What Is A State?

NOTES ON PUBLIC INTERNATIONAL LAW
State
Art. 1, 1933 Montevideo Convention on the Rights and Duties of States.
The state as a person of international law should possess the following qualifications: a ) a permanent
population; b ) a defined territory; c ) government; and d) capacity to enter into relations with the other
states.
Defined territory.
-
The control of territory is the essence of a state. This is the basis of the central notion of TERRITORIAL
SOVEREIGNTY.
Territorial Sovereignty: established the exclusive competence to take legal and factual measures
within that territory and prohibiting foreign governments from exercising authority in the same area
without consent.
T.S. (Max Huber): involves the exclusive right to display the activities of a State. This right has a corollary
duty: the obligation to protect within the territory the rights of other States, in particular their right to
integrity and inviolability in peace and war, together with the rights which each State may claim for its
nationals in foreign country. Without manifesting its territorial sovereignty in a manner corresponding
to circumstances, the State cannot fulfill this duty. Territorial sovereignty cannot limit itself to its negative
side, i.e. to excluding the activities of other States; for it serves to divide between the nations the space
upon which human activities are employed, in order to assure them at all points the minimum of
protection of which international law is the guardian.
Delimitation of state boundaries is of crucial importance. But absolute certainty about a states frontiers
is not required; many states have long-standing frontier disputes with their neighbors. What matters
is that a state consistently controls a sufficiently identifiable core of territory.
Island of Palmas Case

The island of Palmas is a single, isolated island found between Mindanao and Greenwich. Both US and
Netherlands claim territorial sovereignty over the island. US bases its title by cession from the Spaniards,
claiming that Spain acquired title by discovery in the 1500s. The Netherlands claims that the Dutch East Indies
possessed and exercised rights of sovereignty through conventions and agreements with the natives (Treaty of
Suzerainty).
Territorial sovereignty, defined. It appears to follow that sovereignty in relation to a portion of the
surface of the globe is a legal condition necessary for the inclusion of such portion in the territory of a particular
State.
Sovereignty in relation to territory is called territorial sovereignty. Sovereignty in the relations
between States signifies independence. Independence, in regard to a portion of the globe, is the right to exercise
therein, to the exclusion of any other State, the functions of a State. The development of the national
organization of States during the last few centuries and, corollarily, the development of international law, have
established this principle of the exclusive competence of the State in regard to its own territory in such a way
as to make it the point of departure in settling most questions that concern international relations. Territorial
sovereignty belongs always to one, or in exceptional circumstances to several, States, to the exclusion of all
others. The fact that the functions of a State can be performed by any State within a given zone is, on the other
hand, precisely the characteristic feature of the legal situation pertaining in those parts of the globe which, like
the high seas or lands without a master, cannot or do not yet form the territory of a State. Territorial sovereignty
[TS] is, in general, a situation recognized and delimited in space, either by so-called natural frontiers as
recognized by international law or by outward signs of delimitation that are undisputed, or else by legal
engagements entered into between interested neighbors, e.g. frontier conventions, or by acts of recognition of
States within fixed boundaries. Disputes with regards territorial sovereignty, how resolved. If a dispute arises
as to the sovereignty over a portion of territory, it is customary to examine which of the claiming States
possesses a titlecession, conquest, occupation, etc.superior to that advanced by the other State. However,
if the contestation is based on the fact that the other Party has actually displayed sovereignty, it cannt be
sufficient to establish the title by which TS was validly acquired at a certain moment; it must also be shown that
the TS has continued to exist and did exist at the moment which, for the decision of the dispute, must be
considered critical. This demonstration consists in the actual display of State activities, such as belongs only to
the territorial sovereign. Acquisition of title. Titles of acquisition of TS in present-day international law are
Prepared by: ABRIL, DENNIS ARAN T.
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either based on an act of effective apprehension, e.g. occupation or conquest; or, like cession, presuppose that
the ceding and the cessionary Powers or at least one of them have the faculty of effectively disposing of the
ceded territory. In the same way, natural accretion can only be conceived of as an accretion to a portion of
territory where there exists an actual sovereignty capable of extending to a spot which falls within its sphere
of activity. It seems therefore natural that an element which is essential for the constitution of sovereignty
should not be lacking in its continuation. So true is this that practice, as well as doctrine, recognizesthough
under different legal formulae and with certain differences as to the conditions requiredthat the continuous
and peaceful display of TS (peaceful in relation to other States) is as good as a title. The growing insistence with
which international law, ever since the middle of the 18th century, has demanded that the occupation shall be
effective would be inconceivable, if effectiveness were required only for the act of acquisition and not equally
for the maintenance of the right. If the effectiveness has above all been insisted on in regard to occupation, this
is because the question rarely arises in connection with territories in which there is already an established
order of things. Just as before the rise of international law, boundaries of lands were necessarily determined
by the fact that the power of a State was exercised within them, so too, under the reign of international law, the
fact of peaceful and continuous display is still one of the most important considerations in establishing
boundaries between States. Correlative duty with regards territorial sovereignty. Territorial Sovereignty, as
has already been said, involves the exclusive right to display the activities of a State. This right has as corollary
a duty: the obligation to protect within the territory the rights of other States, in particular their right to
integrity and inviolability in peace and in war, together with the rights which each State may claim for its
nationals in foreign territory. Without manifesting its territorial sovereignty in a manner corresponding to
circumstances, the State cannot fulfill this duty. Continuous and peaceful display of sovereignty. Although
municipal law, with its complete judicial system, is able to recognize abstract rights of property as existing
apart from any material display of them, it has nonetheless limited their effect by the principles of prescription
and the protection of possession. International law, the structure of which is not based on any super-State
organization, cannot be presumed to reduce a right such as TS, with which almost all international relations
are bound up, to the category of an abstract right, without concrete manifestations. The principle that
continuous and peaceful display of the functions of State within a given region is a constituent element of TS is
not only based on the conditions of the formation of independent States and their boundaries, as well as on an
international jurisprudence and doctrine widely accepted. Manifestations of TS assume different forms,
according to time and place. Although continuous in principle, sovereignty cannot be exercised in fact at every
moment on every point of a territory. The intermittence and discontinuity compatible with the maintenance of
the right necessarily differ according as inhabited or uninhabited regions are involved, or regions enclosed
within territories in which sovereignty is incontestably displayed or again regions accessible from, e.g., the high
seas. It is true that neighboring States may by convention fix limits to their own sovereignty, even in regions
such as the interior of scarcely explored continents where such sovereignty is scarcely manifested, and in this
way may prevent the other from any penetration of its territory, e.g. the delimitation of Hinterland. If, however,
no conventional line of sufficient topographical precision exists, or if there are gaps in the frontiers otherwise
established, or if a conventional line leaves room for doubt, or if, as e.g. in the case of an island situated in the
high seas, the question arises whether a title is valid erga omnes, the actual continuous and peaceful display of
state functions is, in case of dispute, the sound and natural criterium [sic] of TS. Intertemporal law. As regards
the question which of different legal systems prevailing at successive periods is to be applied (the so-called
intertemporal law), a distinction must be made between the creation of rights and the existence of rights. The
same principle which subjects the act creative of a right to the law in force at the time the right arises, demands
that the existence of the right, i.e. its continued manifestation, shall follow the conditions required by the
evolution of law. Discovery is not enough, only an inchoate title. If, on the other hand, the view is adopted that
discovery does not create a definitive title of sovereignty but only an inchoate title, such a title exists, it is
true, without external manifestation. However, according to the view that has prevailed since the 19th century,
an inchoate title of discovery must be completed within a reasonable period by effective occupation. An
inchoate title could not prevail over the continuous and peaceful display of authority by another State; for such
display may prevail even over a prior, definitive title put forward by another State. Principle of contiguity.
Although States have in certain circumstances maintained that islands relatively close to their shores belonged
to them in virtue of their geographical situation, it is impossible to show the existence of a rule of positive
international law to the effect that islands situated outside territorial waters should belong to a State from the
mere fact that its territory forms the terra firma (nearest continent or island of considerable size). Not only
would it seem that there are no precedents sufficiently frequent and sufficiently precise in their bearing to
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establish such a rule, but the alleged principle itself is by its very nature so uncertain and contested that even
Govts of the same State have on different occasions maintained contradictory opinions as to its soundness.
Dutch East Indies exercise of sovereignty. If the claim to sovereignty is based on the continuous and peaceful
display of State authority, the fact of such display must be shown precisely in relation to the disputed territory.
It is not necessary that there should be a special administration established in this territory; but it cannot suffice
for the territory to be attached to another by a legal relation not recognized in international law as valid against
a State contesting this claim to sovereignty; what is essential in such a case is the continuous and peaceful
display of actual power in the contested region. The acts of the Dutch East Indies are attributable to the state
itself. The acts of the East India Company, in view of occupying or colonizing the regions at issue must, in
international law, be entirely assimilated to acts of the Netherlands State itself. From the end of the 16th till the
19th century, companies formed by individuals and engaged in economic pursuits (Chartered Companies) were
invested by the State to whom they were subject with public powers for the acquisition and administration of
colonies. It is not necessary that the display of sovereignty should go back to a very far distant period. It may
suffice that such display existed in 1898, and had already existed as continuous and peaceful before that date
long enough to enable any Power who might have considered herself as possessing sovereignty over the island,
or having a claim to sovereignty, to have, according to local conditions, a reasonable possibility for ascertaining
the existence of a state of things contrary to her real or alleged rights. The Netherlands has proved the exercise
of some acts of State authority and the existence of external signs of authority (flags, coats of arms). These facts
at least constitute a beginning of establishment of sovereignty by continuous and peaceful display of state
authority, or a commencement of occupation of an island not yet forming a part of the territory of a state; and
such a state of things would create in favour of the Netherlands an inchoate title for completing the conditions
of sovereignty. Such inchoate title, based on display of state authority, would prevail over an inchoate title
derived from discovery, especially if this latter title has been left for a very long time without completion by
occupation; and it would equally prevail over any claim which, in equity, might be deduced from the notion of
contiguity. *Sir: US: Discovery Inchoate title Netherlands: Treaty Huber: Discovery is not enough,
international law prescribed that not only discovery but also effective occupation Agreement of the Dutch with
the natives allowed the Dutch to exercise sovereignty over the islands through: taxation provision of defense
Spain never protested the exercise of territorial rights by Netherlands Critical Date (definition) regardless of
what parties will do (subsequent events, etc.) the court will freeze the period of the controversy to the date
when the controversy became ripe for adjudication. And all the events after such date will be ignored. Critical
date in this case treaty of paris (1898) United States could have won the case if they had shown that at the
time there was no separation of church and state. By showing that there were priests, civil registrar, collection
of tribunes, etc., they would have shown Spanish occupation of the islands. Principle of Continguity
presumption of sovereignty in favor of a particular state wherein islands relatively close to the shores of a state
belonged to them by virtue of their geographical proximity to each other. In this case, the tribunal disregarded
this because: no precedent, so uncertain and uncontested, contradictory opinions, lacking in precision, and
arbitrary results * Reviewer notes: The Critical Period is a juridical technique in the use or exclusion of evidence
consisting of self- serving acts of parties at a stage when it was evident that a dispute existed. The court held
that there was indeed cession through the treaty of Paris. However, Spain could not transfer to US more rights
than she herself possessed; and Spain did not have the island based on discovery. The island was only reported
to have been seen but there was no sign of possession or administration by Spain or any mention of a contract
with the natives. Although under international law in the 16th century, seeing without occupation amounted
to discovery. However, IL underwent modifications. Based on the INTERTEMPORAL LAW, the act which creates
a right is subjected to the law in force at the time the right arises. But the existence if a right must follow the
conditions required by the evolution of law the 19th century IL which requires effective occupation to
constitute territorial sovereignty.
Population.
- This criterion is connected with that of territory and constitutes the physical basis for the existence of
a state.
The fact that large numbers of nomads are moving in and out of the country, as in the case of Somalia, is
in itself NO BAR TO STATEHOOD, as long as there is a SIGNIFICANT number of PERMANENT
INHABITANTS.
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Mini-states: admitted as equal members to the UN, such as the The Vatican City. In spite of its small
population, the Vatican (The Holy See) entertains diplomatic relations with many other states, has
concluded international agreements and joined international organizations.
Permanent Population: determined by internal law on nationality which IL leaves at the discretion of
states, except for a number of limited circumstances.
A state exercises territorial jurisdiction over its inhabitants and personal jurisdiction over its nationals
when abroad. The essential aspect, therefore, is the common national legal system which governs
individuals and diverse groups in a state.
Effective control by a government

- Two aspects:
o Internal: the existence of the government implies the capacity to establish and maintain a legal
order in the sense of constitutional autonomy.
o External: ability to act autonomously on the international level without being legally
dependent on other states within the international legal order.
- The mere existence of a government does not suffice if it does not have effective control.
- This requirement is NOT always strictly applied: a state does not cease to exist when it is temporarily
deprived of an effective government as a result of civil war or similar upheavals. (Doctrine of State
Continuity)
- When strictly applied? When part of the population of a state tries to break away to form a new state
(Secession).
o There is no rule of IL which forbids secession from an existing state; nor is there any rule
which forbids the mother state from crushing the secessionary movement, if it can.
o But, so long as the mother state is still struggling to crush the secessionary movement, it
cannot be said that the secessionary authorities are strong enough to maintain control over
their territory with any certainty of permanence.
o Intervention by third states in support of the insurgents is prohibited.
- Even when a states territory is occupied by the enemy in wartime, it continues to exist, provided that
its allies continue to struggle against the enemy.
- The circumstance that the temporary ineffectiveness of a govt does not immediately affect the legal
existence of the state not only makes it clear that it is necessary to distinguish between states and
governments, but also reflects the interest of the intl system in stability and to avoid premature change
of the status quo, since the government may be able to restore its effectiveness.
- Effective government and Independence: government only exists if it is free from direct orders from
and control by other governments.
- Independence (external appearances): as long as a state appears to perform the functions which
independent states normally form, IL treats the state as independent and does not investigate the
possibility that the state may be acting under the direction of another state.
- Why not political realities (internal appearances)? It would be impossible to make a clear distinction
between dependent and independent states, because all states, even the strongest, are subject to
varying degrees of pressure and influence from other states. THE RULE IS CRUDE AND ONLY
DEMANDS THAT A GOVERNMENT MUST HAVE ESTABLISHED ITSELF IN FACT.
- When does a state become dependent? Only when it enters into a treaty or some other legal commitment
whereby it agrees to act under the direction of another state or to assign the management of most of
its intl relations to another state.
- The choice of a type of government belongs to the domestic affairs of states and this freedom is an
essential pre-condition for the peaceful co-existence in a heterogeneous international society.
- IL does not generally inquire into the question whether the population recognizes the legitimacy of the
government in power. Nor is it concerned with the actual form of government, democratic on one sense
or another or not so.
o Certain qualifications in this respect may arise from the recognition of the principle of selfdetermination of peoples, but this is NOT PERTINENT TO QUESTION OF WHETHER OR NOT
A STATE EXISTS.
Capacity to enter into relations with other states.
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Art. 3, Montevideo Convention

The political existence of the state is independent of recognition by the other states. Even before
recognition the state has the right to defend its integrity and independence, to provide for its conservation
and prosperity, and consequently to organize itself as it sees fit, to legislate upon its interests, administer
its services, and to define the jurisdiction and competence of its courts.
-
An entity is not a state unless it has competence, within its own constitutional system, to conduct
international relations with other states, as well as the political, technical, and financial capabilities to
do so.
Art. 3, MCORDS: implies that the existence of a state does not primarily rest on its relations to other
states and its own foreign policy capacity.
o Dependent states: some have only a limited capacity to enter into intl relations and are usually
mentioned as a special category
o Colonies in the process of becoming independent often had a limited capacity to enter into
intl relations.
o Formal grant of independence: usually preceded by a period of training, during which the
colonial power delegated certain intl functions to the colony to give the local leaders
experience of intl relations.
o Protectorate: it retains control over most of its internal affairs, but agrees to let the protecting
state exercise most of its intl functions as its agent.
o Trusteeships and associated territories that were placed under the control of UN after WWII
were also limited in their capacity to conduct foreign relations.
What is an ASSOCIATED STATE?
o A minor partner in a formal, free relationship between a political territory with a degree of
statehood and a (usually larger) nation, for which no other specific term, such as protectorate,
is adopted.
o Informally it can be considered more widely: from a post-colonial form of amical protection,
or protectorate, to confederation of unequal members when the lesser partner(s) delegates to
the major one (often the former colonial power) some authority normally exclusively retained
by a self-governing state, usually in such fields as defense and foreign relations, while often
enjoying favorable economic terms such as market access.
o A federacy, a type of government where at least one of the subunits in an otherwise unitary
state enjoys autonomy like a subunit within a federation, is similar to an associated state, with
such subunit(s) having considerable independence in internal issues, except foreign affairs
and defense. Yet in terms of international law, it is a completely different situation because
the subunits are not independent international entities and have no potential right to
independence.
o TRIVIA: The Commonwealth of the Philippines was the first associated state of the United
States. From 1935-1946, the foreign affairs and military of the commonwealth were
handled by the United States although it was otherwise constitutionally separate and
independent in domestic matters.
o Other situations exist where one state has power over another political unit. A dependent
territory is an example of this, where an area has its own political system and often internal
self-government, but does not have overall sovereignty. In a loose form of association, some
sovereign states cede some power to other states, often in terms of foreign affairs and/or
defense.
Example: Andorra to Spain, Monaco to France, Vatican to Italy.
Self-determination, Secession and Recognition

- Not generally regarded as constitutive elements for a state and it is agreed that what matters in essence
is territorial effectiveness.
- Recognition will not make any difference, but in borderline cases recognition can have an important
effect in:
o Recognizing small states (e.g. Monaco and Vatican).
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Why? Because it might be doubted whether the territory and population of such
states were large enough to make them states in the eyes of IL.
Secessionary struggles
Outright victory for one side or the other will create a situation which IL cannot
ignore, and no amount of recognition or non-recognition will alter the legal position
BUT where the mother states efforts to reassert control are rather feeble, recognition
or non-recognition by other states may have a decisive effect on the legal position.
Reference re Secession of Quebec

Pursuant to s. 53 of the Supreme Court Act , the Governor in Council referred the following questions to this
Court:
1. Under the Constitution of Canada, can the National Assembly, legislature or government of Quebec effect
the secession of Quebec from Canada unilaterally?
2. Does international law give the National Assembly, legislature or government of Quebec the right to effect
the secession of Quebec from Canada unilaterally? In this regard, is there a right to self-determination under
international law that would give the National Assembly, legislature or government of Quebec the right to effect
the secession of Quebec from Canada unilaterally?
3. In the event of a conflict between domestic and international law on the right of the National Assembly,
legislature or government of Quebec to effect the secession of Quebec from Canada unilaterally, which would
take precedence in Canada?
Issues regarding the Court's reference jurisdiction were raised by the amicus curiae. He argued that s. 53 of
the Supreme Court Act was unconstitutional; that, even if the Court's reference jurisdiction was constitutionally
valid, the questions submitted were outside the scope of s. 53 ; and, finally, that these questions were not
justiciable.
Held: Section 53 of the Supreme Court Act is constitutional and the Court should answer the
reference questions.
(1) Supreme Court's Reference Jurisdiction

Section 101 of the Constitution Act, 1867 gives Parliament the authority to grant this Court the
reference jurisdiction provided for in s. 53 of the Supreme Court Act . The words "general court of appeal"
in s. 101 denote the status of the Court within the national court structure and should not be taken as a
restrictive definition of the Court's functions. While, in most instances, this Court acts as the exclusive ultimate
appellate court in the country, an appellate court can receive, on an exceptional basis, original jurisdiction not
incompatible with its appellate jurisdiction. Even if there were any conflict between this Court's reference
jurisdiction and the original jurisdiction of the provincial superior courts, any such conflict must be resolved in
favour of Parliament's exercise of its plenary power to establish a "general court of appeal". A "general court
of appeal" may also properly undertake other legal functions, such as the rendering of advisory opinions. There
is no constitutional bar to this Court's receipt of jurisdiction to undertake an advisory role.
The reference questions are within the scope of s. 53 of the Supreme Court Act . Question 1 is
directed, at least in part, to the interpretation of the Constitution Acts, which are referred to in s. 53(1) (a). Both
Questions 1 and 2 fall within s. 53(1) (d), since they relate to the powers of the legislature or government of a
Canadian province. Finally, all three questions are "important questions of law or fact concerning any matter"
and thus come within s. 53(2) . In answering Question 2, the Court is not exceeding its jurisdiction by
purporting to act as an international tribunal. The Court is providing an advisory opinion to the Governor in
Council in its capacity as a national court on legal questions touching and concerning the future of the Canadian
federation. Further, Question 2 is not beyond the competence of this Court, as a domestic court, because it
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requires the Court to look at international law rather than domestic law. More importantly, Question 2 does
not ask an abstract question of "pure" international law but seeks to determine the legal rights and obligations
of the legislature or government of Quebec, institutions that exist as part of the Canadian legal
order. International law must be addressed since it has been invoked as a consideration in the context of this
Reference.
The reference questions are justiciable and should be answered. They do not ask the Court to
usurp any democratic decision that the people of Quebec may be called upon to make. The questions, as
interpreted by the Court, are strictly limited to aspects of the legal framework in which that democratic decision
is to be taken. Since the reference questions may clearly be interpreted as directed to legal issues, the Court is
in a position to answer them. The Court cannot exercise its discretion to refuse to answer the questions on a
pragmatic basis. The questions raise issues of fundamental public importance and they are not too imprecise
or ambiguous to permit a proper legal answer. Nor has the Court been provided with insufficient information
regarding the present context in which the questions arise. Finally, the Court may deal on a reference with
issues that might otherwise be considered not yet "ripe" for decision.
(2) Question 1
The Constitution is more than a written text. It embraces the entire global system of rules and
principles which govern the exercise of constitutional authority. A superficial reading of selected provisions of
the written constitutional enactment, without more, may be misleading. It is necessary to make a more
profound investigation of the underlying principles animating the whole of the Constitution, including the
principles of federalism, democracy, constitutionalism and the rule of law, and respect for minorities. Those
principles must inform our overall appreciation of the constitutional rights and obligations that would come
into play in the event that a clear majority of Quebecers votes on a clear question in favour of secession.
The Court in this Reference is required to consider whether Quebec has a right to unilateral
secession. Arguments in support of the existence of such a right were primarily based on the principle of
democracy. Democracy, however, means more than simple majority rule. Constitutional jurisprudence shows
that democracy exists in the larger context of other constitutional values. Since Confederation, the people of
the provinces and territories have created close ties of interdependence (economic, social, political and
cultural) based on shared values that include federalism, democracy, constitutionalism and the rule of law, and
respect for minorities. A democratic decision of Quebecers in favour of secession would put those relationships
at risk. The Constitution vouchsafes order and stability, and accordingly secession of a province "under the
Constitution" could not be achieved unilaterally, that is, without principled negotiation with other participants
in Confederation within the existing constitutional framework.
Our democratic institutions necessarily accommodate a continuous process of discussion and
evolution, which is reflected in the constitutional right of each participant in the federation to initiate
constitutional change. This right implies a reciprocal duty on the other participants to engage in discussions to
address any legitimate initiative to change the constitutional order. A clear majority vote in Quebec on a clear
question in favour of secession would confer democratic legitimacy on the secession initiative which all of the
other participants in Confederation would have to recognize.
Quebec could not, despite a clear referendum result, purport to invoke a right of selfdetermination to dictate the terms of a proposed secession to the other parties to the federation. The
democratic vote, by however strong a majority, would have no legal effect on its own and could not push aside
the principles of federalism and the rule of law, the rights of individuals and minorities, or the operation of
democracy in the other provinces or in Canada as a whole. Democratic rights under the Constitution cannot be
divorced from constitutional obligations. Nor, however, can the reverse proposition be accepted: the continued
existence and operation of the Canadian constitutional order could not be indifferent to a clear expression of a
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clear majority of Quebecers that they no longer wish to remain in Canada. The other provinces and the federal
government would have no basis to deny the right of the government of Quebec to pursue secession should a
clear majority of the people of Quebec choose that goal, so long as in doing so, Quebec respects the rights of
others. The negotiations that followed such a vote would address the potential act of secession as well as its
possible terms should in fact secession proceed. There would be no conclusions predetermined by law on any
issue. Negotiations would need to address the interests of the other provinces, the federal government and
Quebec and indeed the rights of all Canadians both within and outside Quebec, and specifically the rights of
minorities.
The negotiation process would require the reconciliation of various rights and obligations by
negotiation between two legitimate majorities, namely, the majority of the population of Quebec, and that of
Canada as a whole. A political majority at either level that does not act in accordance with the underlying
constitutional principles puts at risk the legitimacy of its exercise of its rights, and the ultimate acceptance of
the result by the international community.
The task of the Court has been to clarify the legal framework within which political decisions are
to be taken "under the Constitution" and not to usurp the prerogatives of the political forces that operate within
that framework.
The obligations identified by the Court are binding obligations under the
Constitution. However, it will be for the political actors to determine what constitutes "a clear majority on a
clear question" in the circumstances under which a future referendum vote may be taken. Equally, in the event
of demonstrated majority support for Quebec secession, the content and process of the negotiations will be for
the political actors to settle. The reconciliation of the various legitimate constitutional interests is necessarily
committed to the political rather than the judicial realm precisely because that reconciliation can only be
achieved through the give and take of political negotiations. To the extent issues addressed in the course of
negotiation are political, the courts, appreciating their proper role in the constitutional scheme, would have no
supervisory role.
(3) Question 2
The Court was also required to consider whether a right to unilateral secession exists under
international law. Some supporting an affirmative answer did so on the basis of the recognized right to selfdetermination that belongs to all "peoples". Although much of the Quebec population certainly shares many of
the characteristics of a people, it is not necessary to decide the "people" issue because, whatever may be the
correct determination of this issue in the context of Quebec, a right to secession only arises under the principle
of self-determination of people at international law where "a people" is governed as part of a colonial empire;
where "a people" is subject to alien subjugation, domination or exploitation; and possibly where "a people" is
denied any meaningful exercise of its right to self-determination within the state of which it forms a part. In
other circumstances, peoples are expected to achieve self-determination within the framework of their existing
state. A state whose government represents the whole of the people or peoples resident within its territory,
on a basis of equality and without discrimination, and respects the principles of self-determination in its
internal arrangements, is entitled to maintain its territorial integrity under international law and to have that
territorial integrity recognized by other states. Quebec does not meet the threshold of a colonial people or an
oppressed people, nor can it be suggested that Quebecers have been denied meaningful access to government
to pursue their political, economic, cultural and social development. In the circumstances, the "National
Assembly, the legislature or the government of Quebec" do not enjoy a right at international law to effect the
secession of Quebec from Canada unilaterally.
Although there is no right, under the Constitution or at international law, to unilateral secession,
the possibility of an unconstitutional declaration of secession leading to a de facto secession is not ruled
out. The ultimate success of such a secession would be dependent on recognition by the international
community, which is likely to consider the legality and legitimacy of secession having regard to, amongst other
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facts, the conduct of Quebec and Canada, in determining whether to grant or withhold recognition. Even if
granted, such recognition would not, however, provide any retroactive justification for the act of secession,
either under the Constitution of Canada or at international law.
ICJ Advisory Opinion on the Unilateral Declaration of Independence in respect of Kosovo

On 22 July 2010, the International Court of Justice (ICJ) in The Hague has given its Advisory Opinion on the
question of the "Accordance with international law of the unilateral declaration of independence in
respect of Kosovo". Kosovo unilaterally declared its independence from Serbia on 17 February 2008. Since
then, its statehood has been recognized by 69 countries, including the United States and most European Union
nations. Serbia and Russia are among the majority of States rejecting its independence. Serbia sought
international validation and support for its stance that the 2008 Kosovo declaration of independence is "illegal"
at the General Assembly. On 8 October 2008, the General Assembly of the United Nations adopted resolution
63/3 in which, referring to Article 65 of the Statute of the Court, it requested the Court to render an advisory
opinion on the following question: Is the unilateral declaration of independence by the Provisional Institutions
of Self-Government of Kosovo in accordance with international law?
The advisory proceedings, which began in December, included arguments from 29 additional countries,
including the five member-states of the UN Security Council, debating whether Kosovo's unilateral declaration
of independence violated international law.
After unanimously finding that the Court has jurisdiction to give the advisory opinion requested by the General
Assembly of the United Nations, the judges decided ( nine votes to five), to comply with that request starting
with the definition of the scope and meaning of the question.
The court adopted a narrow approach restricting itself to the question whether or not the applicable
international law prohibited the declaration of independence. In doing so, the Court refrained from
commenting on aspects pertaining to the extent of the right of self-determination or remedial secession.
Initially, the ICJ considered the legality of declarations of independence under general international law against
the background of the prohibition of the use of force and the principle of territorial integrity finding that the
scope of the principle of territorial integrity is confined to the sphere of relations between States.
The Court further found that previous condemnations by the Security Council of unilateral declarations of
independence had to be seen in their specific context noting that the illegal character of those declarations
stemmed from the direct connection with the unlawful use of force or other serious violations of international
norms of jus cogens character. However, the Security Council has never taken this position with respect to
Kosovo. Further, the Court reasoned that the exceptional character of those resolutions containing a
condemnation of a declaration of independence confirmed the absence of a general prohibition against
unilateral declarations of independence under international law.
The Court further determined that the law applicable to the situation on 17 February 2008 was made up of
Security Council resolution 1244 (1999) and the UNMIK (United Nations Mission in Kosovo) regulations
promulgating the Constitutional Framework for Provisional Self-Government defining the responsibilities
relating to the administration of Kosovo.
To determine whether the declaration of independence constituted a violation of these laws, the Court first
addressed the question of the identity of the authors of the declarations. The Court found that the authors
should be regarded as representatives of the people of Kosovo, acting outside the framework for the interim
administration. In accordance with the Courts reasoning this further means that due to the fact that there is no
specific request addressed to the representatives of the Kosovo Albanians to comply with certain aspects of
Page 9 of 44
Security Council resolution 1244, they cannot be considered as legally prohibited from issuing a declaration of
independence.
Further interpreting Security Council Resolution 1244 (1999), the Court found that it did not contain a
determination of the final status of Kosovo, thus, also not prohibiting a unilateral declaration of independence
by the leadership of the Kosovo Albanians in order to arrive at such a determination. The Court further based
this on the argument that the requirement for a political settlement of the situation required by Security Council
resolution 1244, did not address the authors of the declaration of independence but concerns only the
responsibilities of the civilian presence in Kosovo, i.e. the Special Representative of the Secretary-General in
Kosovo and UNMIK.
Further, based on the arguments that the authors of the declaration of independence were not part of the
Provisional Institutions of Self-Government and the fact that the declaration could not be regarded as an act
intended to take effect (..) within the legal order in which the Provisional Institutions operated, the ICJ held
that the declaration cannot be seen as violating the Constitutional Framework established under UNMIK.
The Court thus concluded by ten votes to four that the adoption of the declaration of independence of 17
February 2008 did not violate general international law, Security Council resolution 1244 (1999) or the
Constitutional Framework [adopted on behalf of UNMIK by the Special Representative of the SecretaryGeneral], and that [c]onsequently the adoption of that declaration did not violate any applicable rule of
international law.
A number of declarations, separate and dissenting opinions were issued.
Federal State
- Basic feature: authority over internal affairs is divided by the constitution between the federal
authorities and the member states of the federation, while foreign affairs are normally handled solely
by the federal authorities
- Regarded as a state for purposes of IL, but member states of the federation are not.
o If a member state acts in a manner which is incompatible with the intl obligations of the
federal state, it is the FS which is regarded as responsible in IL.
- Normally, foreign affairs are to be handled solely by the federal authorities, but there are a few federal
constitutions which give member states a limited capacity to enter into intl relations. (1994 USSR
Constitution allowed Ukraine and Byelorussia to become members of the UN)
Governments
- The state must not be identified with its government; the states intl rights and obligations are not
affected by a change of govt.
- See Tinoco case.
Recognition of states and governments in international law
- When granting or withholding recognition, states are influenced more by political than by legal
considerations, but their acts do have legal consequences.
- Legal effects of recognition in international law are very different from the legal effects in
municipal law
- Recognition of:
o states
o governments
o territorial claims
o belligerency/insurgents
o national liberation movements
o foreign legislative and administrative acts
- Recognition of State v. Recognition of Government
Page 10 of 44
State
acknowledges
that entity fulfills
the criteria of
statehood
Can be accorded
without accepting
that a particular
regime is the
government of a
state
Government
Implies that the
regime in
question is in
effective control
of a state
Has the
consequence of
accepting the
statehood of the
entity which the
regime is
governing
Recognition of States
- Recognition: a willingness to deal with the new state as a member of the international community
- Doctrine of Effectiveness:
The principle of effective occupation stated that powers could acquire rights over colonial lands only
if they possessed them or had "effective occupation": in other words, if they had treaties with local
leaders, if they flew their flag there, and if they established an administration in the territory to govern
it with a police force to keep order. The colonial power could also make use of the colony economically.
This principle became important not only as a basis for the European powers to acquire territorial
sovereignty in Africa, but also for determining the limits of their respective overseas possessions, as
effective occupation served in some instances as a criterion for settling disputes over the boundaries
between colonies.
Art. 1, Montevideo Convention
The state as a person of international law should possess the following qualifications: a ) a permanent
population; b ) a defined territory; c ) government; and d) capacity to enter into relations with the other
states.
Kadic v. Karadzic
Background
The plaintiffs-appellants are Croat and Muslim citizens of the internationally recognized nation of BosniaHerzegovina, formerly a republic of Yugoslavia. Their complaints, which we accept as true for purposes of this
appeal, allege that they are victims, and representatives of victims, of various atrocities, including brutal acts
of rape, [*237] forced prostitution, forced impregnation, torture, and summary execution, carried out by
Bosnian-Serb military forces as part of a genocidal campaign conducted in the course of the Bosnian civil war.
Karadzic, formerly a citizen of Yugoslavia and now a citizen of Bosnia-Herzegovina, is the President of a threeman presidency of the self-proclaimed Bosnian-Serb republic within Bosnia-Herzegovina, sometimes referred
to as Srpska, which claims to exercise lawful authority, and does in fact exercise actual control, over large
parts of the territory of Bosnia-Herzegovina. In his capacity as President, Karadzic possesses ultimate
command authority over the Bosnian-Serb military forces, and the injuries perpetrated upon plaintiffs were
committed as part of a pattern of systematic human rights violations that was directed by Karadzic and carried
out by the military forces under his command. The complaints allege that Karadzic acted in an official capacity
either as the titular head of Srpska or in collaboration with the government of the recognized nation of the
former Yugoslavia and its dominant constituent republic, Serbia.
The two groups of plaintiffs asserted causes of action for genocide, rape, forced prostitution and impregnation,
torture and other cruel, inhuman, and degrading treatment, assault and battery, sex and ethnic inequality,
summary execution, and wrongful death. They sought compensatory and punitive damages, attorneys fees,
and, in one of the cases, injunctive relief. Plaintiffs grounded subject-matter jurisdiction in the Alien Tort Act,
Page 11 of 44
the Torture Victim Protection Act of 1991 (Torture Victim Act), Pub.L. No. 102-256, 106 Stat. 73 (1992),
codified at 28 U.S.C. 1350 note (Supp. V 1993), the general federal-question jurisdictional statute, 28 U.S.C.
1331 (1988), and principles of supplemental jurisdiction, 28 U.S.C. 1367 (Supp. V 1993).
In early 1993, Karadzic was admitted to the United States on three separate occasions as an invitee of the United
Nations. According to affidavits submitted by the plaintiffs, Karadzic was personally served with the summons
and complaint in each action during two of these visits while he was physically present in Manhattan. Karadzic
admits that he received the summons and complaint in the Kadic action, but disputes whether the attempt to
serve him personally in the Doe action was effective.
In the District Court, Karadzic moved for dismissal of both actions on the grounds of insufficient service of
process, lack of personal jurisdiction, lack of subject-matter jurisdiction, and nonjusticiability of plaintiffs
claims. However, Karadzic submitted a memorandum of law and supporting papers only on the issues of service
of process and personal jurisdiction, while reserving the issues of subject-matter jurisdiction and
nonjusticiability for further briefing, if necessary. The plaintiffs submitted papers responding only to the issues
raised by the defendant.
Without notice or a hearing, the District Court by-passed the issues briefed by the parties and dismissed both
actions for lack of subject-matter jurisdiction. In an Opinion and Order, reported at 866 F.Supp. 734, the District
Judge preliminarily noted that the Court might be deprived of jurisdiction if the Executive Branch were to
recognize Karadzic as the head of state of a friendly nation, see Lafontant v. Aristide, 844 F.Supp. 128
(E.D.N.Y.1994) (head-of-state immunity), and that this possibility could render the plaintiffs pending claims
requests for an advisory opinion. The District Judge recognized that this consideration was not dispositive but
believed that it militates against this Court exercising jurisdiction. Doe, 866 F.Supp. at 738.
Turning to the issue of subject-matter jurisdiction under the Alien Tort Act, the Court concluded that acts
committed by non-state actors do not violate the law of nations, id. at 739. Finding that [t]he current BosnianSerb warring military faction does not constitute a recognized state, id. at 741, and that the members of
Karadzics faction do not act under the color of any recognized state law, id., the Court concluded that the acts
alleged in the instant action[s], while grossly repugnant, cannot be remedied through [the Alien Tort Act], id.at
740-41. The Court did not consider the plaintiffs alternative claim that Karadzic acted under color of law by
acting in concert with the Serbian Republic [*238] of the former Yugoslavia, a recognized nation.
The District Judge also found that the apparent absence of state action barred plaintiffs claims under the
Torture Victim Act, which expressly requires that an individual defendant act under actual or apparent
authority, or color of law, of any foreign nation, Torture Victim Act 2(a). With respect to plaintiffs further
claims that the law of nations, as incorporated into federal common law, gives rise to an implied cause of action
over which the Court would have jurisdiction pursuant to section 1331, the Judge found that the law of nations
does not give rise to implied rights of action absent specific Congressional authorization, and that, in any event,
such an implied right of action would not lie in the absence of state action. Finally, having dismissed all of
plaintiffs federal claims, the Court declined to exercise supplemental jurisdiction over their state-law claims.
Discussion
Though the District Court dismissed for lack of subject-matter jurisdiction, the parties have briefed not only
that issue but also the threshold issues of personal jurisdiction and justiciability under the political question
doctrine. Karadzic urges us to affirm on any one of these three grounds. We consider each in turn.
I. Subject-Matter Jurisdiction
Appellants allege three statutory bases for the subject-matter jurisdiction of the District Courtthe Alien Tort
Act, the Torture Victim Act, and the general federal-question jurisdictional statute.
A. The Alien Tort Act
Page 12 of 44
1. General Application to Appellants Claims

Alien Tort Act provides:
The district courts shall have original jurisdiction of any civil action by an alien for a tort only,
committed in violation of the law of nations or a treaty of the United States.
28 U.S.C. 1350 (1988). Our decision in Filrtiga established that this statute confers federal subject-matter
jurisdiction when the following three conditions are satisfied: (1) an alien sues (2) for a tort (3) committed in
violation of the law of nations (i.e., international law). [FN1] 630 F.2d at 887; see also Amerada Hess Shipping
Corp. v. Argentine Republic, 830 F.2d 421, 425 (2d Cir.1987), revd on other grounds, 488 U.S. 428, 109 S.Ct. 683,
102 L.Ed.2d 818 (1989). The first two requirements are plainly satisfied here, and the only disputed issue is
whether plaintiffs have pleaded violations of international law.
FN1. Filrtiga did not consider the alternative prong of the Alien Tort Act: suits by aliens for a tort
committed in violation of a treaty of the United States. See 630 F.2d at 880. As in Filrtiga, plaintiffs
in the instant cases primarily rely upon treaties and other international instruments as evidence of
an emerging norm of customary international law, rather th[a]n independent sources of law, id. at
880 n. 7.
Because the Alien Tort Act requires that plaintiffs plead a violation of the law of nations at the jurisdictional
threshold, this statute requires a more searching review of the merits to establish jurisdiction than is required
under the more flexible arising under formula of section 1331. See Filrtiga, 630 F.2d at 887-88. Thus, it is
not a sufficient basis for jurisdiction to plead merely a colorable violation of the law of nations. There is no
federal subject-matter jurisdiction under the Alien Tort Act unless the complaint adequately pleads a violation
of the law of nations (or treaty of the United States).
Filrtiga established that courts ascertaining the content of the law of nations must interpret international
law not as it was in 1789, but as it has evolved and exists among the nations of the world today. Id. at 881; see
also Amerada Hess, 830 F.2d at 425. We find the norms of contemporary international law by consulting the
works of jurists, writing professedly on public law; or by the general usage and practice of nations; or by judicial
decisions recognizing and enforcing that law. Filrtiga, 630 F.2d at 880 (quoting [*239] United States v.
Smith, 18 U.S. (5 Wheat.) 153, 160-61, 5 L.Ed. 57 (1820)). If this inquiry discloses that the defendants alleged
conduct violates well-established, universally recognized norms of international law, id. at 888, as opposed
to idiosyncratic legal rules, id. at 881, then federal jurisdiction exists under the Alien Tort Act.
Karadzic contends that appellants have not alleged violations of the norms of international law because such
norms bind only states and persons acting under color of a states law, not private individuals. In making this
contention, Karadzic advances the contradictory positions that he is not a state actor, see Brief for Appellee at
19, even as he asserts that he is the President of the self-proclaimed Republic of Srpska, see statement of
Radovan Karadzic, May 3, 1993, submitted with Defendants Motion to Dismiss. For their part, the Kadic
appellants also take somewhat inconsistent positions in pleading defendants role as President of Srpska, Kadic
Complaint 13, and also contending that Karadzic is not an official of any government, Kadic Plaintiffs
Memorandum in Opposition to Defendants Motion to Dismiss at 21 n. 25.
Judge Leisure accepted Karadzics contention that acts committed by non-state actors do not violate the law
of nations, Doe, 866 F.Supp. at 739, and considered him to be a non-state actor. [FN2] The Judge appears to
have deemed state action required primarily on the basis of cases determining the need for state action as to
claims of official torture, see, e.g.,Carmichael v. United Technologies Corp., 835 F.2d 109 (5th Cir.1988), without
consideration of the substantial body of law, discussed below, that renders private individuals liable for some
international law violations.
Page 13 of 44
FN2. Two passages of the District Courts opinion arguably indicate that Judge Leisure found the
pleading of a violation of the law of nations inadequate because Srpska, even if a state, is not a state
recognized by other nations. The current Bosnian-Serb warring military faction does not
constitute a recognized state. Doe, 866 F.Supp. at 741; [t]he Bosnian-Serbs have achieved neither
the level of organization nor the recognition that was attained by the PLO [in Tel-Oren v. Libyan Arab
Republic, 726 F.2d 774(D.C.Cir.1984)], id. However, the opinion, read as a whole, makes clear that
the Judge believed that Srpska is not a state and was not relying on lack of recognition by other states.
See, e.g., id. at 741 n. 12 (The Second Circuit has limited the definition of state to entities that have
a defined [territory] and a permanent population, that are under the control of their own
government, and that engage in or have the capacity to engage in, formal relations with other
entities. Klinghoffer v. S.N.C. Achille Lauro, 937 F.2d 44, 47 (2d Cir.1991) (quotation, brackets and
citation omitted). The current Bosnian-Serb entity fails to meet this definition.). We quote Judge
Leisures quotation from Klinghoffer with the word territory, which was inadvertently omitted.
We do not agree that the law of nations, as understood in the modern era, confines its reach to state action.
Instead, we hold that certain forms of conduct violate the law of nations whether undertaken by those acting
under the auspices of a state or only as private individuals. An early example of the application of the law of
nations to the acts of private individuals is the prohibition against piracy. See United States v. Smith, 18 U.S. (5
Wheat.) 153, 161, 5 L.Ed. 57 (1820); United States v. Furlong, 18 U.S. (5 Wheat.) 184, 196-97, 5 L.Ed. 64
(1820). In The Brig Malek Adhel, 43 U.S. (2 How.) 210, 232, 11 L.Ed. 239 (1844), the Supreme Court observed
that pirates were hostis humani generis (an enemy of all mankind) in part because they acted without any
pretense of public authority. See generally 4 William Blackstone, Commentaries on the Laws of England 68
(facsimile of 1st ed. 1765-1769, Univ. of Chi. ed., 1979). Later examples are prohibitions against the slave trade
and certain war crimes. See M. Cherif Bassiouni, Crimes Against Humanity in International Criminal Law 193
(1992); Jordan Paust, The Other Side of Right: Private Duties Under Human Rights Law, 5 Harv.Hum.Rts.J. 51
(1992).
The liability of private persons for certain violations of customary international law and the availability of the
Alien Tort Act to remedy such violations was early recognized by the Executive Branch in an opinion of Attorney
General Bradford in reference to acts of American citizens aiding the French fleet to plunder British property
off the coast of Sierra Leone in 1795. See Breach of Neutrality, 1 Op. Atty Gen. 57, 59 (1795). The Executive
Branch has emphatically restated [*240] in this litigation its position that private persons may be found liable
under the Alien Tort Act for acts of genocide, war crimes, and other violations of international humanitarian
law. See Statement of Interest of the United States at 5-13.
The Restatement (Third) of the Foreign Relations Law of the United States (1986) (Restatement (Third) )
proclaims: Individuals may be held liable for offenses against international law, such as piracy, war crimes,
and genocide. Restatement (Third) pt. II, introductory note. The Restatement is careful to identify those
violations that are actionable when committed by a state, Restatement (Third) 702, [FN3] and a more limited
category of violations of universal concern, id. 404, [FN4] partially overlapping with those listed in section
702. Though the immediate focus of section 404 is to identify those offenses for which a state has jurisdiction
to punish without regard to territoriality or the nationality of the offenders, cf.id. 402(1)(a), (2), the inclusion
of piracy and slave trade from an earlier era and aircraft hijacking from the modern era demonstrates that the
offenses of universal concern include those capable of being committed by non-state actors. Although the
jurisdiction authorized by section 404 is usually exercised by application of criminal law, international law also
permits states to establish appropriate civil remedies, id. 404 cmt. b, such as the tort actions authorized by
the Alien Tort Act. Indeed, the two cases invoking the Alien Tort Act prior to Filrtiga both applied the civil
remedy to private action. See Adra v. Clift, 195 F.Supp. 857 (D.Md.1961); Bolchos v. Darrel, 3 F.Cas. 810
(D.S.C.1795) (No. 1,607).
FN3. Section 702 provides:
A state violates international law if, as a matter of state policy, it practices, encourages, or condones
Page 14 of 44
(a) genocide,
(b) slavery or slave trade,
(c) the murder or causing the disappearance of individuals,
(d) torture or other cruel, inhuman, or degrading treatment or punishment,
(e) prolonged arbitrary detention,
(f) systematic racial discrimination, or
(g) a consistent pattern of gross violations of internationally recognized human rights.
FN4. Section 404 provides:
A state has jurisdiction to define and prescribe punishment for certain offenses recognized by
the community of nations as of universal concern, such as piracy, slave trade, attacks on or
hijacking of aircraft, genocide, war crimes, and perhaps certain acts of terrorism, even where
[no other basis of jurisdiction] is present.
Karadzic disputes the application of the law of nations to any violations committed by private individuals,
relying on Filrtiga and the concurring opinion of Judge Edwards in Tel-Oren v. Libyan Arab Republic, 726 F.2d
774, 775 (D.C.Cir.1984), cert. denied, 470 U.S. 1003, 105 S.Ct. 1354, 84 L.Ed.2d 377 (1985).
[FN5] Filrtiga involved an allegation of torture committed by a state official. Relying on the United Nations
Declaration on the Protection of All Persons from Being Subjected to Torture, G.A.Res. 3452, U.N. GAOR, U.N.
Doc. A/1034 (1975) (hereinafter Declaration on Torture), as a definitive statement of norms of customary
international law prohibiting states from permitting torture, we ruled that official torture is now prohibited
by the law of nations. Filrtiga, 630 F.2d at 884 (emphasis added). We had no occasion to consider whether
international law violations other than torture are actionable against private individuals, and nothing
in Filrtiga purports to preclude such a result.
FN5. Judge Edwards was the only member of the Tel-Oren panel to confront the issue whether the
law of nations applies to non-state actors. Then-Judge Bork, relying on separation of powers
principles, concluded, in disagreement with Filrtiga, that the Alien Tort Act did not apply to most
violations of the law of nations. Tel-Oren, 726 F.2d at 798. Judge Robb concluded that the controversy
was nonjusticiable. id. at 823.
Nor did Judge Edwards in his scholarly opinion in Tel-Oren reject the application of international law to any
private action. On the contrary, citing piracy and slave-trading as early examples, he observed that there exists
a handful of crimes to which the law of nations attributes individual responsibility, 726 F.2d at 795. Reviewing
authorities similar to those consulted in Filrtiga, he merely concluded that torturethe specific violation
alleged in Tel-Orenwas not within the limited category of violations that do not require state action.
[*241] Karadzic also contends that Congress intended the state-action requirement of the Torture Victim Act
to apply to actions under the Alien Tort Act. We disagree. Congress enacted the Torture Victim Act to codify the
cause of action recognized by this Circuit in Filrtiga, and to further extend that cause of action to plaintiffs
who are U.S. citizens. See H.R.Rep. No. 367, 102d Cong., 2d Sess., at 4 (1991), reprinted in 1992 U.S.C.C.A.N. 84,
86 (explaining that codification of Filrtiga was necessary in light of skepticism expressed by Judge Borks
concurring opinion in Tel-Oren ). At the same time, Congress indicated that the Alien Tort Act has other
important uses and should not be replaced, because
Page 15 of 44
Claims based on torture and summary executions do not exhaust the list of actions that may
appropriately be covered [by the Alien Tort Act]. That statute should remain intact to permit suits
based on other norms that already exist or may ripen in the future into rules of customary
international law.
Id. The scope of the Alien Tort Act remains undiminished by enactment of the Torture Victim Act.
2. Specific Application of Alien Tort Act to Appellants Claims
In order to determine whether the offenses alleged by the appellants in this litigation are violations of the law
of nations that may be the subject of Alien Tort Act claims against a private individual, we must make a
particularized examination of these offenses, mindful of the important precept that evolving standards of
international law govern who is within the [Alien Tort Acts] jurisdictional grant. Amerada Hess, 830 F.2d at
425. In making that inquiry, it will be helpful to group the appellants claims into three categories: (a) genocide,
(b) war crimes, and (c) other instances of inflicting death, torture, and degrading treatment.
(a) Genocide. In the aftermath of the atrocities committed during the Second World War, the condemnation of
genocide as contrary to international law quickly achieved broad acceptance by the community of nations. In
1946, the General Assembly of the United Nations declared that genocide is a crime under international law
that is condemned by the civilized world, whether the perpetrators are private individuals, public officials or
statesmen. G.A.Res. 96(I), 1 U.N.GAOR, U.N. Doc. A/64/Add.1, at 188-89 (1946). The General Assembly also
affirmed the principles of Article 6 of the Agreement and Charter Establishing the Nuremberg War Crimes
Tribunal for punishing persecutions on political, racial, or religious grounds, regardless of whether the
offenders acted as individuals or as members of organizations, In re Extradition of Demjanjuk, 612 F.Supp.
544, 555 n. 11 (N.D.Ohio 1985) (quoting Article 6). See G.A.Res. 95(I), 1 U.N.GAOR, U.N.Doc. A/64/Add.1, at 188
(1946).
The Convention on the Prevention and Punishment of the Crime of Genocide, 78 U.N.T.S. 277, entered into force
Jan. 12, 1951, for the United States Feb. 23, 1989 (hereinafter Convention on Genocide), provides a more
specific articulation of the prohibition of genocide in international law. The Convention, which has been ratified
by more than 120 nations, including the United States, see U.S. Dept. of State, Treaties in Force 345 (1994),
defines genocide to mean
any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical,
racial or religious group, as such:
(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical
destruction in whole or in part;
(d) Imposing measures intended to prevent births with the group;
(e) Forcibly transferring children of the group to another group.
Convention on Genocide art. II. Especially pertinent to the pending appeal, the Convention makes clear that
[p]ersons committing genocide shall be punished, whether they are constitutionally responsible rulers,
public officials or private individuals. id. art. IV (emphasis added). These authorities
unambiguously [*242] reflect that, from its incorporation into international law, the proscription of genocide
has applied equally to state and non-state actors.
Page 16 of 44
The applicability of this norm to private individuals is also confirmed by the Genocide Convention
Implementation Act of 1987, 18 U.S.C. 1091 (1988), which criminalizes acts of genocide without regard to
whether the offender is acting under color of law, see id. 1091(a) ([w]hoever commits genocide shall be
punished), if the crime is committed within the United States or by a U.S. national, id. 1091(d). Though
Congress provided that the Genocide Convention Implementation Act shall not be construed as creating any
substantive or procedural right enforceable by law by any party in any proceeding, id. 1092, the legislative
decision not to create a new private remedy does not imply that a private remedy is not already available under
the Alien Tort Act. Nothing in the Genocide Convention Implementation Act or its legislative history reveals an
intent by Congress to repeal the Alien Tort Act insofar as it applies to genocide, [FN6] and the two statutes are
surely not repugnant to each other. Under these circumstances, it would be improper to construe the Genocide
Convention Implementation Act as repealing the Alien Tort Act by implication. See Rodriguez v. United
States, 480 U.S. 522, 524, 107 S.Ct. 1391, 1392, 94 L.Ed.2d 533 (1987) ([R]epeals by implication are not favored
and will not be found unless an intent to repeal is clear and manifest.) (citations and internal quotation marks
omitted); United States v. Cook, 922 F.2d 1026, 1034 (2d Cir.) (mutual exclusivity of statutes is required to
demonstrate Congresss clear, affirmative intent to repeal), cert. denied, 500 U.S. 941, 111 S.Ct. 2235, 114
L.Ed.2d 477 (1991).
FN6. The Senate Report merely repeats the language of section 1092 and does not provide any
explanation of its purpose. See S. Rep. 333, 100th Cong., 2d Sess., at 5 (1988), reprinted at 1988
U.S.C.C.A.N. 4156, 4160. The House Report explains that section 1092 clarifies that the bill creates
no new federal cause of action in civil proceedings. H.R. Rep. 566, 100th Cong., 2d Sess., at 8 (1988)
(emphasis added). This explanation confirms our view that the Genocide Convention Implementation
Act was not intended to abrogate civil causes of action that might be available under existing laws,
such as the Alien Tort Act.
Appellants allegations that Karadzic personally planned and ordered a campaign of murder, rape, forced
impregnation, and other forms of torture designed to destroy the religious and ethnic groups of Bosnian
Muslims and Bosnian Croats clearly state a violation of the international law norm proscribing genocide,
regardless of whether Karadzic acted under color of law or as a private individual. The District Court has
subject-matter jurisdiction over these claims pursuant to the Alien Tort Act.
(b) War crimes. Plaintiffs also contend that the acts of murder, rape, torture, and arbitrary detention of civilians,
committed in the course of hostilities, violate the law of war. Atrocities of the types alleged here have long been
recognized in international law as violations of the law of war. See In re Yamashita, 327 U.S. 1, 14, 66 S.Ct. 340,
347, 90 L.Ed. 499 (1946). Moreover, international law imposes an affirmative duty on military commanders to
take appropriate measures within their power to control troops under their command for the prevention of
such atrocities. Id. at 15-16, 66 S.Ct. at 347-48.
After the Second World War, the law of war was codified in the four Geneva Conventions, [FN7] which have
been ratified by more than 180 nations, including the United States, see Treaties in Force, supra, at 398-99.
Common article 3, which is substantially identical in each of the four Conventions, [*243] applies to armed
conflict[s] not of an international character and binds each Party to the conflict to apply, as a minimum, the
following provisions":
Persons taking no active part in the hostilities shall in all circumstances be treated humanely,
without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any
other similar criteria.
To this end, the following acts are and shall remain prohibited at any time and in any place
whatsoever with respect to the above-mentioned persons:
(a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and
torture;
Page 17 of 44
(b) taking of hostages;

(c) outrages upon personal dignity, in particular humiliating and degrading treatment;
(d) the passing of sentences and carrying out of executions without previous judgment pronounced
by a regularly constituted court.
Geneva Convention I art. 3(1). Thus, under the law of war as codified in the Geneva Conventions, all
parties to a conflictwhich includes insurgent military groupsare obliged to adhere to these
most fundamental requirements of the law of war. [FN8]
FN7. Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field,
entered into force Oct. 21, 1950, for the United States Feb. 2, 1956, 6 U.S.T. 3114, T.I.A.S. 3362, 75 U.N.T.S. 31
(hereinafter Geneva Convention I); Convention for the Amelioration of the Condition of the Wounded, Sick,
and Shipwrecked Members of Armed Forces at Sea, entered into force Oct. 21, 1950, for the United States Feb.
2, 1956, 6 U.S.T. 3217, T.I.A.S. 3363, 75 U.N.T.S. 85; Convention Relative to the Treatment of Prisoners of War,
entered into force Oct. 21, 1950, for the United States Feb. 2, 1956, 6 U.S.T. 3316, T.I.A.S. 3364, 75 U.N.T.S. 135;
Convention Relative to the Protection of Civilian Persons in Time of War, entered into force Oct. 21, 1950, for
the United States Feb. 2, 1956, 6 U.S.T. 3516, T.I.A.S. 3365, 75 U.N.T.S. 287.
FN8. Appellants also maintain that the forces under Karadzics command are bound by the Protocol
Additional to the Geneva Conventions of 12 August 1949, Relating to the Protection of Victims of NonInternational Armed Conflicts, 16 I.L.M. 1442 (1977) (Protocol II), which has been signed but not
ratified by the United States, see International Committee of the Red Cross: Status of Four Geneva
Conventions and Additional Protocols I and II, 30 I.L.M. 397 (1991). Protocol II supplements the
fundamental requirements of common article 3 for armed conflicts that take place in the territory of
a High Contracting Party between its armed forces and dissident armed forces or other organized
armed groups which, under responsible command, exercise such control over a part of its territory
as to enable them to carry out sustained and concerted military operations and to implement this
Protocol. id. art. 1. In addition, plaintiffs argue that the forces under Karadzics command are bound
by the remaining provisions of the Geneva Conventions, which govern international conflicts, see
Geneva Convention I art. 2, because the self-proclaimed Bosnian-Serb republic is a nation that is at
war with Bosnia-Herzegovina or, alternatively, the Bosnian-Serbs are an insurgent group in a civil
war who have attained the status of belligerents, and to whom the rules governing international
wars therefore apply.
At this stage in the proceedings, however, it is unnecessary for us to decide whether the requirements
of Protocol II have ripened into universally accepted norms of international law, or whether the
provisions of the Geneva Conventions applicable to international conflicts apply to the Bosnian-Serb
forces on either theory advanced by plaintiffs.
The offenses alleged by the appellants, if proved, would violate the most fundamental norms of the law of war
embodied in common article 3, which binds parties to internal conflicts regardless of whether they are
recognized nations or roving hordes of insurgents. The liability of private individuals for committing war
crimes has been recognized since World War I and was confirmed at Nuremberg after World War II, see Telford
Taylor, Nuremberg Trials: War Crimes and International Law, 450 Intl Conciliation 304 (April 1949) (collecting
cases), and remains today an important aspect of international law, see Jordan Paust, After My Lai: The Case
for War Crimes Jurisdiction Over Civilians in Federal District Courts, in 4 The Vietnam War and International
Law 447 (R.Falk ed., 1976). The District Court has jurisdiction pursuant to the Alien Tort Act over appellants
claims of war crimes and other violations of international humanitarian law.
(c) Torture and summary execution. In Filrtiga, we held that official torture is prohibited by universally
accepted norms of international law, see 630 F.2d at 885, and the Torture Victim Act confirms this holding and
extends it to cover summary execution. Torture Victim Act 2(a), 3(a). However, torture and summary
Page 18 of 44
executionwhen not perpetrated in the course of genocide or war crimesare proscribed by international
law only when committed by state officials or under color of law. See Declaration on Torture art. 1 (defining
torture as being inflicted by or at the instigation of a public official); Convention Against Torture and Other
Cruel, Inhuman, or Degrading Treatment or Punishment pt. I, art. 1, 23 I.L.M. 1027 (1984), as
modified, [*244] 24 I.L.M. 535 (1985), entered into force June 26, 1987, ratified by United States Oct. 21, 1994,
34 I.L.M. 590, 591 (1995) (defining torture as inflicted by or at the instigation of or with the consent or
acquiescence of a public official or other person acting in an official capacity); Torture Victim Act 2(a)
(imposing liability on individuals acting under actual or apparent authority, or color of law, of any foreign
nation).
In the present case, appellants allege that acts of rape, torture, and summary execution were committed during
hostilities by troops under Karadzics command and with the specific intent of destroying appellants ethnicreligious groups. Thus, many of the alleged atrocities are already encompassed within the appellants claims of
genocide and war crimes. Of course, at this threshold stage in the proceedings it cannot be known whether
appellants will be able to prove the specific intent that is an element of genocide, or prove that each of the
alleged torts were committed in the course of an armed conflict, as required to establish war crimes. It suffices
to hold at this stage that the alleged atrocities are actionable under the Alien Tort Act, without regard to state
action, to the extent that they were committed in pursuit of genocide or war crimes, and otherwise may be
pursued against Karadzic to the extent that he is shown to be a state actor. Since the meaning of the state action
requirement for purposes of international law violations will likely arise on remand and has already been
considered by the District Court, we turn next to that requirement.
3. The State Action Requirement for International Law Violations
In dismissing plaintiffs complaints for lack of subject-matter jurisdiction, the District Court concluded that the
alleged violations required state action and that the Bosnian-Serb entity headed by Karadzic does not meet
the definition of a state. Doe, 866 F.Supp. at 741 n. 12. Appellants contend that they are entitled to prove that
Srpska satisfies the definition of a state for purposes of international law violations and, alternatively, that
Karadzic acted in concert with the recognized state of the former Yugoslavia and its constituent republic,
Serbia.
(a) Definition of a state in international law. The definition of a state is well established in international law:
Under international law, a state is an entity that has a defined territory and a permanent population,
under the control of its own government, and that engages in, or has the capacity to engage in, formal
relations with other such entities.
Restatement (Third) 201; accord Klinghoffer, 937 F.2d at 47; National Petrochemical Co. of Iran v. M/T Stolt
Sheaf, 860 F.2d 551, 553 (2d Cir.1988); see also Texas v. White, 74 U.S. (7 Wall.) 700, 720, 19 L.Ed. 227 (1868).
[A]ny government, however violent and wrongful in its origin, must be considered a de facto government if it
was in the full and actual exercise of sovereignty over a territory and people large enough for a nation. Ford v.
Surget, 97 U.S. (7 Otto) 594, 620, 24 L.Ed. 1018 (1878) (Clifford, J., concurring).
Although the Restatements definition of statehood requires the capacity to engage in formal relations with
other states, it does not require recognition by other states. See Restatement (Third) 202 cmt. b (An entity
that satisfies the requirements of 201 is a state whether or not its statehood is formally recognized by other
states.). Recognized states enjoy certain privileges and immunities relevant to judicial proceedings, see,
e.g., Pfizer Inc. v. India, 434 U.S. 308, 318-20, 98 S.Ct. 584, 590-91, 54 L.Ed.2d 563 (1978) (diversity
jurisdiction);Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 408-12, 84 S.Ct. 923, 929-32, 11 L.Ed.2d 804
(1964) (access to U.S. courts); Lafontant, 844 F.Supp. at 131 (head-of-state immunity), but an unrecognized
state is not a juridical nullity. Our courts have regularly given effect to the state action of unrecognized states.
See, e.g., United States v. Insurance Cos., 89 U.S. (22 Wall.) 99, 101-03, 22 L.Ed. 816 (1875) (seceding states in
Civil War); Thorington v. Smith, 75 U.S. (8 Wall.) 1, 9-12, 19 L.Ed. 361 (1868) (same); Carl Zeiss Stiftung v. VEB
Page 19 of 44

Carl Zeiss Jena, 433 F.2d 686, 699 (2d Cir.1970), cert. denied, [*245] 403 U.S. 905, 91 S.Ct. 2205, 29 L.Ed.2d
680 (1971) (post-World War II East Germany).
The customary international law of human rights, such as the proscription of official torture, applies to states
without distinction between recognized and unrecognized states. See Restatement (Third) 207, 702. It
would be anomalous indeed if non-recognition by the United States, which typically reflects disfavor with a
foreign regimesometimes due to human rights abuseshad the perverse effect of shielding officials of the
unrecognized regime from liability for those violations of international law norms that apply only to state
actors.
Appellants allegations entitle them to prove that Karadzics regime satisfies the criteria for a state, for purposes
of those international law violations requiring state action. Srpska is alleged to control defined territory, control
populations within its power, and to have entered into agreements with other governments. It has a president,
a legislature, and its own currency. These circumstances readily appear to satisfy the criteria for a state in all
aspects of international law. Moreover, it is likely that the state action concept, where applicable for some
violations like official torture, requires merely the semblance of official authority. The inquiry, after all, is
whether a person purporting to wield official power has exceeded internationally recognized standards of
civilized conduct, not whether statehood in all its formal aspects exists.
(b) Acting in concert with a foreign state. Appellants also sufficiently alleged that Karadzic acted under color of
law insofar as they claimed that he acted in concert with the former Yugoslavia, the statehood of which is not
disputed. The color of law jurisprudence of 42 U.S.C. 1983 is a relevant guide to whether a defendant has
engaged in official action for purposes of jurisdiction under the Alien Tort Act. See Forti v. Suarez-Mason, 672
F.Supp. 1531, 1546 (N.D.Cal.1987), reconsideration granted in part on other grounds, 694 F.Supp. 707
(N.D.Cal.1988). A private individual acts under color of law within the meaning of section 1983 when he acts
together with state officials or with significant state aid. See Lugar v. Edmondson Oil Co., 457 U.S. 922, 937, 102
S.Ct. 2744, 2753-54, 73 L.Ed.2d 482 (1982). The appellants are entitled to prove their allegations that Karadzic
acted under color of law of Yugoslavia by acting in concert with Yugoslav officials or with significant
Yugoslavian aid.
B. The Torture Victim Protection Act
The Torture Victim Act, enacted in 1992, provides a cause of action for official torture and extrajudicial killing:
An individual who, under actual or apparent authority, or color of law, of any foreign nation
(1) subjects an individual to torture shall, in a civil action, be liable for damages to that individual; or
(2) subjects an individual to extrajudicial killing shall, in a civil action, be liable for damages to the
individuals legal representative, or to any person who may be a claimant in an action for wrongful
death.
Torture Victim Act 2(a). The statute also requires that a plaintiff exhaust adequate and available local
remedies, id. 2(b), imposes a ten-year statute of limitations, id. 2(c), and defines the terms extrajudicial
killing and torture, id. 3.
By its plain language, the Torture Victim Act renders liable only those individuals who have committed torture
or extrajudicial killing under actual or apparent authority, or color of law, of any foreign nation. Legislative
history confirms that this language was intended to make[ ] clear that the plaintiff must establish some
governmental involvement in the torture or killing to prove a claim, and that the statute does not attempt to
deal with torture or killing by purely private groups. H.R.Rep. No. 367, 102d Cong., 2d Sess., at 5 (1991),
reprinted in 1992 U.S.C.C.A.N. 84, 87. In construing the terms actual or apparent authority and color of law,
courts are instructed to look to principles of agency law and to jurisprudence under 42 U.S.C. 1983,
respectively. Id.
Page 20 of 44
[*246] Though the Torture Victim Act creates a cause of action for official torture, this statute, unlike the Alien
Tort Act, is not itself a jurisdictional statute. The Torture Victim Act permits the appellants to pursue their
claims of official torture under the jurisdiction conferred by the Alien Tort Act and also under the general
federal question jurisdiction of section 1331, see Xuncax v. Gramajo, 886 F.Supp. 162, 178 (D.Mass.1995), to
which we now turn.
C. Section 1331
The appellants contend that section 1331 provides an independent basis for subject-matter jurisdiction over
all claims alleging violations of international law. Relying on the settled proposition that federal common law
incorporates international law, see The Paquete Habana, 175 U.S. 677, 700, 20 S.Ct. 290, 299, 44 L.Ed. 320
(1900); In re Estate of Ferdinand E. Marcos Human Rights Litigation (Marcos I), 978 F.2d 493, 502 (9th Cir.1992),
cert. denied, 508 U.S. 972, 113 S.Ct. 2960, 125 L.Ed.2d 661 (1993); Filrtiga, 630 F.2d at 886, they reason that
causes of action for violations of international law arise under the laws of the United States for purposes of
jurisdiction under section 1331. Whether that is so is an issue of some uncertainty that need not be decided in
this case.
In Tel-Oren, Judge Edwards expressed the view that section 1331 did not supply jurisdiction for claimed
violations of international law unless the plaintiffs could point to a remedy granted by the law of nations or
argue successfully that such a remedy is implied. Tel-Oren, 726 F.2d at 779-80 n. 4. The law of nations generally
does not create private causes of action to remedy its violations, but leaves to each nation the task of defining
the remedies that are available for international law violations. Id. at 778 (Edwards, J., concurring). Some
district courts, however, have upheld section 1331 jurisdiction for international law violations. See Abebe-Jiri
v. Negewo, No. 90-2010 (N.D.Ga. Aug. 20, 1993), appeal argued, No. 93- 9133 (11th Cir. Jan. 10, 1995); MartinezBaca v. Suarez-Mason, No. 87-2057, slip op. at 4-5 (N.D.Cal. Apr. 22, 1988); Forti v. Suarez-Mason, 672 F.Supp.
1531, 1544 (N.D.Cal.1987).
We recognized the possibility of section 1331 jurisdiction in Filrtiga, 630 F.2d at 887 n. 22, but rested
jurisdiction solely on the applicable Alien Tort Act. Since that Act appears to provide a remedy for the
appellants allegations of violations related to genocide, war crimes, and official torture, and the Torture Victim
Act also appears to provide a remedy for their allegations of official torture, their causes of action are statutorily
authorized, and, as in Filrtiga, we need not rule definitively on whether any causes of action not specifically
authorized by statute may be implied by international law standards as incorporated into United States law
and grounded on section 1331 jurisdiction.
II. Service of Process and Personal Jurisdiction
Appellants aver that Karadzic was personally served with process while he was physically present in the
Southern District of New York. In the Doe action, the affidavits detail that on February 11, 1993, process servers
approached Karadzic in the lobby of the Hotel Intercontinental at 111 East 48th St. in Manhattan, called his
name and identified their purpose, and attempted to hand him the complaint from a distance of two feet, that
security guards seized the complaint papers, and that the papers fell to the floor. Karadzic submitted an
affidavit of a State Department security officer, who generally confirmed the episode, but stated that the
process server did not come closer than six feet of the defendant. In the Kadic action, the plaintiffs obtained
from Judge Owen an order for alternate means of service, directing service by delivering the complaint to a
member of defendants State Department security detail, who was ordered to hand the complaint to the
defendant. The security officers affidavit states that he received the complaint and handed it to Karadzic
outside the Russian Embassy in Manhattan. Karadzics statement confirms that this occurred during his second
visit to the United States, sometime between February 27 and March 8, 1993. Appellants also allege that during
his visits to New York City, Karadzic stayed at [*247] hotels outside the headquarters district of the United
Nations and engaged in non-United Nations-related activities such as fund-raising.
Fed.R.Civ.P. 4(e)(2) specifically authorizes personal service of a summons and complaint upon an individual
physically present within a judicial district of the United States, and such personal service comports with the
Page 21 of 44

requirements of due process for the assertion of personal jurisdiction. See Burnham v. Superior Court of
California, 495 U.S. 604, 110 S.Ct. 2105, 109 L.Ed.2d 631 (1990).
Nevertheless, Karadzic maintains that his status as an invitee of the United Nations during his visits to the
United States rendered him immune from service of process. He relies on both the Agreement Between the
United Nations and the United States of America Regarding the Headquarters of the United Nations, reprinted
at 22 U.S.C. 287 note (1988) (Headquarters Agreement), and a claimed federal common law immunity. We
reject both bases for immunity from service.
A. Headquarters Agreement
The Headquarters Agreement provides for immunity from suit only in narrowly defined circumstances. First,
service of legal process may take place within the headquarters district only with the consent of and under
conditions approved by the Secretary-General. id. 9(a). This provision is of no benefit to Karadzic, because
he was not served within the well-defined confines of the headquarters district, which is bounded by Franklin
D. Roosevelt Drive, 1st Avenue, 42nd Street, and 48th Street, see id. annex 1. Second, certain representatives of
members of the United Nations, whether residing inside or outside of the headquarters district, shall be
entitled to the same privileges and immunities as the United States extends to accredited diplomatic
envoys. id. 15. This provision is also of no benefit to Karadzic, since he is not a designated representative of
any member of the United Nations.
A third provision of the Headquarters Agreement prohibits federal, state, and local authorities of the United
States from impos[ing] any impediments to transit to or from the headquarters district of persons invited
to the headquarters district by the United Nations on official business. Id. 11. Karadzic maintains that
allowing service of process upon a United Nations invitee who is on official business would violate this section,
presumably because it would impose a potential burdenexposure to suiton the invitees transit to and from
the headquarters district. However, this Court has previously refused to extend the immunities provided by
the Headquarters Agreement beyond those explicitly stated. SeeKlinghoffer v. S.N.C. Achille Lauro, 937 F.2d 44,
48 (2d Cir.1991). We therefore reject Karadzics proposed construction of section 11, because it would
effectively create an immunity from suit for United Nations invitees where none is provided by the express
terms of the Headquarters Agreement. [FN9]
FN9. Conceivably, a narrow immunity from service of process might exist under section 11 for
invitees who are in direct transit between an airport (or other point of entry into the United States)
and the Headquarters District. Even if such a narrow immunity did existwhich we do not decide
Karadzic would not benefit from it since he was not served while traveling to or from the
Headquarters District.
The parties to the Headquarters Agreement agree with our construction of it. In response to a letter from
plaintiffs attorneys opposing any grant of immunity to Karadzic, a responsible State Department official wrote:
Mr. Karadzics status during his recent visits to the United States has been solely as an invitee of the United
Nations, and as such he enjoys no immunity from the jurisdiction of the courts of the United States. Letter from
Michael J. Habib, Director of Eastern European Affairs, U.S. Dept. of State, to Beth Stephens (Mar. 24, 1993)
(Habib Letter). Counsel for the United Nations has also issued an opinion stating that although the United
States must allow United Nations invitees access to the Headquarters District, invitees are not immune from
legal process while in the United States at locations outside of the Headquarters District. See In re Galvao,
[1963] U.N.Jur.Y.B. 164 (opinion of U.N. legal counsel); [*248] see also Restatement (Third) 469 reporters
note 8 (U.N. invitee is not immune from suit or legal process outside the headquarters district during his
sojourn in the United States).
B. Federal common law immunity
Karadzic nonetheless invites us to fashion a federal common law immunity for those within a judicial district
as a United Nations invitee. He contends that such a rule is necessary to prevent private litigants from inhibiting
Page 22 of 44
the United Nations in its ability to consult with invited visitors. Karadzic analogizes his proposed rule to the
government contacts exception to the District of Columbias long-arm statute, which has been broadly
characterized to mean that mere entry [into the District of Columbia] by non- residents for the purpose of
contacting federal government agencies cannot serve as a basis for in personam jurisdiction, Rose v. Silver, 394
A.2d 1368, 1370 (D.C.1978); see also Naartex Consulting Corp. v. Watt, 722 F.2d 779, 785-87 (D.C.Cir.1983)
(construing government contacts exception to District of Columbias long-arm statute), cert. denied, 467 U.S.
1210, 104 S.Ct. 2399, 81 L.Ed.2d 355 (1984). He also points to a similar restriction upon assertion of personal
jurisdiction on the basis of the presence of an individual who has entered a jurisdiction in order to attend court
or otherwise engage in litigation. See generally 4 Charles A. Wright & Arthur R. Miller, Federal Practice and
Procedure 1076 (2d ed. 1987).
Karadzic also endeavors to find support for a common law immunity in our decision in Klinghoffer. Though, as
noted above, Klinghoffer declined to extend the immunities of the Headquarters Agreement beyond those
provided by its express provisions, the decision applied immunity considerations to its construction of New
Yorks long-arm statute, N.Y.Civ.Prac.L. & R. 301 (McKinney 1990), in deciding whether the Palestine Liberation
Organization (PLO) was doing business in the state. Klinghoffer construed the concept of doing business to
cover only those activities of the PLO that were not United Nations-related. See 937 F.2d at 51.
Despite the considerations that guided Klinghoffer in its narrowing construction of the general terminology of
New Yorks long-arm statute as applied to United Nations activities, we decline the invitation to create a federal
common law immunity as an extension of the precise terms of a carefully crafted treaty that struck the balance
between the interests of the United Nations and those of the United States.
Finally, we note that the mere possibility that Karadzic might at some future date be recognized by the United
States as the head of state of a friendly nation and might thereby acquire head-of-state immunity does not
transform the appellants claims into a nonjusticiable request for an advisory opinion, as the District Court
intimated. Even if such future recognition, determined by the Executive Branch, see Lafontant, 844 F.Supp. at
133, would create head-of-state immunity, but see In re Doe, 860 F.2d 40, 45 (2d Cir.1988) (passage of Foreign
Sovereign Immunities Act leaves scope of head-of-state immunity uncertain), it would be entirely
inappropriate for a court to create the functional equivalent of such an immunity based on speculation about
what the Executive Branch might do in the future. See Mexico v. Hoffman, 324 U.S. 30, 35, 65 S.Ct. 530, 532, 89
L.Ed. 729 (1945) ([I]t is the duty of the courts, in a matter so intimately associated with our foreign policy ,
not to enlarge an immunity to an extent which the government has not seen fit to recognize.).
In sum, if appellants personally served Karadzic with the summons and complaint while he was in New York
but outside of the U.N. headquarters district, as they are prepared to prove, he is subject to the personal
jurisdiction of the District Court.
III. Justiciability
We recognize that cases of this nature might pose special questions concerning the judiciarys proper role when
adjudication might have implications in the conduct of this nations foreign relations. We do not
read Filrtiga to mean that the federal judiciary must always act in ways that risk significant interference with
United States foreign relations. To the contrary, we recognize that [*249] suits of this nature can present
difficulties that implicate sensitive matters of diplomacy historically reserved to the jurisdiction of the political
branches. See First National Bank v. Banco Nacional de Cuba, 406 U.S. 759, 767, 92 S.Ct. 1808, 1813, 32 L.Ed.2d
466 (1972). We therefore proceed to consider whether, even though the jurisdictional threshold is satisfied in
the pending cases, other considerations relevant to justiciability weigh against permitting the suits to proceed.
Two nonjurisdictional, prudential doctrines reflect the judiciarys concerns regarding separation of powers:
the political question doctrine and the act of state doctrine. It is the constitutional underpinnings of these
doctrines that influenced the concurring opinions of Judge Robb and Judge Bork in Tel-Oren. Although we too
recognize the potentially detrimental effects of judicial action in cases of this nature, we do not embrace the
rather categorical views as to the inappropriateness of judicial action urged by Judges Robb and Bork. Not every
case touching foreign relations is nonjusticiable, see Baker v. Carr, 369 U.S. 186, 211, 82 S.Ct. 691, 707, 7
Page 23 of 44

L.Ed.2d 663 (1962); Lamont v. Woods, 948 F.2d 825, 831-32 (2d Cir.1991), and judges should not reflexively
invoke these doctrines to avoid difficult and somewhat sensitive decisions in the context of human rights. We
believe a preferable approach is to weigh carefully the relevant considerations on a case-by-case basis. This
will permit the judiciary to act where appropriate in light of the express legislative mandate of the Congress in
section 1350, without compromising the primacy of the political branches in foreign affairs.
Karadzic maintains that these suits were properly dismissed because they present nonjusticiable political
questions. We disagree. Although these cases present issues that arise in a politically charged context, that does
not transform them into cases involving nonjusticiable political questions. [T]he doctrine is one of political
questions, not one of political cases. Klinghoffer, 937 F.2d at 49 (quoting Baker, 369 U.S. at 217, 82 S.Ct. at
710).
A nonjusticiable political question would ordinarily involve one or more of the following factors:
[1] a textually demonstrable constitutional commitment of the issue to a coordinate political
department; or [2] a lack of judicially discoverable and manageable standards for resolving it; or [3]
the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial
discretion; or [4] the impossibility of a courts undertaking independent resolution without
expressing lack of the respect due coordinate branches of government; or [5] an unusual need for
unquestioning adherence to a political decision already made; or [6] the potentiality of
embarrassment from multifarious pronouncements by various departments on one question.
Baker v. Carr, 369 U.S. at 217, 82 S.Ct. at 710; see also Can v. United States, 14 F.3d 160, 163 (2d Cir.1994). With
respect to the first three factors, we have noted in a similar context involving a tort suit against the PLO that
[t]he department to whom this issue has been constitutionally committed is none other than our ownthe
Judiciary. Klinghoffer, 937 F.2d at 49. Although the present actions are not based on the common law of torts,
as was Klinghoffer, our decision in Filrtiga established that universally recognized norms of international law
provide judicially discoverable and manageable standards for adjudicating suits brought under the Alien Tort
Act, which obviates any need to make initial policy decisions of the kind normally reserved for nonjudicial
discretion. Moreover, the existence of judicially discoverable and manageable standards further undermines
the claim that such suits relate to matters that are constitutionally committed to another branch. See Nixon v.
United States, 506 U.S. 224, 227-29, 113 S.Ct. 732, 735, 122 L.Ed.2d 1 (1993).
The fourth through sixth Baker factors appear to be relevant only if judicial resolution of a question would
contradict prior decisions taken by a political branch in those limited contexts where such contradiction would
seriously interfere with important governmental interests. Disputes implicating foreign policy concerns have
the potential to [*250] raise political question issues, although, as the Supreme Court has wisely cautioned, it
is error to suppose that every case or controversy which touches foreign relations lies beyond judicial
cognizance. Japan Whaling Assn v. American Cetacean Society, 478 U.S. 221, 229-30, 106 S.Ct. 2860, 2865- 66,
92 L.Ed.2d 166 (1986) (quoting Baker, 369 U.S. at 211, 82 S.Ct. at 706- 07).
The act of state doctrine, under which courts generally refrain from judging the acts of a foreign state within
its territory, see Banco Nacional de Cuba v. Sabbatino, 376 U.S. at 428, 84 S.Ct. 923, 940, 11 L.Ed.2d
804; Underhill v. Hernandez, 168 U.S. 250, 252, 18 S.Ct. 83, 84, 42 L.Ed. 456 (1897), might be implicated in some
cases arising under section 1350. However, as in Filrtiga, 630 F.2d at 889, we doubt that the acts of even a
state official, taken in violation of a nations fundamental law and wholly unratified by that nations
government, could properly be characterized as an act of state.
In the pending appeal, we need have no concern that interference with important governmental interests
warrants rejection of appellants claims. After commencing their action against Karadzic, attorneys for the
plaintiffs in Doe wrote to the Secretary of State to oppose reported attempts by Karadzic to be granted
immunity from suit in the United States; a copy of plaintiffs complaint was attached to the letter. Far from
intervening in the case to urge rejection of the suit on the ground that it presented political questions, the
Department responded with a letter indicating that Karadzic was not immune from suit as an invitee of the
Page 24 of 44
United Nations. See Habib Letter, supra. [FN10] After oral argument in the pending appeals, this Court wrote
to the Attorney General to inquire whether the United States wished to offer any further views concerning any
of the issues raised. In a Statement of Interest, signed by the Solicitor General and the State Departments
Legal Adviser, the United States has expressly disclaimed any concern that the political question doctrine
should be invoked to prevent the litigation of these lawsuits: Although there might be instances in which
federal courts are asked to issue rulings under the Alien Tort Statute or the Torture Victim Protection Act that
might raise a political question, this is not one of them. Statement of Interest of the United States at 3. Though
even an assertion of the political question doctrine by the Executive Branch, entitled to respectful
consideration, would not necessarily preclude adjudication, the Governments reply to our inquiry reinforces
our view that adjudication may properly proceed.
FN10. The Habib Letter on behalf of the State Department added:
We share your repulsion at the sexual assaults and other war crimes that have been reported as
part of the policy of ethnic cleansing in Bosnia-Herzegovina. The United States has reported rape
and other grave breaches of the Geneva Conventions to the United Nations. This information is
being investigated by a United Nations Commission of Experts, which was established at U.S.
initiative.
As to the act of state doctrine, the doctrine was not asserted in the District Court and is not before us on this
appeal. See Filrtiga, 630 F.2d at 889. Moreover, the appellee has not had the temerity to assert in this Court
that the acts he allegedly committed are the officially approved policy of a state. Finally, as noted, we think it
would be a rare case in which the act of state doctrine precluded suit under section 1350. Banco Nacional was
careful to recognize the doctrine in the absence of unambiguous agreement regarding controlling legal
principles, 376 U.S. at 428, 84 S.Ct. at 940, such as exist in the pending litigation, and applied the doctrine only
in a contextexpropriation of an aliens propertyin which world opinion was sharply divided, see id. at 42830, 84 S.Ct. at 940-41.
Finally, we note that at this stage of the litigation no party has identified a more suitable forum, and we are
aware of none. Though the Statement of the United States suggests the general importance of considering the
doctrine of forum non conveniens, it seems evident that the courts of the former Yugoslavia, either in Serbia or
war-torn Bosnia, are not now available to entertain plaintiffs claims, even if circumstances concerning the
location of witnesses and documents were presented that were sufficient to overcome [*251] the plaintiffs
preference for a United States forum.
Legal effects of recognition in international law
- A state or government does not exist for the purposes of IL until it is recognized; recognition thus has
a constitutive effect in the sense that it is necessary condition for the creation of the state or govt
concerned. (Constitutive Theory)
- Thus, an entity is not a state until it has secured its general recognition as such by other states.
- Constitutive Theory v. Declaratory Theory
o CT
recognition has effect on statehood
if the establishment of a state or govt is a breach of IL, the state or govt is often
regarded as having no legal existence until it is recognized.
o
DT
Recognition has no legal effects, existence of a state or govt is a question of pure fact,
and recognition is merely an acknowledgement of the facts
if an entity satisfies the requirements of a state objectively, it is a state with all intl
rights and duties and other states are obliged to treat it as such.
However, in most cases the establishment of a new state or govt is not a breach of IL; there is
no general rule of IL which forbids a group of people from overthrowing the govt of their
state, or to break away and form a new state, if they have the strength to do so. In such cases
Page 25 of 44
the existence of a state or govt is simply a question of fact, and recognition and nonrecognition usually have no legal effects.
Recognitions Evidentiary Role: establishes proof of the existence of a government
o Uncertainty in whether a body claiming to be a state fulfills the factual requirements of
statehood.
o Where facts are clear, the evidential value of recognition or non-recognition is not strong
enough to affect the outcome; in such circumstances, recognition is declaratory.
When Recognition becomes SEMI-CONSTITUTIVE: when factual requirements of statehood are
unclear, evidential value of recognition has a decisive effect
When Recognition is of little evidential value: if the granting or withholding of recognition by other
nations is not based on an assessment of the governments control over the country (i.e. inquiry into
the illegitimacy or irregularity of origin of an entity)
PREVAILING VIEW ON RECOGNITION: Declaratory and does not create a state as laid down in the 1993
Montevideo CORDS and in Article 12 of the Charter of the Organization of American States:
The political existence of the State is independent of recognition by other States. Even before
being recognized, the State has the right to defend its integrity and independence.
Diminished relevance of the Constitutive Theory: due to the acceptance of other states of the obligation
to treat an entity with the elements of statehood as state.
o Most states question an entitys:
Viability, as in secession
Independence from another state which had helped to create it, as in the issue of the
legality of another states intervention
Establishment in violation of Article 2(4) of the UN Charter prohibiting the use of
force
o Recognition of another state does not lead to any obligation to establish full diplomatic
relations or any other specific links with that state. This remains a matter of political
discretion. Nor does the termination of diplomatic relations automatically lead to derecognition.
Legal effects in domestic law

- If state A recognizes state B, this usually entails that the courts of state A will apply the law of state B
and give effect to its sovereign acts.
- Non-recognition: national courts will not accept the right of the foreign state or govt to sue or claim
other rights of a govtl nature, but as regards private parties, the situation varies to some extent,
depending on the national framework.
o In the US, courts could apply the law of a non-recognized entity if the executive confirmed that
this was not harmful to the foreign policies behind the non-recognition.
Effects of recognition on Recognizing State
Underhill v. Hernandez
In the early part of 1892 a revolution was initiated in Venezuela, against the administration thereof, which the
revo- [168 U.S. 250, 251] lutionists claimed had ceased to be the legitimate government. The principal parties
to this conflict were those who recognized Palacio as their head, and those who followed the leadership of
Crespo. Gen. Hernandez belonged to the antiadministration party, and commanded its forces in the vicinity of
Ciudad Bolivar. On the 8th of August, 1892, an engagement took place between the arimes of the two parties at
Buena Vista, some seven miles from Bolivar, in which the troops under Hernandez prevailed; and, on the 13th
of August, Hernandez entered Bolivar, and assumed command of the city. All of the local officials had in the
meantime left, and the vacant positions were filled by Gen. Hernandez, who from that date, and during the
period of the transactions complained of, was the civil and military chief of the city and district. In October the
party in revolt had achieved success generally, taking possession of the capital of Venezuela, October 6th; and
on October 23, 1892, the 'Crespo government,' so called, was formally recognized as the legitimate government
of Venezuela by the United States.
George F. Underhill was a citizen of the United States, who had constructed a waterworks system for the city of
Bolivar, under a contract with the government, and was engaged in supplying the place with water; and he also
Page 26 of 44
carried on a machiney repair business. Some time after the entry of Gen. Hernandez, Underhill applied to him,
as the officer in command, for a passport to leave the city. Hernandez refused this request, and requests made
by others in Underhill's behalf, until October 18th, when a passport was given, and Underhill left the country.
This action was brought to recover damages for the detention caused by reason of the refusal to grant the
passport, for the alleged confinement of Underhill to his own house, and for certain alleged assaults and affronts
by the soldiers of Hernandez's army.
The cause was tried in the circuit court of the United States for the Eastern district of New York, and on the
conclusion of plaintiff's case the circuit court ruled that upon the facts plaintiff was not entitled to recover, and
directed [168 U.S. 250, 252] a verdict for defendant, on the ground that 'because the acts of defendant were
those of a military commander, representing a de facto government in the prosecution of a war, he was not
civilly responsible therefor.' Judgment having been rendered for defendant, the case was taken to the circuit
court of appeals, and by that court affirmed, upon the ground 'that the acts of the defendant were the acts of
the government of Venezuela, and as such are not properly the subject of adjudication in the courts of another
government.' 26 U. S. App. 573, 13 C. C. A. 51, and 65 Fed. 577. Thereupon the cause was brought to this court
on certiorari.
Walter S. Logan, C. M. Demond, and Salter S. Clark, for plaintiff in error.
F. R. Coudert, F. R. Coudert, Jr., and Joseph Kling, for defendant in error.
Mr. Chief Justice FULLER, after stating the facts in the foregoing language, delivered the opinion of the court.
Every 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.
Redress of grievances by reason of such acts must be obtained through the means open to be availed of by
sovereign powers as between themselves.
Nor can the principle be confined to lawful or recognized governments, or to cases where redress can
manifestly be had through public channels. The immunity of individuals from suits brought in foreign tribunals
for acts done within their own states, in the exercise of governmental authority, whether as civil officers or as
military commanders, must necessarily extend to the agents of governments ruling by paramount force as
matter of fact. Where a civil war prevails (that is, where the people of a country are divided into two hostile
parties, who take up arms and oppose one another by military [168 U.S. 250, 253] force), generally speaking,
foreign nations do not assume to judge of the merits of the quarrel. If the party seeking to dislodge the existing
government succeeds, and the independence of the government it has set up is recognized, then the acts of such
government, from the commencement of its existence, are regarded as those of an independent nation. If the
political revolt fails of success, still, if actual war has been waged, acts of legitimate warfare cannot be made the
basis of individual liability. U. S. v. Rice, 4 Wheat. 246; Fleming v. Page, 9 How. 603; Thorington v. Smith, 8 Wall.
1; Williams v. Bruffy, 96 U.S. 176 ; Ford v. Surget, 97 U.S. 594 ; Dow v. Johnson, 100 U.S. 158 ; and other cases.
Revolutions or insurrections may inconvenience other nations, but by accommodation to the facts the
application of settled rules is readily reached. And, where the fact of the existence of war is in issue in the
instance of complaint of acts committed within foreign territory, it is not an absolute prerequisite that that fact
should be made out by an acknowledgment of belligerency, as other official recognition of its existence may be
sufficient proof thereof. The Three Friends, 166 U.S. 1 , 17 Sup. Ct. 495.
In this case the archives of the state department show that civil war was flagrant in Venezuela from the spring
of 1892, that the revolution was successful, and that the revolutionary government was recognized by the
United States as the government of the country; it being, to use the language of the secretary of state in a
communication to our minister to Venezuela, 'accepted by the people, in the possession of the power of the
nation, and fully established.'
That these were facts of which the court is bound to take judicial notice, and for information as to which it may
consult the department of state, there can be no doubt. Jones v. U. S., 137 U.S. 202 , 11 Sup. Ct. 80; Mighell v.
Sultan of Jahore [168 U.S. 250, 1894] 1 Q. B. 149.
It is idle to argue that the proceedings of those who thus triumphed should be treated as the acts of baditti, or
mere mobs.
We entertain no doubt, upon the evidence, that Hernandez [168 U.S. 250, 254] was carrying on military
operations in support of the revolutionary party. It may be that adherents of that side of the controversy in the
particular locality where Hernandez was the leader of the movement entertained a preference for him as the
future executive head of the nation, but that is beside the question. The acts complained of were the acts of a
military commander representing the authority of the revolutionary party as a government, which afterwards
succeeded, and was recognized by the United States. We think the circuit court of appeals was justified in
Page 27 of 44
concluding 'that the acts of the defendant were the acts of the government of Venezuela, and as such are not
properly the subject of adjudication in the courts of another government.'
The decisions cited on plaintiff's behalf are not in point. Cases respecting arrests by military authority in the
absence of the prevalence of war, or the validity of contracts between individuals entered into in aid of
insurrection, or the right or revolutionary bodies to vex the commerce of the world on its common highway
without incurring the penalties denounced on piracy, and the like, do not involve the questions presented here.
We agree with the circuit court of appeals that 'the evidence upon the trial indicated that the purpose of the
defendant in his treatment of the plaintiff was to coerce the plaintiff to operate his waterworks and his repair
works for the benefit of the community and the revolutionary forces,' and that 'it was not sufficient to have
warranted a finding by the jury that the defendant was actuated by malice or any personal or private motive,'
and we concur in its disposition of the rulings below. The decree of the circuit court is affirmed.
Recognition of Governments
- IL allows states to exercise great discretion when granting or withholding recognition, esp. when a
new govt comes into power in an existing state by violent means.
- Recognition is accorded to the head of state.
- States have often used Recognition as an instrument of policy (as a mark of approval).
- Refusal to recognize: sometimes based on
o A belief that the new state or govt is not in effective control of the territory which it claims
o Disapproval of a foreign govt of a recognizing state
- Recognition of a foreign govt implying approval where no approval was intended:
o To avoid such misinterpretation, some states have adopted the policy of never recognizing
govts. (ESTRADA Doctrine)
o This reflects the fact that the change in govt in a state is legally an internal matter, whether in
conformity with the national constitution or not, and does not concern IL or other states.
- IMPLIED v. EXPRESS RECOGNITION
o IR: existence of diplomatic relations or other dealings with a foreign govt > the only
unequivocal act from which full recognition can be inferred
o ER: declarations
Tobar Doctrine
Grew out of the treaties written among the Central American republics in 1907 and renewed in 1923. Designed
to discourage revolutions, these provided that the parties "shall not recognize any other Government which
may come into power in any of the five Republics as a consequence of a coup dtat, or of a revolution against
the recognized Government, so long as the freely elected representatives of the people thereof have not
constitutionally reorganized the country." They also disqualified the leaders of a coup dtat from assuming the
presidency or vice presidency.
The United States applied the doctrine to the revolutionary leader Federico Tinoco in Costa Rica in 1917, to
Honduras in 1924, and to the government of Emiliano Chamorro of Nicaragua in 1925, thereby giving extreme
expression to Jefferson's "will of the nation substantially declared," perhaps out of fear that dictatorships and
revolutionary governments posed a danger for international peace.
The Tobar Doctrine was incorporated in two agreements concluded by Costa Rica, El Salvador, Guatemala, Ho
nduras, and Nicaragua inDecember 1907 and November 1923. The agreements stipulated that the signatories
would withhold recognition from a governmentestablished in any of the five republics as a result of a coup d
etat or revolution. The USA, although it refrained from signing the agreements,
nevertheless freely invoked them in the pursuit of its policies during the first half of the 20th century.
Stimson Doctrine
The Stimson Doctrine is a policy of the United States federal government, enunciated in a note of January 7,
1932, to Japan and China, of non-recognition of international territorial changes that were executed by force.
The doctrine was an application of the principle of ex injuria jus non oritur.[1] While some analysts have applied
Page 28 of 44
the doctrine in opposition to governments established by revolution, this usage is not widespread, and its
invocation usually involves treaty violations.[1]
Named after Henry L. Stimson, United States Secretary of State in the Hoover Administration (192933), the
policy followed Japan's unilateral seizure of Manchuria in northeastern China following action by Japanese
soldiers at Mukden (now Shenyang), on September 18, 1931.[2] The doctrine was also invoked by U.S. UnderSecretary of State Sumner Welles in a declaration of July 23, 1940, that announced non-recognition of
the Soviet annexation and incorporation of the three Baltic statesEstonia, Latvia, and Lithuania[3]and
remained the official U.S. position until the Baltic states regained independence in 1991.
It was not the first time that the U.S. had used non-recognition as a political tool or symbolic statement.
President Woodrow Wilson had refused to recognise the Mexican Revolutionary governments in 1913 and
Japan's 21 Demands upon China in 1915.[citation needed]
The Japanese invasion of Manchuria in late 1931 placed U.S. Secretary of State Henry M. Stimson in a difficult
position. It was evident that appeals to the spirit of the KelloggBriand Pact had no impact on either the Chinese
or the Japanese, and the secretary was further hampered by President Herbert Hoover's clear indication that
he would not support economic sanctions as a means to bring peace in the Far East.[4]
On January 7, 1932, Secretary Stimson sent identical notes to China and Japan that incorporated a diplomatic
approach used by earlier secretaries facing crises in the Far East. Later known as the Stimson Doctrine, or
sometimes the Hoover-Stimson Doctrine, the notes read in part as follows:
...the American Government deems it to be its duty to notify both the Imperial Japanese Government
and the Government of the Chinese Republic that it cannot admit the legality of any situation de facto
nor does it intend to recognize any treaty or agreement entered into between those Governments, or
agents thereof, which may impair the treaty rights of the United States or its citizens in China, including
those that relate to the sovereignty, the independence, or the territorial and administrative integrity
of the Republic of China, or to the international policy relative to China, commonly known as the open
door policy...[5]
Stimson had stated that the United States would not recognize any changes made in China that would
curtail American treaty rights in the area and that the "open door" must be maintained. The declaration
had few material effects on the Western world, which was burdened by the Great Depression, and Japan
went on to bomb Shanghai.[4]
The doctrine was criticized on the grounds that it did no more than alienate the Japanese.[
Estrada Doctrine
The Estrada Doctrine is the name of Mexico's core foreign policy ideal from 1930 to the early 2000s. Its name
derives from Genaro Estrada, Secretary of Foreign Affairs during the presidency of Pascual Ortiz Rubio (1930
1932).[1]
The doctrine was the most influential and representative instrument in the country's foreign policy for seventy
years, it claims that foreign governments should not judge, positively or negatively, the governments or
changes in government of other states, in that such action would imply a breach of state sovereignty.[1] This
policy was said to be based on the principles of non-intervention, peaceful resolution of disputes and selfdetermination of all nations.
On September 12, 1931, Mexico was admitted to the League of Nations. This was a significant event as it had
not been invited since the creation of the inter-governmental organization once the First World War ended,
which can be mainly attributed to some unsolved problems between Mexico and the United States. In the heart
of the forum, Mexico established its position in favor of the international law and the principles of nonintervention and self-determination. The Mexican government always supported thepeaceful resolution of
disputes, and rejected the use of force in international relations. All of this gave the country a major
international prestige. As for its southern neighbors inLatin America and the Caribbean, Mexico returned to
the International Conference of American States, where it had been previously excluded due to lack of
Page 29 of 44
recognition from the U.S. The country gained an outstanding prestige in the conferences that took place
in Havana (1928) and Montevideo (1933), whose posture was in favor of the Latin American union and
international law.[3]
During this period, Mexico had the opportunity to spread its position towards the international practice
of recognition. Which is known as the Estrada Doctrine, the then-Secretary of Foreign Affairs, Genaro Estrada,
pointed out on September 27, 1930 that:[2]
The government of Mexico restricts itself to keep or retire, when considered appropriate,
its diplomatic agents and to continue accepting, when considered appropriate as well, similar
diplomatic agents whose respective nations have accredited in Mexico, without qualifying, neither
hastily nor a posteriori, the right that nations have to accept, keep or replace their governments or
authorities.
The Estrada Doctrine suggests that under the establishment of de facto governments in other countries, Mexico
is not in favor of giving recognition because it is considered a degrading practice. By hurting the sovereignty of
other states, it puts them in a vulnerable position because their internal affairs can be judged by other
governments, that in fact assume a critical attitude when deciding about the legality and legitimacy of foreign
governments.[2] Hence Mexico was itself hurt because of the practice, as it was difficult to obtain recognition of
its independence. The most extended use of the Estrada Doctrine was in the 1970s, when Mexico did not
withdraw its recognition of any South Americangovernment which was formed through a coup d'tat, the only
measure Mexico could use against such governments was withdrawing its diplomatic mission.[1]
In other words, the Estrada Doctrine claims that Mexico should not judge, positively or negatively, the
governments or changes in government of other nations, in that such action would imply a breach to
their sovereignty.[1] In addition, this doctrine is based on the universally recognized principles of selfdetermination and non-intervention, which are considered essential for mutual respect
and cooperation amongst nations.
De jure and de facto recognition- describes the GOVERNMENT, not the recognition
-
De jure recognition
o When recognition is granted by an express statement
De facto recognition
o Does not have the same legal basis as a de jure govt
What cures the illegality of the establishment of a state or government? ONLY A DE JURE
RECOGNITION.
o If one thinks of recognition as having an evidential value, then presumably de jure recognition
would have greater evidential force than de facto recognition; but the difference is probably
not very great.
Tinoco Claims Arbitration (Great Britain v. Costa Rica)
Brief Fact Summary. The Tinoco regime, which was the former government of Costa Rica, was alleged by Great
Britain to have granted oil concession to a British company that had to be honored by the present regime.
Synopsis of Rule of Law. A government need not conform to a previous constitution if the government had
established itself and maintained a peaceful de facto administration and non-recognition of the government by
other government does not destroy the de facto status of the government.
Facts. The Tinoco regime that had seized power in Costa Rica by coup was not recognized by Great Britain and
the United States. When the regime was removed, the new government nullified all Tinococ contract including
an oil concession to a British company. The claim of Great Britain (P) was that the contract could not be
repudiated because the Tinoco government was the only government in existence at the time of the contract
Page 30 of 44
was signed. This view was not shared by Costa Rica (D) who claimed that Great Britain (P) was estopped from
enforcing the contract by its non-recognition of the Tinoco regime. The matter was sent for arbitration.
Issue. Does a government need to conform to a previous constitution if the government had established itself
and maintained a peaceful de facto administration and does non-recognition of the government by other
government destroy the de facto status of the government?
Held. (Taft, C.J., Arb). No. A government need not conform to a previous constitution if the government had
established itself and maintained a peaceful de facto administration and non-recognition of the government by
other government does not destroy the de facto status of the government. The non-recognition of the Tinoco
regime by Great Britain did not dispute the de facto existence of that regime. There is no estoppel since the
successor government had not been led by British non-recognition to change its position.
Discussion. Estoppel was not found by the arbitrator. The evidence of the de facto status of the Tinocos regime
was not outweighed by the evidence of non-recognition. This implies that valid contracts may be formed by
unrecognized government.
Philippine Practice
Co Kim Cham v. Valdez Tan Keh
This petition for mandamus in which petitioner prays that the respondent judge of the lower court be ordered
to continue the proceedings in civil case No. 3012 of said court, which were initiated under the regime of the
so-called Republic of the Philippines established during the Japanese military occupation of these Islands.
The respondent judge refused to take cognizance of and continue the proceedings in said case on the ground
that the proclamation issued on October 23, 1944, by General Douglas MacArthur had the effect of
invalidating and nullifying all judicial proceedings and judgements of the court of the Philippines under the
Philippine Executive Commission and the Republic of the Philippines established during the Japanese military
occupation, and that, furthermore, the lower courts have no jurisdiction to take cognizance of and continue
judicial proceedings pending in the courts of the defunct Republic of the Philippines in the absence of an
enabling law granting such authority. And the same respondent, in his answer and memorandum filed in this
Court, contends that the government established in the Philippines during the Japanese occupation were
no de facto governments.
On January 2, 1942, the Imperial Japanese Forces occupied the City of Manila, and on the next day their
Commander in Chief proclaimed "the Military Administration under law over the districts occupied by the
Army." In said proclamation, it was also provided that "so far as the Military Administration permits, all the
laws now in force in the Commonwealth, as well as executive and judicial institutions, shall continue to be
effective for the time being as in the past," and "all public officials shall remain in their present posts and
carry on faithfully their duties as before."
A civil government or central administration organization under the name of "Philippine Executive
Commission was organized by Order No. 1 issued on January 23, 1942, by the Commander in Chief of the
Japanese Forces in the Philippines, and Jorge B. Vargas, who was appointed Chairman thereof, was instructed
to proceed to the immediate coordination of the existing central administrative organs and judicial courts,
based upon what had existed therefore, with approval of the said Commander in Chief, who was to exercise
jurisdiction over judicial courts.
The Chairman of the Executive Commission, as head of the central administrative organization, issued
Executive Orders Nos. 1 and 4, dated January 30 and February 5, 1942, respectively, in which the Supreme
Court, Court of Appeals, Courts of First Instance, and the justices of the peace and municipal courts under the
Commonwealth were continued with the same jurisdiction, in conformity with the instructions given to the
said Chairman of the Executive Commission by the Commander in Chief of Japanese Forces in the Philippines
Page 31 of 44
in the latter's Order No. 3 of February 20, 1942, concerning basic principles to be observed by the Philippine
Executive Commission in exercising legislative, executive and judicial powers. Section 1 of said Order
provided that "activities of the administration organs and judicial courts in the Philippines shall be based
upon the existing statutes, orders, ordinances and customs. . . ."
On October 14, 1943, the so-called Republic of the Philippines was inaugurated, but no substantial change
was effected thereby in the organization and jurisdiction of the different courts that functioned during the
Philippine Executive Commission, and in the laws they administered and enforced.
On October 23, 1944, a few days after the historic landing in Leyte, General Douglas MacArthur issued a
proclamation to the People of the Philippines which declared:
1. That the Government of the Commonwealth of the Philippines is, subject to the supreme authority
of the Government of the United States, the sole and only government having legal and valid
jurisdiction over the people in areas of the Philippines free of enemy occupation and control;
2. That the laws now existing on the statute books of the Commonwealth of the Philippines and the
regulations promulgated pursuant thereto are in full force and effect and legally binding upon the
people in areas of the Philippines free of enemy occupation and control; and
3. That all laws, regulations and processes of any other government in the Philippines than that of the
said Commonwealth are null and void and without legal effect in areas of the Philippines free of
enemy occupation and control.
On February 3, 1945, the City of Manila was partially liberated and on February 27, 1945, General MacArthur,
on behalf of the Government of the United States, solemnly declared "the full powers and responsibilities
under the Constitution restored to the Commonwealth whose seat is here established as provided by law."
In the light of these facts and events of contemporary history, the principal questions to be resolved in the
present case may be reduced to the following:(1) Whether the judicial acts and proceedings of the court
existing in the Philippines under the Philippine Executive Commission and the Republic of the Philippines
were good and valid and remained so even after the liberation or reoccupation of the Philippines by the
United States and Filipino forces; (2)Whether the proclamation issued on October 23, 1944, by General
Douglas MacArthur, Commander in Chief of the United States Army, in which he declared "that all laws,
regulations and processes of any of the government in the Philippines than that of the said Commonwealth
are null and void and without legal effect in areas of the Philippines free of enemy occupation and control,"
has invalidated all judgements and judicial acts and proceedings of the said courts; and (3) If the said judicial
acts and proceedings have not been invalidated by said proclamation, whether the present courts of the
Commonwealth, which were the same court existing prior to, and continued during, the Japanese military
occupation of the Philippines, may continue those proceedings pending in said courts at the time the
Philippines were reoccupied and liberated by the United States and Filipino forces, and the Commonwealth of
the Philippines were reestablished in the Islands.
We shall now proceed to consider the first question, that is, whether or not under the rules of international
law the judicial acts and proceedings of the courts established in the Philippines under the Philippine
Executive Commission and the Republic of the Philippines were good and valid and remained good and valid
even after the liberation or reoccupation of the Philippines by the United States and Filipino forces.
1. It is a legal truism in political and international law that all acts and proceedings of the legislative,
executive, and judicial departments of a de facto government are good and valid. The question to be
determined is whether or not the governments established in these Islands under the names of the Philippine
Executive Commission and Republic of the Philippines during the Japanese military occupation or regime
Page 32 of 44

were de facto governments. If they were, the judicial acts and proceedings of those governments remain good
and valid even after the liberation or reoccupation of the Philippines by the American and Filipino forces.
There are several kinds of de facto governments. The first, or government de facto in a proper legal sense, is
that government that gets possession and control of, or usurps, by force or by the voice of the majority, the
rightful legal governments and maintains itself against the will of the latter, such as the government of
England under the Commonwealth, first by Parliament and later by Cromwell as Protector. The second is that
which is established and maintained by military forces who invade and occupy a territory of the enemy in the
course of war, and which is denominated a government of paramount force, as the cases of Castine, in Maine,
which was reduced to British possession in the war of 1812, and Tampico, Mexico, occupied during the war
with Mexico, by the troops of the United States. And the third is that established as an independent
government by the inhabitants of a country who rise in insurrection against the parent state of such as the
government of the Southern Confederacy in revolt not concerned in the present case with the first kind, but
only with the second and third kinds of de factogovernments.
Speaking of government "de facto" of the second kind, the Supreme Court of the United States, in the case of
Thorington vs. Smith (8 Wall., 1), said: "But there is another description of government, called also by
publicists a government de facto, but which might, perhaps, be more aptly denominated a government of
paramount force. Its distinguishing characteristics are (1), that its existence is maintained by active military
power with the territories, and against the rightful authority of an established and lawful government; and
(2), that while it exists it necessarily be obeyed in civil matters by private citizens who, by acts of obedience
rendered in submission to such force, do not become responsible, or wrongdoers, for those acts, though not
warranted by the laws of the rightful government. Actual governments of this sort are established over
districts differing greatly in extent and conditions. They are usually administered directly by military
authority, but they may be administered, also, civil authority, supported more or less directly by military
force. . . . One example of this sort of government is found in the case of Castine, in Mine, reduced to British
possession in the war of 1812 . . . U. S. vs. Rice (4 Wheaton, 253). A like example is found in the case of
Tampico, occupied during the war with Mexico, by the troops of the United States . . . Fleming vs. Page (9
Howard, 614). These were cases of temporary possessions of territory by lawfull and regular governments at
war with the country of which the territory so possessed was part."
The powers and duties of de facto governments of this description are regulated in Section III of the Hague
Conventions of 1907, which is a revision of the provisions of the Hague Conventions of 1899 on the same
subject of said Section III provides "the authority of the legislative power having actually passed into the
hands of the occupant, the latter shall take steps in his power to reestablish and insure, as far as possible,
public order and safety, while respecting, unless absolutely prevented, the laws in force in the country."
According to the precepts of the Hague Conventions, as the belligerent occupant has the right and is burdened
with the duty to insure public order and safety during his military occupation, he possesses all the powers of
a de facto government, and he can suspended the old laws and promulgate new ones and make such changes
in the old as he may see fit, but he is enjoined to respect, unless absolutely prevented by the circumstances
prevailing in the occupied territory, the municipal laws in force in the country, that is, those laws which
enforce public order and regulate social and commercial life of the country. On the other hand, laws of a
political nature or affecting political relations, such as, among others, the right of assembly, the right to bear
arms, the freedom of the press, and the right to travel freely in the territory occupied, are considered as
suspended or in abeyance during the military occupation. Although the local and civil administration of
justice is suspended as a matter of course as soon as a country is militarily occupied, it is not usual for the
invader to take the whole administration into his own hands. In practice, the local ordinary tribunals are
authorized to continue administering justice; and judges and other judicial officers are kept in their posts if
they accept the authority of the belligerent occupant or are required to continue in their positions under the
supervision of the military or civil authorities appointed, by the Commander in Chief of the occupant. These
principles and practice have the sanction of all publicists who have considered the subject, and have been
asserted by the Supreme Court and applied by the President of the United States.
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The doctrine upon this subject is thus summed up by Halleck, in his work on International Law (Vol. 2, p.
444): "The right of one belligerent to occupy and govern the territory of the enemy while in its military
possession, is one of the incidents of war, and flows directly from the right to conquer. We, therefore, do not
look to the Constitution or political institutions of the conqueror, for authority to establish a government for
the territory of the enemy in his possession, during its military occupation, nor for the rules by which the
powers of such government are regulated and limited. Such authority and such rules are derived directly
from the laws war, as established by the usage of the of the world, and confirmed by the writings of publicists
and decisions of courts in fine, from the law of nations. . . . The municipal laws of a conquered territory, or
the laws which regulate private rights, continue in force during military occupation, excepts so far as they are
suspended or changed by the acts of conqueror. . . . He, nevertheless, has all the powers of a de
facto government, and can at his pleasure either change the existing laws or make new ones."
And applying the principles for the exercise of military authority in an occupied territory, which were later
embodied in the said Hague Conventions, President McKinley, in his executive order to the Secretary of War
of May 19,1898, relating to the occupation of the Philippines by United States forces, said in part: "Though the
powers of the military occupant are absolute and supreme, and immediately operate upon the political
condition of the inhabitants, the municipal laws of the conquered territory, such as affect private rights of
person and property and provide for the punishment of crime, are considered as continuing in force, so far as
they are compatible with the new order of things, until they are suspended or superseded by the occupying
belligerent; and in practice they are not usually abrogated, but are allowed to remain in force and to be
administered by the ordinary tribunals, substantially as they were before the occupation. This enlightened
practice is, so far as possible, to be adhered to on the present occasion. The judges and the other officials
connected with the administration of justice may, if they accept the authority of the United States, continue to
administer the ordinary law of the land as between man and man under the supervision of the American
Commander in Chief." (Richardson's Messages and Papers of President, X, p. 209.)
As to "de facto" government of the third kind, the Supreme Court of the United States, in the same case of
Thorington vs. Smith, supra, recognized the government set up by the Confederate States as a de
factogovernment. In that case, it was held that "the central government established for the insurgent States
differed from the temporary governments at Castine and Tampico in the circumstance that its authority did
no originate in lawful acts of regular war; but it was not, on the account, less actual or less supreme. And we
think that it must be classed among the governments of which these are examples. . . .
In the case of William vs. Bruffy (96 U. S. 176, 192), the Supreme Court of the United States, discussing the
validity of the acts of the Confederate States, said: "The same general form of government, the same general
laws for the administration of justice and protection of private rights, which had existed in the States prior to
the rebellion, remained during its continuance and afterwards. As far as the Acts of the States do not impair
or tend to impair the supremacy of the national authority, or the just rights of citizens under the Constitution,
they are, in general, to be treated as valid and binding. As we said in Horn vs. Lockhart (17 Wall., 570; 21 Law.
ed., 657): "The existence 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. Order was to be preserved, police regulations
maintained, crime prosecuted, property protected, contracts enforced, marriages celebrated, estates settled,
and the transfer and descent of property regulated, precisely as in the time of peace. No one, that we are
aware of, seriously questions the validity of judicial or legislative Acts in the insurrectionary States touching
these and kindered subjects, where they were not hostile in their purpose or mode of enforcement to the
authority of the National Government, and did not impair the rights of citizens under the Constitution'. The
same doctrine has been asserted in numerous other cases."
And the same court, in the case of Baldy vs. Hunter (171 U. S., 388, 400), held: "That what occured or was
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
Union established by the national Constitution; this, because the existence of war between the United States
and the Confederate States did not relieve those who are within the insurrectionary lines from the necessity
of civil obedience, nor destroy the bonds of society nor do away with civil government or the regular
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administration of the laws, and because transactions in the ordinary course of civil society as organized
within the enemy's territory although they may have indirectly or remotely promoted the ends of the de
facto or unlawful government organized to effect a dissolution of the Union, were without blame 'except
when proved to have been entered intowith actual intent to further invasion or insurrection:'" and "That
judicial and legislative acts in the respective states composing the so-called Confederate States should be
respected by the courts if they were not hostile in their purpose or mode of enforcement to the authority of
the National Government, and did not impair the rights of citizens under the Constitution."
In view of the foregoing, it is evident that the Philippine Executive Commission, which was organized by
Order No. 1, issued on January 23, 1942, by the Commander of the Japanese forces, was a civil government
established by the military forces of occupation and therefore a de facto government of the second kind. It
was not different from the government established by the British in Castine, Maine, or by the United States in
Tampico, Mexico. As Halleck says, "The government established over an enemy's territory during the military
occupation may exercise all the powers given by the laws of war to the conqueror over the conquered, and is
subject to all restrictions which that code imposes. It is of little consequence whether such government be
called a military or civil government. Its character is the same and the source of its authority the same. In
either case it is a government imposed by the laws of war, and so far it concerns the inhabitants of such
territory or the rest of the world, those laws alone determine the legality or illegality of its acts." (Vol. 2, p.
466.) The fact that the Philippine Executive Commission was a civil and not a military government and was
run by Filipinos and not by Japanese nationals, is of no consequence. In 1806, when Napoleon occupied the
greater part of Prussia, he retained the existing administration under the general direction of a french official
(Langfrey History of Napoleon, 1, IV, 25); and, in the same way, the Duke of Willington, on invading France,
authorized the local authorities to continue the exercise of their functions, apparently without appointing an
English superior. (Wellington Despatches, XI, 307.). The Germans, on the other hand, when they invaded
France in 1870, appointed their own officials, at least in Alsace and Lorraine, in every department of
administration and of every rank. (Calvo, pars. 2186-93; Hall, International Law, 7th ed., p. 505, note 2.)
The so-called Republic of the Philippines, apparently established and organized as a sovereign state
independent from any other government by the Filipino people, was, in truth and reality, a government
established by the belligerent occupant or the Japanese forces of occupation. It was of the same character as
the Philippine Executive Commission, and the ultimate source of its authority was the same the Japanese
military authority and government. As General MacArthur stated in his proclamation of October 23, 1944, a
portion of which has been already quoted, "under enemy duress, a so-called government styled as the
'Republic of the Philippines' was established on October 14, 1943, based upon neither the free expression of
the people's will nor the sanction of the Government of the United States." Japan had no legal power to grant
independence to the Philippines or transfer the sovereignty of the United States to, or recognize the latent
sovereignty of, the Filipino people, before its military occupation and possession of the Islands had matured
into an absolute and permanent dominion or sovereignty by a treaty of peace or other means recognized in
the law of nations. For it is a well-established doctrine in International Law, recognized in Article 45 of the
Hauge Conventions of 1907 (which prohibits compulsion of the population of the occupied territory to swear
allegiance to the hostile power), the belligerent occupation, being essentially provisional, does not serve to
transfer sovereignty over the territory controlled although the de jure government is during the period of
occupancy deprived of the power to exercise its rights as such. (Thirty Hogshead of Sugar vs. Boyle, 9 Cranch,
191; United States vs. Rice, 4 Wheat., 246; Fleming vs.Page, 9 Howard, 603; Downes vs. Bidwell, 182 U. S., 345.)
The formation of the Republic of the Philippines was a scheme contrived by Japan to delude the Filipino
people into believing in the apparent magnanimity of the Japanese gesture of transferring or turning over the
rights of government into the hands of Filipinos. It was established under the mistaken belief that by doing so,
Japan would secure the cooperation or at least the neutrality of the Filipino people in her war against the
United States and other allied nations.
Indeed, even if the Republic of the Philippines had been established by the free will of the Filipino who, taking
advantage of the withdrawal of the American forces from the Islands, and the occupation thereof by the
Japanese forces of invasion, had organized an independent government under the name with the support and
backing of Japan, such government would have been considered as one established by the Filipinos in
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insurrection or rebellion against the parent state or the Unite States. And as such, it would have been a de
facto government similar to that organized by the confederate states during the war of secession and
recognized as such by the by the Supreme Court of the United States in numerous cases, notably those of
Thorington vs. Smith, Williams vs.Bruffy, and Badly vs. Hunter, above quoted; and similar to the short-lived
government established by the Filipino insurgents in the Island of Cebu during the Spanish-American war,
recognized as a de facto government by the Supreme Court of the United States in the case of
McCleod vs. United States (299 U. S., 416). According to the facts in the last-named case, the Spanish forces
evacuated the Island of Cebu on December 25, 1898, having first appointed a provisional government, and
shortly afterwards, the Filipinos, formerly in insurrection against Spain, took possession of the Islands and
established a republic, governing the Islands until possession thereof was surrendered to the United States on
February 22, 1898. And the said Supreme Court held in that case that "such government was of the class of de
facto governments described in I Moore's International Law Digest, S 20, . . . 'called also by publicists a
government de facto, but which might, perhaps, be more aptly denominated a government of paramount
force . . '." That is to say, that the government of a country in possession of belligerent forces in insurrection
or rebellion against the parent state, rests upon the same principles as that of a territory occupied by the
hostile army of an enemy at regular war with the legitimate power.
The governments by the Philippine Executive Commission and the Republic of the Philippines during the
Japanese military occupation being de facto governments, it necessarily follows that the judicial acts and
proceedings of the courts of justice of those governments, which are not of a political complexion, were good
and valid, and, by virtue of the well-known principle of postliminy (postliminium) in international law,
remained good and valid after the liberation or reoccupation of the Philippines by the American and Filipino
forces under the leadership of General Douglas MacArthur. According to that well-known principle in
international law, the fact that a territory which has been occupied by an enemy comes again into the power
of its legitimate government of sovereignty, "does not, except in a very few cases, wipe out the effects of acts
done by an invader, which for one reason or another it is within his competence to do. Thus judicial acts done
under his control, when they are not of a political complexion, administrative acts so done, to the extent that
they take effect during the continuance of his control, and the various acts done during the same time by
private persons under the sanction of municipal law, remain good. Were it otherwise, the whole social life of a
community would be paralyzed by an invasion; and as between the state and the individuals the evil would be
scarcely less, it would be hard for example that payment of taxes made under duress should be ignored,
and it would be contrary to the general interest that the sentences passed upon criminals should be annulled
by the disappearance of the intrusive government ." (Hall, International Law, 7th ed., p. 518.) And when the
occupation and the abandonment have been each an incident of the same war as in the present case,
postliminy applies, even though the occupant has acted as conqueror and for the time substituted his own
sovereignty as the Japanese intended to do apparently in granting independence to the Philippines and
establishing the so-called Republic of the Philippines. (Taylor, International Law, p. 615.)
That not only judicial but also legislative acts of de facto governments, which are not of a political complexion,
are and remain valid after reoccupation of a territory occupied by a belligerent occupant, is confirmed by the
Proclamation issued by General Douglas MacArthur on October 23, 1944, which declares null and void all
laws, regulations and processes of the governments established in the Philippines during the Japanese
occupation, for it would not have been necessary for said proclamation to abrogate them if they were
invalid ab initio.
2. The second question hinges upon the interpretation of the phrase "processes of any other government" as
used in the above-quoted proclamation of General Douglas MacArthur of October 23, 1944 that is, whether
it was the intention of the Commander in Chief of the American Forces to annul and void thereby all
judgments and judicial proceedings of the courts established in the Philippines during the Japanese military
occupation.
The phrase "processes of any other government" is broad and may refer not only to the judicial processes, but
also to administrative or legislative, as well as constitutional, processes of the Republic of the Philippines or
other governmental agencies established in the Islands during the Japanese occupation. Taking into
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consideration the fact that, as above indicated, according to the well-known principles of international law all
judgements and judicial proceedings, which are not of a political complexion, of the de facto governments
during the Japanese military occupation were good and valid before and remained so after the occupied
territory had come again into the power of the titular sovereign, it should be presumed that it was not, and
could not have been, the intention of General Douglas MacArthur, in using the phrase "processes of any other
government" in said proclamation, to refer to judicial processes, in violation of said principles of international
law. The only reasonable construction of the said phrase is that it refers to governmental processes other
than judicial processes of court proceedings, for according to a well-known rule of statutory construction, set
forth in 25 R. C. L., p. 1028, "a statute ought never to be construed to violate the law of nations if any other
possible construction remains."
It is true that the commanding general of a belligerent army of occupation, as an agent of his government,
may not unlawfully suspend existing laws and promulgate new ones in the occupied territory, if and when the
exigencies of the military occupation demand such action. But even assuming that, under the law of nations,
the legislative power of a commander in chief of military forces who liberates or reoccupies his own territory
which has been occupied by an enemy, during the military and before the restoration of the civil regime, is as
broad as that of the commander in chief of the military forces of invasion and occupation (although the
exigencies of military reoccupation are evidently less than those of occupation), it is to be presumed that
General Douglas MacArthur, who was acting as an agent or a representative of the Government and the
President of the United States, constitutional commander in chief of the United States Army, did not intend to
act against the principles of the law of nations asserted by the Supreme Court of the United States from the
early period of its existence, applied by the Presidents of the United States, and later embodied in the Hague
Conventions of 1907, as above indicated. It is not to be presumed that General Douglas MacArthur, who
enjoined in the same proclamation of October 23, 1944, "upon the loyal citizens of the Philippines full respect
and obedience to the Constitution of the Commonwealth of the Philippines," should not only reverse the
international policy and practice of his own government, but also disregard in the same breath the provisions
of section 3, Article II, of our Constitution, which provides that "The Philippines renounces war as an
instrument of national policy, and adopts the generally accepted principles of international law as part of the
law of the Nation."
Moreover, from a contrary construction great inconvenience and public hardship would result, and great
public interests would be endangered and sacrificed, for disputes or suits already adjudged would have to be
again settled accrued or vested rights nullified, sentences passed on criminals set aside, and criminals might
easily become immune for evidence against them may have already disappeared or be no longer available,
especially now that almost all court records in the Philippines have been destroyed by fire as a consequence
of the war. And it is another well-established rule of statutory construction that where great inconvenience
will result from a particular construction, or great public interests would be endangered or sacrificed, or
great mischief done, such construction is to be avoided, or the court ought to presume that such construction
was not intended by the makers of the law, unless required by clear and unequivocal words. (25 R. C. L., pp.
1025, 1027.)
The mere conception or thought of possibility that the titular sovereign or his representatives who reoccupies
a territory occupied by an enemy, may set aside or annul all the judicial acts or proceedings of the tribunals
which the belligerent occupant had the right and duty to establish in order to insure public order and safety
during military occupation, would be sufficient to paralyze the social life of the country or occupied territory,
for it would have to be expected that litigants would not willingly submit their litigation to courts whose
judgements or decisions may afterwards be annulled, and criminals would not be deterred from committing
crimes or offenses in the expectancy that they may escaped the penalty if judgments rendered against them
may be afterwards set aside.
That the proclamation has not invalidated all the judgements and proceedings of the courts of justice during
the Japanese regime, is impliedly confirmed by Executive Order No. 37, which has the force of law, issued by
the President of the Philippines on March 10, 1945, by virtue of the emergency legislative power vested in
him by the Constitution and the laws of the Commonwealth of the Philippines. Said Executive order abolished
Page 37 of 44
the Court of Appeals, and provided "that all case which have heretofore been duly appealed to the Court of
Appeals shall be transmitted to the Supreme Court final decision." This provision impliedly recognizes that
the judgments and proceedings of the courts during the Japanese military occupation have not been
invalidated by the proclamation of General MacArthur of October 23, because the said Order does not say or
refer to cases which have been duly appealed to said court prior to the Japanese occupation, but to cases
which had therefore, that is, up to March 10, 1945, been duly appealed to the Court of Appeals; and it is to be
presumed that almost all, if not all, appealed cases pending in the Court of Appeals prior to the Japanese
military occupation of Manila on January 2, 1942, had been disposed of by the latter before the restoration of
the Commonwealth Government in 1945; while almost all, if not all, appealed cases pending on March 10,
1945, in the Court of Appeals were from judgments rendered by the Court of First Instance during the Japanese
regime.
The respondent judge quotes a portion of Wheaton's International Law which say: "Moreover when it is said
that an occupier's acts are valid and under international law should not be abrogated by the subsequent
conqueror, it must be remembered that no crucial instances exist to show that if his acts should be reversed,
any international wrong would be committed. What does happen is that most matters are allowed to stand by
the restored government, but the matter can hardly be put further than this." (Wheaton, International Law,
War, 7th English edition of 1944, p. 245.) And from this quotion the respondent judge "draws the conclusion
that whether the acts of the occupant should be considered valid or not, is a question that is up to the
restored government to decide; that there is no rule of international law that denies to the restored
government to decide; that there is no rule of international law that denies to the restored government the
right of exercise its discretion on the matter, imposing upon it in its stead the obligation of recognizing and
enforcing the acts of the overthrown government."
There is doubt that the subsequent conqueror has the right to abrogate most of the acts of the occupier, such
as the laws, regulations and processes other than judicial of the government established by the belligerent
occupant. But in view of the fact that the proclamation uses the words "processes of any other government"
and not "judicial processes" prisely, it is not necessary to determine whether or not General Douglas
MacArthur had power to annul and set aside all judgments and proceedings of the courts during the Japanese
occupation. The question to be determined is whether or not it was his intention, as representative of the
President of the United States, to avoid or nullify them. If the proclamation had, expressly or by necessary
implication, declared null and void the judicial processes of any other government, it would be necessary for
this court to decide in the present case whether or not General Douglas MacArthur had authority to declare
them null and void. But the proclamation did not so provide, undoubtedly because the author thereof was
fully aware of the limitations of his powers as Commander in Chief of Military Forces of liberation or
subsequent conqueror.
Not only the Hague Regulations, but also the principles of international law, as they result from the usages
established between civilized nations, the laws of humanity and the requirements of the public of conscience,
constitute or from the law of nations. (Preamble of the Hague Conventions; Westlake, International Law, 2d
ed., Part II, p. 61.) Article 43, section III, of the Hague Regulations or Conventions which we have already
quoted in discussing the first question, imposes upon the occupant the obligation to establish courts; and
Article 23 (h), section II, of the same Conventions, which prohibits the belligerent occupant "to declare . . .
suspended . . . in a Court of Law the rights and action of the nationals of the hostile party," forbids him to
make any declaration preventing the inhabitants from using their courts to assert or enforce their civil rights.
(Decision of the Court of Appeals of England in the case of Porter vs. Fruedenburg, L.R. [1915], 1 K.B., 857.) If
a belligerent occupant is required to establish courts of justice in the territory occupied, and forbidden to
prevent the nationals thereof from asserting or enforcing therein their civil rights, by necessary implication,
the military commander of the forces of liberation or the restored government is restrained from nullifying or
setting aside the judgments rendered by said courts in their litigation during the period of occupation.
Otherwise, the purpose of these precepts of the Hague Conventions would be thwarted, for to declare them
null and void would be tantamount to suspending in said courts the right and action of the nationals of the
territory during the military occupation thereof by the enemy. It goes without saying that a law that enjoins a
person to do something will not at the same time empower another to undo the same. Although the question
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whether the President or commanding officer of the United States Army has violated restraints imposed by
the constitution and laws of his country is obviously of a domestic nature, yet, in construing and applying
limitations imposed on the executive authority, the Supreme Court of the United States, in the case of
Ochoa, vs. Hernandez (230 U.S., 139), has declared that they "arise from general rules of international law and
from fundamental principles known wherever the American flag flies."
In the case of Raymond vs. Thomas (91 U.S., 712), a special order issued by the officer in command of the
forces of the United States in South Carolina after the end of the Civil War, wholly annulling a decree rendered
by a court of chancery in that state in a case within its jurisdiction, was declared void, and not warranted by
the acts approved respectively March 2, 1867 (14 Stat., 428), and July 19 of the same year (15 id., 14), which
defined the powers and duties of military officers in command of the several states then lately in rebellion. In
the course of its decision the court said; "We have looked carefully through the acts of March 2, 1867 and July
19, 1867. They give very large governmental powers to the military commanders designated, within the
States committed respectively to their jurisdiction; but we have found nothing to warrant the order here in
question. . . . The clearest language would be necessary to satisfy us that Congress intended that the power
given by these acts should be so exercised. . . . It was an arbitrary stretch of authority, needful to no good end
that can be imagined. Whether Congress could have conferred the power to do such an act is a question we
are not called upon to consider. It is an unbending rule of law that the exercise of military power, where the
rights of the citizen are concerned, shall never be pushed beyond what the exigency requires.
(Mithell vs. Harmony, 13 How., 115; Warden vs. Bailey, 4 Taunt., 67; Fabrigas vs. Moysten, 1 Cowp., 161; s.c., 1
Smith's L.C., pt. 2, p. 934.) Viewing the subject before us from the standpoint indicated, we hold that the order
was void."
It is, therefore, evident that the proclamation of General MacArthur of October 23, 1944, which declared that
"all laws, regulations and processes of any other government in the Philippines than that of the said
Commonwealth are null and void without legal effect in areas of the Philippines free of enemy occupation and
control," has not invalidated the judicial acts and proceedings, which are not a political complexion, of the
courts of justice in the Philippines that were continued by the Philippine Executive Commission and the
Republic of the Philippines during the Japanese military occupation, and that said judicial acts and
proceedings were good and valid before and now good and valid after the reoccupation of liberation of the
Philippines by the American and Filipino forces.
3. The third and last question is whether or not the courts of the Commonwealth, which are the same as those
existing prior to, and continued during, the Japanese military occupation by the Philippine Executive
Commission and by the so-called Republic of the Philippines, have jurisdiction to continue now the
proceedings in actions pending in said courts at the time the Philippine Islands were reoccupied or liberated
by the American and Filipino forces, and the Commonwealth Government was restored.
Although in theory the authority the authority of the local civil and judicial administration is suspended as a
matter of course as soon as military occupation takes place, in practice the invader does not usually take the
administration of justice into his own hands, but continues the ordinary courts or tribunals to administer the
laws of the country which he is enjoined, unless absolutely prevented, to respect. As stated in the abovequoted Executive Order of President McKinley to the Secretary of War on May 19, 1898, "in practice, they (the
municipal laws) are not usually abrogated but are allowed to remain in force and to be administered by the
ordinary tribunals substantially as they were before the occupation. This enlightened practice is, so far as
possible, to be adhered to on the present occasion." And Taylor in this connection says: "From a theoretical
point of view it may be said that the conqueror is armed with the right to substitute his arbitrary will for all
preexisting forms of government, legislative, executive and judicial. From the stand-point of actual practice
such arbitrary will is restrained by the provision of the law of nations which compels the conqueror to
continue local laws and institution so far as military necessity will permit." (Taylor, International Public Law,
p.596.) Undoubtedly, this practice has been adopted in order that the ordinary pursuits and business of
society may not be unnecessarily deranged, inasmuch as belligerent occupation is essentially provisional, and
the government established by the occupant of transient character.
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Following these practice and precepts of the law of nations, Commander in Chief of the Japanese Forces
proclaimed on January 3, 1942, when Manila was occupied, the military administration under martial law
over the territory occupied by the army, and ordered that "all the laws now in force in the Commonwealth, as
well as executive and judicial institutions, shall continue to be affective for the time being as in the past," and
"all public officials shall remain in their present post and carry on faithfully their duties as before." When the
Philippine Executive Commission was organized by Order No. 1 of the Japanese Commander in Chief, on
January 23, 1942, the Chairman of the Executive Commission, by Executive Orders Nos. 1 and 4 of January 30
and February 5, respectively, continued the Supreme Court, Court of Appeals, Court of First Instance, and
justices of the peace of courts, with the same jurisdiction in conformity with the instructions given by the
Commander in Chief of the Imperial Japanese Army in Order No. 3 of February 20, 1942. And on October 14,
1943 when the so-called Republic of the Philippines was inaugurated, the same courts were continued with
no substantial change in organization and jurisdiction thereof.
If the proceedings pending in the different courts of the Islands prior to the Japanese military occupation had
been continued during the Japanese military administration, the Philippine Executive Commission, and the
so-called Republic of the Philippines, it stands to reason that the same courts, which had become
reestablished and conceived of as having in continued existence upon the reoccupation and liberation of the
Philippines by virtue of the principle of postliminy (Hall, International Law, 7th ed., p. 516), may continue the
proceedings in cases then pending in said courts, without necessity of enacting a law conferring jurisdiction
upon them to continue said proceedings. As Taylor graphically points out in speaking of said principles "a
state or other governmental entity, upon the removal of a foreign military force, resumes its old place with its
right and duties substantially unimpaired. . . . Such political resurrection is the result of a law analogous to
that which enables elastic bodies to regain their original shape upon removal of the external force, and
subject to the same exception in case of absolute crushing of the whole fibre and content." (Taylor,
International Public Law, p. 615.)
The argument advanced by the respondent judge in his resolution in support in his conclusion that the Court
of First Instance of Manila presided over by him "has no authority to take cognizance of, and continue said
proceedings (of this case) to final judgment until and unless the Government of the Commonwealth of the
Philippines . . . shall have provided for the transfer of the jurisdiction of the courts of the now defunct
Republic of the Philippines, and the cases commenced and the left pending therein," is "that said courts were
a government alien to the Commonwealth Government. The laws they enforced were, true enough, laws of
the Commonwealth prior to Japanese occupation, but they had become the laws and the courts had
become the institutions of Japan by adoption (U.S. vs. Reiter. 27 F. Cases, No. 16146), as they became later
on the laws and institutions of the Philippine Executive Commission and the Republic of the Philippines."
The court in the said case of U.S. vs. Reiter did not and could not say that the laws and institutions of the
country occupied if continued by the conqueror or occupant, become the laws and the courts, by adoption, of
the sovereign nation that is militarily occupying the territory. Because, as already shown, belligerent or
military occupation is essentially provisional and does not serve to transfer the sovereignty over the occupied
territory to the occupant. What the court said was that, if such laws and institutions are continued in use by
the occupant, they become his and derive their force from him, in the sense that he may continue or set them
aside. The laws and institution or courts so continued remain the laws and institutions or courts of the
occupied territory. The laws and the courts of the Philippines, therefore, did not become, by being continued
as required by the law of nations, laws and courts of Japan. The provision of Article 45, section III, of the
Hague Conventions of 1907 which prohibits any compulsion of the population of occupied territory to swear
allegiance to the hostile power, "extends to prohibit everything which would assert or imply a change made
by the invader in the legitimate sovereignty. This duty is neither to innovate in the political life of the
occupied districts, nor needlessly to break the continuity of their legal life. Hence, so far as the courts of
justice are allowed to continue administering the territorial laws, they must be allowed to give their
sentences in the name of the legitimate sovereign " (Westlake, Int. Law, Part II, second ed., p. 102). According
to Wheaton, however, the victor need not allow the use of that of the legitimate government. When in 1870,
the Germans in France attempted to violate that rule by ordering, after the fall of the Emperor Napoleon, the
courts of Nancy to administer justice in the name of the "High German Powers occupying Alsace and
Page 40 of 44
Lorraine," upon the ground that the exercise of their powers in the name of French people and government
was at least an implied recognition of the Republic, the courts refused to obey and suspended their sitting.
Germany originally ordered the use of the name of "High German Powers occupying Alsace and Lorraine," but
later offered to allow use of the name of the Emperor or a compromise. (Wheaton, International Law, War,
7th English ed. 1944, p. 244.)
Furthermore, it is a legal maxim, that excepting that of a political nature, "Law once established continues
until changed by the some competent legislative power. It is not change merely by change of sovereignty."
(Joseph H. Beale, Cases on Conflict of Laws, III, Summary Section 9, citing Commonwealth vs. Chapman, 13
Met., 68.) As the same author says, in his Treatise on the Conflict on Laws (Cambridge, 1916, Section 131):
"There can no break or interregnum in law. From the time the law comes into existence with the first-felt
corporateness of a primitive people it must last until the final disappearance of human society. Once created,
it persists until a change take place, and when changed it continues in such changed condition until the next
change, and so forever. Conquest or colonization is impotent to bring law to an end; in spite of change of
constitution, the law continues unchanged until the new sovereign by legislative acts creates a change."
As courts are creatures of statutes and their existence defends upon that of the laws which create and confer
upon them their jurisdiction, it is evident that such laws, not being a political nature, are not abrogated by a
change of sovereignty, and continue in force "ex proprio vigore" unless and until repealed by legislative acts.
A proclamation that said laws and courts are expressly continued is not necessary in order that they may
continue in force. Such proclamation, if made, is but a declaration of the intention of respecting and not
repealing those laws. Therefore, even assuming that Japan had legally acquired sovereignty over these
Islands, which she had afterwards transferred to the so-called Republic of the Philippines, and that the laws
and the courts of these Islands had become the courts of Japan, as the said courts of the laws creating and
conferring jurisdiction upon them have continued in force until now, it necessarily follows that the same
courts may continue exercising the same jurisdiction over cases pending therein before the restoration of the
Commonwealth Government, unless and until they are abolished or the laws creating and conferring
jurisdiction upon them are repealed by the said government. As a consequence, enabling laws or acts
providing that proceedings pending in one court be continued by or transferred to another court, are not
required by the mere change of government or sovereignty. They are necessary only in case the former courts
are abolished or their jurisdiction so change that they can no longer continue taking cognizance of the cases
and proceedings commenced therein, in order that the new courts or the courts having jurisdiction over said
cases may continue the proceedings. When the Spanish sovereignty in the Philippine Islands ceased and the
Islands came into the possession of the United States, the "Audiencia" or Supreme Court was continued and
did not cease to exist, and proceeded to take cognizance of the actions pending therein upon the cessation of
the Spanish sovereignty until the said "Audiencia" or Supreme Court was abolished, and the Supreme Court
created in Chapter II of Act No. 136 was substituted in lieu thereof. And the Courts of First Instance of the
Islands during the Spanish regime continued taking cognizance of cases pending therein upon the change of
sovereignty, until section 65 of the same Act No. 136 abolished them and created in its Chapter IV the present
Courts of First Instance in substitution of the former. Similarly, no enabling acts were enacted during the
Japanese occupation, but a mere proclamation or order that the courts in the Island were continued.
On the other hand, during the American regime, when section 78 of Act No. 136 was enacted abolishing the
civil jurisdiction of the provost courts created by the military government of occupation in the Philippines
during the Spanish-American War of 1898, the same section 78 provided for the transfer of all civil actions
then pending in the provost courts to the proper tribunals, that is, to the justices of the peace courts, Court of
First Instance, or Supreme Court having jurisdiction over them according to law. And later on, when the
criminal jurisdiction of provost courts in the City of Manila was abolished by section 3 of Act No. 186, the
same section provided that criminal cases pending therein within the jurisdiction of the municipal court
created by Act No. 183 were transferred to the latter.
That the present courts as the same courts which had been functioning during the Japanese regime and,
therefore, can continue the proceedings in cases pending therein prior to the restoration of the
Commonwealth of the Philippines, is confirmed by Executive Order No. 37 which we have already quoted in
Page 41 of 44
support of our conclusion in connection with the second question. Said Executive Order provides"(1) that the
Court of Appeals created and established under Commonwealth Act No. 3 as amended, be abolished, as it is
hereby abolished," and "(2) that all cases which have heretofore been duly appealed to the Court of Appeals
shall be transmitted to the Supreme Court for final decision. . . ." In so providing, the said Order considers that
the Court of Appeals abolished was the same that existed prior to, and continued after, the restoration of the
Commonwealth Government; for, as we have stated in discussing the previous question, almost all, if not all,
of the cases pending therein, or which had theretofore (that is, up to March 10, 1945) been duly appealed to
said court, must have been cases coming from the Courts of First Instance during the so-called Republic of the
Philippines. If the Court of Appeals abolished by the said Executive Order was not the same one which had
been functioning during the Republic, but that which had existed up to the time of the Japanese occupation, it
would have provided that all the cases which had, prior to and up to that occupation on January 2, 1942, been
dully appealed to the said Court of Appeals shall be transmitted to the Supreme Court for final decision.
It is, therefore, obvious that the present courts have jurisdiction to continue, to final judgment, the
proceedings in cases, not of political complexion, pending therein at the time of the restoration of the
Commonwealth Government.
Having arrived at the above conclusions, it follows that the Court of First Instance of Manila has jurisdiction to
continue to final judgment the proceedings in civil case No. 3012, which involves civil rights of the parties
under the laws of the Commonwealth Government, pending in said court at the time of the restoration of the
said Government; and that the respondent judge of the court, having refused to act and continue him does a
duty resulting from his office as presiding judge of that court, mandamus is the speedy and adequate remedy
in the ordinary course of law, especially taking into consideration the fact that the question of jurisdiction
herein involved does affect not only this particular case, but many other cases now pending in all the courts of
these Islands.
In view of all the foregoing it is adjudged and decreed that a writ of mandamus issue, directed to the
respondent judge of the Court of First Instance of Manila, ordering him to take cognizance of and continue to
final judgment the proceedings in civil case No. 3012 of said court. No pronouncement as to costs. So ordered.
Lawyers League for a Better PH v. Aquino
In G.R. No. 73748, Lawyers League for a Better Philippines vs. President Corazon C. Aquino, et al.; G.R. No.
73972, People's Crusade for Supremacy of the Constitution vs. Mrs. Cory Aquino, et al., and G.R. No. 73990,
Councilor Clifton U. Ganay vs. Corazon C. Aquino, et al., the legitimacy of the government of President Aquino
is questioned. It is claimed that her government is illegal because it was not established pursuant to the 1973
Constitution.
As early as April 10, 1986, this Court* had already voted to dismiss the petitions for the reasons to be stated
below. On April 17, 1986, Atty. Lozano as counsel for the petitioners in G.R. Nos. 73748 and 73972 withdrew
the petitions and manifested that they would pursue the question by extra-judicial methods. The withdrawal
is functus oficio.
The three petitions obviously are not impressed with merit. Petitioners have no personality to sue and their
petitions state no cause of action. For the legitimacy of the Aquino government is not a justiciable matter. It
belongs to the realm of politics where only the people of the Philippines are the judge. And the people have
made the judgment; they have accepted the government of President Corazon C. Aquino which is in effective
control of the entire country so that it is not merely a de factogovernment but is in fact and law a de jure
government. Moreover, the community of nations has recognized the legitimacy of the present government.
All the eleven members of this Court, as reorganized, have sworn to uphold the fundamental law of the
Republic under her government.
In view of the foregoing, the petitions are hereby dismissed.
Page 42 of 44
Very truly yours,

(Sgd.) GLORIA C. PARAS
Clerk of Court
* The Court was then composed of Teehankee, C.J. and Abad Santos., Melencio-Herrera, Plana, Escolin,
Gutierrez, Jr., Cuevas, Alampay and Patajo, JJ.-----------------------------------------DIGEST
FACTS:
On February 25, 1986, President Corazon Aquino issued Proclamation No. 1 announcing that she and Vice
President Laurel were taking power.
On March 25, 1986, proclamation No.3 was issued providing the basis of the Aquino government assumption
of power by stating that the "new government was installed through a direct exercise of the power of the
Filipino people assisted by units of the New Armed Forces of the Philippines."
ISSUE:
Whether or not the government of Corazon Aquino is legitimate.
HELD:
Yes. The legitimacy of the Aquino government is not a justiciable matter but belongs to the realm of politics
where only the people are the judge.
The Court further held that:
The people have accepted the Aquino government which is in effective control of the entire country;
It is not merely a de facto government but in fact and law a de jure government; and
The community of nations has recognized the legitimacy of the new government.
In Re Saturnino Bermudez
In a petition for declaratory relief impleading no respondents, petitioner, as a lawyer, quotes the first
paragraph of Section 5 (not Section 7 as erroneously stated) of Article XVIII of the proposed 1986
Constitution, which provides in full as follows:
Sec. 5. The six-year term of the incumbent President and Vice-President elected in the February 7, 1986
election is, for purposes of synchronization of elections, hereby extended to noon of June 30, 1992.
The first regular elections for the President and Vice-President under this Constitution shall be held on the
second Monday of May, 1992.
Claiming that the said provision "is not clear" as to whom it refers, he then asks the Court "to declare and
answer the question of the construction and definiteness as to who, among the present incumbent President
Corazon Aquino and Vice-President Salvador Laurel and the elected President Ferdinand E. Marcos and VicePresident Arturo M. Tolentino being referred to under the said Section 7 (sic) of ARTICLE XVIII of the
TRANSITORY PROVISIONS of the proposed 1986 Constitution refers to, . ...
The petition is dismissed outright for lack of jurisdiction and for lack for cause of action.
Page 43 of 44
Prescinding from petitioner's lack of personality to sue or to bring this action, (Tan vs. Macapagal, 43 SCRA
677), it is elementary that this Court assumes no jurisdiction over petitions for declaratory relief. More
importantly, the petition amounts in effect to a suit against the incumbent President of the Republic,
President Corazon C. Aquino, and it is equally elementary that incumbent Presidents are immune from suit or
from being brought to court during the period of their incumbency and tenure.
The petition furthermore states no cause of action. Petitioner's allegation of ambiguity or vagueness of the
aforequoted provision is manifestly gratuitous, it being a matter of public record and common public
knowledge that the Constitutional Commission refers therein to incumbent President Corazon C. Aquino and
Vice-President Salvador H. Laurel, and to no other persons, and provides for the extension of their term to
noon of June 30, 1992 for purposes of synchronization of elections. Hence, the second paragraph of the cited
section provides for the holding on the second Monday of May, 1992 of the first regular elections for the
President and Vice-President under said 1986 Constitution. In previous cases, the legitimacy of the
government of President Corazon C. Aquino was likewise sought to be questioned with the claim that it was
not established pursuant to the 1973 Constitution. The said cases were dismissed outright by this court which
held that:
Petitioners have no personality to sue and their petitions state no cause of action. For the legitimacy of the
Aquino government is not a justiciable matter. It belongs to the realm of politics where only the people of the
Philippines are the judge. And the people have made the judgment; they have accepted the government of
President Corazon C. Aquino which is in effective control of the entire country so that it is not merely a de
facto government but in fact and law a de jure government. Moreover, the community of nations has
recognized the legitimacy of tlie present government. All the eleven members of this Court, as reorganized,
have sworn to uphold the fundamental law of the Republic under her government. (Joint Resolution of May
22, 1986 in G.R. No. 73748 [Lawyers League for a Better Philippines, etc. vs. President Corazon C. Aquino, et
al.]; G.R. No. 73972 [People's Crusade for Supremacy of the Constitution. etc. vs. Mrs. Cory Aquino, et al.]; and
G.R. No. 73990 [Councilor Clifton U. Ganay vs. Corazon C. Aquino, et al.])
For the above-quoted reason, which are fully applicable to the petition at bar, mutatis mutandis, there can be
no question that President Corazon C. Aquino and Vice-President Salvador H. Laurel are the incumbent and
legitimate President and Vice-President of the Republic of the Philippines.or the above-quoted reasons, which
are fully applicable to the petition at bar,
Page 44 of 44

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NOTES ON PUBLIC INTERNATIONAL LAW

Island of Palmas Case

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Effective control by a government

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Art. 3, Montevideo Convention

Self-determination, Secession and Recognition

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Reference re Secession of Quebec

(1) Supreme Court's Reference Jurisdiction

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ICJ Advisory Opinion on the Unilateral Declaration of Independence in respect of Kosovo

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1. General Application to Appellants Claims

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(b) taking of hostages;

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Legal effects in domestic law

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