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CHAPTER 1 International Law - body of rules and principles of action which are binding upon civilized states in their

relationships with one another and those between international organizations and states, among the international organizations themselves, as well as states or international organizations and natural and judicial persons, such as the law governing human rights. (1) Defines the very e istence 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. Reciprocity b. Comity c. Independence d. E1uality Private and Public International Law DISTINGUISHED Public international law, or the law of nations, is that which regulates the political intercourse of nations with each other or concerns 1uestions of rights between nations, whereas private international law con!lict law"# is that which regulates the comity of states in giving effect in one to the municipal laws of another relating to private persons, or concerns the rights of persons within the territory 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 general principle that one country will respect and give effect to the laws of another so far as can be done consistently with its own interests.

$unicipal law - laws of a country that deals with internal affairs of a country2 enacted pursuant 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 separate legal systems, the former creating obligations only among sovereign nations and the latter allowing each state to determine the means and form by which it carries out its obligations.

4he $hilippines recognizes the doctrine of incorporation, it adopts the generally accepted 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 subject matter, what prevails is that which is of later date. 4he $hilippines in a sense adheres to the theory of monism. )56,/0) 57 .840,894.589: :9; (as to their importance) a. .nternational conventions b. .nternational customs c. 'eneral principles of law<peace loving nations rules d. =udicial decisions e. 4eachings of highly 1ualified publicists f. 0 ae1uo et bono International Convention" are multilateral treaties, which are binding upon signatory states. 4hey are compacts similar to contractual agreements, which constitute the written law on the subject thereof, among the states which have adhered thereto. Cu"to%ar& international law consists of acts, which by repetition by states of similar international acts for a number of years, occurs out of a sense of obligation and ta%en by a significant number of states. .nternational law becomes customary international rule when # re1uisites concur1. 4he established, wide-spread, and consistent practice on the art of the )tates #. 9 psychological element %nown as the opinion juris sive necessitates (opinion as to law or necessity) Cu"to% rule of conduct formed by repition of acts, uniformly observed as a social and political rule, legally binding and obligatory. 4reaties may become basis for customary international law. 7or e ample, the :aw of the )ea, which consists mostly of codified rules of customary international, which have been universally observed even before the :aw of the )ea was e ecuted by participating states. & ways customary international law may be of use1. .t provides an independent body of law that is binding and is completely distinguishable from treaty obligations. #. it constitutes >jus cogen" (no derogation) &. serves as a guide to interpreting law. ;ritings of well-%nown publicist shaw what is the approved usage of nations, or the general opinion respecting their mutual conduct, with the definitions and modifications introduced by general consent. Ex aequo et bono - .n justice and fairness2 according to what is good and just2 according to e1uity and conscience.

'(UNDATI(NS (' INTERNATI(NAL LA) $utualit& reciprocit& - term used to denote the relation e isting between two or more states when each of them gives the subjects of the other certain privileges, on condition 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 of foreign governments and their tribunals, having due regard both to international duty and convenience and to the rights of its own citizens or other persons who are under the protection of its laws. .nternational law is not binding as a municipal law is binding on its citizens, e cept when rules of international law have been embodied interties or conventions un1ualifiedly adhered to by sovereign states, in which case they are of the same level as domestic laws

CHAPTER II
State is the traditional subject of international law. 9 people permanently occupying a fi ed territory bound together by common-lawhabits and custom into one body politic e ercising, through the medium of an organized government, independent* "overei+nt& and capable of ma%ing war and peace and of entering into international relations with other communities of the globe. # $,.8/.$:0) D040,?.8.8' /.4.@08)A.$ 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 rather as a comple net of legal-political relations between a certain people and the state authorities. /58/0$4) 57 :.B0,4C 1. ne+ative a"pect of state autonomy is e pressed by the principle of nonintervention, 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 )tateD #. Po"itive a"pect of state autonomy is e pressed by the principle of selfdetermination, which holds that colonies or other entities under foreign control have a right to independent statehood.

State is a political concept (cannot e ist w<o a territory) Nation is an ethnic concept (can e ist w<o a territory) 4he right of self-determination of people is embodied in the /harter of the 68. >9ll peoples have the rights of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development> 9 sovereign state may ac1uire territories by discovery and occupation, con1uest and occupation, and by cession and anne ation, or any combination of these modes. Ac-ui"ition by con1uest is the ac1uisition of territory by force of war, and the ac1uisition is completed by occupation with intent to anne it and the e ercise therein of its sovereignty. 4his is now outlawed by the 68. animus occupandi is the actual and not the normal ta%ing possession is a necessary condition 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. ,0/5'8.4.58 does not create a state. .t is either1. de jure (define and complete) - results either from an e press declaration or from a positive act indicating clearly the intention to grant this recognition, such as the establishment of diplomatic relations. #. de facto (provisional<limited to certain relations) - results from either an e press declaration or from an act implying this intention, such as an agreement or modus vivendi having a limited purpose or a provisional character. .n the case of 6nited )tates v. $in% - ,ecognition is not always absolute2 it is sometimes conditional. .n Banco 8acional de /uba v. )abbationo - 4he court held that the absence of recognition of the government, being a political 1uestion, did not preclude the filing of a suit by a foreign state. .n 0ichmann case - in the absence of a treaty, a country has no obligation to surrender a national of a state who has comitted a crime in his country, nor has it the duty to hand over a deserter from his vessel at the port of the foreign state to the deserterDs country. 7or a foreign state cannot impose on any other state.

C/apter III

0ind" o! +overn%ent1. De jure government- one which is rightful, legitimate, and lawful #. De facto government - one in fact or actually 1 2ind" o! De !acto +overn%ent 1. 'overnment de facto of legal sense - is the government that gets possession and control of or usurps by force or by the voice of the majority , the rightful legal government and maintains itself the will of the latter ( e . 0ngland under commonwealth) #. 'overnment de facto for established and maintained by military forces who invade and occupy a territory of enemy in the course of war and which is denominated a government of paramount force (/astine in ?aine, 4ampico, ?e ico occupied by 6)) &. 'overnment de facto for established as an independent government of a )outhern /onfederacy , in revolt against the 6nion during the war of secession Di"tin+ui"/in+ c/aracteri"tic" o! "econd 2ind de !acto +overn%ent3 (Based on the case of 4A5,.8'458 vs. )?.4A) 1. 4hat its e istence is maintained by active military power within the territories and against the rightful authority of an established and lawful government #. 4hat while it e ist it must necessarily be obeyed in civil matters by private citizens who by acts of submission due to force donDt become responsible as wrongdoers for such act Art*41# "ection 1 o! Ha+ue Convention - authorities of the legitimate power having actually passed into the hands of the occupant , the latter shall ta%e all the steps in his power to reestablish and insure public order and safety

,ights hold in abeyance during military occupation 1. ,ight to assembly #. ,ight to bear arms &. 7reedom of press (. ,ight to travel freely 4A5,.8'458 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) B,677C Aeld- the same general form of government , the same general laws for administration of justice and the protection of private rights , which had e isted in the )tates prior to the rebellion, remained during its continuance and afterwards. A5,8 F). :5/GA9,4 - the e istence 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 established by national /onstitution (5LIGATI(NS INCURRED 56 DE 'ACT( G(7ERN$ENT ARE 7ALID 1.4.85/5 9rbitration, arbitrator ruled in favor of 'reat Britain by saying that the contracts entered into by de facto government of 4.85/5 were valid #. 68.40D )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

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. #. 75,D 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 comple ion, 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 comple ion continue to be valid even after de facto government has ceased - political and military comple ion 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 fundamental change 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 e tent 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 comple ion

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 e ecutive and legislative the political departments of the government and the proprietary of what may be done in the e ercise of this political power not subject to judicial in1uiry 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 internal jurisdiction #. 0 istence of a de facto- may e ist without recognition, as it is a 1uestion of fact determined by the courts

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 e ecute and apply them, to impose and collect ta es 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. Note3 if 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 in foreign 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"

;hat may be suspended is t!e exercise o" t!e rig!t o" sovereignt# , as when de jure government is replaced by a de "acto government or by a revolutionary government or invasion by a foreign force and a new ruler installed. 4he citizenJs allegiance remains with t!e de jure state but the e ercise of its right of sovereignty is suspended until the de "acto or revolutionary government cease. RESTRICTI(NS (N PHIL* S(7EREIGNT6 ;hile sovereign is absolute and supreme within its territorial jurisdiction and domain, which include the right to prohibit other sovereign states from e ercising their rights of sovereignty within its jurisdiction or from preventing the application foreign laws or international conventions on the country, it may consent thereto e pressly or impliedly. Note3 it may, in short# waive part of its right to sovereignty. 1. ;aiver under Bases 9greement does not constitute waiver of other sovereign rightsK 9ny treaty in which a sovereign state waives the e ercise of criminal jurisdiction over certain offenses committed within the portion of the territory leased to a foreign state for its military uses is strictly construed and that which is not clearly embraced there remains with the lessor state, such as administrative jurisdiction of a city or municipality regarding the issuance of permits to construct a building thereonK ($eople vs. %o&o ) ISSUE3 whether the re1uirement of the city of the 5longapo for any peron or city to secure a building permit to construct a house or building is applicable to one who construed such building within the 6) 8aval ,eservation within the territorial jurisdiction of said city. HELD3 By the agreement, it should be noted, the $hils. 'ovJt merely consents that the 6) e ercise jurisdiction in certain cases. 4he consent was given purely as a matter of comity, courtesy or e pedience. 6nder the terms of treaty, 6) 'ovt has a prior or preferential but not e clusive jurisdiction over the offenses. Note: 4he constitution and national laws of a country apply to its citizens aboard, e cept as may be otherwise be provided by law and the countryJs treaty commitmentsK RESTRICTI(NS (N S(7EREIGN RIGHTS 56 TREAT6 STIPULATI(NS ,e1uirements of nation to enter into treaties, join the 68 and other .nternational organizations, E adhere to international conventions-

)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 generally accepted principle of international law, which is considered to be automatically 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 any action it ta%es in accordance with the present /harter, and shall refrain from 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 concerning pleading, practice and procedures. *. /oncurrence 5nly in the ;45 9greement and 8ot in other documents contained in the 7inal 9ct +. 0ntering into e tradition treaty )AI7ER 56 ADHERENCE T( C(N7ENTI(NS ;hile jurisdiction over the subject matter is defined by the /onstitution and by our laws, t!e countr#( b# treat#( ma# concede t!at jurisdiction over certain subject matter be de"ined t!erein( to t!e exclusion o" '!at our la' provides. 0g- convention for the unification of certain rules relating to international transportation 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 of whether or not the plaintiff proceeds on the theory of breach of contract or on tortK 79/4- )antos ***. 4he petitioner purchased from northwest orient airlines a roundtrip tic%ets in )an 7rancisco, 6)9 for his flight from )7, 6)9 to ?anila via 4o%yo and bac% to )7, 6)9.

A0:D- Ae could not file the complaint for damages against the airline in ?anila because it was not his place of destination but )7 and ?anila was only an agreed stopping place2 ?anila was not the airlineJs domicile merely because it has a branch office in ?anila. 7or domicile is the place where it is incorporated2 the principal place o" business, t!e place '!ere contract< tic+et 'as made, and t!e place o" destination.

Note3 4he 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.. Note3 the provision does not apply where there is bad "ait! or gross or 'ill"ul negligence on 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 another country .t may ta%e such measures as the circumstances re1uire, which may be by diplomacy or some stronger steps allowed by its laws. )uch duty arises from the fact that as citizens they owe allegiance to their country, the laws of their country apply to them, including the performance of duties re1uired of any other citizens 'ACT3 .f the foreign national is criminally prosecuted in another state for a crime he committed, )ec.&+ (/onvention on /onsular ,elations) entitles such national to communicate with his government thru its consul general, the host country is duty bound to inform him of such right, so that his country can e tend him protection and assistance. .f the host country violates such right and foreign national is convicted to the penalty of death... Remedy, the foreign state of which he is a national is to entitled ta%e up the case in the .nternational /ourt of =ustice, for the review and reconsideration of 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

.s the lin% that binds citizens or national to his country, the citizen owing allegiance to his country, and the latter thru its government being duty bound to protect its citizens and to e tend to him assistance when he faces problems while 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.Co A0:D- 4itle F.. does not apply e traterritorially to regulate the employment practices of 6) firms that employ 9merican citizens abroad. Note3 9pplication of laws of a country to its citizens abroad depends upon Congressional intent. .n the absence of such intent, either e press or implied, the laws 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 laws2 E:CEPT3 /onstitution- Bill of rights /ivil /ode9rt. 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 $hils /ourts are not justified to e tend the force and effect of foreign law to our jurisdiction. PR(5LE$ (' DUAL CITI9ENSHIP D69: /.4.@08)A.$ ?eans the status of a person who is a citizen of two or more countries at the same time. 9rises when, as a result of concurrent application of the dfferent laws of two or more states, a person is simultaneousl# considered a national by the said states

$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's 2us soli #. 4hose born in the $hils of 7ilipino mothers and 9lien fathers if by the laws of their 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 deemed renounce $hil. /itizenship Note3 ,9 N##* covers onl# natural-born Filipino citi&ens and not naturalized citizens. . 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 6) overseas employee against 6), pursuant to 7ederal tort claims act inapplicable to any claim !arising in a foreign country" which is leased by 6) is tenable HELD3 4he sovereignty in the territory leased by 6) from great Britain remains with 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 e traterritorial application of foreign law may be implied from 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 en"orcement of foreign judgment in the $hils) 4he enforcement of arbitration awards in the $hils also implies an implied waiver of e trajudicial 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

rights.

CHAPTER 7
ACT (' STATE D(CTRINE 44*<* De!ined3 ba"i" o! doctrine* 0very sovereign )tate is bound to respect the independence of every other sovereign )tate2 the courts of one 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 of by the sovereign powers as between themselves. (4hrough an act of diplomacy, Darwin ,amos personal notes) T/e policie" underl&in+ t/e doctrine are a. .nternational /omity b. ,espect for the sovereignty of foreign nations on their own territory c. 9voidance of embarrassment to the 0 ecutive Branch in its conduct of foreign affairs 4he act of state doctrine is e pounded and applied in 6nderhill v. Aernandez (1*M 6.). #*O) 'eorge 7. 6nderhill was a citizen of the 6nited )tates, who had constructed a waterwor%s system for the city of Bolivar, under a contract with the government, and was engaged in supplying the place with water, and he also carried on a machinery repair business. )ometime after the entry of 'en. Aernandez, 6nderhill applied to him, as the officer in command, for a passport to leave the city. Aernandez refused this re1uest made by others in behalf, until 5ctober 1M th, when a passport was given, and 6nderhill left the country. Ae brought an action to recover damages for the detention caused by reason of the refusal to grant him a passport, for his alleged confinement, and for certain alleged assaults and affronts by the soldiers of AernandezJs army. Ais complaint was dismissed on the ground that the acts of the defendant were the acts of the govJt of Fenezuela and such are not properly the subject of adjudication in the courts of another govJt.

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=*<* Doctrine i" pre"entl& a do%e"tic > court, doctrine 4he doctrine of act of state is no longer, at the present, considered as a rule of sovereign immunity, nor even a rule of international law, but a domestic doctrine, which protects the sovereignty of states by judicial deference to the public acts of a foreign state.

4he act of state doctrine is currently viewed as a !conse1uence of the =udicial Branch that its engagement in the tas% of passing on the validity of foreign acts of state may hinderJ the conduct of foreign affairs.

4he current view of the doctrine is that an action will be barred only if- (1) there is an official act of foreign sovereign performed within its own territory, which is deemed valid (#) the relief sought or defenses interposed in the action is filed based on such act of state, to declare invalid the foreign sovereigns official act.

the doctrine covers only state action, not the action between individuals. 4he doctrine may also be involved by agents of the foreign state from legal proceedings in respect to acts done of the foreign state from legal proceedings in respect to acts done of the foreign state within its territorial jurisdiction

reason of this doctrine is that foreign court has no jurisdiction has no authority to sit in judgment on the validity or invalidity of such act, upon which the

cause of action is founded, and that it must respect the sovereign rights of another country, with distasteful or disastrous conse1uences 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 conse1uences 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?*<* CHANGES IN THE D(CTRINE

4he act of the state doctrine as originally formulated has undergone changes through the years and e ceptions engrafted therein depending upon the facts presented. .n Gir%patric% /o. v. 0nvironmental 4ectonics /orp. in which the petitioner obtained a contract from 8igeria bribing officials, which was illegal in said country and by reason of which the losing bidder sued petitioner for damages in the 6nited )tates, the 6.). )upreme /ourt ruled that the doctrine did not apply because the resolution of the case did not depend upon the legality of

the acts of the state and no possible embarrassment of the country in foreign relations could arise.

4@*<* E:CEPTI(NS T( THE D(CTRINE

4here are e ceptions to the act of state doctrine. 4hey include1. 4reaty e ception #. /ommercial e ception &. )itus of property e ception (. ;hen the state department rules that the 9ct of )tate Doctrine was not re1uired.

if the treaty between or among the states provides for a standard for compensation or adjudication of the case, the doctrine gives way to the treaty stipulations.

.n one case, a provisional military power came into power and too% over a corporation, which sued for because there is treaty e ception, which provides that the government cannot ta%e property e cept for public purpose and payment of prompt and effective compensation. ;here an act of state refers to a case involving land situated in a foreign country, the law of the latter and not the act of the state governs. 4his is also the rule in conflict of laws cases.

4he commercial e ception from the doctrine of the act of state refers to the commercial activity of the foreign state, similar to non- immunity from suit arising from its commercial transactions. (as e emplified in the case of 9lfred Dunhill of :ondon, .nc. v. /uba- Distinguishing between the public and governmental acts of sovereign states on the one hand and their private and commercial acts on the other is not a novel approach. 4hat such line should be drawn in defining the outer limits of the acts of the concept and that

repudiations by the foreign sovereign of its commercial debts should not be considered to be the acts of state beyond legal 1uestion in our courts.

when the act of state, such as torture committed by officials of a foreign government, 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 e ercise of governmental power and authority in all forms, whether legislative, e ecutive or judicial. T/e Sc/ooner EAc/an+e v* $B'addon# 11 U*S* 11C D1@1EF is a 6nited )tates )upreme /ourt case concerning the 7ederal courtsD jurisdiction over a claim against a friendly foreign military vessel visiting an 9merican port. 4he court, interpreting customary international law, determined that there was no jurisdiction. 'act" 4he schooner 0 change, owned by =ohn ?D7addon and ;illiam 'reetham, sailed from Baltimore, ?aryland, on 5ctober #L, 1MON, for )an )ebastiQn, )pain. 5n December &O, 1M1O, the 0 change was seized by order of 8apoleon Bonaparte. 4he 0 change was then armed and commissioned as a 7rench warship under the name of Balaou. ;hen the vessel later doc%ed in $hiladelphia due to storm damage, ?D7addon and 'reetham filed an action in the district court to seize the vessel, claiming that it had been ta%en illegally. 4he district court found that it did not have jurisdiction over the dispute. 5n appeal, the circuit court reversed the decision of the district court, and ordered the district court to proceed to the merits of the case. 4he )upreme /ourt reversed the circuit courtDs decision, and affirmed the district courtDs dismissal of the action. )upreme /ourt decision /hief =ustice ?arshall delivered the opinion of the court. Ae noted that a by the definition of sovereignty, a state has absolute and e clusive jurisdiction within its own territory, but that it could also by implied or e press consent waive jurisdiction. ?oreover, ?arshall also noted that under international custom jurisdiction was presumed to be waived in a number of situations. 7or instance, a foreign sovereign and his diplomatic representatives were generally free from the jurisdiction of domestic courts when visiting. )imilarly, if a state granted permission for a foreign army free passage across its territory, it generally implied a waiver of jurisdiction over that army. 4his custom was firmly enough established and necessary for international relations that it would be wrongful for a country to violate it without prior notice.

?arshall further noted that while the right of free passage by an army need usually be e plicitly granted (li%ely because such passage inevitably involves physical damage of some sort), by maritime custom a nationDs ports were presumptively open to all friendly ships. ;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 friendly foreign warship could enter a nationDs port with its implied consent. ?arshall further distinguished the difference between private merchant ships and citizens (who are subject to a nationDs jurisdiction when they enter its ports with the nationDs implied consent), and military ships. 8amely, private ships do not carry with them the sovereign status of military ships, with the privileges that accompany it. 7rom this, ?arshall arrived at the conclusion that, by customary international law, a friendly warship that enters a nationDs open port are e empted from that nationDs jurisdiction. 9pplying this analysis to the facts at hand, ?arshall found that the courts did not have jurisdiction over the case. Si+ni!icance 4he decision is regarded as an the >first definitive statement of the doctrine of foreign state immunity> 9dditionally, the unwillingness of the /ourt to find jurisdiction without action by the political branches of government, along with some e plicit dicta, led to a tradition of great deference by the courts to official and individual determinations of immunity by the )tate Department. 4his system was only revised in favor of judicial interpretations with the passage of the 7oreign )overeign .mmunities 9ct in 1NL+. PRINCIPLES (' 8URISDICTI(N 1. 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 Guri"diction# +enerall&* Based on the place of their commission in the territory of a state, which is accepted universally by all states. Tran"national cri%e"* /ommitted across national borders2 continuing crime which elements perfected in one state while it is consummated in another state2 the state who felt damage and injured may ac1uire jurisdiction to hear the case. .n the $hilippines, as provided for by the /onstitution, our courts may only ac1uire jurisdiction if parties are present (especially the accused)2 produce by summons, warrant of arrest (arrested)2 voluntarily surrendered, among others.

)aiver o! cri%inal Guri"diction* ?aybe waived in favor of another state (through treaties), 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 'eneral set aside the decision rendered by 6) /ommission (case of estafa and falsification) and diverted 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 over the subject matter. 9cierto is a civilian contractor. 4he /ourt of 7irst .nstance heard the case and convicted 9cierto. 4he waiver of the $hilippine 'overnment of its jurisdiction was only for the purpose of comity. .t doesnJt follow that the $hilippine 'overnment abdicated its absolute jurisdiction to hear another case not within the scope of the comity it referred to. 7ESSEL IS E:TENSI(N (' S(7EREIGN STATE (' ITS REGISTR6 .n the case of "saali vs &ureau of #ustoms , 9saali raised the issue of jurisdiction when the /ustoms seized their ship loading contrabands in the high seas. )/ ruled that such ship is under the jurisdiction of the $hilippines even if it still sailing at the high seas due to the flag it flying ($hilippine 7lag). .n #hurch vs 'ubbard, 6) /hief =ustice ?arshall ruled that a state has the right to protect itself and its revenue, a right not limited in its territory but e tending to the high seas. .nternal discipline pertains to state of vesselJs registry. 7or the vessel whose registry is here in the $hilippines, our /onstitution has already clear rule on that. But how about crimes committed aboard a foreign vessel which sailing or anchored within the $hilippine territoryR 4ests- 7irst, if the one committing the crime or victim of the crime is a 7ilipino, our courts may ac1uire jurisdiction. )econd, if it affects the public peace or disturb the tran1uility, if not, our courts may refrain 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"H 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 case concerns a criminal trial which was the result of the # 9ugust 1N#+ 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). 9s a result of the accident, eight 4ur%ish nationals aboard the Boz-Gourt drowned when the vessel was torn apart by the :otus.

5n L )eptember 1N#L the case was presented before the $ermanent /ourt of .nternational =ustice, the judicial branch of the :eague of 8ations, the predecessor of the 6nited 8ations. 4he issue at sta%e was 4ur%eyDs jurisdiction to try ?onsieur Demons, the 7rench officer on watch duty at the time of the collision. )ince the collision occurred on the high seas, 7rance claimed that the state whose flag the vessel flew had e clusive jurisdiction over the matter. 7rance proffered case law, through which it attempted 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 thus easily distinguishable. 4he /ourt, therefore, rejected 7ranceDs position stating that there was no rule to that effect in international law. T/e Lotu" principle or Lotu" approac/ , usually considered a foundation of international law, says that sovereign states may act in any way they wish so long as they do not contravene an e plicit prohibition. 4he application of this principle 3 an outgrowth of the :otus case 3 to future incidents raising the issue of jurisdiction over people on the high seas was changed by 9rticle 11 of the 1N*M Aigh )eas /onvention. 4he convention, held in 'eneva, laid emphasis on the fact that only the flag state or the state of which the alleged offender was a national had jurisdiction over sailors regarding incidents occurring in high seas. 4he principle has also been used in arguments against the reasons of the 6nited )tates of 9merica, for opposing the e istence of the .nternational /riminal /ourt (.//). 8uri"diction over cri%e" on board aircra!t or air"/ip )ame with sea ships. 4here shall be a concurring jurisdiction of the states following the si (+) principles cited earlier in this /hapter.

Univer"al Guri"diction* 9 forum state may hear or ta%e cognizance of a case concerning a person committing a crime violating international, even if such forum state has 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 of universal jurisdiction. Ae claims that while .srael did invo%e a statute specific to 8azi crimes against =ews, its )upreme /ourt claimed universal jurisdiction over crimes against humanity.

0ichmannDs defense lawyer argued that .srael did not have jurisdiction on account of .srael not having come into e istence until 1N(M. 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 also argued that .srael agents obtained 0ichmann illegally, violating international law when they seized and %idnapped 0ichmann, and brought him to .srael to stand trial. 4he 9rgentinian government settled the dispute diplomatically with .srael. .srael argued universal jurisdiction based on the >universal character of the crimes in 1uestion> and that the crimes committed by 0ichmann weren not only in violation of .srael law, but were considered >grave offenses against the law of nations itself. .tDs also asserted that the crime of genocide is covered under international customary law. 9s a supplemental form of jurisdiction, a further argument is made on the basis of protective jurisdiction. $rotective jurisdiction is a principle that, >...provides that states may e ercise jurisdiction over aliens who have committed an act abroad which is deemed prejudicial to the security of the particular state concerned.> 9nother e ample 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 the precedent for 6nited )tates federal courts to punish non-9merican citizens for tortious acts committed outside the 6nited )tates that were in violation of public international law (the law of nations) or any treaties to which the 6nited )tates is a party. .t thus e tends the jurisdiction of 6nited )tates courts to tortious acts committed around the world. 4he case was decided by a panel of judges from the 6nited )tates /ourt of 9ppeals for the )econd /ircuit consisting of =udges 7einberg, Gaufman, and Gearse. 4he 7ilQrtiga family contended that on ?arch #N, 1NL+, their seventeen-year-old son =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 the .nspector 'eneral of $olice in 9sunciUn, the capital of $araguay. :ater that same day, police brought Dolly 7ilQrtiga (=oelitoDs sister) to see the body, which evidenced mar%s of severe torture. 4he 7ilQrtigas claimed that =oelito was tortured in retaliation for the political activities and beliefs of his father =oel 7ilQrtiga. 7ilQrtiga brought murder charges against $eSa and the police in $araguay, but the case went nowhere. )ubse1uently, the 7ilQrtigasD 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 6nited )tates. Dolly applied for political asylum, while $eSa stayed under a visitorDs visa.

Dolly learned of $eSaDs presence in the 6nited )tates and reported it to the .mmigration and 8aturalization )ervice, who arrested and deported $eSa for staying well past the e piration 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 =oelitoDs wrongful death by torture, as%ing for damages in the amount of V1O million. 9fter an initial district court dismissal citing precedents that limited the function of international law to relations between states, on appeal, the circuit ruled that freedom from torture was guaranteed under customary international law.W1X >4he torturer has become 3 li%e the pirate and slave trader before him 3 hostis humani generis, an enemy of all man%ind>, wrote the court. 4he appellants argued that $eSaDs 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 customary international law. $etitioner claimed the 6.). courts had jurisdiction to hear the case under the 9lien 4ort )tatute, which grants district courts original jurisdiction to hear tort claims brought by an alien that have been >committed in violation of the law of nations or a treaty of the 6nited )tates>. 4his case interpreted that statute to grant jurisdiction over claims for torts committed both within the 6nited )tates and abroad. 6.). courts eventually ruled in favor of the 7ilQrtigas, awarding them roughly V1O.( million. 4orture was clearly a violation of the law of nations, and the 6nited )tates did have jurisdiction over the case since the claim was lodged when both parties were inside the 6nited )tates. 9dditionally, $eSa had sought to dismiss the case based on forum non conveniens, arguing that $araguay was a more convenient location for the trial, but he did not succeed.

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