Case Digest Coc

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* bok * cj * tiff * gem * tin * public international law UPLAW 2009 B

I am a submarine!This digest compilation wouldnt have been possible without the help of Vani, PJ, Cathe,

Marco, Ben and Mike.

III. Actors in International Law

A. States

3. Jurisdiction and Immunities

Brownlie Chapter XIV: Sovereignty and Equality of States

I. In General1. SOVEREIGNTY AND EQUALITY: THE BASIC CONSTITUTIONAL

DOCTRINE OF THE LAW OF NATIONS which governs a communityconsisting primarily of states having uniform legal personality.

Because of the existence of international law and of the equality and legalpersonality of states, the dynamics of state sovereignty can be expressed interms of law; and sovereignty is, in a major aspect, a relation to other states(and to organizations of states) defined by law.

2. PRINCIPAL CORROLARIES OF STATES SOVEREIGNTY AND EQUALITY:

a. JURISDICTION (prima facie exclusive) over a territory and the permanentpopulation there

b. DUTY OF NON-INTERVENTION of another states area of exclusivejurisdiction

c. DEPENDENCE OF OBLIGATION FROM CUSTOMARY LAW. SpecialApplications of this can be seen in the ff:

(i) jurisdiction of international tribunals depends on the consent of parties(ii) membership in international organizations not obligatory(ii i) powers of organs of such organizations (to determine their own

competence, to decide by majority votes, to enforce decisions) dependupon the consent of member-States

3. SOVEREIGNTY AS DISCRETIONARY POWER WITHIN AREAS DELIMITEDBY LAW. States alone can confer nationality for purposes of municipal law,delimit the territorial sea, and decide on the necessary action ins

I I. Sovereignty and the Application of RulesA. VALIDITY OF OBLIGATIONS ARISING FROM TREATIES.

In the Wimbledon, the Permanent Court rejected the argument that atreaty provision could not deprive a state of the sovereign right to apply thelaw of neutrality to vessels passing through the Kiel Canal. A treaty bywhich a State undertakes to perform or refrain from performing a certainact is not an abandonment of sovereignty. The right of entering intointernational engagements is an attribute of State sovereignty.

B. INTERPRETATION OF TREATIES. On some occasions, the International Court has referred to sovereign

rights as a basis for restrictive interpretation of treaty obligations. But

everything depends on the context, the intention of the parties and therelevance of countervailing principles (like effectiveness).

C. PRESUMPTIONS AND BURDENS. Many areas of international law are uncertain or contain principles that do

not admit of easy application to concrete issues. ISSUE: In case of doubt as to the mode of application of rules or in case of

absence of rules the presumption is that states have legal competence (oris one of incompetence)?

In the Lotus case, the court resolved the issue of jurisdiction on the basisthat restrictions upon the independence of States cannot be presumed.

However, there is no general rule. It is possible that a general presumptionof either kind would lead to inconvenience or abuse. And in judicialpractice, issues are approached empirically. The context of a problem willdetermine the incidence of particular burdens of proof.

BURDENS OF PROOF the duty to establish a restriction on sovereigntyon the part of the proponent of the duty.

The jurisdictional geography of the problem may provide usefulindications. In theAsylum case, the Court stressed the fact that diplomatic

asylum involves a derogation from sovereignty (represented by thenormally exclusive jurisdiction of the territorial state). Compare this withthe Fisheries case which had as a dominant factor the international impactof the delimitation of frontiers (in this case the maritime frontier)

D. THE REGULATION OF RIGHTS

I II. Sovereignty and Competence1. SOVEREIGNTY IN GENERAL characterizes the powersand privileges resting on customary law and independent of the particular consentof another State.

2. SOVEREIGNTY IS USED TO: Describe the legal competence which states have in general,

Refer to a particular function of this competence, or Provide a rationale for a particular aspect of the competence

3. The jurisdiction (including legislative competence over national territory) may be referred to in terms of sovereignty or sovereign rights.Sovereignty may refer to the power to acquire title to territory and the rights accruingfrom the exercise of that power. It also pertains to the correlative duty of respect forterritorial sovereignty, and the privileges in respect of territorial jurisdiction(sovereign state immunities).

IV. Membership of Organizations1. The institutional aspects of organizations of states resultin actual (as opposed to formal) qualification of sovereign equality.

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ACTUAL. Without the express consent of member states, organizations may adoptmajority voting and also have a system of weighted voting; and organs may be permittedto take decisions, and even binding rules.FORMAL. It can be said that on joining he organization, each member consented inadvance to the institutional aspects so in a formal way, the principle that obligations canonly arise from consent of states and the principle of sovereign equality are satisfied.

2. EUROPEAN COMMUNITIES PRACTICE. Whilepermitting integration (which radically affects jurisdiction for special purposes) theyhave been careful not to jar the delicate treaty structures by too ready assumption ofimplied powers.

3. INTERPRETATION OF UN CHARTER by the organs(with approval of Court) has been in accordance with principles of effectiveness andimplied powers. If an organization encroaches on domestic jurisdiction of membersto a substantial degree this may amount to federation. The area of competence ofmembers as well as their very personality will be at issue.

4. CRITERIA OF EXTINCTION OF PERSONALITY:a. obligatory nature of membershipb. majority decision-makingc. determination of jurisdiction by the organization itselfd. binding quality of decisions of the organization apart from consent of member

States

V. The Reserved Domain of Domestic Jurisdiction

1. DUTY OF NON-INTERVENTION IN AFFAIRS OFOTHER STATES: CORROLARY OF INDEPENDENCE AND EQUALITY; AMASTER PRINCIPLE. Matters within the competence of states under generalinternational law are within the reserved domain (domestic jurisdiction) of states. 1

2. PROBLEM OF DOMESTIC JURSIDCITION.The general position: RESERVED DOMAIN the domain of state activities where

the jurisdiction of the state is not bound by international law. The extent of this domaindepends on international law and varies according to development.

It is widely accepted that no subject is irrevocably fixed within the reserved domain,but some jurists assume that there are topics presently recognized as within thereserved domain such as nationality and immigration. This approach is very misleadingbecause everything depends on the precise facts and legal issues arising. When a statedelimits a fishing zone or territorial sea, the manner and origin of the exercise of thisstate power is a matter for the state. But when it comes to enforcing the limit vis--visother states, the issue is placed on the international plane. Similarly, conferment orwithdrawal of nationality may lead to disputes between states when it comes to theexercise of diplomatic protection.

3. DISTINCTION BETWEEN INTERNATIONALCOMPETENCE (that is, no outside authority can annul or prevent internally validacts of state power) AND INTERNATIONAL RESPONSIBILITY FOR ULTRA VIRESACTS.

1Browlie considers this as a tautology (needless, meaningless repetition)+

4. DISTINCTION HAS WIDE APPLICATION BUT NOTABSOLUTE. In particular contexts, international law may place restrictions oninternal territorial competence of states because of treaty obligations (example:forbidding legislation which discriminates certain groups) or because of territorialprivileges created by custom.

5. RELATIVITY OF CONCEPT OF RESERVED DOMIAN:ILLUSTRATION: There is a rule that a state cannot plead provisions of its own lawor deficiencies in their own law as answer to answer a claim against it for breach ofinternational law obligations. It can also be illustrated by the fact that aninternational obligation may refer to national law as a means of describing the statusto be created or protected.

6. If a matter (because of its nature and because of theissue of the case) is prima facie within the reserved domain, then presumptionsagainst any restriction on that domain may be created. (Illustration: the imposition ofcustoms tariffs is prima facie unrestricted by international law while the introductionof forces into another state does not enjoy such presumption.

VI. ART.2, PAR. 7 of the UN Charter

1. ADVENT OF INTERNATIONAL ORGANIZATIONS WITH

POWERS TO SETTLE DISPUTES ON A POLITICAL BASIS has caused states tofavor reserved domain. In the League of Nations Covenant, Art. 15, par. 8 inrelation to disputes submitted to the Council and not to arbitration or judicialsettlement: If one of the parties claim (and the Council finds) that the disputebetween them arise out of a matter which, by international law, is solely within thedomestic jurisdiction of that party, the Council shall report so. The Council shallmake no recommendation as to its settlement.

2. IF COUNCIL MAKES POLITICAL SETTLEMENT, ITTOUCHES ON RESERVED DOMAIN (since this frequently causes disputes). Andso the need to write the legal limit of action was apparent. This issue arose at thedrafting of the UN Charter. The result is ART. 2, PAR. 7:

Nothing contained in this present Charter shall authorize the UN to intervene in matterswhich are essentially within the domestic jurisdiction of any State or shall require the

Members to submit such matters to settlement under the present Charter; but thisprinciple shall not prejudice the application of enforcement measures under Chapter VII.

3. CONTRASTS BETWEEN THE COVENANT (#1) ANDTHE CHARTER (#2) PROVISIONS: In the Charter, there is no reference tointernational law, the reference is to matters essentially within the domestic

jurisdiction, and there is no designation of the authority which will have the power toqualify matters.

4. CHARTER PROVISION INTENDED TO BE FLEXIBLEAND NON-TECHNICAL: The restriction was meant to be thoroughgoing because ofthe wide implications of the economic and social provisions of Chapter IX of theCharter (hence the formula essentially within).

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5. INTENTIONS (of flexibility and the assumption that itdoes not override other provisions), IN PRACTICE WORKED AGAINST EACHOTHER. This has resulted in the erosion of the reservation of domestic jurisdictioneven though drafters have intended its reinforcement.

6. INTERVENE: This term has been approachedempirically. Discussions, recommendations in general terms and even resolutionshave not been inhibited by Art. 2, Par.7. The term should not be conceived only as adictatorial intervention. Member states have proceeded empirically with an eye togeneral opinion. And they have a clear knowledge that precedents created in oneconnection may have a boomerang effect.

7. UN ORGANS HAVE TAKEN ACTION ON A WIDERANGE OF TOPICS DEALING WITH RELATIONS BETWEEN GOVT. AND ITSOWN PEOPLE (on the basis of Chapters IX and X of charter and human rightsprovisions in Arts. 55 and 56

) Resolutions on breaches of human rights, right of selfdetermination and colonialism, and non-self governing territories (qualified by theGA) has been adopted regularly. If the organ felt that the acts complained of werecontrary to the purposes and principles of the Charter and that it endangersinternational peace and security, then a resolution is passed.The Security Council adopted a resolution concerning apartheid only partly on the

basis that the situation constitutes a potential threat to international peace and

security.

8. RELATION OF ART. 2, PAR. 7 TO GENERALINTERNATIONAL LAW does not have a clear answer. On its face, the provision is amatter of constitutional competence for the UN organs and lacks reference tointernational law. In practice, political organs have avoided express determination oftechnical points arising from the provision. THUS, in principle, it has no necessaryand direct impact on general law.

9. RESERVED DOMAIN CORRESPONDS TO NON-INTERVENTION IN THE CHARTER.

10. What has happened is that a new content has been givento the obligations and legal competence of states through the medium of theCharter.

VII. International Tribunals and the Plea of Domestic Jurisdiction1. LACK OF SPECIFIC RELEVANCE has characterized theconcept of domestic jurisdiction in relation to practice of tribunals.

2. In National Decrees in Tunis Morocco this concept wasprominent because of the special circumstances in which the League Council hadrequested an advisory opinion. The dispute between Great Britain and France wasbrought before the League Council by Britain because France had rejected therequest for judicial settlement. France pleaded Art. 15, par. 8 of League Covenant(see #1 of VI). The parties agreed that the League Council should request thePermanent Court to give an advisory opinion. ISSUE: WON the Councils

jurisdiction was barred by the provision cited by France.The Court said that it was not interested in the actual legal rights of the parties but

with the general character of the legal issues to establish the competence of the Council.

COURT REACHED A PROVISIONAL CONCLUSION on the international characterof the issues.

3. This Provisional Conclusion above cited may not be justifiable in a case where there is a preliminary objection to jurisdiction in acontentious case (where the question of domestic jurisdiction is raised in relation tothe precise issues before the Court).

4. JURISDICTION = MERITS. In practice, the InternationalCourt has joined the plea of domestic jurisdiction to the merits (even if the plea is ina form of preliminary objection) because it has an intimate connection withsubstantial issues.

5. APPLICATION OF ART. 2, PAR. 7 TO THE COURTSJURISDICTION. The object of arguing for its application is to benefit from theextensive formula essentially within.

6. The plea of domestic jurisdiction is available by operationof law. Its success depends on the particular legal relations of the parties.

7. IN ADVISORY JURISDICTION, IT IS DIFFERENT whenthe basis is that the political organ was incompetent to request for an opinion

because of Art. 2, par. 7. The relevance of the Charter reservation is indisputable.

8. Peace Treaties case: The Court considered objections toits competence based upon:(a) incompetence of the requesting organ(b) application of Art.2, par.7 to the Court itself.The objections involved the argument that a matter may be essentially within the

domestic jurisdiction of a state even though it is governed by a treaty.As to competence of requesting organ, the Court said:

The object is directed solely to obtaining from the Court certain clarifications (of a legalnature) regarding the applicability of the procedure for settlement of disputes (in peacetreaties with Bulgaria, Hungary and Romania). The interpretation of the terms of a treatyfor this purpose could not be considered as a question essentially within the domestic

jurisdiction of a State. It is a question of international law which, by its very nature, lies

within the competence of the Court.The Court then said that these considerations sufficed to dispose of the objection

based on Art. 2, par. 7.

9. Although this is not an unequivocal evidence that Art.2, par. 7 applies to advisoryjurisdiction, it is an indication that the Court will not in any case give any specific, morerestrictive, content to the essentially within formula as compared with the normal versionof the principle of domestic jurisdiction: matter regulated by treaty does not remainessentially within the domestic jurisdiction of a state.

Brownlie. Ch. XV: Jurisdictional Competence

1. In General.

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Jurisdiction - particular aspects of the general legal competence of states (sovereignty).Refers to judicial, legislative and administrative competence.Distinct from the power to make decisions or rules (prescriptive or legislative jurisdiction)is the power to take executive action in pursuance of or consequent on the making ofdecisions or rules (enforcement or prerogative jurisdiction).Presumption: jurisdiction is territorial.2 principles in the territorial theory:1. While the best foundation for the law, it fails to provide ready-made solutions for somemodern jurisdictional conflicts.2. A principle of substantial and genuine connection between the subject-matter of

jurisdiction, and the territorial base and reasonable interests of the jurisdiction sought tobe exercised, should be observed.The sufficiency of grounds for jurisdiction is an issue normally considered relative to therights of other states and not as a question of basic competence.

2. Civil Jurisdiction.IL standards WRT treatment of aliens a state must normally maintain a system of courtsempowered to decide civil cases and prepared to apply private IL where appropriate incases containing a foreign element. Municipal courts are reluctant to assume jurisdictionin cases concerning a foreign element and adhere to the territorial principle conditionedby the situs of the facts in issue and supplemented by criteria relating to the concepts ofallegiance or domicile and doctrines of prior express submission to the jurisdiction and oftacit submission, for example on the basis of the ownership of property in the state of the

forum. Excessive and abusive assertion of civil jurisdiction could lead to intlresponsibility or protests at ultra vires acts.

As civil jurisdiction is ultimately reinforced by procedures of enforcement involvingcriminal sanctions, in principle no great difference between problems created byassertion of civil and criminal jurisdiction over aliens. In either case, the prescriptive

jurisdiction is involved, in any case, anti-trust legislation involves a process which,though formally civil, is in substance coercive and penal.

3. Criminal Jurisdiction.The IL issue in only acute when aliens, or other persons under the diplomatic protectionof another state are involved. This achieved prominence after about 1870, and theappearance of clear principles has been retarded by the prominence in the sources ofthe subject of municipal decisions, which exhibit empiricism and adherence to national

policies and by the variety of the subject-matter.

1. Territorial principle (TP) courts of the place where the crime is committed mayexercise jurisdiction has received universal recognition, an application of the essentialterritoriality of the states sovereignty (sum of legal competences).Practical advantages: 1) convenience of the forum; and 2) presumed involvement of theinterests of the state where the crime is committed. English and American decisionsseem to suggest that TP is exclusive, but state practice has not adopted this view andUK legislature has conferred jurisdiction over nationals, inter alia, as to treason, bigamy,murder and breaches of the official Secrets Acts, wherever committed. Where stateshave adopted TP, this has been given extensive application.Subjective application creates jurisdiction over crimes commenced within the state butcompleted or consummated abroad.Objective territorial principle (OTP) jurisdiction is founded when any essential

constituent element of a crime is consummated on state territory. Ex. Firing of gun

across a frontier causing a homicide on the territory of the forum but the principle can beused to found jurisdiction in cases of conspiracy, violation of anti-trust and immigrationlaws by activity abroad & in other fields of policy. This has general support & acontroversial application to collisions on the high seas in the Lotus case.

Lotus ((1961): high seas collision between a French steamer and a Turkish collier wherethe latter sank and its crew and passengers died. The steamer came into port in Turkey,its officers on watch at time of collision were tried and convicted of involuntarymanslaughter. PCIJs issue: whether Turkey had acted in conflict with IL by institutingproceedings (exercise of criminal jurisdiction), and what reparation, if any, was due.France said: flag state of the vessel had jurisdiction over acts performed on board onhigh seas. Turkey denied: vessels on the high seas form part of the territory of the nationwhose flag they fly. The President broke the tie (7-6); PCIJ said that Turkey did not act inconflict with IL principles. Majority of the 6 avoided dealing with the question ofcompatibility of a Turkish penal code provision (punishment of acts abroad by foreignersagainst Turkish nationals; involved the protective principle of jurisdiction) with IL; Mooreconcurred with the result but rejected the principle. Basis of majority view: principle ofobjective territorial jurisdictionhad to assimilate the Turkish vessel to Turkish nationalterritorythus, the collision affected Turkish territory. Judgment is too vague & generalto be helpful.As to criminal jurisdiction, it said: though it is true that in all systems of law the territorialcharacter of criminal law is fundamental, it is equally true that all or nearly all thosesystems extend their jurisdiction to offences outside the territory of the State which

adopts them, in ways which vary form State to State. The territoriality of criminal law isnot an absolute principle of IL and by no means coincides with territorial sovereignty.As to jurisdiction in general: it leaves them wide measure of discretion which is only

limited in certain cases by prohibitive rules; as to others, every State remains free toadopt the principles which it regards as best and most suitable.This has been criticized and its emphasis on state discretion is contradicted by the ICJ inFisheries and Nottlebohm, which concerned the comparable competences of states todelimit the territorial sea and to confer nationality on individuals. In the Woodpulp Cases,the Report for the Hearing in the European Court of Justice said that: the only two legalbases of jurisdiction in IL are the principles of nationality and territoriality)

b. Nationality principle (NP) nationality, as a mark of allegiance & an aspect ofsovereignty, is generally recognized as a basis for jurisdiction over extra-territorial acts.NPs application may be extended by reliance on residence & other connections as

evidence of allegiance owed by aliens & by ignoring changes of nationality. Since TP &NP & the incidence of dual nationality create parallel jurisdiction and possible double

jeopardy, many states place limitations on NP, often confining it to serious offences.Nationality is a necessary criterion in cases such as commission of criminal acts inlocations like Antartica, where the territorial criterion is inappropriate.

c. Passive Personality Principle (PPP) aliens may be punished for acts abroad harmfulto nationals of the forum. This is the least justifiable as a general principle and itsapplication falls under the principles of protection and universality considered below. Inthe Cutting case, a Mexican court exercised jurisdiction as to the publication ofdefamatory matter against a Mexican by an American in a Texas newspaper. Courtapplied the PPP among others, causing diplomatic protests from US, although outcomewas inconclusive.

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d. Protective or security principle (P/SP) nearly all states assume jurisdiction overaliens for acts done which affect the security of the state, usually but not necessarily, inpolitical offenses (currency, immigration, economic offences). UK and US allowsignificant exceptions to the doctrine of territoriality though without express reliance uponthis principle. UK: punished aliens for abetment of acts on high seas of illegalimmigrants; Joyce v. D.P.P. alien who left the country in possession of a Britishpassport owed allegiance and was guilty of treason when he later broadcast propagandafor an enemy in wartime). The application varies widely.

e. Universality principle (UP) some states have adopted, usually with limitations, aprinciple allowing jurisdiction over acts of non-nationals where the circumstances,including the nature of the crime, justify the repression of some types of crime as amatter of intl public policy (common crimes, where the state where crime occurred hasrefused extradition and unwilling to try the case; stateless persons in areas not subject tothe jurisdiction of any state: res nullius or res communis). Anglo-American opinion ishostile to this and Harvard Research regards it only as basis for auxiliary competence,except in piracy. Hijacking (unlawful seizure of aircraft) and offences in traffic of narcoticsmay fall under this principle.

f. Crimes under IL breaches of laws of war, especially Hague Convention of 1907 andGeneva Convention of 1949, may be punished by any state, which obtains custody ofpersons suspected of responsibility. This may be seen as acceptance of UP but is not,since what is punished is the breach of IL and is not punishment under national law of

acts in respect of which IL gives a liberty to all states to punish but does not itself declareas criminal (piracy). Universality in war crimes is in the Geneva Convention. InEichmann, Israeli courts faced charges of crimes against humanity arising from eventsbefore Israel appeared as a state. In Barbie (1983 and 1984), French Court of Cassationheld that crimes against humanity were defined in French law by reference to intlagreements and not subject to statutory limitation.

4. Relations of the Separate Principle.Principles are generalizations of a mass of national provisions, which do not directlyreflect categories of jurisdiction in the same way that, for example, the more recentlegislation on jurisdiction over the continental shelf involves reference to a definitequantity of interest recognized by IL. Each individual principle may only be evidence ofthe reasonableness of the exercise of jurisdiction. Principles interweave in practice.These has led some jurists to formulate a broad principle resting on some genuine or

effective link between the crime and the state of the forumsignificance of which isevidenced by the European Convention on Jurisdiction and the Enforcement ofJudgments in Civil and Commercial Matters (1968) and the European Convention onState Immunity (1972). This solves issues of concurrence of jurisdiction (state ofnationality and locus delicti. UP may require a separate regime, with qualifications oncompetence arising from general principles of law, including the rule neb is in idem(where the doctrine of substantial connection-equivalent of a proper law as in private IL-is not applied, as in UP, a choice of law problem is left open and there is a tendency tosolve it indistinctly by reference to GPIL). Where there are connections with several lawdistricts the forum which is not the locus delictimay allow the accused to plead the lexlocidelicti.

5. Extra-territorial Enforcement Measures.A state cannot take measures on anothers territory by way of enforcement of national

laws without the latters consent. No arrests, no service of summons, no investigations,

no orders for production may be executed on another states territory, except under thetreatys terms or other consent given. In economic regulation & anti-trust legislation,controversy has arisen. States would probably acquiesce to an exercise of enforcement

jurisdiction in matters governed by the OTP of jurisdiction. US courts, in Alcoa (1945) &Watchmakers of Switzerland (1955), said that whenever activity abroad hasconsequences or effects within the US which are contrary to local legislation, US courtsmay make orders requiring the disposition of patent rights & other property of foreigncorporations, reorganizations of industry in another country, production of documents,etc. This doctrine seems to be unrestricted to agreements abroad intended to haveeffects within the US & actually having effects. The orders may be enforced by actionwithin the US against the individuals or property present within the territorial jurisdiction,& the policy adopted goes beyond the normal application of the OTP. Recently, UScourts have adopted a principle of the balancing of the various national interestsinvolved, which, though unhelpfully vague could result in some mitigation of the cruderaspects of the effects doctrine.

US policies have provoked a strong reaction from many foreign governments, inparticular, by the Bonner Amendment to the Shipping Act, under which US FederalMarine Commission was given regulatory powers concerning the terms upon which non-American ship-owners carry goods to and from the US. UK and other states enactedlegislation to provide defensive measures against US policy. Similar cases: US ExportAdministration Act in the face of US measures directed against non-Americancorporations involved in contracts relating to the construction of the West Siberian

pipeline. The European Community and UK protested as to the illegality of actions by USauthorities, intended to prevent the re-export of machinery of US origin and the supply ofproducts derived from US data. Anti-cartel legislation in several European States isbased on principles similar to those adopted by US. Court of Justice of the EuropeanCommunities has applied a principle similar to the US effects doctrine in respect ofcompany subsidiaries and the Advocate General espoused this view in his Opinion in theWoodpulp Cases.

There is an assumption that there are certain limits to enforcement jurisdiction but noconsensus on what those are. UK: a state acts in excess of its own jurisdiction when itsmeasures purport to regulate acts which are done outside its territorial jurisdiction bypersons who are not its own nationals and which have no, or no substantial, effect withinits territorial jurisdiction. Judge Jennings: the principle that extraterritorial jurisdictionmay not be exercised in such a way as to contradict the local law at the place where the

alleged offence was committed. As to corporations with complex structures and foreign-based subsidiaries, a principle of substantial or effective connection could be applied asa basis for jurisdiction. This approach would accord with the highly relevant notion of theproper law of a transaction. Present situation: a state has enforcement jurisdictionabroad only to the extent necessary to enforce its legislative jurisdictionthe latter restsupon existing principles of jurisdiction and these are close to the principle of substantialconnection.

6. A General View of the Law.Essential and logical points:

a. Substantive or legislative jurisdiction (power to make decisions or rulesenforceable within state territory) no major distinction between the types of

jurisdiction. The types used in presenting materials (civil, criminal, fiscal, monetaryjurisdiction) are not the basis of significant distinctions in principles limiting extra-

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territorial jurisdiction. Exercise of civil jurisdiction as to aliens presents the sameproblems as the exercise of criminal jurisdiction over them.b. No essential distinction between the legal bases for and limits upon substantive(or legislative) jurisdiction and enforcement (or personal or prerogative) jurisdiction.One is a function of the other. If substantive jurisdiction is beyond lawful limits, thenany consequent enforcement jurisdiction is unlawful.c. 2 generally recognized bases for jurisdiction of all types are TP & NP, butapplication of such is subject to the operation of other principles (par. d.)d. Extra-territorial acts can only lawfully be the object of jurisdiction if certaingeneral principles are observed:i. there should be a substantial and bona fide connection between the subject-

matter and the source of the jurisdiction;ii. the principle of non-intervention in the domestic or territorial jurisdiction of other

states should be observed;iii. a principle based on elements of accommodation, mutuality and proportionality

should be applied. Thus nationals resident abroad should not be constrained toviolate the law of the place of residence.

e. Customary law and general principles of law relating to jurisdiction areemanations of the concept of domestic jurisdiction and its concomitant, the principleof non-intervention in the internal affairs of other states. These do not apply or donot apply helpfully to i) certain cases of concurrent jurisdiction; ii) crimes against IL.Special rules have evolved. These also apply to the high seas, continental shelf, theEEZ, outer space and Antartica.

f. Principle of territorial jurisdiction is to be placed in proper relation to otherprinciples. It is not completely exclusive in its application to aliens within nationalterritory. Ramifications of qualification: i) jurisdiction of the aliens state of origin isnot excluded; b) territorial jurisdiction may be excluded in absence of substantiallinks between alien or foreign corporation and the state asserting jurisdiction.g. Jurisdiction is not based upon a principle of exclusiveness: the same acts maybe within the lawful ambit of one or more jurisdictions. But, an area of exclusivenessmay be established by treaty (offenses committed on board aircraft).

7. Cognate Questions, Including Extradition.What are the legal consequences of a wrongful exercise of jurisdiction? In principle,excess of jurisdiction gives rise to state responsibility even in absence of intent to harmanother state. The accuseds state of origin has locus standias to proceedings which byobject or mode involve a breach of existing standards protecting human rights. A change

of sovereignty does not give the effect of an amnesty for criminals.

Apart from the unsatisfactory procedure of trial in absentia, states have to depend oncooperation of other states to obtain the surrender of fleeing suspects or criminals.Extradition is a form of intl judicial assistance through a procedure of request andconsent, regulated by general principles. But executive discretion to expel aliens may beused ad hoc for similar ends. Except for alleged crimes under IL, in absence of treaty,surrender of an alleged criminal cannot be demanded as a right. But surrender is notforbidden; it is lawful unless it constitutes complicity in conduct harmful to human rightsor in crimes under IL (genocide).Extradition issues center on questions of internal and constitutional law and effect oftreaties on municipal rules. But some courts, in giving extradition in absence of treaty,have abstracted from treaties and municipal provisions certain general principles of IL.2 leading principles are: double criminality (act charged must be criminal under the laws

of both the state of refuge and the requesting state) and specialty (person surrendered

shall be tried and punished exclusively for offences for which extradition was requestedand granted). Extradition may be refused if the requesting state is not expected toobserve reasonable procedural standards and if the offence is political. Granting ofpolitical asylum power limited in law in respect of intl crimes (including genocide), inconventions for the suppression of terrorist acts, and in practice by security measuresbetween members of political and military alliances. Generally, states refuse to extraditenationals, but some do so without assuming the responsibility for trying the suspect in anobvious abuse of power. While intl responsibility may arise as a consequence if illegalseizure of offenders, violation of the law does not affect validity of subsequent exerciseof jurisdiction (similar with defective extradition procedures and mistaken surrender offugitive criminals).

8. Special Cases of Concurrent Jurisdiction.Issue: relation between the territorial sovereign and the flag state as to jurisdiction overprivate vessels in ports or internal waters. Special character of the internal economy ofships is still recognized, the rule being that the law of the flag depends on the nationalityof the ship and the flag state has responsibility for and jurisdiction over the ship. But,when a foreign ship enters a port, except perhaps as a consequence of distress, atemporary allegiance is owed to the territorial sovereign and a case of concurrent

jurisdiction arises, since both the flag state and the local sovereign may exercise jurisdiction in respect of activities associated with the ship for breaches of theirrespective laws. As to criminal jurisdiction, debate is on limits of local jurisdiction. Inprinciple, there are no limits provided action is taken WRT only to breaches of local law

and not to breaches of rules set by the law of the flag state. But, it has been customaryto contrast the Anglo-American position with the French jurisprudence (followed by someother states).

UKs opinion during the preparatory work of the Hague Codification Conference of 1930:derogation from the exercise of local criminal jurisdiction is a matter of comity anddiscretion. In Wildenhaus (1887): a murder by a crew member of another, both Belgiannationals, committed on board a Belgian ship in dock in Jersey City, ipso facto disturbedthe public peace on shore. This is contrasted to French practice based upon the opinionof the Conseil dEtat in the cases ofSallyand Newton in 1806: maintained the principleof local jurisdiction in matters affecting state interests, of police, for offences by crewmembers against even strangers on board. The French practice is more liberal vis--visthe flag state, more explicit in renunciation of jurisdiction. But such contrasts are minimaland actual practice is fairly uniform.

Incres Steamship Co. Ltd. V. Intl Maritime Workers Uniion (1963): problematic since theNY CA said that a federal statute was applied to labor disputes between foreignnationals operating ships under foreign flags, thus the National Labour Relations Boardhad jurisdiction. UK as an intervening amicus curiae said in a brief that to hold that

jurisdiction existed if the foreign flag vessel called at a US port regularly opposed thetraditional internal economy doctrine long applied by all nations to foreign flag vesselstemporarily in their ports and gave an unwarranted extraterritorial effect to domesticlaw. UK seems to regard the exception as to matters involving the tranquility of port as amatter of law, not of comity. National policy is involved and legislation employs penalsanctions as a longstop. A doctrine of effective connection may be usable in bothcriminal and civil jurisdiction. US SC said in Incres and McCulloch v. Sociedad NacionalI(1963) that the National Labor Relations Act had no application to the operation offoreign-flag states employing alien crews, according to the well-established rule of IL.

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As to aircrafts, UK law says that extra-territorial commission of common law offences ispunishable & many provisions have no application to crimes on aircraft abroad or overhigh seas. State practice on relation between national law of the aircraft & law of anyforeign territory overflown is not coherent & general practice on criminal jurisdiction ishelpful. But work sponsored by Intl Civil Aviaiton Organization has produced aConvention on Offences & Certain Other Acts Committed on Board Aircraft: Art. 3.1) State of registration of the aircraft is competent to exercise jurisdiction over offencesand acts committed on board;3) Convention does not exclude any criminal jurisdiction exercised in accordance withnational law.Art. 4: A Contracting State which is not the State of registration may not interfere with anaircraft in flight in order to exercise its criminal jurisdiction over an offence committed onboard except in these cases:

a) offence has effect on the territory of such state;b) offence committed by or against a national or permanent resident of such state;c) offence against the security if such state;d) offence consists of a breach of any rules or regulations relating to flight ormaneuver of aircraft in force in such state;e) exercise of jurisdiction is necessary to ensure the observance of any obligationof such state under a multilateral intl agreement.

Hijacking of aircraft has prompted the promotion of multilateral conventions creatingduties for states to punish the seizure of aircraft in flight and to exercise jurisdiction inspecified conditions, for example, when the offence is committed on board an aircraft

registered in the contracting state.

Higgins Chapter 4please refer to the previous digest compilation

Higgins. Ch. 5: Exceptions to Jurisdictional Competence: Immunities from Suitand Enforcement

In Ch. 4, we saw that IL provides norms for the allocation of competences among states:doctrine of jurisdiction. The most basic ground for exercise of jurisdiction: territoriality(state expects its laws to apply to all within the territorynationals, foreigners, residents,visitors). Some elements of self-restraint do enter the picture, where common senseprevails. 2 major categories of jurisdiction: for others they are jurisdiction to legislate and

jurisdiction to enforce. Higgins calls them: jurisdiction to prescribe and jurisdiction to

apply.Are there exceptions to the authorization to apply law within ones own territory?In classical IL, 2 beneficiaries of an exception to the normal application of law on thebasis of territoriality: foreign states & foreign diplomats. We add: intl organizations.

STATE IMMUNITY.States, including their governments, were granted immunity from territorial jurisdiction ofother states. Interrelated policy reasons have been suggested:

1. Doctrine of sovereign equality: pari parem non habet imperiium. No state canbe expected to submit to the laws of another.

2. It would offend the dignity of a state to submit to the jurisdiction of another.Parlement Belge (1880), Brett LJ spoke of the duty of every state to respect theindependence and dignity of every other sovereign state.

Doctrine of absolute immunity of states prevailed until end of the last century (1800s) &began to be questioned as states engaged in functions not wholly reserved to the state(why, if one had identical contracts with a private person and the government, could oneonly sue on the first and not on the second?). More acute problems arose withwidespread contracting for trade by socialist & non-socialist governments, & notions ofstability, fairness & equity in the market place. Absolute immunity has been based onstatus. Potential defendant only had to show that it was a state or a government, & that itwas being impleaded directly or indirectly (through claims relating to property over whichit claimed title), for it to be accorded immunity.

From 1950s onwards, more states moved towards the restrictive or qualified doctrine ofimmunity (early ones: Italy, Belguim). As states trade, it was unsatisfactory that if theybroke their contracts, they were protected by an absolute immunity from the exercise oflocal jurisdiction. Federal Republic of Germany (FRG) & the US indicated that they wouldno longer emphasize the status of the defendant, rather, the activity or transaction inwhich it had been engaging. Under the restrictive doctrine of immunity, a distinction wasto be made between:

1. Acta jure imperiiacts in public authority in respect of which there would stillbe immunity.

2. Acta jure gestioniscommercial or private acts, in respect of which noimmunity now lies.

Status was important only to put a defendant within the category of persons whopotentially could claim immunity; but actual entitlement so to claim depends upon theactivity or transactions in question. In the 1970s and 1980s, several common-lawcountries (US & UK) adopted statutes based essentially on this distinction & to tidy upanomalies as law develops (Foreign Sovereign Immunity Act 1976 of the US; StateImmunity 1978 of UK).

IL requires that a state limit exercise of its jurisdiction in respect of a foreign state orgovernmentbut to what extent and scope? As with other normative requirement of IL,we look at treaties, state practice as evidence of custom, judicial decisions and legalwritings (source materials on IL of state immunity).

a. There is no treaty of universal application. The formulation of articles by the ILCommission (ILC) has been completed, geared towards providing the text for suchtreaty. After much debate, the Draft Articles affirm the restrictive approach, in terms

of implied consent (entering into such a contract the foreign state deemed to haveconsented to the exercise of jurisdiction). European Convention on State Immunityof 1972, an example of regional treaty, is directed towards reciprocal enforcement of

judgments but based on the restrictive principle. Council of Europe states areparties to the Convention.b. State practice is not uniform. Most of the industrialized world has moved tolimiting immunitymaking it unavailable for commercial acts or transactionbut notthe Soviet Union or industrialized Eastern Europe, which while under Marxisminsisted upon absolute immunity. Latin America and much of the newCommonwealth are still opposed to restrictive immunity.c. Judicial decisions. It is before domestic courts that issues of immunity fromlocal jurisdiction arise, where a private individual and a foreign state. Local courtsrecognize that they must provide answers in accordance with IL. Where there is astatute law, they must follow that legislative enactment, which is based on what

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Conclusion: IL today does not require the courts of one state to afford absolute immunityfrom jurisdiction to a foreign state or government, which will be entitled to invoke alimited immunity, in the courts of another, for its acta jure imperii.

Problems:

1. How to distinguish an actus jure imperii from an actus jure gestionis? Acontract for sale and purchase is generally regarded as a commercial transaction,an actus jure gestionis. What about a contract to buy missiles? Is that an exercise of

sovereign authority? What about contracts for the employment of a diplomat?2. Is everything done within an embassy to be regarded as actus jure imperii?What about non-diplomatic employmentno immunity? In Sengupta v. India,English court found that all matters concerning an embassy were acta jure imperiiand immune from local jurisdiction. But in another English case,Alcom v. Columbia,CA said that an embassy bank account was designated for commercial purposes,as it is used to make purchases and pay bills. House of Lords reversed: not forlower courts to require to know the nature of all expenditure under the account.While rejection of absolute immunity removes the preoccupation with status alone ofthe defending state, it cannot provide a mechanistic answer: courts to appraisewhether the subject transaction was commercial or in sovereign capacity.

Old method of determination: purpose of contract. Look at a contract to purchasemissiles, note that the object of the contract is a high state mattera matter of sovereign

authority. There has been general rejection of reliance on purpose as beingincompatible with the requirement to focus on the nature of the transaction. TrendtexTrading v. Central Bank of Nigeria (1977): purpose is irrelevant to its designation asattracting absolute or qualified immunity. Claims against the Empire of Iran (1963): as ameans of determining the distinctionrefer to the nature of the state transaction or theresulting legal relationships, not to the motive or purpose. US Foreign SovereignImmunities Act of 1976: character of an activity shall be determined by its nature, not itspurpose. UK Act is silent but subsequent case law affirms that the nature is controlling.

Another testwhether an act is one that may be performed by anyone, or only by asovereign?signaled by Empire of Iran, has been applied in 1 Congreso del Partido. Ithas even been seen as replacing the test as unsatisfactory. Sir Fitzmaurice, criticizingthe imperii/gestionis distinction, said: a sovereign state does not cease to be a sovereignstate because it performs acts which a private citizen might perform. Lauterpacht: in

engaging in economic activities ostensibly removed from the normal field of its politicaland administrative activities, the state nevertheless acts as a public person for thegeneral purposes of the community as a whole. Sir Robert Jennings: see if an act is onedone in the exercise of sovereign activity, which excludes the doing of something whichan ordinary private person might also do. Higgins: useful test but application on facts isstill a matter for the courts.

1 Congreso: contracts of affreigment between Cuba & a private Chilean firm ofimporters. Chilean President Allendes government was overthrown and masters of thevessels were ordered by Cuban officials not to discharge cargo at the Chilean Valparaisoport. So there was a commercial contract and an order, taken for political reasons, tobreach the contract. CFI, and House of Lords, through Goff J.: actus jure imperi is: actwhich is of its own character a governmental act, as opposed to an act which any privatecitizen can perform. Immunity found to lie for the acts of ordering the non-discharge. Lord

Wilberforce used the same test but in denying the cargo to its buyers, said Cuba had not

exercised and had no right to exercise, sovereign powers. It acted, as any owner of theship would act, through Mambisa, the managing operations. It invoked no governmentalauthority. Thus, application of the same test to the same facts by different courts neednot necessarily lead to the same result. Per Wilderforces view, nothing would be leftprotected by immunity acta jure imperiiperhaps declaration of war, conclusion of treatyand nationalization of property.Kuwait Airways Corp. v. Iraqi Airways Co. and Another (1992): passing by Iraqigovernment officials of Kuwait Airways aircraft to Iraqi Airways, after the invasion ofKuwait, was not an actus jure imperii, even if the motive was commercial, since factsshowed that the circumstances called for its characterization as gestionis. This has beenreversed and is pending appeal.

Even in the market place, government may need to act as such, not a trader. But whygrant immunity? Let it pay if its action caused damagethere is no specific performancein IL, government still free to take whatever action it feels it needs to for the public good.In the distribution of benefits & burdens in the intl legal system, why should privatetraders pay for freedom to pursue states political & foreign-policy objectives.

Questions: Should an agreement to arbitrate be regarded as a waiver of any claim toimmunity in any action arising in a domestic court in connection with that arbitration?Should general rules on immunity apply to torts and to contracts? Should stateenterprises be treated as states for purposes of immunity? States applying restrictiveimmunity, the answer is yes. But these have been put in doubt in the ILCeither by the

rapporteurs draft or by the comments of members showing their dissatisfaction with thedraft. The final draft adopted favors qualified immunity.

Other issues: should central banks have immunity? Also, the distinction betweenimmunity form suit and immunity from execution. In the former, no question of immunityfrom execution arises. But if legal action is permitted and judgment is given, may it beexecuted against its property? Extent of immunity from execution as consequence ofimmunity from action is largely a matter for national determination. In the Netherlandsand some others, they are closely related. In the UK and US, there are distinct legalrequirements for each phase. Some allow execution, following the same immunitycriteria as applied to jurisdictionthe property must be commercial not public. Sec.13(5) of UK Act allows Ambassador of a foreign state to certify that property is in use ordestined for use, for public purposeshence, immune from execution. These are notobligatory requirements of IL. If the ILCs works results in a treaty, some of these issues

are clarified by the intl treaty for the parties. In formulation of norms still in the making,the object is to identify and sustain the interest of the intl community as a whole andfashion legal prescriptions thus.

DIPLOMATIC IMMUNITYPermanent diplomatic missions are only one institutional means with which a state canconduct diplomacy with another; includes visits by heads of government or officials,special missions, official representation at ad hocor regular conferences. These may beestablished at headquarters of intl organizations (IOs): law relating to their status is stilldeveloping. Privileges and immunities of member representatives to IOs was codified inthe Vienna Convention on the Representatives of States in their Nations with IOs of aUniversal Charter of 1975, but this has not been sufficiently ratified to enter into force. Bycontrast, diplomatic law, which applies to the permanent missions that states haveestablished within each others territories since the fifteenth century, is well developed.

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although there were bilateral treaties on the topic. Attempts at codification in 1815(Congress of Vienna) ad in the 1920s (League of Nations). But it was the1961 ViennaConvention on Diplomatic Relations that did so, confirming existing CIL and the greatmajority of states parties to it.

Diplomatic immunity, like state immunity, is an exemption to the general IL provided forterritorial jurisdiction. Purpose: allow diplomats to carry out functions within theframework of necessary security and confidentiality. They are not usually exempt fromlocal jurisdiction to prescribe laws (except certain tax laws not applied or even prescribedagainst diplomats or diplomatic premises). They must comply with local law but will beimmune from local jurisdiction to apply and enforce such laws.

Person of the diplomatic agent is inviolable. He is respected, protected against attack,cant be detained or arrested, immune from criminal jurisdiction of the recessing state.The missions premises, archives & documents (on or off the premises) are inviolable.Diplomatic communications are protected; diplomatic bag is not to be opened ordetained.

Substantive content of law of diplomatic immunity is clear but uncertainty remains:varying national policies on marriage & different understandings of the concept offamily, scope of Art. 37, Vienna Convention is open to debate, namely, immunities formembers of the family of a diplomatic agent forming part of his household. Receivingstates interpret this variously. UK: includes spouse & minor (child under 18) children.

Also, does the prohibition on opening or detaining the diplomatic bag include X-ray(maybe) or external search for explosives or drugs by sniffer dogs.

The principle of inviolability of the archives is enshrined in Rose King(1947). But Art. 24of the 1961 Vienna Convention on Diplomatic Relations provides for inviolability forarchives and documents of the mission, seeming to say that they are separate things,even if the intention was to provide inviolability for both. The Vienna Convention onConsular Relations of 1963 avoids this by defining consular archives as all the papers,document s, correspondence, books, films, tapes, registers of the consular post, togetherwith the ciphers and codes, the land indexes and any of the articles of furniture intendedfor their protection and safekeeping. Litigation arose after the collapse of the ITC, underthe Headquarters Agreement (1972) with UK, guaranteed that its archives receive thesame immunities as those of the diplomatic mission under Art. 24 of the Convention.Creditors of the ITC (tin company) said the immunity did not extend to documents more

generally. CA said: archives referred to records intended as a formal record, not toincidental papers. House of Lords: broader meaning in the Consular Convention used.Art. 24: wherever they may bewherever stored, taken or left. Even abroad? Englishcourts are not likely to be in the position to enforce the inviolability of a document fromauthorities of another country where the document is located, but this is not to say thatits being outside the jurisdiction, the court can treat is as non-archival and withoutprotection.

Policy issue: if such immunities and inviolability are given to allow performance of thediplomatic function, should this continue even if abused? UK example: diplomat commitsindecent assault upon a childalso protected? How about the diplomats expired lease?If a policewoman is shot from the embassys window, can the local police enter thepremises and make an arrest? Despite protests, immunity should continue to beavailable. 1) One cannot assume criminal guilt before trial, to argue that there should be

n immunity from trial; 2) Its easy to cry abuse by the diplomat & shake off the

immunities, leading to harassment & pressure against diplomats. Besides, thereprehensible behavior of a particular diplomat should not destroy the integrity of theVienna Convention. But the receiving state has the right to notify the sending state,without an explanation or allegation, that the member of the diplomatic staff is personanon grata. The receiving state may also limit the size of the mission, suspend orterminate diplomatic relations. Except in the case of espionagenot always thenstatesare often reluctant to invoke the last 2 powers. It is not in the community interest thatstates fail to use available remedies against abuse & undercut the immunities, intendedto protect bona fide work & would become unavailable if so withdrawn upon the receivingstates unilateral determination of an abusive act.

INTERNATIONAL ORGANIZATIONS (IOs).IOs, though not accredited to a particular country, are located in a particular country.They require certain privileges and immunities, necessary for its purposes, from the

jurisdiction of that state and from all its member states should there be the potential of itsacts or staff or property coming under their jurisdiction also.

UN was immune from every form of legal process. Art. 103, UN Charter: need for theprotection. Convention on Privileges and Immunities of the UN: inviolability of premisesand archives, diplomatic immunity of most senior officials and immunity of senior officialsfrom jurisdiction and execution on a functional basis. There is also a Convention forSpecialized Agencies. These multilateral provisions are often supplemented by abilateral headquarters agreement between the organization and the host state. This is

similar to IOs which are not UN specialized agencies but there are no general conventionon immunities (ILC is examining relations between IOs and host states, may result in atreaty). The need for immunities is also in the Headquarters Agreement.

Are these immunities dependent on inclusion in governing instruments or are theyenjoyed as a matter of CIL? The Third Restatement of the Law (1987) says that it is thelatter. Reporters Notes says this relates to universal IOs. Do organizations of limitedmembership receive immunities from the jurisdiction of the host state as a matter of CIL?Standard Chartered Bank v. Intl Tin Co. (1987): never recognized at common law asentitled to sovereign statusentitled to no sovereign or diplomatic immunity exceptwhere granted by legislative instrument, and only to such extent.

Real issue: whether IL requires a different type of intl person, an IO, be accordedfunctional immunities? Higgins says yes: basis is good faith and functionalism (give what

is necessary for performance of functions), not in deference to sovereignty orrepresentation through diplomacy. She also says that there is no difference between IOswith universal and limited membership. The issue is that membersand a fortiori theheadquarters statemay not at one and the same time establish an organization and failto provide it with those immunities that ensure its role as distinct from that of the hoststate (Mazilucase [1989]).

Fifth Report of the Special Rapporteur on Relations between States and InternalionalOrganizations is not clear; it provides treaties on inviolability of archives but concludesthat doctrine and state practice fully supports the principle of the inviolability of archives.This is deduced from customary law relating to diplomatic missions, simply asserting thatit is equally valid in the case of IOs. The matter is still treated by assimilation todiplomatic missions.

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Importance of determination whether immunities of IOs are customary or treaty-based: 1)There may exist no relevant headquarters agreement; 2) it may be necessary to see ifthe terms of the headquarters agreement are exhaustive of immunities claimed or is textdeficient such that other immunities refer to CIL; 3) courts may not give effect to theterms of the treaty incorporated in domestic lawif no law is enacted or if terms do notmatch those of the treaty, the issue may be: is there still an obligation incumbent oncourts under CIL? (remember Harrys long discussion on non-reliance on theIncorporation Clause to make customary norms binding on the RP) Intl Tin Council v.

Amalgamet(1988): no obligation on non-host states to give immunities to IOs in absenceof treaty commitment by the US. For most IOs, domestic courts regard IL as prohibitingassertion of jurisdiction over employment claims. Also, it is not always necessary for anIO to have full immunity from suit and enforcement for it to fulfill its purposes (manyorganizations in the banking field allow suits by bondholders and related creditors).

Does the imprerii/gestionis distinction apply to IOs? This question arises only if oneaccepts that immunities are not necessarily determined only by legislative provisions.The matter is unsettled. But how can an organization act in sovereign authority? Thiswill assimilate them to states, which is incorrect. Their basis for immunity is different.Relevant test under general IL: whether immunity from jurisdiction to prescribe isnecessary for fulfillment of purpose.

Amalgametcase also highlights a problem as to what documents constitute archivesimmune. Papers for meetings prepared by IOs, sent to state members for study, before

deliberationHiggins says: states members do not receive as third parties (papers areno longer the organizations, not inviolate). Working papers are received by statesparties in their capacity as organs of IOs, remaining as documents of IOs, still protectedunder Art. 24. Otherwise, Secretariat (an organ) shares with members (an organ)confidential documents, without protection from disclosure by the host state. But this isthe position of the House of Lords in Shearson Lehman Bros. Inc. v. Maclaine Waterson& Co. (1988). The Fifth Report by the ILC does not address the range of problems,merely referring to Art. 24 and insisting that IOs are subject to IL and thus enjoyinviolability of their archives.

Conclusions:1. Immunities from suit of states to fulfill its governmental functions are verylimited.2. There is a case for allowing greater possibilities of execution of judgments

against defaulting states.3. Diplomatic immunities in the 1961 Convention represent the minimum requiredfor diplomats to fulfill their functions without interference from the receiving state. Ifabused, they should be required to leave, but the immunity must not be narrowedfor they protect proper, law-compliant acts.4. Local courts must be encouraged to appreciate that their required immunitiesare based on their own functional needs, not on artificial assimilation to states anddiplomatic missions. Immunities serve an important purpose but appropriate limitscome from a full understanding of the social purposes which this exception toterritoriality based jurisdiction based.

CASES on Jurisdiction

BROWNELL v. SUNLIFE (June 22, 1954)

Petitioner: Herbert Brownell, Jr., as Attorney-General of the US

Respondent: Sun Life Assurance Company of CanadaPonente: Labrador, J.

PETITION TO RECOVER HALF OF THE PROCEEDS OF AN ENDOWMENT POLICYUNDER THE PHIL. PROPERTY ACT OF THE US. This is a petition instituted in the CFIof Manila enforcing the provisions of the Philippine Property Act of the US against theSun Life Assurance to compel it to comply with the demand of the to pay the AlienProperty Custodian of the U.S. the sum of P310.10, which represents one-half of theproceeds of an endowment policy which already matured and is payable to one NaogiroAihara, a Japanese national. Under the policy Aihara and his wife, Filomena Gayapan,were insured jointly for the sum of P1,000, and upon its maturity the proceeds thereofwere payable to said insured, share and share alike, or P310.10 each.

DEFENSES OF SUN LIFE. (1) that the immunities provided in section 5 (b) (2) of theTrading With the Enemy Act of the United States are of doubtful application in thePhilippines, and have never been adopted by any law of the Philippines as applicablehere or obligatory on the local courts; (2) that the defendant is a trustee of the funds andis under a legal obligation to see it to that it is paid to the person or persons entitledthereto, and unless the petitioner executes a suitable discharge and an adequateguarantee to indemnify and keep it free and harmless from any further liability under thepolicy, it may not be compelled to make the payment demanded.

JUDGMENT IN FAVOR OF US. The CFI ruled in favor of the US. Sun Life has appealed

to this Court, contending that the court erred in holding that the Trading With the EnemyAct of the United States is binding upon the inhabitants of this country, notwithstandingthe attainment of complete independence on July 4, 1946, and in ordering the paymentprayed for.

ISSUE 1: WON PHILIPPINE PROPERTY ACT OF 1946 OF THE US IS BINDINGUPON THE PHILIPPINES.HELD: YES. The ratification of or concurrence of the RP to the agreement for theextension of the Philippine Property Act of 1946 is clearly implied from the acts of thePresident of the RP and of the Secretary of Foreign Affairs, as well as by the enactmentof Republic Acts Nos. 7, 8, and 477.

The operation of the Philippine Property Act of 1946 in the Philippines is not derived fromthe unilateral act of the US Congress, which made it expressly applicable to the RP, or

from the saving provision contained in the proclamation of independence of the RP fromthe US. It is well-settled in the United States that its laws have no extraterritorial effect.The application of said law in the Philippines is based concurrently on said act(Philippine Property Act of 1946) and on the tacit consent thereto and the conduct of thePhilippine Government itself in receiving the benefits of its provisions.

PHIL. PROPERTY ACT PROVIDES FOR THE APPLICATION OF THE TRADINGWITH THE ENEMY ACT EVEN AFTER RPs PROCLAMATION OF INDEPENDENCE.The US Congress passed the Philippine Property Act of 1946. Section 3 thereof providesthat "The Trading with the Enemy Act of October 6, 1917, as amended, shall continue inforce in the Philippines after July 4, 1946, ...." To implement the provisions of the act, theUS President on July 3, 1946, promulgated EO No. 9747, "continuing the functions of theAlien Property Custodian and the Department of the Treasury in the Philippines."

AGREEMENT BET. ROXAS & MC NUTT. Prior to and preparatory to the approval ofAlways will B


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said Philippine Property Act of 1946, an agreement was entered into between PresidentManuel Roxas of the Commonwealth and U. S. Commissioner Paul V. McNutt wherebytitle to enemy agricultural lands and other properties was to be conveyed by the US tothe Philippines in order to help the rehabilitation of the latter, but that in order to avoidcomplex legal problems in relation to said enemy properties, the Alien PropertyCustodian of the US was to continue operations in the Philippines even after the latter'sindependence, that he may settle all claims that may exist or arise against the above-mentioned enemy properties, in accordance with the Trading With the Enemy Act of theUS. This purpose of conveying enemy properties to the Philippines after all claimsagainst them shall have been settled is expressly embodied in the Philippine PropertyAct of 1946.

RESERVATIONS OF THE US IN RPs PROCLAMATION OF INDEPENDENCE. Andwhen the proclamation of the independence of the Philippines by President Truman wasmade, said independence was granted "in accordance with the subject to thereservations provided in the applicable statutes of the Unites States." The enforcementof the Trading With the Enemy Act of the United States was contemplated to be madeapplicable after independence, within the meaning of the reservations.

ACTS OF PHIL. OFFICIALS ACKNOWLEDGING APPLICATION OF PHIL.PROPERTY ACT.

1. Conformity to the enactment of the Philippine Property Act of 1946 of the United

States was announced by President Manuel Roxas in a joint statement signed by himand by Commissioner Mcnutt.

2. Ambassador Romulo also formally expressed the conformity of the PhilippinesGovernment to the approval of said act to the American Senate prior to its approval.

3. And after the grant of independence, the RP Congress approved RA No. 8, entitled:AN ACT TO AUTHORIZE THE PRESIDENT OF THE PHLIPPINES TO ENTER INTOSUCH CONTRACT OR UNDERTAKINGS AS MAY BE NECESSARY TO EFFECTUATETHE TRANSFER TO THE REPUBLIC OF THE PHILIPPINES UNDER THEPHILIPPINES PROPERTY ACT OF NINETEEN HUNDRED AND FORTY-SIX OF ANYPROPERTY OR PROPERTY RIGHTS OR THE PROCEEDS THEREOF AUTHORIZEDTO BE TRANSFERRED UNDER SAID ACT; PROVIDING FOR THE ADMINISTRATIONAND DISPOSITION OF SUCH PROPERTIES ONCE RECEIVED; AND

APPROPRIATING THE NECESSARY FUND THEREFOR.

4. The RP Congress also approved RA No. 7, which established a Foreign FundsControl Office.

5. After the approval of the Philippine Property Act of 1946 of the US, the RPGovernment also formally expressed, through the Sec. of Foreign Affairs, conformitythereto through letters of the Secretary.

6. The RP Congress has also approved RA No. 477, which provides for theadministration and disposition of properties which have been or may hereafter betransferred to the RP in accordance with the Philippines Property Act of 1946 of the US.

CONSENT TO BE BOUND BY THE PHIL. PROPERTY ACT IS MANIFESTED BY

BOTH RP EXEC & LEG. It is evident that the consent of the RP Government to the

application of the Philippine Property Act of 1946 to the Phil. after independence wasgiven, not only by the Exec. Department of the Phil. Government, but also by theCongress, which enacted the laws that would implement or carry out the benefitsaccruing from the operation of the US law.

SUN LIFES CONTENTIONS: NO EXPRESS PROVISION. Sun Life, however, contendsthat the operation of the law after independence could not have actually taken, or maynot take place, because both RA No. 8 and 477 do not contain any specific provisionwhereby the Philippine Property Act of 1946 or its provisions is made applicable to thePhilippines. It is also contended that in the absence of such express provision in any ofthe laws passed by the Philippine Congress, said Philippine Property Act of 1946 doesnot form part of our laws and is not binding upon the courts and inhabitants of thecountry.

FOREIGN LAW: OPERATES THROUGH CONSENT. There is no question that aforeign law may have extraterritorial effect in a country other than the country of origin,provided the latter, in which it is sought to be made operative, gives its consent thereto.This principle is supported by the unquestioned authority.

The jurisdiction of the nation within its territory is necessarily exclusive and absolute. It issusceptible of no limitation not imposed by itself. Any restriction upon it, deriving validityfrom an external source, would imply a diminution of its sovereignty to the extent of therestriction, and an investment of that sovereignty to the same extent in that power in

which would impose such restriction. All exceptions, therefore, to the full and completepower of a nation within its own territories, must be traced up to the consent of the nationitself. They can flow from no other legitimate source. This consent may be either expressor implied. (Philippine Political Law by Sinco, pp. 27-28, citing Chief Justice Marshall'sstatement in the Exchange, 7 Cranch 116)

In the course of his dissenting opinion in the case of S. S. Lotus, decided by thePermanent Court of International Justice, John Bassett Moore said:1. It is an admitted principle of International Law that a nation possesses and exerciseswithin its own territory an absolute and exclusive jurisdiction, and that any exception tothis right must be traced to the consent of the nation, either express or implied.

CONSENT NEED NOT BE EXPRESS. The consent of a Senate to the operation of aforeign law within its territory does not need to be express; it is enough that said consent

be implied from its conduct or from that of its authorized officers.

515. No rule of International Law exists which prescribe a necessary form of ratification . Ratification can, therefore, be given tacitly as well as expressly. Tacit ratification takesplace when a State begins the execution of a treaty without expressly ratifying it. It isusual for ratification to take the form of a document duly signed by the Heads of theStates concerned and their Secretaries for Foreign Affairs. It is usual to draft as manydocuments as there are parties to the Convention, and to exchange these documentsbetween the parties. Occasionally the whole of the treaty is recited verbatim in theratifying documents, but sometimes only the title, preamble, and date of the treaty, andthe names of the signatory representatives are cited. As ratification is only theconfirmation of an already existing treaty, the essential requirements in a ratifyingdocument is merely that it should refer clearly and unmistakably to the treaty to beratified. The citation of title, preamble, date, and names of the representatives is,

therefore quite sufficient to satisfy that requirements. (Oppenheim, pp. 818-819;Always will B


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emphasis ours.)

International Law does not require that agreements between nations must be concludedin any particular form or style. The law of nations is much more interested in the faithfulperformance of international obligations than in prescribing procedural requirements.(Treaties and Executive Agreements, by Myers S. McDougal and Asher Lands, Yale LawJournal, Vol. 54, pp. 318-319)

ISSUE 2: WON A DEED OF DISCHARGE AND INDEMNITY FOR ITS PROTECTION

BE FIRST ISSUED BEFORE SUN LIFE PAYS FOR THE AMOUNT?HELD: NO.. The Trading With the Enemy Act of the United States, the application ofwhich was extended to the Philippines by mutual agreement of the two Governments,contains an express provision to the effect that delivery of property or interest thereinmade to or for the account of the US in pursuance of the provision of the law, shall beconsidered as a full acquittance and discharge for purposes of the obligation of theperson making the delivery or payment. (Section 5(b) (2), Trading With the Enemy Act.)This express provision of the United States law saves the respondent-appellant from anyfurther liability for the amount ordered to be paid to the petitioner, and fully protects itfrom any further claim with respect thereto. The request of the respondent-appellant thata security be granted it for the payment to be made under the law is, therefore,unnecessary, because the judgment rendered in this case is sufficient to prove suchacquittance and discharge.

PEOPLE v. LOL-LO and SARAW (1922 February 27)Ponente, Malcolm, J.

1. THE JOURNEY. Two boats left Matuta, a Dutch possession, for Peta, another Dutchpossession. In one of the boats was one individual, a Dutch subject, and in the otherboat eleven men, women, and children, likewise subjects of Holland. After a number ofdays of navigation, at about 7 o'clock in the evening, the second boat arrived betweenthe Islands of Buang and Bukid in the Dutch East Indies.

2. THE ATTACK OF THE PIRATES2. Upon arrival, the second boat was surrounded bysix vintas manned by twenty-four Moros all armed. The Moros first asked for food, butonce on the Dutch boat, took for themselves all of the cargo, attacked some of the men,and brutally violated two of the women by methods too horrible to described.

3. THE ESCAPE. All of the persons on the Dutch boat, with the exception of the twoyoung women, were again placed on it and holes were made in it, with the idea that itwould submerge. However, these people, after eleven days of hardship and privation,were rescued. Taking the two women with them, and repeatedly violating them, theMoros finally arrived at Maruro, a Dutch possession. Two of the Moro marauders wereLol-lo, who also raped one of the women, and Saraw. At Maruro the two women wereable to escape.

4. THE ARREST. Lol-lo and Saraw later returned to their home in South Ubian, Tawi-Tawi, Sulu, Philippine Islands. There they were arrested and were charged in the Courtof First Instance of Sulu with the crime of piracy. A demurrer was interposed by counselde officio for the Moros, based on the grounds that the offense charged was not within

2

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the jurisdiction of the Court of First Instance, nor of any court of the Philippine Islands,and that the facts did not constitute a public offense, under the laws in force in thePhilippine Islands. After the demurrer was overruled by the trial judge, a trial was had,and a judgment was rendered finding the two defendants guilty and sentencing each ofthem to life imprisonment, to return together with Kinawalang and Maulanis, defendantsin another case, to the offended parties, the thirty-nine sacks of copra which had beenrobbed, or to indemnify them in the amount of 942 rupees, and to pay a one-half part ofthe costs.

FIRST ISSUE: Does the Court of First Instance have jurisdiction over the crimecommitted?YES.

FIRST RATIO:

1. DEFINITION OF PIRACY. All of the elements of the crime of piracy are present.Piracy is robbery or forcible depredation on the high seas, without lawful authority anddone animo furandi, and in the spirit and intention of universal hostility.

2. PIRACY AS A CRIME AGAINST MANKIND. It cannot be contended with any degreeof force as was done in the lower court and as is gain done in this court, that the Court ofFirst Instance was without jurisdiction of the case. Pirates are in law hostes humanigeneris. Piracy is a crime not against any particular state but against all mankind. It maybe punished in the competent tribunal of any country where the offender may be found or

into which he may be carried. The jurisdiction of piracy unlike all other crimes has noterritorial limits. As it is against all so may it be punished by all. Nor does it matter thatthe crime was committed within the jurisdictional 3-mile limit of a foreign state, "for thoselimits, though neutral to war, are not neutral to crimes." (U. S. vs. Furlong)

SECOND ISSUE: Are the Penal Code Provisions on piracy3still in effect?YES.

3ART. 153. The crime of piracy committed against Spaniards, or the subjects of another

nation not at war with Spain, shall be punished with a penalty ranging from cadena temporalto cadena perpetua.

"If the crime be committed against nonbelligerent subjects of another nation at war with

Spain, it shall be punished with the penalty or presidio mayor.

"ART. 154. Those who commit the crimes referred to in the first paragraph of the next

preceding article shall suffer the penalty of cadena perpetua or death, and those who commit

the crimes referred to in the second paragraph of the same article, from cadena temporal to

cadena perpetua:

"1. Whenever they have seized some vessel by boarding or firing upon the same.

"2. Whenever the crime is accompanied by murder, homicide, or by any of the physical

injuries specified in articles four hundred and fourteen and four hundred and fifteen and inparagraphs one and two of article four hundred and sixteen.

"3. Whenever it is accompanied by any of the offenses against chastity specified in Chapter

II, Title IX, of the book.

Always will B


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SECOND RATIO:

1. MUNICIPAL LAWS DESIGNED TO SECURE PEACE AND ORDER CONTINUE TOBE EFFECTIVE DESPITE A TRANSFER OF TERRITORY TO ANOTHERSOVEREIGNTY. The general rules of public law recognized and acted on by the UnitedStates relating to the effect of a transfer of territory from another State to the UnitedStates are well-known. The political law of the former sovereignty is necessarilychanged. The municipal law in so far as it is consistent with the Constitution, the laws of

the United States or the characteristics and institutions of the government, remains inforce. As a corollary to the main rules, laws subsisting at the time of transfer, designed tosecure good order and peace in the community, which are strictly of a municipalcharacter, continue until by direct action of the new government they are altered orrepealed. (Chicago, Rock Island, etc., R. Co. vs. McGlinn)

2. MCKINLEYS INSTRUCTIONS. These principles of the public law were given specificapplication to the Philippines by the Instructions of President McKinley of May 19,1889,to General Wesley Merritt, the Commanding General of the Army of Occupation in thePhilippines, when he said:

"Though the powers of the military occupant are absolute andsupreme, and immediately operate upon the political condition of theinhabitants, the municipal laws of the conquered territory, such as

affect private rights of person and property, and provide for thepunishment of crime, are considered as continuing in force, so far asthey are compatible with the new order of things, until they aresuspended or superseded by the occupying belligerent; and inpractice they are not usually abrogated, but are allowed to remain inforce, and to be administered by the ordinary tribunals, substantiallyas they before the occupation. This enlightened practice is, so far aspossible, to be adhered to on the present occasion."

It cannot admit of doubt that the articles of the Spanish Penal Code dealing with piracywere meant to include the Philippine Islands. Article 156 of the Penal Code of the PenalCode in relation to article 1 of the Constitution of the Spanish Monarchy, would alsomake the provisions of the Code applicable not only to Spaniards but to Filipinos.

3. PIRACY ACCORDING TO GROTIUS. The opinion of Grotius was that piracy by thelaw of nations is the same thing as piracy by the civil law, and he has never been

"4. Whenever the pirates have abandoned any persons without means of saving themselves.

"5. In every case, the captain or skipper of the pirates.

"ART. 155. With respect to the provisions of this title as well as all others of this code,

when Spain is mentioned it shall be understood as including any part of the nationalterritory.

"ART. 156. For the purpose of applying the provisions of this code, every person, who,

according to the Constitution of the Monarchy, has the status of a Spaniard shall be

considered as such

disputed. The specific provisions of the Penal Code are similar in tenor to statutoryprovisions elsewhere and to the concepts of the public law. This must necessarily be so,considering that the Penal Code finds its inspiration in this respect in the Novelas, thePartidas, and the Novisima Recopilacion.

4. BASIS FOR THE PIRACY LAWS CONTINUED EFFECTIVITY. The Constitution ofthe United States declares that the Congress shall have the power to define and punishpiracies and felonies committed on the high seas, and offenses against the law ofnations. The Congress, in putting on the statute books the necessary ancillary

legislation, provided that whoever, on the high seas, commits the crime of piracy asdefined by the law of nations, and is afterwards brought into or found in the UnitedStates, shall be imprisoned for life. The framers of the Constitution and the members ofCongress were content to let a definition of piracy rest on its universal conception underthe law of nations. It is evident that the provisions of the Penal Code now in force in thePhilippines relating to piracy are not inconsistent with the corresponding provisions inforce in the United States.

5. CONSEQUENT AND CORRESPONDING AMENDMENTS TO THE LAW. By theTreaty of Paris, Spain ceded the Philippine Islands to the United States. A logicalconstruction of articles of the Penal Code, like the articles dealing with the crime ofpiracy, would be that wherever "Spain" is mentioned, it should be substituted by thewords "United States" and wherever "Spaniards" are mentioned, the word should besubstituted by the expression "citizens of the United States and citizens of the Philippine

Islands." Somewhat similar reasoning led this court in the case of United States vs.Smith to give to the word "authority" as found in the Penal Code a limited meaning, whichwould no longer comprehend all religious, military, and civil officers, but only publicofficers in the Government of the Philippine Islands. Under the construction aboveindicated, article 153 of the Penal Code would read as follows:

"The crime of piracy committed against citizens of the United Statesand citizens of the Philippine Islands, or the subjects of anothernation not at war with the United States, shall be punished with apenalty ranging from cadena temporal to cadena perpetua.

"If the crime be committed against nonbelligerent subjects of anothernation at war with the United States, it shall be punished with thepenalty of presidio mayor."

The crime falls under the first paragraph of article 153 of the Penal Code in relation toarticle 154. There are present at least two of the circumstances named in the last citedarticle as authorizing either cadena perpetua or death. The crime of piracy wasaccompanied by (1) an offense against chastity and (2) the abandonment of personswithout apparent means of saving themselves. It is, therefore, only necessary for us todetermine as to whether the penalty of cadena perpetua or death should be imposed. Inthis connection, the trial court, finding present the one aggravating circumstance ofnocturnity, and compensating the same by the one mitigating circumstance of lack ofinstruction provided by article 11, as amended, of the Penal Code, sentenced theaccused to life imprisonment. At least three aggravating circumstances, that the wrongdone in the commission of the crime was deliberately augmented by causing otherwrongs not necessary for its commission, that adv

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