, what do you think is the most fundamental right
of the accused that must be afforded to him by the court
trying the case? Due process! When abducted, your right to
due process will not be violated because for one you will be
asked to answer the charges, you will be asked to testify and
present witnesses in your favor and other actions that will
assure that due process is observed. If you relate that to the
limitation to abduction...(Long Break)
now if the abduction, apart from being illegal, accompanied
by torture, brutality, and other similar conducts, there would
probably be a violation of the right to due process on the part
of the accused because these methods are usually employed
by law enforcers to coerce the person to make confessions,
admissions, etc. which may not be a good indication that due
process has been afforded to the accused. As I have
mentioned earlier, we have this case of Eichmann. It was a
controversial case except that it was however mooted by the
agreement between Argentina and Israel about the
jurisdiction of Israel over Eichmann. Lets take a look at Ker vs.
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Illinois. According to the US Supreme Court, How far as such

forcible transfer of the defendant so as to bring him within the
jurisdiction of the state where the offense was committed
may be set up against the right to try him is the province of
the state court to decide because issue of jurisdiction of the
domestic court is not to be governed by international law.
then later on, Ker was affirmed in 1952 in the case of Frisbie.
That is why this doctrine is also known as Ker-Frisbie Doctrine.
The Power of the Court to try a person contrived is not
impaired in the fact that he has been brought in the courts
jurisdiction by reason of forcible abduction. This is where the
court justified the legitimate exercise of jurisdiction because
the court said that the accused will be afforded due process.
Do you think that is a legitimate justification on the part of
the party? That forcible abduction has nothing to do with
jurisdiction and that what is important is that the accused is
afforded due process? Anyway, at the end of the day, the
court is asked the culpability of the accused.
In 1992, after Ker-Frisbie, you have the case of US vs. AlvarezMachain.
Is forcible abduction invalidated on the ground of an
existing extradition treaty between the States involved? So,
what would probably invalidate abduction? There is a
suggestion that abduction may be invalidated and therefore
affect the jurisdiction of the court if there is a specific
prohibition against it in the extradition treaty. Meaning, okay
we have an extradition treaty and under it, it is expressly
stated that forcible abduction is not allowed and not
legitimate and that it will affect the jurisdiction of the court.
So that in the absence of the express prohibition daw class
and especially considering that both parties must have been
aware of forcible abduction yet they had decided to be silent
on the matter in the treaty and it can be assumed that it is
not prohibited by the parties. Kuyaw ng ina.ana nga thinking
class, d ba na pwede ignon nga necessarily the extradition
treaty is an expression of the States involved that delivery of
the person should be done in accordance with the extradition
process and therefore in can in fact be assumed that any
other act of delivery not in accordance with the extradition
treaty should be considered as not contemplated by the
parties, dba? Mao nay naka-nindot sa International law class
kay you can argue otherwise. Tan-awa ang US. v. Alvarez nga
case, gi explain mani dri. In the past gud nga mga cases,
walay extradition treaty, murag safe for the court to say nga
forcible abduction per se will not invalidate exercise of
jurisdiction
katong Ker v. Illinois ug Frisbie v. Collins. But
here mahimo xang a little bit complicated kay naa gyud xay
extradition treaty, dba? Pero gi unsa pag analyze sa court dri?
Mexico knew that US had been doing that (referring to
forcible abduction) yet Mexico did not secure that forcible
abduction should be expressly prohibited in the extradition
treaty.
Exception to the Kerr-Frisbie Doctrine
US vs. Toscanino
State and federal courts have long sanctioned a unique form
of lawlessness by assuming jurisdiction over the person of a
cirminal defendant whom law enforcement officials have
illegally apprehended and forcibly brought into their
jurisdiction. Courts have exhibited an almost universal
adherence to a doctrine maintaining that the power of
government to prosecute a defendant is not impaired by the
illegality of the method used to acquire jurisdiction over that
defendant. This doctrine has come to be known as the kerfrisbie rule and has been the subject of much criticism. It was
sharply attacked in the united states versus toscanino case
where the court found that the ker-frisbie rule no longer
comported with contemporary concepts of due process.
Other courts have been unwilling to follow this lead,
however, and have continued to hold that they will not
inquire as to the manner in which a defendant is brought into
their jurisdiction. By analyzing the technique of abduction,
the toscanino case, and related judicial decisions, it is
demonstrated that the ker-frisbie doctrine infringes upon due
process rights of defendants. Because the concept of due
process is broad and requires that accused persons be

protected against pretrial illegalities, abduction and forcible

removal are blatant acts of lawlessness when legal means
are available for extradition or transfer. Case law is reviewed.
(dep)

H. Immunity from Jurisdiction

Sovereign (or State Immunity)
This are the things we will talk about, sovereignty of State
immunity, you remember your doctrine of qualified
immunity also knows as the doctrine of restrictive immunity,
immunity only if acts jure imperii not jure gestiones. We will
discuss cases here. The difference between the way US courts
analyze jure imperii and jure gestiones and Phil courts they
differ a bit. As a result of the observance of State immunity,
we also have the acts of the state doctrine then related to
immunity of jurisdiction, of course, diplomatic immunity. This
will require you to read the entire diplomatic and consular law
as found in the Vienna Conventions on diplomatic relations
and you add consular convention also. There are also a lot of
things to talk about in that convention some of which are but
mura rag recall ba. We dont need to discuss all of them.
Immunity is the most important part in the study of diplomatic
and consular law, kanang who are the different members of
the diplomatic mission, what is a letter of credit, what is
exequatur , what is angry mob. You just have to go over this
but one thing is for sure is that the bulk of the discussion of
diplomatic and consular law is immunity. Ive seen this in bar
exam questions. So, iapil nlng nato na class immunity from
jurisdiction for both diplomatic and consular. Of course,
there is a distinction. For ambassadors, we have ambassadors
acting for the political and governmental interest of the state
while consular for proprietary and commercial interest of the
state. So mao na ang ilahang difference. Mas broader ang
scope of protection or immunity for diplomatic officials,
ambassadors and other diplomatic officials and medyo
narrower ang protection given to consular officials. Probably,
the distinction is based in the nature of their functions
because
ambassadors
and
diplomatic
officials
are
governmental while consular private/commercial.

Okay, you already knew about the restrictive theory of state

immunity in Consti1, only with regard to public acts or jure
imperii. You will notice that we applied jure imperii in the
following cases: lease by the foreign govt of an apartment
building for use of its military offices (SC case); conduct of
public bidding for the repair of wharf of a US naval station (SC
case) and etc. We also applied jure gestiones in the following:
hiring of cook in the recreation center, etc. So, you have to
take note of that. In the US, that is also an acceptable
doctrine. They have also applied restrictive theory of foreign
immunity confined to public acts. Another US case, the Saudi
Arabia v. Nelson will help you understand whether an act is
considered public or private. The spouses were hired in the
US to work in a Saudi Arabian hospital. American lage so
reklamador. When they noticed some defects in the hospital,
gi report nila sa Saudi Arabian government, without knowing
that having done so they courted the risk of being subjected
to torture as a sort of retaliation. They were in fact detained
for 30 days. Kihi niyag apil ang hospital kay for failure to
inform them or at least warn them of the possibility of being
the subject of retaliation for what they did, kuyaw sad ug
theory no. kalimot kag ingon nko nga naay risk. Common law
thinking man gud. But who subjected nelson to torture? dba
police man so gi distinguish sa US Supreme court nga kanang
torture can only be performed by the police. So, you just have
to take note of this for purposes of knowing when the conduct
is commercial or when it is not commercial. This one is a little
bit different from the way we analyze jus imperii and jus
gestiones cases. What the US SC declared here is that the
commercial character of a transaction is to be determined
with reference to the nature of the course of conduct rather
than by reference to its purpose. More on nature than
purpose. Sa US kuno class u ask the question what is the
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14

nature of the transaction or the act. Is the nature or

transaction can be performed by a private individual for
profit? mao rna ilang question. If it can be performed by a
private individual for profit then it is commercial regardless of
its purpose. But you must have perhaps read in the phil cases
in your outline. One of the cases there mentioned about
repair of offices, the hiring of some workers to furnish an
office, for example, if you go by the US test the act can
actually be performed by a private individual for profit. Kana
bitaw mag furnish ug workers sa opisina trabaho mana sa
private individuals for profit, dba?. So, by the nature lang that
one according to the US maybe considered as proprietary. So,
sa atua if the purpose is for public or governmental then
chances are we consider that as jus imperii. Well, I wouldnt
be asking you about this kind of thinking of the court. It is just
to illustrate that even in the US they also distinguish jus
imperii and jus gestiones and we have a different perspective
about it.
Verlinden B.V. v. Central Bank of Nigeria, 461 US 480
(1983)
FACTS
Dutch company entered into a contract with Nigeria for
cement; the Nigerian government established, through the
Central Bank of Nigeria, a letter of credit through a bank in
NYC;
Central
Bank
then
failed
to
pay
Dutch company brought suit in US court for breach of
contract
under
the
FISA
(note: It is moot whether the US has prescriptive
jurisdiction here because the US was not bringing the suit)
Issue 1: Can foreign plaintiffs sue foreign states under
the FSIA?

This case says yes.

Why might this be a question?

o

If anyone, anywhere can bring a suit in US

courts against a foreign state, there is a
concern that the US will become a sort of
universal claims court

However, the FISA has a way of preventing

the US from becoming a universal claims
court: each exception requires some kind of
nexus to the United States (except the
waiver exception)

The nexus to the US here is the

credit that the US bank extended to
Nigeria

Issue 2: Must a federal court apply the FSIA in a suit

against a foreign state, even if the foreign state doesnt raise
the issue of immunity?

According to this case, yes

Footnote, Even if the foreign state doesnt plead

immunity under the FSIA, the court must make a
determination whether one of the exception to
immunity applies in order to have jurisdiction over
the foreign state (a state cant waive immunity by
not pleading it)

In the instant case, the court found that the entity being
sued was indeed a state: the Bank was an instrumentality of
Nigeria.
Jones v Saudi Arabia; Mitchell and Others v 1) Al-Dali and
others 2) Saudi Arabia: Jones v Saudi Arabia
[2006] UKHL 26
HL (Lord Bingham of Cornhill, Lord Hoffmann, Lord Rodger of
Earlsferry, Lord Walker of Gestingthorpe, Lord Carswell)

ABSTRACT
The doctrine of state immunity under the State Immunity Act
1978 prevented the English Courts from entertaining claims
against a foreign state by claimants who alleged that they had
been systematically tortured by officials of that state. The
right of access to court under Article 6 could not apply when
there was no jurisdiction in the first place.
SUMMARY
The first claimant had sought to bring an action for damages
against the defendant Kingdom of Saudi Arabia and one of its
servants or agents for torture allegedly committed in Saudi
Arabia. The second claimant had sought to bring an action of
damages against four individuals, two of whom were Saudi
Arabian police officers, one of whom was a colonel in the
Ministry of Interior and the other was head of the Ministry of
Interior.
The Court of Appeal dismissed the first claimant's appeal
against the dismissal of all his claims against Saudi Arabia,
including his claim based on torture, on the ground of state
immunity. However, it allowed both the first and the second
claimants' appeals against the refusal of permission to serve
the individual defendants out of the jurisdiction ((2004) EWCA
Civ 1394, (2005) QB 699).
The issue before the House of Lords was whether the
proscription of torture by international law precluded the grant
of immunity to states or individuals sued for committing acts
of torture, since such acts could not constitute governmental
acts or exercises of state authority entitled to state immunity
under s.1(1) of the State Immunity Act. The claimants also
argued that by upholding Saudi Arabia's claim to immunity for
itself and its servants and agents would be incompatible with
their right of access to a court.
Held:
The appeal by the first claimant was dismissed, and Saudi
Arabia's appeal was allowed.
Neither the international law prohibition of crimes against
humanity, nor the prohibition of torture, prevailed over the
principle of state immunity. Breach of a jus cogens norm of
international law did not suffice to confer jurisdiction
None of the international instruments on torture provided any
exception for immunity for civil claims. The UN Convention
against Torture and other Cruel, Inhuman or Degrading
Treatment or Punishment 1984 art.14 did not provide for
universal civil jurisdiction. Article 14 required a private right of
action for damages only for acts of torture committed in the
jurisdiction of the forum state. The UN Convention on
Jurisdictional Immunities of States and their Property 2004,
although it was not yet ratified, was the most authoritative
statement available on the international understanding of the
limits of state immunity in civil cases, and it did not avail the
claimants either. There was no evidence that states had
recognised or given effect to an international law obligation to
exercise universal jurisdiction over claims arising from alleged
breaches of peremptory norms of international law.
The Court of Appeal had erred in finding that state immunity
did not cover the individual Saudi defendants, as individual
agents of the state allegedly responsible for the infliction of
torture on the claimants. The Pinochet case had been wrongly
interpreted (R v Bow Street Metropolitan Stipendiary
Magistrate, Ex p Pinochet Ugarte (No 3) [2000] 1 AC 147).
The argument that torture or some other contravention of a
jus cogens could not attract immunity ratione materiae
because it could not be an official act could not be sustained.
There is a wealth of authority to show that in such case the
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foreign state is entitled to claim immunity for its servants as it

could if sued itself. The foreign state's right to immunity
cannot be circumvented by suing its servants or agents. A
state would incur responsibility in international law if one of its
officials, under colour of his authority, tortured a national of
another state, even though the acts were unlawful and
unauthorised. To hold that for the purposes of state immunity
he was not acting in an official capacity would produce an
asymmetry between the rules of liability and immunity. A
state can only act through servants and agents; their official
acts are the acts of the state; and the state's immunity in
respect of them is fundamental to the principle of state
immunity. The mistaken reading of Pinochet led the Court of
Appeal into the "striking anomaly" of holding the Kingdom of
Saudi Arabia to be immune, as well as the Ministry of Interior,
as a department of the government; but not the Minister of
Interior (the fourth defendant in the second action). Acts of
torture were either official or not. If they were official enough
to fall within the UN Torture Convention, they were official
enough to attract immunity (Mallen v United States of
America (1927) IV Reports of International Arbitral Awards
173).
As far as the claimants' Convention arguments were
concerned, even assuming that Article 6 applied (which it
could not since there was no jurisdiction), they had not
established that the 1978 Act had not been shown to be
disproportionate. Following the majority decision in the case
of Al-Adsani v United Kingdom (2001) 34 EHRR 273, there
was no precedent for the proposition that state immunity was
a disproportionate response to the legitimate aim of
international comity.
COMMENT (June 2006)
The claimants found themselves somewhere between a rock
and a hard place in this appeal. In order to get the State
Immunity Act declared incompatible with the Human Rights
Convention, they had to show not only that the ordinary
interpretative rules applying to domestic statutes should not
be followed, but also that Article 6 was engaged by the grant
of immunity in the first place. Here they ran flat against the
proposition, well established by authority, that there cannot
be a right of access to court if there is no jurisdiction in the
first place. In a previous House of Lords decision on state
immunity (Holland v Lampen-Wolfe [2000] 1 WLR 1573,
1588), this point was dealt with thoroughly by Lord Millett. The
rule of international law is not, that a state should not exercise
over another state a jurisdiction which it has, but that a state
has no jurisdiction at all over another state. It is a logical nonsequitur to say that a state has denied accss to its court, if it
has no access to give. Lord Bingham confessed that he had
"some difficulty" in accepting the approach of the Grand
Chamber of the Strasbourg Court in Al-Adsani v United
Kingdom (2001) 34 EHRR 273 where all the judges had
assumed that Article 6 was engaged.
But even if they had navigated past this rock and the House
of Lords was prepared to proceed on the basis that Article 6
did apply the claimants were bound to founder on the hard
place, which was to show that the restriction is not directed to
a legitimate objective and is disproportionate.
It was not surprising that they failed in this endeavour, given
that the raft of agreements, treaties and principles of
international law that condemn and criminalize torture is
neither robust nor weighty enough to displace a simple rule
based on diplomacy; that no country can assert jurisdiction
over another. To put it in terms of international law jargon,
the anti-torture jus cogens may be applicable erga omnes but
it has no superiority vis a vis other rules of international law,
as Lord Bingham so amply demonstrates in his recital of the
jurisprudence and scholarly works on the subject. The case
most helpful to the claimants on the applicability of Article 6
point was alone enough to defeat them on the substantive
argument: in Al-Adsani the majority of the Strasbourg Court

held that the grant of sovereign immunity to a state in civil

proceedings pursued the legitimate aim of complying with
international law to promote comity and good relations
between states through the respect of another state's
sovereignty. In this context, they said, the European
Convention on Human Rights should so far as possible be
interpreted in harmony with other rules of international law of
which it formed part, including those relating to the grant of
state immunity; and that some restrictions on the right of
access to a court must be regarded as inherent, including
those limitations generally accepted by the community of
nations as part of the doctrine of state immunity.
Even the body set up as watchdog of the enforceability and
applicability of international law, the International Court of
Justice, has made plain that breach of a jus cogens norm of
international law does not suffice to confer jurisdiction where
state immunity has negated its existence (Democratic
Republic of the Congo v Rwanda (unreported) 3 February
2006, para 64).
What has to be borne in mind, in these challenges to
international norms that appear to interfere with the
individual rights set out in the European Convention (or any
other instrument purporting to entrench certain legal
interests) is that the offending principles are not designed to
deprive people of redress but simply divert breach of a right,
or an interest, away from the courts which are inappropriate
in an international context to a political or diplomatic
method of settlement. As one commentator put it, when the
House of Lords judgment was first announced amidst
considerable publicity, the assertion of Chinese courts'
jurisdiction by the Beijing government over UK officals, for
acts carried out in this country, would hardly be welcomed as
a step forward in international relations. State immunity is a
realistic quid pro quo arrangement between sovereign states
which is unlikely to be set aside by a unilateral assumption of
jurisdiction by one national legal system, however highminded.
The claimants have announced their intention of petitioning
the Strasbourg Court on this point. Given Strasbourg's
conclusions in Al-Adsani, one might not wait with bated
breath for a favourable outcome for the claimants. However it
will be interesting to see what the Strasbourg Court has to say
about the applicability of Article 6 in the first place. As Lord
Hoffmann pointed out, the assumption that Article 6 was
engaged was erroneous; there is not even a prima facie
breach of article 6 if a state fails to make available a
jurisdiction which it does not possess. State immunity is not,
as Lord Millett said in Lampen-Wolfe, a "self-imposed
restriction on the jurisdiction of [the] courts" but a "limitation
imposed from without" (1588)
Argentine Republic v. Amerada Hess Shipping Corp.
case
brief
summary
488
U.S.
428
(1989)
Procedural
History:
Review of reversal of dismissal of action seeking damages for
property
destruction.
Overview:
-A pair of Liberian corporations (P) sought to sue the
Argentine Republic (D) in U.S. courts under the Alien Tort
Statute.
-United Carriers, Inc. (P), a Liberian corporation, chartered a
vessel called the Hercules to Amerada Hess Shipping
Corporation
(P),
another
Liberian
corporation.
-The ship was to be used to transport fuel. While off the South
American coast during the 1983 Falkland Islands War, it was
irreparably damaged and had to be scuttled. United (P) and
Amerada (P) sued Argentina (D) in U.S. district court.
-The court dismissed, holding jurisdiction to be absent.
-The Second Circuit reversed, holding that jurisdiction existed
under the Alien Tort Statute of 1789. The U.S. Supreme Court
granted
review.
Issue:
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16

-Does the Alien Tort Statute confer jurisdiction over foreign

states?
Rule:
-The alien tort statute does not confer jurisdiction over foreign
states.
Analysis:
-The main focus of the FSIA appears to be commercial. There
are a variety of commercial activities that occur outside the
United States that can lead to a foreign state's being sued in a
U.S. court The same is not true in the tort arena.
Outcome:
-The Alien Tort Statute does not confer jurisdiction over foreign
states.
-The statute confers jurisdiction in district courts over suits
brought by aliens in tort for violations of international law or
U.S.
treaties.
-The law, as an initial matter, is silent as to whether it applies
to suits against foreign states. More importantly, in 1976,
Congress enacted the Foreign Sovereign Immunities Act
(FSIA), which dealt in a comprehensive manner with the issue
of
jurisdiction
over
foreign
states.
-The law provides that, except as provided in the Act, foreign
states shall be immune from U.S. courts' jurisdiction. While
the FSIA does not explicitly repeal the Alien Tort Statute to the
extent that it may confer jurisdiction over a foreign state, it is
dear that this was an intent behind the FSIA. This being so,
the FSIA can be the only source of jurisdiction over a foreign
state. Reversed.
SAUDI
507

ARABIA
U.S.

V.
349

NELSON
(1993)

Procedural
History:
Appeal from a judgment for the plaintiff in a personal injury
action
against
a
sovereign
government.
Overview:
Saudi Arabia (D) claimed foreign sovereign immunity from the
subject-matter jurisdiction of the federal courts after Nelson
(P) filed suit against it, alleging wrongful arrest, imprisonment,
and torture. Nelson (P) was recruited in the United States for
employment as a monitoring systems engineer at a hospital in
Riyadh, Saudi Arabia (D). When Nelson (P) discovered safety
defects in the hospitals oxygen and nitrous oxide lines, he
repeatedly advised hospital officials of the defects and
reported them to a Saudi government (D) commission as well.
Hospital officials instructed Nelson (P) to ignore the problems.
Several months later, he was called in to the hospitals
security office, arrested, and transported to a jail cell, where
he was shackled, tortured, beaten, and kept without food for
four days. After thirty-nine days, the Saudi government (D)
released Nelson (P), allowing him to leave the country. Nelson
(P) and his wife (P) filed this action in the United States,
seeking damages for personal injury. They also claimed a
basis for recovery in Saudi Arabias (D) failure to warn Nelson
(P) of the hidden dangers associated with his employment.
The Saudi government (D) appealed the judgment of the court
of
appeals.
Issue:
Are foreign states entitled to immunity from the jurisdiction of
courts in the United States, unless the action is based upon a
commercial activity in the manner of a private player within
the
market?
Rule:
Foreign states are entitled to immunity from the jurisdiction of
the courts in the US, unless the action is based on upon a
commercial activity in the manner of a private player within
the
market.
Analysis:
Under the restrictive, as opposed to the absolute, theory
of foreign sovereign immunity. a state is immune from the
jurisdiction of foreign courts as to its sovereign or public acts
but not as to those that are private or commercial in
character. A state engages in commercial activity under the
restrictive theory where it exercises only those powers that
can also be exercised by private citizens, as distinct from
those powers peculiar to sovereigns. Whether a state acts in
the manner of a private party is a question of behavior, not
motivation. While it is difficult to distinguish the purpose of
conduct from its nature, the Court recognized that the Act
unmistakably commands it to observe the distinction.

Outcome:
-Foreign states are entitled to immunity from the jurisdiction
of courts in the United States, unless the action is based upon
a commercial activity in the manner of a private player in the
market.
-Saudi Arabias (D) tortious conduct in this case fails to qualify
as commercial activity within the meaning of the Foreign
Sovereign Immunities Act of 1976. Its conduct boils down to
abuse of the power of its police by the Saudi government (D).
A foreign states exercise of the power of its police is
peculiarly sovereign in nature and is not the sort of activity
engaged
in
by
private
parties.
-Furthermore, Nelsons (P) failure to warn claim must also fail;
sovereign nations have no duty to warn of their propensity for
tortious
conduct.
-The Nelsons (P) action is not based upon a commercial
activity within the meaning of the Act and therefore is outside
the subject-matter jurisdiction of the federal courts. Motion to
dismiss
is
granted.
Reversed.
CONCURRENCE: (White, J.) Neither the hospitals employment
practices nor its disciplinary procedures have any apparent
connection to this country. Absent a nexus to the United
States, the Act does not grant the Nelsons (P) access to our
courts.
DISSENT: (Stevens) If the same activities had been performed
by a private business, jurisdiction would be upheld.
Immunity of Head of State
So, we go to HEAD OF STATES and DIPLOMATIC
IMMUNITY. Lets talk about Head of States first. The problem
of head of state immunity is that it might also be affected by
theories on recognition and that was illustrated in the case of
US vs. Noriega. So, who determines if a person may be
afforded immunity of head of state. Naturally, it is the
prerogative of the State that will exercise jurisdiction.
Naturally, it is a prerogative of the state that will exercise
jurisdiction. In this case, it was established that George W.
Bush had refused to recognize (???). Nahimo man to xang
head via coup detat. And then at one point, nailisan xa but
he claimed that he was head of state when he was
prosecuted in the US. But the US was insisting that he had
never been recognized as head of State of Panama. So, the
US Court here said that its the executive branch who would
determine who is a head of state because recognition is an
executive function. The Court will only rely kung kinsa ang
gi.recognize sa executive department. If the court notice that
the recognition of the head of state pertains to the executive
department and the executive department had shown that it
had never recognized Noriega as head of Pananama but had
recognized instead Del Valle and Indara subsequent to
Noriega so the Court is not compelled to also afford head of
state immunity to Mr. Noriega.

District court also considered Noriegas move to dismiss

the indictment on grounds of illegal arrest that the US
governments seizing him via invading Panama was legally
unacceptable.
A court cant be divested of jurisdiction (i.e., the right to
try a defendant) simply because the defendant was brought
before the court by illegal means. (Ker-Frisbie)\
Despite Noriegas claims that the Toscanino exception
protects him, as the US invasion of Panama was brutal
shocking to the conscience, he doesnt show that the US
violated his personal rights in any way.
Noriega had no private right of action to assert that the US
had violated international law without a protest by the
sovereign government.
The court declined to use its supervisory authority to
dismiss the indictment because the USs actions did not
constitute flagrant abuses of the legal system and dismissal
was not necessary to preserve the integrity of the judicial
system.

THE PINOCHET CASE

The Facts
The facts are as follows: Augusto Pinochet was arrested in
Britain on October 16 after Spanish judge Baltasar Garzn
requested his extradition for his alleged responsibility in the
torture and killing of Spanish citizens during the Chilean "dirty
war" in the 1970s and early 1980s. The British Crown
Prosecution Service supported the demand, and several
countries eventually followed suit, on various related grounds,
including the United States [correction: Switzerland] and
France. On 28 October, the High Court ruled that Pinochet
enjoyed absolute immunity for any crime committed during
his term in office. The Crown Prosecution Service appealed the
ruling to the House of Lords, composed in this instance by a
panel of five judges headed by Lord Slynn of Hadley, a former
judge on the European Court of Justice. The Law Lords, in a
rare move, allowed Amnesty International and a number of
similar organisations to be also heard. Last Thursday 12
November, the hearings were closed, and Lord Slynn
announced that the decision would be handed "in due
course." It is expected anytime now.

The Law
The arguments for the release of Pinochet are of two types:
some are strictly legal, as is the case of immunity, which was
put forward by the High Court to decree Pinochet's release
(Section 2). Other arguments, where law comes as an
afterthought to comity, are of a more diluted nature. They are
presented here first (Section 1).

US vs. Noriega
1. The comity arguments
A Florida grand jury returned a multi-count indictment
against then-Panamanian dictator Noriega for his involvement
in a conspiracy to import cocaine into the US. District court
considered whether the US may exercise jurisdiction over
Noriegas alleged criminal activities.
Noriegas status as a head of status (through which he
claims immunity) is irrelevant in the consideration of whether
the US has extraterritorial jurisdiction over his criminal
activities, which is the only issue here.
The extraterritorial jurisdiction analysis applied:
1.

Whether the US has the power to reach the conduct

in
question
under
traditional
principles
of
international law; and

2.

Whether the statutes under which the defendant is

charged are intended to have extraterritorial effect.

Held: US has jurisdiction over Noriega. He was involved in

a proven conspiracy to bring a great deal of cocaine into the
US, which would be criminal quite harmful to the US. Relevant
case law and statutes support extraterritorial jurisdiction in
such situations.
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1.1 The invitation

The arguments which are not strictly legal were made most
forcefully by Pinochet himself, and by Mrs Thatcher. After a
long silence, Pinochet spoke out against the British authorities
on 8 November, accusing them of ensnaring him in an ugly
trap. In a formal statement carefully doctored by his lawyers,
the former dictator said that he "had come to Britain as a
Special Ambassador", even though "perhaps not at the guest
of the Foreign and Commonwealth Office". For his bad luck, no
visa is required for Chilean citizens to enter Britain, but
Pinochet said he "was greeted formally by representatives of
the British government at Heathrow". There is some merit in
the argument of the invitation, but it is typical of someone
who knows little about the separation of powers, and even
less on the rule of law. Ultimately, the argument is never
decisive for common criminals on matters of extradition, and
one may wonder why it should be more persuasive for people
accused of mass murder.

1.2 Leaving the case to the people of Chile

2.2 A matter for parliament, or for an ad hoc tribunal ?

A more subtle argument was made early on by Lady Thatcher,

who was glowingly approved by the erstwhile sole ruler of
Chile in his statement. According to the former British Prime
Minister, the Chilean people must come to terms with their
history without interference by any foreign system of justice.
There is strength in the argument, but the way Pinochet has
railroaded the Chilean constitutional process to ensure his
protection ad vitam aeternam cannot to be lightly dismissed.

Both Pinochet's lawyers and the High Court explained that

they did not want to get into discussing whether the man was
responsible for any crime he may be accused of in Spain or
elsewhere, since any retribution would be "a matter for
parliament," or for a Nuremberg-style ad hoc tribunal.

If Pinochet cannot be tried in Chile, it is because he used his

power to ensure his own impermeability towards any domestic
process of law, and this was arranged by writing himself into
"a senator for life", thus acquiring immunity, also for life,
under Chilean law. Only a change in the constitution, which is
unusually onerous to carry out, could allow the legal system in
Chile to examine his case. The quasi-impossibility to see the
people of Chile given a chance to come to terms with their
history raises the principle of legal subsidiarity (or
complementarity). This principle is now well established in a
number of treaties, including the Treaty of Maastricht for
European law. It has been confirmed in the International
Criminal Court (ICC) Treaty, signed in Rome in July 1998,
which encapsulates well-established universal principles of
international criminal law. The Preamble of the ICC Treaty
"emphasiz[es] that the International Criminal Court shall be
complementary to national criminal jurisdictions," and Article
17 specifies that a case will be admissible only if the state
which has normal jurisdiction over it "is unwilling or unable
genuinely to carry out the investigation or prosecution." This
is unquestionably the case of Chile in the wake of the
amendments introduced to its constitution by the accused
himself. Therein lay the main weakness of Mrs Thatcher's
argument, for the people of Chile have been barred by the
man himself from coming to terms with the violent history he
stands accused for.
2. The legal arguments
On the more technical, and more significant grounds which
formed "the conclusive objection" to Pinochet's arrest
according to the High Court, the main arguments for his legal
defence can be summarised as follows: Are the Law Lords
bound by an array of principles, under English law, which
would, by inverse order of importance,
(2.1) risk opening the floodgates for people aggrieved by
government brutality;
(2.2) expect Parliament to pass a special act to deal with such
cases, alternatively wait for an ad hoc international tribunal;
and, more fundamentally,

If the issue of immunity or lack thereof under English law is

left aside, the argument conjures up a debate in international
law which has lasted for centuries. The inconclusive debate is
whether justice is immanent and preordained, or whether men
create justice which, until they establish it, does not exist in
law. This is a century-old controversy between naturalists and
positivists. In that context, Pinochet's lawyers are being
positivists, arguing they we can't find a law for which, and a
tribunal before which , their clients mass crimes would be
considered. The victims of Pinochet argue for basic natural
justice which prevents Pinochets crime from going
unpunished.
There is no decisive answer to such a contention, except that
the historic record would suggest that even in Nuremberg and
Tokyo, as indeed for all the crimes connected with the
Holocaust and subsequent mass crimes, the monstrous
dimension of the crime was such that judges found it difficulty
to shirk away from the natural justice camp. Echoes are
continuous through the half century following the Nazi era, of
cases connected with the Holocaust, which were effectively
adjudicated. This is further confirmed in the ICC Treaty, which
operates as the culminating restatement of an uninterrupted
stream, through the International Law Commission and other
international law fora, of basic natural law principles.
Curiously enough, a strong echo resonated in the High Court
judgment in re Pinochet on 28 October, per the Lord Chief
Justice of England himself: "It was of course a matter for acute
public concern that those who abused sovereign power to
commit crimes against humanity should not escape trial and
appropriate punishment."
2.3 Immunity

(2.3) give immunity to a former head of state, thus:

(2.4) equate an individual crime with mass crimes ?
2.1 The floodgates argument
One contention of Pinochet's lawyers is easily rebuttable, and
is related to the sole competence of Chilean justice. This is the
so-called floodgate argument. Will an indictment of Pinochet,
they argue, not lead to a floodgate of demands on the English
courts ? Even if one may wonder how many mass criminals in
the world risk a lawsuit by some of their victims in Britain,
there is an even stronger query why that would be at all
wrong. If there are good grounds to try mass criminals
disguised into former heads of state, then be it. It will be left
to the accusation to be substantiated by serious evidence and
a strong causal connection between the accused and the
crimes committed.

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This, naturally, derives from the argument about immunity,

which will be addressed in a moment. That issue left aside,
the narrower ground is that tribunals in England are neither
competent nor equipped to try former heads of government.
For their jurisdiction to be established, special legislation
should be passed by Parliament to include crimes perpetrated
by foreign heads of state, or special treaties should be
entered into for the establishment of an ad hoc tribunal such
as those in Nuremberg and Tokyo, and, more recently, the
Yugoslav and Rwanda tribunals. Barring such special
legislation or ad hoc tribunal, the consequence is that any
mass crime must go unpunished.

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Notwithstanding that slip, which goes against its own

conclusion that Pinochet should be released, the High Court
considered in its decision of 28 October that Pinochet was
"entitled to immunity as a former sovereign from the criminal
and civil process of the English courts." This is the central
argument for rebuttal if the appeal to the House of Lords is to
succeed.
2.3.1 Precedents
In some ways, the case finds some precedents if one goes
back enough in English history. It is arguable, on the issue of
immunity that the common law did not readily acknowledge
any "sovereign immunity" even when the immunity concerned
the British sovereign himself or herself. Neither the trial of
Mary Stuart nor that of Charles the First, which led to their
condemnation and execution in 1587 and 1649 respectively,
were paragons of justice. However, the records show that both

sovereigns fought their ground on the basis of the immunity

owed to their titles. Mary said she was a queen since birth,
that she was free and could not accept orders from anyone,
least so a group of judges who had no authority whatsoever
over her, to which Chancellor Bromley responded early on
that "her royal prerogative" would not protect her. Immunity
did not protect Charles either, and the act of accusation of
1649 is not uninteresting, which specifically mentions his
responsibility for "thousands of deaths" in the Kingdom. While
victors law is never totally persuasive, former sovereigns
were tried and condemned in England. The argument of
absolute immunity successfully invoked before the High Court
does not have an unblemished legal pedigree under English
law.
2.3.2 Distinguishing the Adsani case
In other ways, the Pinochet case is unprecedented. Al-Adsani
v. Government of Kuwait, a 1996 Court of Appeal judgment
cited by the High Court in the Pinochet decision which we
had followed in its early stages with an expert report on
Kuwaiti law, does not offer "an exact analogy", as the High
Court correctly pointed out.
Our reason for this, however, is different from both the
arguments of both High Court and counsel for the prosecution.
Whatever the Kuwaiti authorities might have been accused of
in terms of heavy handedness in pursuing Sulayman alAdsani, a dual Kuwaiti-British national tortured just after the
Gulf war by Kuwaiti security officials who wrongly accused him
of various crimes, one cannot make an argument for his case
being an instance in a mass crime phenomenon. The key
difference with Pinochet is the category of crime investigated:
The Adsani case is individual, unconcerted, and unsystematic.
Pinochet's crimes the plural is here key is prima facie
collective, concerted and systematic. At least three thousand
people were killed or disappeared, without any form of judicial
process, under Pinochet's orders.
2.3.3 Statutes
As for the argument of the State Immunity Act of 1978, and
the various conventions that protect diplomats, which form
the basis for the release of Pinochet for the High Court, they
cannot be decisive because such conventions and acts were
conceived with the present tense in mind, the underlying
philosophy being that diplomats cannot be left at the mercy of
foreign courts when they act in the so-called line of duty. In
the first place, it is obvious that after their diplomatic and/or
stately character is over, their temporary immunity lapses.
This is indeed why Pinochet went to great lengths in Chile in
order to paint himself into a golden cage of senatorial
immunity which only a quasi-impossible constitutional change
could destroy. That Chilean writ proved of little help in Europe,
but it does point out in the present case that immunity can
neither be universal or absolute, unless the law is specifically
manipulated to offer it as such. What Pinochet did in Chile to
extend his immunity can hardly be used by him in Britain.
The more delicate issue is the narrow one upon which the
High Court based its release of Pinochet, that is the
recognition of immunity to former heads of state for their acts
at the time of their exercise of power. In the questions raised
by the judges to the lawyers and reported in the press, the
Law Lords seemed to recognize during the hearings the
difficulty of drawing, as the High Court did, a blanket
immunity for all acts of power perpetrated by heads of state.
The increasingly potent point in the debate is whether the socalled acts jure imperii, which recent immunity acts and
conventions cover, include mass crime.
As the hearings over the Pinochet case have evolved from
what can be gleaned from the newspapers in the absence of
television coverage or verbatim records , the strongest
argument for the House of Lords to overrule the High Court
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judgments would rest on a different category of crimes, which

is too important to be dealt with on the immunity technicality.
To this crucial element in the Pinochet case we now turn.
2.4 Crimes and crime
Whether "those who abused sovereign power to commit
crimes against humanity", in the High Court words, can
escape punishment thanks to the doctrine of immunity,
depends on whether there is a difference in the legal regime
of individual and mass crimes. Do Pinochet's crimes in Chile,
or Ariel Sharons in Lebanon, or Pol Pots in Cambodia, belong
to a category of crimes which are sui generis in history?
The ICC treaty answers, no doubt, in the positive. It depicts
them as "grave", "serious", "international", "of concern to the
international community as a whole", "international", and it
considers "the duty of every State to exercise its criminal
jurisdiction over those responsible" for them. At least since
the trials at Nuremberg, there is neither defence immunity,
higher orders, or otherwise , nor immunity for such crimes,
for they are sui generis under international law. Nor is it
incidental that no less than seven countries have moved to
seek Pinochet's extradition: there is little chance that a usual
criminal, even a serial one, would be the object of such a wide
arrest warrant.
To put the issue in its proper perspective, let us consider a
matter which was brought up in the hearings before the
House of Lords: the responsibility of Hitler in the Holocaust.
Newspapers report that, in response to the Law Lords,
Pinochets lawyer argued that if Hitler had not committed
suicide at the end of World War II, he "would have been
protected" under British law if he came to Britain. A strange
result indeed, which, the lawyer went on, "may be a matter of
grave regret from a moral point of view", but "it is the law".
Both Hitler and Pinochet would go free.
This also brings up the issues of the revisionist debate which
has been raging in recent years over books such as Roger
Garaudy's Les Mythes Fondateurs de l'Etat d'Israel. On the
one hand, because of the importance of the Holocaust and the
wide documentation available, one is right to dismiss the book
for the weakness of the scholarship expressed in it. For our
purposes, and irrespective of the mediocrity of the book on
that score, the main problem with Garaudy's thesis arises
from the equation he sets between killing one person and
killing millions. Both, he said, commit crimes for which they
should be pursued.
Evident though the point that a murderer should be tried and
punished even for a single killing (!) may be, one can only
have serious misgivings with this argument. Behind artificial
semantics, it is fundamentally wrong, both morally and
legally, to put the two crimes in the same category.
This raises the central point, which is the unique nature of
mass crime. The main question is therefore not one of simple
extradition, or of domestic statutes on immunity, or of
international conventions on the rights of diplomats: it is one
where a person suspected of crimes against humanity cannot
put forward any of the usual defences in ordinary, non-mass
crimes. Such crimes are so repugnant that they cannot
compare with individual crimes, not even with serial crimes,
however ugly those may nonetheless be. Should the House of
Lords reverse the first instance decision, it will be primarily for
the unique nature of mass crime, a point consistently
repeated in the jurisprudence of the civilised world since the
second World War.
We shall find out soon the answer in what promises,
considering the intellectual calibre of the British Law Lords, to
be one of the most controversial decisions of the twentieth
century. For the region, the stakes are particularly high. As
Lord Slynn wrote in a foreword to a recent book on the legal

dimensions of the Arab-Israeli Accords: "It is here that the role

of the courts and the importance of the rule of law has
something to show". He did probably not expect to preside,
two years later, over a matter so close to the people of the
region as Pinochet's crimes. The world is waiting to see
whether, in his Lordship's own words, the House of Lords will
"ensure the protection of fundamental rights [and] control the
abuse of power" which the citizen, in the Middle East and
elsewhere, is yearning for.

What happened in the case of Pinochet? This is controversial,

not controversial that it wasnt a legitimate reasoning of the
court or acceptable reasoning of the court, but in the case of
Pinochet it involves a former head of state so that will
perhaps be considered a little bit complicated because it
involves a former head of state. If we talk about head of state,
certainly thats not a problematic matter. Is the head of state
immune from jurisdiction? This is immunity from jurisdiction,
ha? Basig nya panutan.on mo nako, what is the rule of
immunity of heads of state? Simple ra na nga question. Sir,
klaroha, sir. Incumbent or former head of state? Siguro, part
na sa question. A former head of state is a head of state,
former lang while the other one is incumbent. Incumbent
head of state is absolutely immune, yes or no? Kung immune
xa, immunity covers all cases: administrative, civil, criminal.
After incumbency, former na xa, unsa man ang rule? We
distinguish acts that are considered official and acts that are
not considered official. Mao nan oh? You have learned that in
your Consti 1. Then whats the rule, if the act which is the
subject matter for criminal prosecution, is done in his official
capacity, then exempt xa. But for acts which are not
performed in his official capacity, no immunity is afforded to a
former head of state. Ang problema sa Pinochet class kay
torture under the direction of Pinochet, who once served for
17 years in Chile like Marcos, for human rights violations
including 94 counts of torture against Spanish citizens and the
killing of a Spanish ambassador, Mr. Soria. So, question,
torture man ni sya class, Pinochet said that whether it was
torture or not, it was done under my direct instruction and
therefore we did it as part of what the discharge of my
function as a military leader or as a leader. So, official to sya.
What do you think was the ruling of the House of Lords, then
the then Supreme Court of England? Pinochet died in 2006, by
the way, wa pa nahuman ang kaso. The prohibition against
torture is jus cogens so it could never be official. The absolute
prohibition on torture is jus cogens and therefore overrides
any immunity from suit afforded to a head of state in criminal
proceedings. In criminal proceedings, ha? Because in the case
of Saudi Arabia, it does not matter.
Immunity in civil
proceedings still apply. Ka remember mo aning Jones, they
were in Saudi Arabia and they were tortured by police in
Saudi Arabia. They sued for damages, not for criminal
culpability, but for damages in civil case. Ingon ang House of
Lords, civil gani, kana nga torture dili pa settled ang rule nga
mo.override ang prohibition on torture sa immunity in civil
proceedings. But immunity in criminal proceedings will have
to be overridden by a jus cogens norm. You have to
distinguish between criminal and civil proceedings when it
comes to torture and in relation to immunity. Ikiha nimo ang
police for torture, ang cause of action mo civil case for
damages, that will not apply here because we have a
statutory provision allowing the filing of damages against a
police who violated our constitutional rights. In international
law, immunity may be invoked because this happens usually
when a case is filed in another tribunal and impleaded in a
foreign court of a foreign state. So this is entirely different.
Take note of the ruling in this case.
Some observations here, it appears that if Pinochet was still a
head of state, he would have been immune from prosecution,
even for torture. Now, remember, the case of Pinochet on jus
cogens norm about torture overriding immunity in criminal
proceedings. This case is applicable because Pinochet is a
former head of state. If he was incumbent head of state, even
for torture, immune pa gihapon sya kay absolute man ang
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immunity. It would seem that Pinochet was given only

immunity rationae materiae, but not on his person. But, you
should distinguish domestic jurisdiction over a head of state
and international jurisdiction over international crimes.
Because we what we had been talking about earlier is
domestic jurisdiction over a head of state, meaning a local
court exercising jurisdiction over a head of State: US court,
Israeli court, House of Lords in England, etc.
Recent development in international law, however, class, as
we shall see later on, we will be studying international
international humanitarian law, and we will be studying the
Rome Statute Go to Article 27 of the Rome Statute, diba dili
mo apply ang immunity afforded to heads of states even to
incumbent ones. Even for incumbent heads of States,
president ka karon, and you are prosecuted for international
crimes under the Rome Statute? You can be arrested, you can
be prosecuted and later on convicted.
Recent writings on the matter however suggest that the
Rome Statute should have distinguished from international
crimes which are most serious and ordinary international
crimes. Kana maoy latest karon nga suggestion. But, in any
case, under the Rome State, if you invoke immunity as head
of State, that is not applicable, basta international criminal
court. It had been invoked a lot in ad hoc international
tribunals before.
Sa wala pa ang International Criminal Court, ang UN mopass
ug resolution allowing the creation of ad hoc international
criminal court. The UN established that in Rwanda, the UN
also established that in former Yugoslavia. That courts are
only ad hoc, created for that purposepaving the way to the
creation of international criminal court as stated in the Rome
Statute. Specific Provision is Art. 27, you cannot invoke
as head of state to be exempt from criminal
responsibility. We are talking here about domestic
jurisdiction. I am not saying that it is true but that is the rule.
Many criticizes such principle because- asa naman ang
sovereignty nato ana.
The Act of State Doctrine
Act of State Doctrine courts generally will not pass
judgment on the validity of the public and official acts of
foreign government within its territory. We have the following
as bases of the acts of state doctrine: co-equality; states
respect the sovereignty of foreign states. Just a caveat, when
the act of state doctrine is applied it does not mean that the
case will be dismissed. It only means that if it involves an
evaluation of a particular act of a government, whether a
case is private or public, it does not matter for as long as the
resolution of the case would require the court to determine
the application of a governmental act the court will have to
defermeaning we have to say that we have to assume that
it is valid, the court cannot pass judgment on its validity and
say that the act of US in their own territory is invalid. Local
courts cannot pass judgment on the acts of opponent states.
This is not to say that the case will be dismissed but it simply
means that in resolving a controversy it must assume that the
act is validly done by the government.

Ruling in Underhill vs Hernandez- every sovereign state is

bound to respect the independence of every sovereign state
and the courts will not take judgment on the government of
another done in its territory--- reason behind the act of
state doctrine.
Case of W.S. Kirkpatrick vs Environmental Tectonics
There was a bidding and resulted to the awarding of
the contract there was an allegation of bribery. The issue
there is the validity of the contract.

Will it require the court to determine the validity of

the bidding- a public act, awarding of the contract to the
supposed winner? Does it involve the act of state doctrine?
The court said no, because the court was not asked
to determine the validity of the award but on the validity of
the awarding of the contract on the basis of bribery. The act
of state doctrine therefore is not always applied, it depends
on if it is the true inquiry of the court. If it is not the true
inquiry of the court, like what happened here. The Supreme
Court said that the determination to whether the bribe took
place, does not require the court to decide whether or not to
give legal effect of the official act of Nigeria in its own
territorythe official act being the awarding of the contract.
Kirkpatrick (the winner of the bidding) alleged that
the court cannot anymore pass judgment on the validity of
the bidding because it is an official act. The court then replied
that they did not pass judgment on whether the award is
legitimate or not, ang amo lang is that if it was done because
of bribery.

Inviolability here applies to both the premises of the nation

and the person of the diplomat

Article 22 VCDR (seems to be the most important provision)

1.The premises of the mission shall be inviolable. The agents

of the receiving State may not enter them, except with the
consent of the head of the mission.

2.The receiving State is under a special duty to take all

appropriate steps to protect the premises of the mission
against any intrusion or damage and to prevent any
disturbance of the peace of the mission or impairment of its
dignity.

Diplomatic Immunity
Consular Immunity
Immunities of International Organizations
Waiver of Immunity
Phil. Practice

Inviolability of premises of foreign diplomatic missions,

we have to talk about Art. 22 of Vienna Convention on
Diplomatic Relations (VCDR) (sir required us to read the
entire convention including the convention relating to
consuls)
Inviolability here does not only involve inviolability of
the person of the ambassadors but also to inviolability of the
poremises. Basic rule in Art. 22 is that it has two obligations:
1) the duty of the receiving state to refrain from
entering the premises without the consent of the head
of the mission: 2) duty of the receiving state take all
appropriate steps to protect the premises of the
mission against any intrusion or damage and to
prevent any disturbance of the peace of the mission or
impairment of its dignity.
Is obligation no 1 absolute? For example, Kung
nay bomb threat inside the premises of the mission, can the
local police force to insist to go inside the premises without
the consent considering that it is an emergency situation?
It was brought in the attention of ILC (Intl Law
Commission) and it was sought an opinion whether or not
there are exempting circumstances like urgency in security or
whatsoever, the ILC answered that there is no exempting
circumstance, it is absoluteabsolutely barred from
entering, the only way you can enter is through the
consent. In case of bomb threats, you need the permission of
the head of the mission but it is always that the head of the
mission will say go ahead--- that is okay pero kung musulad
ka lang without the permission is absolute.
Whats the reason behind it? The possibility man gud
class that you know the receiving state in the pretext of
addressing something urgent, something that require
immediate action they can easily enter on the premises of the
missionno exception kay total you will ask permission man
pud. Consent will be given if the circumstances will warrant it.
Can the obligations be waived? Yes as long as
the waiver is express.
Theories behind the inviolability of the premises (the same
theory that applies on the inviolability of the person of
ambassadors and consuls):
1) extraterritoriality- premises of the mission is an
extension of the sending state
2) representational- the mission is the representation
of the sending state
3) functional necessity- development in international
law focuses in this theory
more on assuring our diplomatic
officials the ability to perform and

3.The premises of the mission, their furnishings and other

property thereon and the means of transport of the mission
shall be immune from search, requisition, attachment or
execution.

There are two kinds of obligations here:

Negative: not to enter (absolute, because of the possibility
that it might in fact be used to violate the rule on the pretext
of there is some sort of emergency or alleged urgent reason
to enter the premises)

Positive: to protect the premises by the receiving state

including the immunity from processes i.e. search,
attachment, detention, etc.

Inviolability extends to:

1) Armed conflict- there is no suspension of the application of
immunity, but take note of the conditions on notifications in
Art. 45
2) Archives and documents of the mission, Art. 24
3) Ambassador's residence (may it be apartment or just a
hotel room, he doesn't have to own the residence in order for
the immunity to apply), papers and correspondence of the
ambassador, art. 30

Is this inviolability absolute?

So, There seems to be, not here probably, there are some
situations like for example, searching with the use of sniffing
dogs and all, but we'll talk about it later.

Consent is not the exception, it is a requirement.

Article 27
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discharge their functions without any

restriction
why? Because that is what also the
receiving state expected from other
foreign state (principle on reciprocality)

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1.The receiving State shall permit and protect free

communication on the part of the mission for all official
purposes. In communicating with the Government and the
other missions and consulates of the sending State, wherever
situated, the mission may employ all appropriate means,
including diplomatic couriers and messages in code or cipher.
However, the mission may install and use a wireless
transmitter only with the consent of the receiving State.

2.The official correspondence of the mission shall be

inviolable. Official correspondence means all correspondence
relating to the mission and its functions.

4.The packages constituting the diplomatic bag must bear

visible external marks of their character and may contain only
diplomatic documents or articles intended for official use.

5.The diplomatic courier, who shall be provided with an official

document indicating his status and the number of packages
constituting the diplomatic bag, shall be protected by the
receiving State in the performance of his functions. He shall
enjoy person inviolability and shall not be liable to any form of
arrest or detention.

6.The sending State or the mission may designate diplomatic

couriers ad hoc. In such cases the provisions of paragraph 5
of this article shall also apply, except that the immunities
therein mentioned shall cease to apply when such a courier
has delivered to the consignee the diplomatic bag in his
charge.

7.A diplomatic bag may be entrusted to the captain of a

commercial aircraft scheduled to land at an authorized port of
entry. He shall be provided with an official document
indicating the number of packages constituting the bag but
he shall not be considered to be a diplomatic courier. The
mission may send one of its members to take possession of
the diplomatic bag directly and freely from the captain of the
aircraft.

The rule is non-interference with the nation's official

communication.

According to ILC, there is an opinion that the use of sniffer

dogs and external examination of the bag may be permitted

If there is reasonable suspicion that the bag contains illegal

substance, then the authorities may be allowed to open in the
presence of course of the representative of the sending state.
Take note that this is just external and only on reasonable
suspicion may the local authorities be permitted to inspect in
the presence of the representative of the sending state.
Provided however, this shall be complied with, that there shall
be external marks visible to the local authorities. If there is
compliance of external marks then local laws can be applied.
That is according to ILC. But of course in the Philippines, we
don't usually make exceptions. In fact, our policy is that we

Page

Inviolability of the person - Article 29

The person of a diplomatic agent shall be inviolable. He shall
not be liable to any form of arrest or detention. The receiving
State shall treat him with due respect and shall take all
appropriate steps to prevent any attack on his person,
freedom or dignity.

- apply the same theories, take note that it is the functional

necessity theory that is adhered to by modern international
laws. It doesn't mean that other theories do not justify the
observance of ...

3.The diplomatic bag shall not be opened or detained.

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grant immunity. We don't want o spawn controversies

especially with powerful states.

22

Scope of the diplomatic personal inviolability

Article 30
1.The private residence of a diplomatic agent shall enjoy the
same inviolability and protection as the premises of the
mission.

2.His papers, correspondence and, except as provided in

paragraph 3 of article 31, his property, shall likewise enjoy
inviolability.

Article 31
1.A diplomatic agent shall enjoy immunity from the criminal
jurisdiction of the receiving State. He shall also enjoy
immunity from its civil and administrative jurisdiction, except
in the case of:

(a) A real action relating to private immovable property

situated in the territory of the receiving State, unless he holds
it on behalf of the sending State for the purposes of the
mission;

(b) An action relating to succession in which the diplomatic

agent is involved as executor, administrator, heir or legatee as
a private person and not on behalf of the sending State;

(c) An action relating to any professional or commercial

activity exercised by the diplomatic agent in the receiving
State outside his official functions.

2.A diplomatic agent is not obliged to give evidence as a

witness.
- he is exempt from processes, arrest, execution, detention,
subpoena.

3.No measures of execution may be taken in respect of a

diplomatic agent except in the cases coming under
subparagraphs (a), (b) and (c) of paragraph 1 of this article,
and provided that the measures concerned can be taken

without infringing the inviolability of his person or of his

residence.

Immunity rationae personae

4.The immunity of a diplomatic agent from the jurisdiction of
the receiving State does not exempt him from the jurisdiction
of the sending State.

Article 37
1.The members of the family of a diplomatic agent forming
part of his household shall, if they are not nationals of the
receiving State, enjoy the privileges and immunities specified
in articles 29 to 36.

2.Members of the administrative and technical staff of the

mission, together with members of their families forming part
of their respective households, shall, if they are not nationals
of or permanently resident in the receiving State, enjoy the
privileges and immunities specified in articles 29 to 35,
except that the immunity from civil and administrative
jurisdiction of the receiving State specified in paragraph 1 of
article 31 shall not extend to acts performed outside the
course of their duties. They shall also enjoy the privileges
specified in article 36, paragraph 1, in respect of articles
imported at the time of first installation.

3.Members of the service staff of the mission who are not

nationals of or permanently resident in the receiving State
shall enjoy immunity in respect of acts performed in the
course of their duties, exemption from dues and taxes on the
emoluments they receive by reason of their employment and
the exemption contained in article 33.

4.Private servants of members of the mission shall, if they are

not nationals of or permanently resident in the receiving
State, be exempt from dues and taxes on the emoluments
they receive by reason of their employment. In other
respects, they may enjoy privileges and immunities only to
the extent admitted by the receiving State. However, the
receiving State must exercise its jurisdiction over those
persons in such a manner as not to interfere unduly with the
performance of the functions of the mission.

- for these people - civil and administrative jurisdiction,to

Avail of immunity that its should be for acts intra vires,

Distinguish between two categories of Diplomatic immunity:

Immunity rationae personae
- Immunity attaches to the person, the diplomat. So for as
long as he is a diplomat and therefore during his incumbency,
then the diplomat is exempt.

Ambassador, exempt totally: criminal

For civil, there are instances where he cannot invoke
immunity . Art. 31of VCDR
If out from the service, no longer an incumbent, apply
immunity rationae personae
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- immunity attaches for the official acts.

- for former ambassador.
- point here is that the act must be official for former
diplomats for immunity to be invoked, Otherwise, if ultra
vires, even performed at the time that he was a diplomat,
immunity does not attach.

These same categories of immunity were applied in the case

of Pinochet for acts violative of jus cogens. Immunity rationae
materiae.
Committing torture is not lawful, the state does not sanction
illegal acts, a violation of jus cogens. Thus even if ordered by
a head of state, it can never be an official act of a head of
state. The moment it becomes sees illegal, then it is outside
the scope of his function.

Immunity from prosecution is a doctrine of international

law that allows an accused to avoid prosecution for criminal
offences. Immunities are of two types. The first is functional
immunity, or immunity ratione materiae. This is an immunity
granted to people who perform certain functions of state. The
second is personal immunity, or immunity ratione personae.
This is an immunity granted to certain officials because of the
office they hold, rather than in relation to the act they have
committed.
Arrest Warrant of 11 april 2000 (Democratic Republic
of the Congo v. Belgium)
Intl. Court of Justice
2002 I.C.J. 3, 24-26 (Feb 14)
FACTS
-In 2000, Belgian investing magistrate issued an arrest
warrant against minister of Foreign Affairs of Congo (DROC),
seeking his extradition to Belgium for prosecution of violations
of intl criminal law.
-DROC claimed that arrest warrant violated absolute
inviolability and immunity from criminal process of incumbent
foreign ministers.
-ICJ concluded that, under customary international law, foreign
ministers while in office generally enjoy full immunity from
criminal jurisdiction and inviolability.
Belgium argues: Immunity from criminal jurisdiction does not
apply with respect to the commission of war crimes or crimes
against humanity under international law.
Court holds: Immunity from criminal jurisdiction does apply,
rejects Belgiums argument.
REASONING
-Court looks at State Practice, unable to deduce that there
exists under customary intl law any form of exception to the
rule according immunity from criminal jurisdiction and
inviolability to incumbent ministers where they are suspected
of having committed war crimes/crimes against humanity.
-Court also looks to legal instruments creating international
criminal tribunals.
Rules do not enable conclusion that an exception exists in
customary intl law in regard to national courts.
APPLICATION
-The court states immunity from jurisdiction does not mean
that they enjoy impunity in respect of any crimes they may
have committed, irrespective of the gravity of those crimes.
-Individual criminal responsibility is a separate concept than
jurisdictional immunity.
-Jurisdictional immunity = procedural.
-Criminal responsibility = substantive law.
-No immunity under international law in their own country,
can be tried in DROC court in accordance with the relevant
rules of DROC law.

-D will case to enjoy immunity from foreign jurisdiction if the

State which they represent waives immunity.
-After individual ceases to hold position, they will no longer
enjoy all the immunities granted by international law in other
States.
-Incumbent or former Minister may be subject to criminal
proceedings before certain international criminal courts where
they have jurisdiction.
See
more
at:
http://www.lawschoolcasebriefs.net/2011/11/arrest-warrant-of11-april-2000.html#sthash.GIOuuNNs.dpuf

Who these people are?

Diplomats- ex. Ambassador, immunity is absolute in
criminal jurisdiction, the reason again is functional theory.
Remedy of declaring the diplomat persona non grata. Take
note of the process and conditions for declaring the diplomat
persona non grata. It is discretionary on the part of the
receiving state to declare him as such. There is no hard and
fast rule in what grounds may he be declared for it.

This is a term specifically applicable to diplomatic agents but

very often there are local councils which declare some artista
or others for their commission of displeasing behavior. The
term has perhaps been applied in certain case but originally it
is the term to diplomatic agents declared persona non grata
and should leave the country.

In civil cases there are 3 exceptions as shown in the case of

Congo vs. Belgium: includes Arrest, Detention. all of these will
hamper the effective functioning of diplomat.

Consular officials- immunity is narrower, for official acts

only.
Immunity from civil and criminal jurisdiction extends to official
acts only. (For diplomats, in criminal jurisdiction, we don't
distinguish if it is official act or not. The fact na diplomat he
may avail of it. this is the Contention. As you have noticed
some states can invoke their sovereignty as prevailing over
some international rules and conventions.

ICJ said that the immunity for current foreign ministers is

absolute even for international crimes.

Except that under the Rome statute, invocation of immunity

of head of state is not a ground that jurisdiction should not be
exercised. Probably because of the understanding that the
Rome statute is there because of their duty to prosecute
international crimes. It has become very controversial since
there is no distinction as to the kind of crimes committed. I
believe this case suggest a different perspective

Consuls Immunity is NARROW; should always be an

OFFICIAL ACT; their immunity from Criminal and Civil
Jurisdiction extends to their OFFICIAL acts only.
Diplomats Immunity BROADER than Consuls especially in
Criminal Jurisdiction. For Diplomats, in Criminal jurisdiction,
we dont distinguish whether its criminal or not, the fact that
he is a diplomat, he may avail of the immunity. (That is what
the convention says). In some states, they can always invoke
their sovereignty as prevailing over international rules or
conventions.

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ICJ: Immunity for Foreign Ministers is ABSOLUTE

even for international crimes. Except that under the
Rome Statute, Invocation of immunity of Head of
State is NOT a ground that jurisdiction should not be
exercised probably because the understanding that
the Rome Stature because of Erga Omnes the duty
to prosecute international crimes. It has become
very controversial because there is no distinction as
to the crimes committed. In the Philippines, we have
the case of Republic of Indonessia vs Vinzon, the
same principle that we have to apply distinction
between acts juri imperii and juri gestionis. This
involves the furnishing only of equipment of the
Embassy. This case shows PURPOSE instead of
NATURE. If you take a look at the NATURE, it can be
done by private citizens and FOR PROFIT. In our
case, its more of purpose. If it is for the benefit of
the embassy then it must be PUBL.C,

WHO vs Aquino
Insofar as international organizations are concerned, the
immunities are usually granted by reason of treaties,
agreements between the international organization and the
state concerned. Here, it is a foreign agent, member of VEA(?)
but the Court observed that the Philippine government had
authorized and allowed (because there was a coordination
between Philippine government and the American agent):
1st, The Philippines had allowed his presence.
2nd, The act done was supposedly outside the scope of its
authority (poser-buyer) but since it was allowed by
Philippine government, OK lang.
3rd, it is discretionary upon the court to grant immunity or
not. Based on the behavior of our courts, slmost always, we
grant immunity because we dont want to cause international
conflict.
Take Note: On the agreement with ADB (Asia Development
Bank) it says, the immunity covers only OFFICIAL DUTY and
when you say OFFICIAL, commission of a crime is not official.
Remember, ADB ni siya dili ni diplomat. You will notice, kung
Intl Organization mag depende gyud na siya on existing
agreements, treaties. The immunity can only be invoked
when there is an existing agreement.
EX: Officials of the UN UN is not a State but there are
agreements or understandings that give them immunity.
STATE RESPONSIBILITY
Guide Questions/Scenarios:
1st, An internationally wrongful act is committed by a State
2nd, the internationally wrongful act is attributable to the State
3rd, the state to which the victim of that internationally
wrongful act espouses a claim for compensation
4th, determination of LIABILITY
So a state may commit wrongful act, here are possible
questions:

Is it an internationally wrongful act

Is it attributable to the state?

Is there a valid espousal of claim?

Should there be liability? (because there are possible

defenses: Procedural or Substantive)
This issue on State Responsibility presupposes a foreign
national in another country. This is very much related to
injuries done to foreigners in a foreign country. QUESTION:
WON this foreign national may seek, through the
instrumentality of his State, compensation?
1st situation: X (Filipino) killed Y (American) in Mactan Cebu,
Philippines.
Is the Philippines liable? You still have to determine whether X
is an agent of the State or a private individual.

Under the Doctrine of Imputability, there is a distinction

between the act of the population and the act of the
governmental apparatus. In order to impute the act as the
Act of the State, it must refer to the government, its organ or
any of its apparatus.
So if X is a private individual:
General Rule: NO ATTRIBUTION of that act to the State.
It does not necessarily mean however that the State will
not be held liable. It is still possible for a State to be held
liable even if the act is committed by a private individual.
Ex: The State encourages the commission of the act by
the private individual, it may still be considered as the act
of the State.
2nd situation: Members of the PNP (govt officials); Act of killing
(you ask the questions, is it part of their functions? Or
probably you might wanna ask, Under what circumstance
was the victim killed? Is the fact that the act is illegal (ultra
vires), will it exempt the State from liability?)

Even for Ultra Vires acts, the State may still be held
liable. Not unless, A(member of the PNP) killed the
victim because A found out that the victim is the
paramour of his wife or the victim was killed not
under his duty as a policeman (probably he was offduty) **So you have to distinguish that. Is that an
Ultra vires act? It is an illegal act. But its not
necessarily called Ultra Vires because if it is ULTRA
VIRES, he is functioning as a Police but he went
beyond the scope of his authority. That may be
classified merely as a PRIVATE act.

3rd situation: an LGUs illegal act of seizure of assets of an

American in violation of the due process concept and of the
law.
How about this, PNP Manila failed to prevent violent protesters
from entering the premises of the U.S. Embassy? Important
concern: Study the liability of failing(?) or failed(?) states.
Normally, injuries done to foreigners happen in Failed and
Failing States.
Failed States wala nay Core Government; no more delivery
of services. Max Webber, the man behind this idea said that,
there is a failed state if the state no longer has the monopoly
of the exercise of the legitimate force. It can happen kanang
puro na Military, ang government wa nay power (powerless)
thats a failed State. **Naa nay index class, ang Philippines
kay ika 56 out of 177 Somalia being #1. Haha**

Liability (still controversial) is this as a result of a

failed or failing state? There are those who argue,
dapat walay liability kay no capacity to prevent,
failed state naman siya. But that is not our case of
course.

Art 8 of the ILC Draft Articles in relation to Rebels,

pwede pa ma liable ang State kung kana nga Rebels
mao ang mo puli og mo establish og new
government, State is still LIABLE. You take note of Art

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8, very important in cases of rebels injuring

foreigners. It may be complicated though if there is
recognition of Belligerency.
Article 8
Conduct directed or controlled by a State
The conduct of a person or group of persons
shall be considered an act of a State under
international law if the person or group of
persons is in fact acting on the instructions
of, or under the direction or control of, that
State in carrying out the conduct.

INTERNATIONALLY WRONGFUL ACT

Art 3 - attributable to the State and there must be
breach of International obligation.
Article 2
Elements of an internationally wrongful
act of a State
There is an internationally wrongful act of a
State when conduct consisting of an action
or omission:
(a)
international law; and

is attributable to the State under

(b)
constitutes
international obligation of the State.

breach

of

an

TEHRAN Hostages Case

There was a violation of the international obligation
to PROTECT the premises. What is the scope of
liability? Reparation in the form of Restitution,
Compensation or Satisfaction & may be the object of
Self-Help Measures or Lawful Counter-measures in
the form of Reprisal or Retorsion.
PRINCIPLE OF ATTRIBUTION
A State is liable only for its own acts and omissions
and in this context the State is identified with its
governmental organs and apparatus, not with the
population nor with private acts of government
agents. (ex: Police off-duty, namusil)
US vs MEXICO (Youmans Case)
Police on-duty: Instead of securing the Americans who were
attacked by mobs in the factory, ilaha tong gi tirahan(?)
hinoon; killing the Americans. Kana xa Ultra Vires, even if
Ultra Vires Liable. In other words, ayaw i-equate ang ULTRA
VIRES as PRIVATE. Private act is Private, Ultra Vires is Ultra
Vires.
Excess of authority Liable lang gyapon ang State;
ultra vires. (Youmans Case)
Even for the Acts of Private individual, they may still
be liable. They are all found in the Draft.