Public International Law 1-6

8/13/2019 Public International Law 1-6

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CHAPTER 1

International Law - body of rules and principles of action which are binding uponcivilized states in their relationships with one another and those between international

organizations and states, among the international organizations themselves, as well asstates or international organizations and natural and judicial persons, such as the lawgoverning human rights.

(1) Defines the very eistence of !states"(#) $rovides the framewor% for diplomatic relations(&) 'overns international agreements() ets forth rules for international commerce(*) 'overns individual human rights(+) egulates protection of the global environment

$rinciples (--/-0)a. Reciprocityb. Comityc. Independenced. Euality

Private and Public International Law DISTINGUISHED

Public international law, or the law of nations, is that which regulates thepolitical intercourse of nations with each other or concerns uestions of rightsbetween nations, whereas private international lawcon!lict law"# is that which

regulates the comity of states in giving effect in one to the municipal laws ofanother relating to private persons, or concerns the rights of persons within theterritory and dominion of one state or nations, by reason of acts, private or public,done within the dominion of another, and which is based on the broad generalprinciple that one country will respect and give effect to the laws of another so faras can be done consistently with its own interests.

$unicipal law - laws of a country that deals with internal affairs of a country2 enactedpursuant to the legislative processes of such country.

$oni"%3 views international and national law as part of single legal system, with

domestic law derived from the broader framewor% provided by international law.

Duali"% 3 considers international law and internal law of states as wholly separatelegal systems, the former creating obligations only among sovereign nations and thelatter allowing each state to determine the means and form by which it carries out itsobligations.


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4he $hilippines recognizes the doctrine of incorporation, it adopts the generallyaccepted principles of international law as part of the law of the land.

n case of irreconcilable conflict between a treaty and a statute on the same subjectmatter, what prevails is that which is of later date.

4he $hilippines in a sense adheres to the theory of monism.

56/0 57 840894589: :9; (as to their importance)a. nternational conventionsb. nternational customsc. 'eneral principles of law


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'(UNDATI(NS (' INTERNATI(NAL LA)

$utualit&reciprocit& - term used to denote the relation eisting between two or morestates when each of them gives the subjects of the other certain privileges, oncondition that its own subjects shall enjoy similar privileges at the hands of the other

state or states.

Co%it& is the recognition which one nation allows within its territory to the acts offoreign governments and their tribunals, having due regard both to international dutyand convenience and to the rights of its own citizens or other persons who are underthe protection of its laws.

nternational law is not binding as a municipal law is binding on its citizens, eceptwhen rules of international law have been embodied interties or conventionsunualifiedly adhered to by sovereign states, in which case they are of the samelevel as domestic laws

CHAPTER II

State is the traditional subject of international law. 9 people permanently occupying afied territory bound together by common-lawhabits and custom into one body politiceercising, through the medium of an organized government, independent*"overei+nt& and capable of ma%ing war and peace and of entering into internationalrelations with other communities of the globe.

# $8/$:0 D040?88' /4@08A$1.jus soli (citizen by place of birth, followed by the 6..9.)#.jus sanguini (citizenship by blood followed in the $hilippines)

Sel!,deter%ination need not be understood as a right to political separation, but ratheras a comple net of legal-political relations between a certain people and the stateauthorities.

/58/0$4 57 :B04C

1. ne+ative a"pect of state autonomy is epressed by the principle of non-intervention, which protects the right of a state already recognized as

independent >to choose its political, economic, social and cultural systems,without interference in any form by another tate

#. Po"itive a"pect of state autonomy is epressed by the principle of self-determination, which holds that colonies or other entities under foreign controlhave a right to independent statehood.


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State is a political concept (cannot eist w 9 sovereign state may acuire territories by discovery and occupation, conuest and

occupation, and by cession and anneation, or any combination of these modes.

Ac-ui"ition by conuest is the acuisition of territory by force of war, and theacuisition is completed by occupation with intent to anne it and the eercise thereinof its sovereignty. 4his is now outlawed by the 68.

animus occupandi is the actual and not the normal ta%ing possession is a necessarycondition of occupation.

RE.UIRE$ENTS (' A STATE

1. Defined territory#. $ermanent population&. /ontrol of its own government. 0ngages in or has the capacity to engage in formal relations with other states.

0/5'8458 does not create a state. t is either1. de jure (define and complete) - results either from an epress declaration or from apositive act indicating clearly the intention to grant this recognition, such as theestablishment of diplomatic relations.#. de facto (provisional


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ights hold in abeyance during military occupation

1. ight to assembly

#. ight to bear arms

&. 7reedom of press

. ight to travel freely

4A58'458 vs ?4A

Aeld central government established for insurgent states differed from the temporary

governments at /astine E 4ampico in the circumstance that its authority did not

originate in lawful acts of regular war but it was on the account, less actual or less

supreme.

;::9? F B677C

Aeld the same general form of government , the same general laws for administration

of justice and the protection of private rights , which had eisted in the tates prior tothe rebellion, remained during its continuance and afterwards.

A58 F. :5/GA94

- the eistence of a state of insurrection and war did not loosen the bonds of society or

do away with civil government or the regular administration of the laws

B9:DC F. A6840

Aeld that what occurred or done in respect of such matters under the authority of the

laws of these local de facto governments should not be disregarded or held to be invalid

merely because those governments were organized in hostility to the 6nion establishedby national /onstitution

(5LIGATI(NS INCURRED 56 DE 'ACT( G(7ERN$ENT ARE 7ALID

1.485/5 9rbitration, arbitrator ruled in favor of 'reat Britain by saying that the

contracts entered into by de facto government of 485/5 were valid

#. 6840D 4940 F. ?0H/5

Aeld the legality of the money orders was not affected by the legality or illegality of

Auerta administration or of a de facto government


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ACTS (' 5ELLIGERENTS ARE ACTS (' )AR

1. 6nderhill vs. Aernandez - ruled acts of belligerents are acts of war and may not be

the basis of actions for damages filed by an individual damaged thereby.

#. 75D F. 6'04

Aeld the defendant is not liable in burning the cotton of plaintiff in obedience to the

order of the confederate army during the civil war in 9merica

PENDING CI7IL ACTI(NS $A6 C(NTINUE UNTIL C(NTINUE

1. /o Gim /ham vs Faldez 4an Geh

Aeld that the government established during the =apanese occupation of the country

was a de facto government and accordingly , the judicial and legislative proceedings

pending at the time and all its acts , which are not of political compleion, could continue

after $hilippine government was re-installed as de jure government

P(LITICAL ACTI(N (' DE 'ACT( G(7ERN$ENT (R 5ELLIGERENTS

- acts neither political (penal sentences or non penal or punitive acts) or military

compleion continue to be valid even after de facto government has ceased

- political and military compleion cease to be valid after de facto government comes to

an end

E'ECTS (' RE7(LUTI(N

evolution - the complete overthrow of the established government in any country or

state by those who were previously subject to it or as >sudden , racial, and fundamentalchange in the government or political system, usually effected with violence or at least

some acts of violence

1. epublic vs. andiganbayan

Aeld protection accorded to individuals under /ovenant and the declaration reminded

in effect during interregnum (period directives and orders of the revolutionary

government were the supreme law bec.no constitution limited the etent and scope of

sub directives and orders

8UDICIAL DECISI(NS (' C(URTS (' DE 'ACT( G(7ERN$ENT

1. 0torma vs. avelo

Aeld acts authorizing and regulating the grant of free patents to occupants or

possessors of public lands are municipal , and the judgments of the courts which apply

said laws are not of political compleion


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REC(GNITI(N IS A P(LITICAL ACT

1. 5etjen vs. /entral leather co.

Aeld conduct of foreign relations of our government is committed by the /onstitution to

the eecutive and legislative the political departments of the government and the

proprietary of what may be done in the eercise of this political power not subject to

judicial inuiry or decision

8ote 0very sovereign state is bound to respect the independence of every other

sovereign state and the courts of one country will not sit in judgment on the acts of the

government of another done within its own territory

N(NREC(GNITI(N D(ES N(T RENDER IT N(N,DE 'ACT(

1. ecognition of a de facto - recognition that the government has control of internaljurisdiction

#. 0istence of a de facto- may eist without recognition, as it is a uestion of fact

determined by the courts


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CHAPTER I7, S(7EREIGNT6

S(7EREIGNT6

4he supreme, absolute and uncontrollable (96) power by which any

independent state is governed.

upreme political authority

$aramount control of the constitution and form of government and its

administration

elf-sufficient source of political power, from which all specific power

are derived

4he international independence of the state, combined with the right and power

of regulating its internal affairs without foreign dictation.

9 political society, or state which is sovereign and independent

t is a power to do everything in the state without accountabilityI to ma%e laws,

to eecute and apply them, to impose and collect taes and levy contributions, to ma%e

war and peace, to form treaties of alliance of commerce with foreign nations and the

li%e.

t is the supreme power by which any citizen is governed and is the person or body of

persons in the state to whom there is no political superior.

Note3if the states are not sovereign, they could not ma%e war, nor peace,nor alliances, nor treaties.

8either the /onstitution nor the laws passed in pursuant of it have any force inforeign territory unless in respect of our own citizens(American Banana Co. v. United Fruit Co

S(7EREIGNT6 IS N(T A''ECTED 56 CHANGE (' RULERS

t is not suspended

t survives changes of rulers or of forms of government

!a rulers come and go, governments end and forms of government change,but sovereignty survives"


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;hat may be suspended is t!e exercise o t!e rig!t o sovereignt#, as when dejuregovernment is replaced by a de actogovernment or by a revolutionarygovernment or invasion by a foreign force and a new ruler installed.

4he citizenJs allegiance remains with t!e de jurestate but the eercise of its rightof sovereignty is suspended until the de actoor revolutionary government cease.

RESTRICTI(NS (N PHIL* S(7EREIGNT6

;hile sovereign is absolute and supreme within its territorial jurisdiction anddomain, which include the right to prohibit other sovereign states from eercisingtheir rights of sovereignty within its jurisdiction or from preventing the applicationforeign laws or international conventions on the country, it may consent theretoepressly or impliedly.

Note3it may, in short# waive partof its right to sovereignty.

1. ;aiver under Bases 9greement does not constitute waiver of other sovereignrightsK

9ny treaty in which a sovereign state waives the eercise of criminaljurisdiction over certain offenses committed within the portion of theterritory leased to a foreign state for its military uses is strictly construedand that which is not clearly embraced there remains with the lessor state,such as administrative jurisdiction of a city or municipality regarding theissuance of permits to construct a building thereonK

($eople vs. %o&o) ISSUE3whether the reuirement of the city of the

5longapo for any peron or city to secure a building permit to construct ahouse or building is applicable to one who construed such building withinthe 6 8aval eservation within the territorial jurisdiction of said city.

HELD3By the agreement, it should be noted, the $hils. 'ovJt merelyconsents that the 6 eercise jurisdiction in certain cases. 4he consentwas given purely as a matter of comity, courtesy or epedience. 6nderthe terms of treaty, 6 'ovt has a prior or preferential but not eclusive

jurisdiction over the offenses.

Note:4he constitution and national laws of a country apply to its citizens aboard,ecept as may be otherwise be provided by law and the countryJs treaty

commitmentsK

RESTRICTI(NS (N S(7EREIGN RIGHTS 56 TREAT6 STIPULATI(NS

euirements of nation to enter into treaties, join the 68 and other nternationalorganizations, E adhere to international conventions


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elf- interests and the interests of peace

/ommerce and friendly intercourse with other nations

Note:By doing so, a state voluntaril# restricts or 'aives a part o its sovereign rig!ts ,as an independent and sovereign nation, in return for the benefits which it may

derive therefrom.

1. ;45 9greement and :egislative $ower#. overeignty :imited by nternational :aw and 4reaties

5& Doctrine o! Incorporation- the country is bound by generallyaccepted principle of international law, which is considered to beautomatically part of our own laws.

&. 68 /harter and other treaties :imit overeignty

6nder 9rt. # of 68 !all members shall give the 68 every assistance in anyaction it ta%es in accordance with the present /harter, and shall refrainfrom giving assistance to any state against which the 68 is ta%ing

preventive or enforcement action.". 4he ;45 9greement and =udicial $ower

4$ intrude on the power of the / to promulgate rules concerningpleading, practice and procedures.

*. /oncurrence 5nly in the ;45 9greement and 8ot in other documents containedin the 7inal 9ct

+. 0ntering into etradition treaty

)AI7ER 56 ADHERENCE T( C(N7ENTI(NS

;hile jurisdiction over the subject matter is defined by the /onstitutionand by our laws, t!e countr# b# treat# ma# concede t!at jurisdiction overcertain subject matter be deined t!erein to t!e exclusion o '!at our la'

provides.

0g convention for the unification of certain rules relating to internationaltransportation by air (;arsaw /onvention) to which the country adhered,and became applicable to $hils.

Note: the warsaw provision refers to jurisdiction and not to venue, regardless ofwhether or not the plaintiff proceeds on the theory of breach of contract or ontortK

79/4 )antos ***. 4he petitioner purchased from northwest orient airlines aroundtrip tic%ets in an 7rancisco, 69 for his flight from 7, 69

to?anila via 4o%yo and bac% to 7, 69.


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A0:D Ae could not file the complaint for damages against the airline in ?anilabecause it was not his place of destination but 7 and ?anila was

only an agreed stopping place2 ?anila was not the airlineJs domicilemerely because it has a branch office in ?anila. 7or domicileis the place where it is incorporated2 theprincipal place o business,

t!e place '!ere contract< tic+et 'as made, and t!e place o destination.

Note34he fact that the petitioner is a citizen of the country and the airline has a branch office in the country does not entitle him to sue in courts of his own

country because the country is limited by the provisions of the ;arsaw/onvention..

Note3the provision does not apply where there is bad ait!or grossor 'illulnegligenceon part of the airline employee.

DUT6 (' STATE T( PR(TECT ITS CITI9ENS AND INTERESTS

0very sovereign state is duty bound to protect its citizens who are in anothercountry

t may ta%e such measures as the circumstances reuire, which may be bydiplomacy or some stronger steps allowed by its laws.

uch duty arises from the fact that as citizens they owe allegiance to theircountry, the laws of their country apply to them, including the performance ofduties reuired of any other citizens

'ACT3f the foreign national is criminally prosecuted in another state for a crime hecommitted, ec.&+ (/onvention on /onsular elations) entitles such national tocommunicate with his government thru its consul general, the host country is dutybound to inform him of such right, so that his country can etend him protection andassistance.

f the host country violates such right and foreign national is convicted to the penalty ofdeath...

Remedy,the foreign state of which he is a national is to entitled ta%e up the casein the nternational /ourt of =ustice, for the review and reconsiderationof such /onviction, which is in the form of re-trial of the case.

E:TRA8UDICIAL APPLICATI(N (' LA)S IN RESPECT T( CITI9ENS

Citi;en"/ip


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s the lin% that binds citizens or national to his country, the citizen owingallegiance to his country, and the latter thru its government being duty boundto protect its citizens and to etend to him assistance when he faces problemswhile sojourning abroad.

4he law of his country generally apply to him, even if he is in another foreign

country.

(Emplo#ment pportunit# Commission v. Arabian American il.CoA0:D 4itle F does not apply etraterritorially to regulate the employment practices of

6 firms that employ 9merican citizens abroad.

Note39pplication of laws of a country to its citizens abroad depends uponCongressional intent.n the absence of such intent, either epress or implied, thelaws of his country do not apply to him when he is abroad.

PHILIPPINES LA) APPL6 T( CITI9ENS A5R(AD

$hils laws which apply to citizens even when they are abroad, just as there are$hils laws which authorize the application in the country of foreign laws2E:CEPT3

/onstitution Bill of rights

/ivil /ode

9rt. 1*,1+,1L, &L, &M, &N,O, 1, #, &, *, +,

4a laws of the $hils.

/orporation code (sec. 1#N)

Note f $hils. :aw is silent on any given case2 $hils /ourts are not justified to etendthe force and effect of foreign law to our jurisdiction.

PR(5LE$ (' DUAL CITI9ENSHIP

D69: /4@08A$

?eans the status of a person who is a citizen of two or more countries at thesame time.

9rises when, as a result of concurrent application of the dfferent laws of two ormore states, a person is simultaneousl# considered a nationalby the said states


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$ossible to acquire dual citi&ens!ip are t!e ollo'ing

/. 0!ose born o Filipino at!ers and1or mot!er in oreign countries '!ic! ollo's2us soli

#. 4hose born in the $hils of 7ilipino mothers and 9lien fathers if by the laws oftheir fatherJs country such children are citizens of that country&. 4hose who marry aliens if by the laws of tha latterJs country former are

considered citizens, unless by their act or omission they are deemedrenounce $hil. /itizenship

Note39 N##* covers onl# natural-born Filipino citi&ensand not naturalizedcitizens. .

S(7EREIGN (7ER A LEASED (PTI(N (' A C(UNTR6

6 F. $0:9

ISSUE whether or not a claim for damages arising from the death of a 6overseas employee against 6, pursuant to 7ederal tort claims actinapplicable to any claim !arising in a foreign country" which is leased by6 is tenable

HELD34he sovereignty in the territory leased by 6 from great Britain remainswith the latter, so that the 9ct is not applicable and the claim is thus barred

E:CEPTI(N T( TERRIT(RIAL APPLICATI(N (' LA) 56 C(NSENT

4he consent to the etraterritorial application of foreign law may be impliedfrom the acts of the $resident of the $hils and of the ecretary of 7oreign

9ffairs as well as enactment..

5ther forms of implied waiver

/onsent may also be implied,as in the observance of principles of comity(recognition and enorcementof foreign judgment in the $hils)

4he enforcement of arbitration awards in the $hils also implies an impliedwaiver of etrajudicial application of foreign laws to the $hils.

ALIENS HA7E N( RIGHTS T( IN7(0E LA)S (' AN(THER STATE

when agents or officials of a state operate in another country,either by treaty or tolerance, which affects the citizens of the latter,suc! citi&ens cannot invo+e t!e la's o t!e ot!er countr#to protect their


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Held 0very sovereign state is bound to respect the independence of every other

sovereign state, and the courts of the country will not sit in judgment on the acts of the

government of another, done within its own territory. edress of grievances by reason

of such acts must be obtained through the means open to be availed by the sovereign

powers as between themselves.

4=*


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cause of action is founded, and that it must respect the sovereign rights of

another country, with distasteful or disastrous conseuences in international

relations to act otherwise as it will invite retaliations.

4he act of state only precludes investigation of the !legality, validity, and

proprietary of acts and motivations of foreign sovereigns acting in their

governmental roles within their own boundaries2 it does not preclude judicial

resolution of all commercial conseuences stemming from the occurrence of

such public acts.

the claim of "overei+n i%%unit&, which merely raises a jurisdictional

defense, t/e act o! "tate doctrine provides foreign states with a substantive

defense on the merits.

the remedy when it a wrong committed against international law is through

DIPL!"#$ or through International #ourt of %ustice (/=)- will ta%e

cognizance of the case when agreed by both parties. (personal notes, Darwin

amos)

Pthe act of state doctrine does, however have constitutional underpinnings. t

arises out of the basic relationships between branches of the government in

systems of separation of powers.

4?*


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the acts of the state and no possible embarrassment of the country in foreign

relations could arise.

4@*


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repudiations by the foreign sovereign of its commercial debts should not be

considered to be the acts of state beyond legal uestion in our courts.

when the act of state, such as torture committed by officials of a foreigngovernment, which is violative of national and international law and

considered illegal under the foreign of constitution and laws, the doctrine of

the act of state does not apply. (situational)

CHAPTER 7I > 8URISDICTI(N

8uri"diction refers to eercise of governmental power and authority in all forms,whether legislative, eecutive or judicial.

T/e Sc/ooner Ec/an+e v* $B'addon# 11 U*S* 11 1@1F is a 6nited tatesupreme /ourt case concerning the 7ederal courts jurisdiction over a claim against afriendly foreign military vessel visiting an 9merican port. 4he court, interpretingcustomary international law, determined that there was no jurisdiction.

'act"4he schooner 0change, owned by =ohn ?7addon and ;illiam 'reetham, sailed fromBaltimore, ?aryland, on 5ctober #L, 1MON, for an ebastiQn, pain. 5n December &O,1M1O, the 0change was seized by order of 8apoleon Bonaparte. 4he 0change was

then armed and commissioned as a 7rench warship under the name of Balaou. ;henthe vessel later doc%ed in $hiladelphia due to storm damage, ?7addon and 'reethamfiled an action in the district court to seize the vessel, claiming that it had been ta%enillegally. 4he district court found that it did not have jurisdiction over the dispute. 5nappeal, the circuit court reversed the decision of the district court, and ordered thedistrict court to proceed to the merits of the case. 4he upreme /ourt reversed thecircuit courts decision, and affirmed the district courts dismissal of the action.upreme /ourt decision

/hief =ustice ?arshall delivered the opinion of the court. Ae noted that a by thedefinition of sovereignty, a state has absolute and eclusive jurisdiction within its own

territory, but that it could also by implied or epress consent waive jurisdiction.?oreover, ?arshall also noted that under international custom jurisdiction waspresumed to be waived in a number of situations. 7or instance, a foreign sovereign andhis diplomatic representatives were generally free from the jurisdiction of domesticcourts when visiting. imilarly, if a state granted permission for a foreign army freepassage across its territory, it generally implied a waiver of jurisdiction over that army.4his custom was firmly enough established and necessary for international relationsthat it would be wrongful for a country to violate it without prior notice.


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?arshall further noted that while the right of free passage by an army need usually beeplicitly granted (li%ely because such passage inevitably involves physical damage ofsome sort), by maritime custom a nations ports were presumptively open to all friendlyships. ;hile a nation could close its ports to the warships of another country, it would

have to issue some form of declaration to do so. ;ithout such a declaration, a friendlyforeign warship could enter a nations port with its implied consent. ?arshall furtherdistinguished the difference between private merchant ships and citizens (who aresubject to a nations jurisdiction when they enter its ports with the nations impliedconsent), and military ships. 8amely, private ships do not carry with them the sovereignstatus of military ships, with the privileges that accompany it. 7rom this, ?arshall arrivedat the conclusion that, by customary international law, a friendly warship that enters anations open port are eempted from that nations jurisdiction.

9pplying this analysis to the facts at hand, ?arshall found that the courts did not havejurisdiction over the case.

Si+ni!icance

4he decision is regarded as an the >first definitive statement of the doctrine of foreignstate immunity> 9dditionally, the unwillingness of the /ourt to find jurisdiction withoutaction by the political branches of government, along with some eplicit dicta, led to atradition of great deference by the courts to official and individual determinations ofimmunity by the tate Department. 4his system was only revised in favor of judicialinterpretations with the passage of the 7oreign overeign mmunities 9ct in 1NL+.

PRINCIPLES (' 8URISDICTI(N1. territorial principle 3 acts committed within territory of a state2#. active nationality principle 3 nationality of the defendant2&. passive nationality principle 3 nationality of the injured person2. protective principle 3 on harm of the state national interest2*. universality principle 3 based on the international character of a crime2+. jurisdiction based on international agreement or treaties.

Territorial uri"diction# +enerall&* Based on the place of their commission in theterritory of a state, which is accepted universally by all states.

Tran"national cri%e"* /ommitted across national borders2 continuing crime whichelements perfected in one state while it is consummated in another state2 the state whofelt damage and injured may acuire jurisdiction to hear the case. n the $hilippines, asprovided for by the /onstitution, our courts may only acuire jurisdiction if parties arepresent (especially the accused)2 produce by summons, warrant of arrest (arrested)2voluntarily surrendered, among others.


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)aiver o! cri%inal uri"diction* ?aybe waived in favor of another state (throughtreaties), li%e during the time when 6 was occupying there bases here in the$hilippines. 9ll crimes committed by the element of their forces shall be tried under 6

jurisdiction.

People v"* Acierto. 9cierto claimed double jeopardy when the /ommanding 'eneralset aside the decision rendered by 6 /ommission (case of estafa and falsification) anddiverted the case to $hilippine court. Based on the findings of the /ommanding'eneral, it ruled that they bereft of jurisdiction and $hilippine still has jurisdiction overthe subject matter. 9cierto is a civilian contractor. 4he /ourt of 7irst nstance heard thecase and convicted 9cierto. 4he waiver of the $hilippine 'overnment of its jurisdictionwas only for the purpose of comity. t doesnJt follow that the $hilippine 'overnmentabdicated its absolute jurisdiction to hear another case not within the scope of thecomity it referred to.

7ESSEL IS E:TENSI(N (' S(7EREIGN STATE (' ITS REGISTR6n the case of "saali vs &ureau of #ustoms, 9saali raised the issue of jurisdictionwhen the /ustoms seized their ship loading contrabands in the high seas. / ruledthat such ship is under the jurisdiction of the $hilippines even if it still sailing at the highseas due to the flag it flying ($hilippine 7lag).

n #hurch vs 'ubbard, 6 /hief =ustice ?arshall ruled that a state has the right toprotect itself and its revenue, a right not limited in its territory but etending to the highseas.

nternal discipline pertains to state of vesselJs registry.

7or the vessel whose registry is here in the $hilippines, our /onstitution has alreadyclear rule on that. But how about crimes committed aboard a foreign vessel whichsailing or anchored within the $hilippine territoryR 4ests 7irst, if the one committingthe crime or victim of the crime is a 7ilipino, our courts may acuire jurisdiction.econd, if it affects the public peace or disturb the tranuility, if not, our courts mayrefrain cognizance and leave it to the state where the registry of the ship can be found.

8uri"diction over collu"ion in t/e "ea" t/e Lotu" ca"e*n case of the ?aster of the hip2 thereJs concurring jurisdiction, either to the flag state(where the ship is being registered) or in the state where the ?aster is a national.

(he Lotus caseconcerns a criminal trial which was the result of the # 9ugust1N#+ collision between the .. :otus, a 7rench steamship (or steamer), and the.. Boz-Gourt, a 4ur%ish steamer, in a region just north of ?ytilene ('reece). 9sa result of the accident, eight 4ur%ish nationals aboard the Boz-Gourt drownedwhen the vessel was torn apart by the :otus.


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5n L eptember 1N#L the case was presented before the $ermanent /ourt ofnternational =ustice, the judicial branch of the :eague of 8ations, thepredecessor of the 6nited 8ations.

4he issue at sta%e was 4ur%eys jurisdiction to try ?onsieur Demons, the 7renchofficer on watch duty at the time of the collision. ince the collision occurred onthe high seas, 7rance claimed that the state whose flag the vessel flew hadeclusive jurisdiction over the matter. 7rance proffered case law, through which itattempted to show at least state practice in support of its position. Aowever,those cases both involved ships that flew the flag of the flag state and were thuseasily distinguishable. 4he /ourt, therefore, rejected 7rances position statingthat there was no rule to that effect in international law.

T/e Lotu" principle or Lotu" approac/, usually considered a foundation ofinternational law, says that sovereign states may act in any way they wish so

long as they do not contravene an eplicit prohibition. 4he application of thisprinciple 3 an outgrowth of the :otus case 3 to future incidents raising the issueof jurisdiction over people on the high seas was changed by 9rticle 11 of the1N*M Aigh eas /onvention. 4he convention, held in 'eneva, laid emphasis onthe fact that only the flag state or the state of which the alleged offender was anational had jurisdiction over sailors regarding incidents occurring in high seas.

4he principle has also been used in arguments against the reasons of the 6nitedtates of 9merica, for opposing the eistence of the nternational /riminal /ourt(//).

8uri"diction over cri%e" on board aircra!t or air"/ipame with sea ships. 4here shall be a concurring jurisdiction of the states following thesi (+) principles cited earlier in this /hapter.

Univer"al uri"diction* 9 forum state may hear or ta%e cognizance of a caseconcerning a person committing a crime violating international, even if such forum statehas no lin% to the accused or the state or nation of the victim.

)ichman case* srael prosecuted of 9dolf 0ichmann in 1N+1 as an assertion ofuniversal jurisdiction. Ae claims that while srael did invo%e a statute specific to8azi crimes against =ews, its upreme /ourt claimed universal jurisdiction overcrimes against humanity.


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0ichmanns defense lawyer argued that srael did not have jurisdiction onaccount of srael not having come into eistence until 1NM. 4he 'enocide/onvention also did not come into effect until 1N*1, and the 'enocide/onvention does not automatically provide for universal jurisdiction. t is alsoargued that srael agents obtained 0ichmann illegally, violating international law

when they seized and %idnapped 0ichmann, and brought him to srael to standtrial. 4he 9rgentinian government settled the dispute diplomatically with srael.

srael argued universal jurisdiction based on the >universal character of thecrimes in uestion> and that the crimes committed by 0ichmann weren not only inviolation of srael law, but were considered >grave offenses against the law ofnations itself. ts also asserted that the crime of genocide is covered underinternational customary law. 9s a supplemental form of jurisdiction, a furtherargument is made on the basis of protective jurisdiction. $rotective jurisdiction isa principle that, >...provides that states may eercise jurisdiction over aliens whohave committed an act abroad which is deemed prejudicial to the security of the

particular state concerned.>

9nother eample is the case of 7ilQrtiga v. $eSa-rala, +&O 7.#d ML+ (#d /ir. 1NMO)

t was a landmar% case in 6nited tates and international law. t set theprecedent for 6nited tates federal courts to punish non-9merican citizens fortortious acts committed outside the 6nited tates that were in violation of publicinternational law (the law of nations) or any treaties to which the 6nited tates isa party. t thus etends the jurisdiction of 6nited tates courts to tortious actscommitted around the world. 4he case was decided by a panel of judges fromthe 6nited tates /ourt of 9ppeals for the econd /ircuit consisting of =udges7einberg, Gaufman, and Gearse.

4he 7ilQrtiga family contended that on ?arch #N, 1NL+, their seventeen-year-oldson =oelito 7ilQrtiga was %idnapped and tortured to death by 9mTrico 8orberto$eSa rala. 9ll parties were living in $araguay at the time, and $eSa was thenspector 'eneral of $olice in 9sunciUn, the capital of $araguay. :ater that sameday, police brought Dolly 7ilQrtiga (=oelitos sister) to see the body, whichevidenced mar%s of severe torture. 4he 7ilQrtigas claimed that =oelito wastortured in retaliation for the political activities and beliefs of his father =oel7ilQrtiga.

7ilQrtiga brought murder charges against $eSa and the police in $araguay, butthe case went nowhere. ubseuently, the 7ilQrtigas attorney was arrested,imprisoned, and threatened with death. Ae was later allegedly disbarred without

just cause.

n 1NLM, Dolly 7ilQrtiga and (separately) 9mTrico $eSa came to the 6nitedtates. Dolly applied for political asylum, while $eSa stayed under a visitors visa.


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Dolly learned of $eSas presence in the 6nited tates and reported it to themmigration and 8aturalization ervice, who arrested and deported $eSa forstaying well past the epiration of his visa.

;hen $eSa was ta%en to the Broo%lyn 8avy Card pending deportation, Dolly

lodged a civil complaint in 6.. courts, brought forth by the /enter for/onstitutional ights, for =oelitos wrongful death by torture, as%ing for damagesin the amount of V1O million. 9fter an initial district court dismissal citingprecedents that limited the function of international law to relations betweenstates, on appeal, the circuit ruled that freedom from torture was guaranteedunder customary international law.W1X >4he torturer has become 3 li%e the pirateand slave trader before him 3 hostis humani generis, an enemy of all man%ind>,wrote the court.

4he appellants argued that $eSas actions had violated wrongful death statutes,the 6nited 8ations /harter, the 6niversal Declaration of Auman ights, the

9merican Declaration of the ights and Duties of ?an, and other customaryinternational law. $etitioner claimed the 6.. courts had jurisdiction to hear thecase under the 9lien 4ort tatute, which grants district courts original jurisdictionto hear tort claims brought by an alien that have been >committed in violation ofthe law of nations or a treaty of the 6nited tates>. 4his case interpreted thatstatute to grant jurisdiction over claims for torts committed both within the 6nitedtates and abroad.

6.. courts eventually ruled in favor of the 7ilQrtigas, awarding them roughlyV1O. million. 4orture was clearly a violation of the law of nations, and the 6nitedtates did have jurisdiction over the case since the claim was lodged when bothparties were inside the 6nited tates. 9dditionally, $eSa had sought to dismissthe case based on forum non conveniens, arguing that $araguay was a moreconvenient location for the trial, but he did not succeed.

Documents

Public International Law 1-6