Republic of the Philippines In view of the refusal of the squatters to vacate the lots sold to private respondent, a dispute

n view of the refusal of the squatters to vacate the lots sold to private respondent, a dispute arose as to who of the
SUPREME COURT parties has the responsibility of evicting and clearing the land of squatters. Complicating the relations of the parties
Manila was the sale by petitioner of Lot 5-A to Tropicana Properties and Development Corporation (Tropicana).

EN BANC I

G.R. No. 101949 December 1, 1994 On January 23, 1990, private respondent filed a complaint with the Regional Trial Court, Branch 61, Makati, Metro
Manila for annulment of the sale of the three parcels of land, and specific performance and damages against
THE HOLY SEE, petitioner, petitioner, represented by the Papal Nuncio, and three other defendants: namely, Msgr. Domingo A. Cirilos, Jr., the
vs. PRC and Tropicana (Civil Case No.
THE HON. ERIBERTO U. ROSARIO, JR., as Presiding Judge of the Regional Trial Court of Makati, Branch 90-183).
61 and STARBRIGHT SALES ENTERPRISES, INC., respondents.
The complaint alleged that: (1) on April 17, 1988, Msgr. Cirilos, Jr., on behalf of petitioner and the PRC, agreed to
Padilla Law Office for petitioner. sell to Ramon Licup Lots 5-A, 5-B and 5-D at the price of P1,240.00 per square meters; (2) the agreement to sell was
made on the condition that earnest money of P100,000.00 be paid by Licup to the sellers, and that the sellers clear
the said lots of squatters who were then occupying the same; (3) Licup paid the earnest money to Msgr. Cirilos; (4)
Siguion Reyna, Montecillo & Ongsiako for private respondent.
in the same month, Licup assigned his rights over the property to private respondent and informed the sellers of the
said assignment; (5) thereafter, private respondent demanded from Msgr. Cirilos that the sellers fulfill their
QUIASON, J.: undertaking and clear the property of squatters; however, Msgr. Cirilos informed private respondent of the squatters'
refusal to vacate the lots, proposing instead either that private respondent undertake the eviction or that the earnest
This is a petition for certiorari under Rule 65 of the Revised Rules of Court to reverse and set aside the Orders dated money be returned to the latter; (6) private respondent counterproposed that if it would undertake the eviction of the
June 20, 1991 and September 19, 1991 of the Regional Trial Court, Branch 61, Makati, Metro Manila in Civil Case squatters, the purchase price of the lots should be reduced from P1,240.00 to P1,150.00 per square meter; (7) Msgr.
No. 90-183. Cirilos returned the earnest money of P100,000.00 and wrote private respondent giving it seven days from receipt of
the letter to pay the original purchase price in cash; (8) private respondent sent the earnest money back to the sellers,
The Order dated June 20, 1991 denied the motion of petitioner to dismiss the complaint in Civil Case No. 90-183, but later discovered that on March 30, 1989, petitioner and the PRC, without notice to private respondent, sold the
while the Order dated September 19, 1991 denied the motion for reconsideration of the June 20,1991 Order. lots to Tropicana, as evidenced by two separate Deeds of Sale, one over Lot 5-A, and another over Lots 5-B and 5-D;
and that the sellers' transfer certificate of title over the lots were cancelled, transferred and registered in the name of
Tropicana; (9) Tropicana induced petitioner and the PRC to sell the lots to it and thus enriched itself at the expense of
Petitioner is the Holy See who exercises sovereignty over the Vatican City in Rome, Italy, and is represented in the
private respondent; (10) private respondent demanded the rescission of the sale to Tropicana and the reconveyance of
Philippines by the Papal Nuncio.
the lots, to no avail; and (11) private respondent is willing and able to comply with the terms of the contract to sell
and has actually made plans to develop the lots into a townhouse project, but in view of the sellers' breach, it lost
Private respondent, Starbright Sales Enterprises, Inc., is a domestic corporation engaged in the real estate business. profits of not less than P30,000.000.00.

This petition arose from a controversy over a parcel of land consisting of 6,000 square meters (Lot 5-A, Transfer Private respondent thus prayed for: (1) the annulment of the Deeds of Sale between petitioner and the PRC on the
Certificate of Title No. 390440) located in the Municipality of Paraaque, Metro Manila and registered in the name one hand, and Tropicana on the other; (2) the reconveyance of the lots in question; (3) specific performance of the
of petitioner. agreement to sell between it and the owners of the lots; and (4) damages.

Said Lot 5-A is contiguous to Lots 5-B and 5-D which are covered by Transfer Certificates of Title Nos. 271108 and
265388 respectively and registered in the name of the Philippine Realty Corporation (PRC).
The three lots were sold to Ramon Licup, through Msgr. Domingo A. Cirilos, Jr., acting as agent to the sellers. Later,
Licup assigned his rights to the sale to private respondent.
On June 8, 1990, petitioner and Msgr. Cirilos separately moved to dismiss the complaint petitioner for lack of
jurisdiction based on sovereign immunity from suit, and Msgr. Cirilos for being an improper party. An opposition to
the motion was filed by private respondent.
On June 20, 1991, the trial court issued an order denying, among others, petitioner's motion to dismiss after finding
that petitioner "shed off [its] sovereign immunity by entering into the business contract in question" (Rollo, pp. 20-
21).
On July 12, 1991, petitioner moved for reconsideration of the order. On August 30, 1991, petitioner filed a "Motion
for a Hearing for the Sole Purpose of Establishing Factual Allegation for claim of Immunity as a Jurisdictional
Defense." So as to facilitate the determination of its defense of sovereign immunity, petitioner prayed that a hearing
be conducted to allow it to establish certain facts upon which the said defense is based. Private respondent opposed
this motion as well as the motion for reconsideration.
On October 1, 1991, the trial court issued an order deferring the resolution on the motion for reconsideration until
after trial on the merits and directing petitioner to file its answer (Rollo, p. 22).
Petitioner forthwith elevated the matter to us. In its petition, petitioner invokes the privilege of sovereign immunity
only on its own behalf and on behalf of its official representative, the Papal Nuncio.
On December 9, 1991, a Motion for Intervention was filed before us by the Department of Foreign Affairs, claiming
that it has a legal interest in the outcome of the case as regards the diplomatic immunity of petitioner, and that it
"adopts by reference, the allegations contained in the petition of the Holy See insofar as they refer to arguments
relative to its claim of sovereign immunity from suit" (Rollo, p. 87).
Private respondent opposed the intervention of the Department of Foreign Affairs. In compliance with the resolution
of this Court, both parties and the Department of Foreign Affairs submitted their respective memoranda.
II
A preliminary matter to be threshed out is the procedural issue of whether the petition for certiorari under Rule 65 of
the Revised Rules of Court can be availed of to question the order denying petitioner's motion to dismiss. The
general rule is that an order denying a motion to dismiss is not reviewable by the appellate courts, the remedy of the
movant being to file his answer and to proceed with the hearing before the trial court. But the general rule admits of
exceptions, and one of these is when it is very clear in the records that the trial court has no alternative but to dismiss
the complaint (Philippine National Bank v. Florendo, 206 SCRA 582 [1992]; Zagada v. Civil Service Commission,
216 SCRA 114 [1992]. In such a case, it would be a sheer waste of time and energy to require the parties to undergo
the rigors of a trial.
The other procedural question raised by private respondent is the personality or legal interest of the Department of
Foreign Affairs to intervene in the case in behalf of the Holy See (Rollo, pp. 186-190).
In Public International Law, when a state or international agency wishes to plead sovereign or diplomatic immunity
in a foreign court, it requests the Foreign Office of the state where it is sued to convey to the court that said
defendant is entitled to immunity.
In the United States, the procedure followed is the process of "suggestion," where the foreign state or the
international organization sued in an American court requests the Secretary of State to make a determination as to
whether it is entitled to immunity. If the Secretary of State finds that the defendant is immune from suit, he, in turn,
asks the Attorney General to submit to the court a "suggestion" that the defendant is entitled to immunity. In
England, a similar procedure is followed, only the Foreign Office issues a certification to that effect instead of
submitting a "suggestion" (O'Connell, I International Law 130 [1965]; Note: Immunity from Suit of Foreign
Sovereign Instrumentalities and Obligations, 50 Yale Law Journal 1088 [1941]).
In the Philippines, the practice is for the foreign government or the international organization to first secure an
executive endorsement of its claim of sovereign or diplomatic immunity. But how the Philippine Foreign Office
conveys its endorsement to the courts varies. In International Catholic Migration Commission v. Calleja, 190 SCRA
130 (1990), the Secretary of Foreign Affairs just sent a letter directly to the Secretary of Labor and Employment,
informing the latter that the respondent-employer could not be sued because it enjoyed diplomatic immunity.
In World Health Organization v. Aquino, 48 SCRA 242 (1972), the Secretary of Foreign Affairs sent the trial court a
telegram to that effect. In Baer v. Tizon, 57 SCRA 1 (1974), the U.S. Embassy asked the Secretary of Foreign Affairs
to request the Solicitor General to make, in behalf of the Commander of the United States Naval Base at Olongapo
City, Zambales, a "suggestion" to respondent Judge. The Solicitor General embodied the "suggestion" in a
Manifestation and Memorandum as amicus curiae.
In the case at bench, the Department of Foreign Affairs, through the Office of Legal Affairs moved with this Court to
be allowed to intervene on the side of petitioner. The Court allowed the said Department to file its memorandum in
support of petitioner's claim of sovereign immunity.
In some cases, the defense of sovereign immunity was submitted directly to the local courts by the respondents
through their private counsels (Raquiza v. Bradford, 75 Phil. 50 [1945]; Miquiabas v. Philippine-Ryukyus Command,
80 Phil. 262 [1948]; United States of America v. Guinto, 182 SCRA 644 [1990] and companion cases). In cases
where the foreign states bypass the Foreign Office, the courts can inquire into the facts and make their own
determination as to the nature of the acts and transactions involved.
III
The burden of the petition is that respondent trial court has no jurisdiction over petitioner, being a foreign state
enjoying sovereign immunity. On the other hand, private respondent insists that the doctrine of non-suability is not
anymore absolute and that petitioner has divested itself of such a cloak when, of its own free will, it entered into a
commercial transaction for the sale of a parcel of land located in the Philippines.
A. The Holy See
Before we determine the issue of petitioner's non-suability, a brief look into its status as a sovereign state is in order.
Before the annexation of the Papal States by Italy in 1870, the Pope was the monarch and he, as the Holy See, was
considered a subject of International Law. With the loss of the Papal States and the limitation of the territory under
the Holy See to an area of 108.7 acres, the position of the Holy See in International Law became controversial
(Salonga and Yap, Public International Law 36-37 [1992]).
In 1929, Italy and the Holy See entered into the Lateran Treaty, where Italy recognized the exclusive dominion and
sovereign jurisdiction of the Holy See over the Vatican City. It also recognized the right of the Holy See to receive
foreign diplomats, to send its own diplomats to foreign countries, and to enter into treaties according to International
Law (Garcia, Questions and Problems In International Law, Public and Private 81 [1948]).
The Lateran Treaty established the statehood of the Vatican City "for the purpose of assuring to the Holy See
absolute and visible independence and of guaranteeing to it indisputable sovereignty also in the field of international
relations" (O'Connell, I International Law 311 [1965]).
In view of the wordings of the Lateran Treaty, it is difficult to determine whether the statehood is vested in the Holy
See or in the Vatican City. Some writers even suggested that the treaty created two international persons the Holy
See and Vatican City (Salonga and Yap, supra, 37).
The Vatican City fits into none of the established categories of states, and the attribution to it of "sovereignty" must
be made in a sense different from that in which it is applied to other states (Fenwick, International Law 124-125
[1948]; Cruz, International Law 37 [1991]). In a community of national states, the Vatican City represents an entity
organized not for political but for ecclesiastical purposes and international objects. Despite its size and object, the
Vatican City has an independent government of its own, with the Pope, who is also head of the Roman Catholic
Church, as the Holy See or Head of State, in conformity with its traditions, and the demands of its mission in the
world. Indeed, the world-wide interests and activities of the Vatican City are such as to make it in a sense an
"international state" (Fenwick, supra., 125; Kelsen, Principles of International Law 160 [1956]).
One authority wrote that the recognition of the Vatican City as a state has significant implication that it is possible
for any entity pursuing objects essentially different from those pursued by states to be invested with international
personality (Kunz, The Status of the Holy See in International Law, 46 The American Journal of International Law
308 [1952]).
Inasmuch as the Pope prefers to conduct foreign relations and enter into transactions as the Holy See and not in the
name of the Vatican City, one can conclude that in the Pope's own view, it is the Holy See that is the international
person.
The Republic of the Philippines has accorded the Holy See the status of a foreign sovereign. The Holy See, through
its Ambassador, the Papal Nuncio, has had diplomatic representations with the Philippine government since 1957
(Rollo, p. 87). This appears to be the universal practice in international relations.
B. Sovereign Immunity
As expressed in Section 2 of Article II of the 1987 Constitution, we have adopted the generally accepted principles of
International Law. Even without this affirmation, such principles of International Law are deemed incorporated as
part of the law of the land as a condition and consequence of our admission in the society of nations (United States of
America v. Guinto, 182 SCRA 644 [1990]).
There are two conflicting concepts of sovereign immunity, each widely held and firmly established. According to the
classical or absolute theory, a sovereign cannot, without its consent, be made a respondent in the courts of another
sovereign. According to the newer or restrictive theory, the immunity of the sovereign is recognized only with regard
to public acts or acts jure imperii of a state, but not with regard to private acts or acts jure gestionis
(United States of America v. Ruiz, 136 SCRA 487 [1987]; Coquia and Defensor-Santiago, Public International Law
194 [1984]).
Some states passed legislation to serve as guidelines for the executive or judicial determination when an act may be
considered as jure gestionis. The United States passed the Foreign Sovereign Immunities Act of 1976, which defines
a commercial activity as "either a regular course of commercial conduct or a particular commercial transaction or
act." Furthermore, the law declared that the "commercial character of the activity shall be determined by reference to
the nature of the course of conduct or particular transaction or act, rather than by reference to its purpose." The
Canadian Parliament enacted in 1982 an Act to Provide For State Immunity in Canadian Courts. The Act defines a
"commercial activity" as any particular transaction, act or conduct or any regular course of conduct that by reason of
its nature, is of a "commercial character."
The restrictive theory, which is intended to be a solution to the host of problems involving the issue of sovereign
immunity, has created problems of its own. Legal treatises and the decisions in countries which follow the restrictive
theory have difficulty in characterizing whether a contract of a sovereign state with a private party is an act jure
gestionis or an act jure imperii.
The restrictive theory came about because of the entry of sovereign states into purely commercial activities remotely
connected with the discharge of governmental functions. This is particularly true with respect to the Communist
states which took control of nationalized business activities and international trading.
This Court has considered the following transactions by a foreign state with private parties as acts jure imperii: (1)
the lease by a foreign government of apartment buildings for use of its military officers (Syquia v. Lopez, 84 Phil.
312 [1949]; (2) the conduct of public bidding for the repair of a wharf at a United States Naval Station (United States
of America v. Ruiz, supra.); and (3) the change of employment status of base employees (Sanders v. Veridiano, 162
SCRA 88 [1988]).
On the other hand, this Court has considered the following transactions by a foreign state with private parties as
acts jure gestionis: (1) the hiring of a cook in the recreation center, consisting of three restaurants, a cafeteria, a
bakery, a store, and a coffee and pastry shop at the John Hay Air Station in Baguio City, to cater to American
servicemen and the general public (United States of America v. Rodrigo, 182 SCRA 644 [1990]); and (2) the bidding
for the operation of barber shops in Clark Air Base in Angeles City (United States of America v. Guinto, 182 SCRA
644 [1990]). The operation of the restaurants and other facilities open to the general public is undoubtedly for profit
as a commercial and not a governmental activity. By entering into the employment contract with the cook in the
discharge of its proprietary function, the United States government impliedly divested itself of its sovereign
immunity from suit.
In the absence of legislation defining what activities and transactions shall be considered "commercial" and as
constituting acts jure gestionis, we have to come out with our own guidelines, tentative they may be.
Certainly, the mere entering into a contract by a foreign state with a private party cannot be the ultimate test. Such an
act can only be the start of the inquiry. The logical question is whether the foreign state is engaged in the activity in
the regular course of business. If the foreign state is not engaged regularly in a business or trade, the particular act or
transaction must then be tested by its nature. If the act is in pursuit of a sovereign activity, or an incident thereof, then
it is an act jure imperii, especially when it is not undertaken for gain or profit.
As held in United States of America v. Guinto, (supra):
There is no question that the United States of America, like any other state, will be deemed to
have impliedly waived its non-suability if it has entered into a contract in its proprietary or
private capacity. It is only when the contract involves its sovereign or governmental capacity that
no such waiver may be implied.
In the case at bench, if petitioner has bought and sold lands in the ordinary course of a real estate business, surely the
said transaction can be categorized as an act jure gestionis. However, petitioner has denied that the acquisition and
subsequent disposal of Lot 5-A were made for profit but claimed that it acquired said property for the site of its
mission or the Apostolic Nunciature in the Philippines. Private respondent failed to dispute said claim.
Lot 5-A was acquired by petitioner as a donation from the Archdiocese of Manila. The donation was made not for
commercial purpose, but for the use of petitioner to construct thereon the official place of residence of the Papal
Nuncio. The right of a foreign sovereign to acquire property, real or personal, in a receiving state, necessary for the
creation and maintenance of its diplomatic mission, is recognized in the 1961 Vienna Convention on Diplomatic
Relations (Arts. 20-22). This treaty was concurred in by the Philippine Senate and entered into force in the
Philippines on November 15, 1965.
In Article 31(a) of the Convention, a diplomatic envoy is granted immunity from the civil and administrative
jurisdiction of the receiving state over any real action relating to private immovable property situated in the territory
of the receiving state which the envoy holds on behalf of the sending state for the purposes of the mission. If this
immunity is provided for a diplomatic envoy, with all the more reason should immunity be recognized as regards the
sovereign itself, which in this case is the Holy See.
The decision to transfer the property and the subsequent disposal thereof are likewise clothed with a governmental
character. Petitioner did not sell Lot
5-A for profit or gain. It merely wanted to dispose off the same because the squatters living thereon made it almost
impossible for petitioner to use it for the purpose of the donation. The fact that squatters have occupied and are still
occupying the lot, and that they stubbornly refuse to leave the premises, has been admitted by private respondent in
its complaint (Rollo, pp. 26, 27).
Private respondent is not left without any legal remedy for the redress of its grievances. Under both Public
International Law and Transnational Law, a person who feels aggrieved by the acts of a foreign sovereign can ask his
own government to espouse his cause through diplomatic channels.
Private respondent can ask the Philippine government, through the Foreign Office, to espouse its claims against the
Holy See. Its first task is to persuade the Philippine government to take up with the Holy See the validity of its
claims. Of course, the Foreign Office shall first make a determination of the impact of its espousal on the relations
between the Philippine government and the Holy See (Young, Remedies of Private Claimants Against Foreign
States, Selected Readings on Protection by Law of Private Foreign Investments 905, 919 [1964]). Once the
Philippine government decides to espouse the claim, the latter ceases to be a private cause.
According to the Permanent Court of International Justice, the forerunner of the International Court of Justice:
By taking up the case of one of its subjects and by reporting to diplomatic action or international
judicial proceedings on his behalf, a State is in reality asserting its own rights its right to
ensure, in the person of its subjects, respect for the rules of international law (The Mavrommatis
Palestine Concessions, 1 Hudson, World Court Reports 293, 302 [1924]).
WHEREFORE, the petition for certiorari is GRANTED and the complaint in Civil Case No. 90-183 against
petitioner is DISMISSED.
SO ORDERED.

The issue of petitioner's non-suability can be determined by the trial court without going to trial in the light of the
pleadings, particularly the admission of private respondent. Besides, the privilege of sovereign immunity in this case
was sufficiently established by the Memorandum and Certification of the Department of Foreign Affairs. As the
department tasked with the conduct of the Philippines' foreign relations (Administrative Code of 1987, Book IV, Title
I, Sec. 3), the Department of Foreign Affairs has formally intervened in this case and officially certified that the
Embassy of the Holy See is a duly accredited diplomatic mission to the Republic of the Philippines exempt from
local jurisdiction and entitled to all the rights, privileges and immunities of a diplomatic mission or embassy in this
country (Rollo, pp. 156-157). The determination of the executive arm of government that a state or instrumentality is
entitled to sovereign or diplomatic immunity is a political question that is conclusive upon the courts (International
Catholic Migration Commission v. Calleja, 190 SCRA 130 [1990]). Where the plea of immunity is recognized and
affirmed by the executive branch, it is the duty of the courts to accept this claim so as not to embarrass the executive
arm of the government in conducting the country's foreign relations (World Health Organization v. Aquino, 48 SCRA
242 [1972]). As in International Catholic Migration Commission and in World Health Organization, we abide by the
certification of the Department of Foreign Affairs.

Ordinarily, the procedure would be to remand the case and order the trial court to conduct a hearing to establish the
facts alleged by petitioner in its motion. In view of said certification, such procedure would however be pointless and
unduly circuitous (Ortigas & Co. Ltd. Partnership v. Judge Tirso Velasco, G.R. No. 109645, July 25, 1994).

IV
 beyond the scope of his authority or jurisdiction.[4] It appears that even the governments chief legal counsel, the
Solicitor General, does not support the stand taken by petitioner and that of the DFA.
Fourth, under the Vienna Convention on Diplomatic Relations, a diplomatic agent, assuming petitioner is such,
enjoys immunity from criminal jurisdiction of the receiving state except in the case of an action relating to any
professional or commercial activity exercised by the diplomatic agent in the receiving state outside his official
functions.[5] As already mentioned above, the commission of a crime is not part of official duty.
Finally, on the contention that there was no preliminary investigation conducted, suffice it to say that preliminary
G.R. No. 125865. January 28, 2000] investigation is not a matter of right in cases cognizable by the MeTC such as the one at bar.[6] Being purely a
statutory right, preliminary investigation may be invoked only when specifically granted by law.[7] The rule on
JEFFREY LIANG (HUEFENG), petitioner, vs. PEOPLE OF THE PHILIPPINES, respondent.
criminal procedure is clear that no preliminary investigation is required in cases falling within the jurisdiction of the
DECISION MeTC.[8] Besides, the absence of preliminary investigation does not affect the courts jurisdiction nor does it impair
YNARES-SANTIAGO, J.: the validity of the information or otherwise render it defective.[9]
Petitioner is an economist working with the Asian Development Bank (ADB). Sometime in 1994, for allegedly WHEREFORE, the petition is DENIED.
uttering defamatory words against fellow ADB worker Joyce Cabal, he was charged before the Metropolitan Trial SO ORDERED.
Court (MeTC) of Mandaluyong City with two counts of grave oral defamation docketed as Criminal Cases Nos.
53170 and 53171. Petitioner was arrested by virtue of a warrant issued by the MeTC. After fixing petitioners bail at
P2,400.00 per criminal charge, the MeTC released him to the custody of the Security Officer of ADB. The next day,
the MeTC judge received an "office of protocol" from the Department of Foreign Affairs (DFA) stating that
petitioner is covered by immunity from legal process under Section 45 of the Agreement between the ADB and the
Philippine Government regarding the Headquarters of the ADB (hereinafter Agreement) in the country. Based on the
said protocol communication that petitioner is immune from suit, the MeTC judge without notice to the prosecution
dismissed the two criminal cases. The latter filed a motion for reconsideration which was opposed by the DFA. When
its motion was denied, the prosecution filed a petition for certiorari and mandamus with the Regional Trial Court
(RTC) of Pasig City which set aside the MeTC rulings and ordered the latter court to enforce the warrant of arrest it
earlier issued. After the motion for reconsideration was denied, petitioner elevated the case to this Court via a
petition for review arguing that he is covered by immunity under the Agreement and that no preliminary
investigation was held before the criminal cases were filed in court.
The petition is not impressed with merit. Davide, Jr., C.J., (Chairman), Puno, Kapunan, and Pardo, JJ., concur.
First, courts cannot blindly adhere and take on its face the communication from the DFA that petitioner is covered by Republic of the Philippines
any immunity. The DFAs determination that a certain person is covered by immunity is only preliminary which has SUPREME COURT
no binding effect in courts. In receiving ex-parte the DFAs advice and in motu proprio dismissing the two criminal Manila
cases without notice to the prosecution, the latters right to due process was violated. It should be noted that due
FIRST DIVISION
process is a right of the accused as much as it is of the prosecution. The needed inquiry in what capacity petitioner
was acting at the time of the alleged utterances requires for its resolution evidentiary basis that has yet to be
presented at the proper time.[1] At any rate, it has been ruled that the mere invocation of the immunity clause does
not ipso facto result in the dropping of the charges.[2]
Second, under Section 45 of the Agreement which provides: Jksm
"Officers and staff of the Bank including for the purpose of this Article experts and consultants performing missions
for the Bank shall enjoy the following privileges and immunities:
a.).......immunity from legal process with respect to acts performed by them in their official capacity except when the
Bank waives the immunity."
the immunity mentioned therein is not absolute, but subject to the exception that the act was done in "official
capacity." It is therefore necessary to determine if petitioners case falls within the ambit of Section 45(a). Thus, the
prosecution should have been given the chance to rebut the DFA protocol and it must be accorded the opportunity to
present its controverting evidence, should it so desire.
Third, slandering a person could not possibly be covered by the immunity agreement because our laws do not allow
the commission of a crime, such as defamation, in the name of official duty.[3] The imputation of theft is ultra vires
and cannot be part of official functions. It is well-settled principle of law that a public official may be liable in his
personal private capacity for whatever damage he may have caused by his act done with malice or in bad faith or
 (a) Immunity from legal process with respect to acts performed by them in their official capacity
except when the Bank waives the immunity.
G.R. No. 125865 March 26, 2001 After a careful deliberation of the arguments raised in petitioner's and intervenor's Motions for Reconsideration, we
find no cogent reason to disturb our Decision of January 28, 2000. As we have stated therein, the slander of a person,
JEFFREY LIANG (HUEFENG), petitioner, by any stretch, cannot be considered as falling within the purview of the immunity granted to ADB officers and
vs. personnel. Petitioner argues that the Decision had the effect of prejudging the criminal case for oral defamation
PEOPLE OF THE PHILIPPINES, respondent. against him. We wish to stress that it did not. What we merely stated therein is that slander, in general, cannot be
RESOLUTION considered as an act performed in an official capacity. The issue of whether or not petitioner's utterances constituted
YNARES-SANTIAGO, J.: oral defamation is still for the trial court to determine.
This resolves petitioner's Motion for Reconsideration of our Decision dated January 28, 2000, denying the petition WHEREFORE, in view of the foregoing, the Motions for Reconsideration filed by petitioner and intervenor
for review. Department of Foreign Affairs are DENIED with FINALITY.
The Motion is anchored on the following arguments: SO ORDERED.
1) THE DFA'S DETERMINATION OF IMMUNITY IS A POLITICAL QUESTION TO BE MADE BY Kapunan and Pardo, JJ ., concur.
THE EXECUTIVE BRANCH OF THE GOVERNMENT AND IS CONCLUSIVE UPON THE COURTS. Davide, Jr., C.J., I also join concurring opinion of Mr. Justice Puno.
Puno, J., Please see concurring opinion.
2) THE IMMUNITY OF INTERNATIONAL ORGANIZATIONS IS ABSOLUTE.
3) THE IMMUNITY EXTENDS TO ALL STAFF OF THE ASIAN DEVELOPMENT BANK (ADB).
4) DUE PROCESS WAS FULLY AFFORDED THE COMPLAINANT TO REBUT THE DFA
PROTOCOL.
5) THE DECISION OF JANUARY 28, 2000 ERRONEOUSLY MADE A FINDING OF FACT ON THE
MERITS, NAMELY, THE SLANDERING OF A PERSON WHICH PREJUDGED PETITIONER'S CASE
BEFORE THE METROPOLITAN TRIAL COURT (MTC)-MANDALUYONG.
6) THE VIENNA CONVENTION ON DIPLOMATIC RELATIONS IS NOT APPLICABLE TO THIS
CASE.
This case has its origin in two criminal Informations 1 for grave oral defamation filed against petitioner, a Chinese
national who was employed as an Economist by the Asian Development Bank (ADB), alleging that on separate
occasions on January 28 and January 31, 1994, petitioner allegedly uttered defamatory words to Joyce V. Cabal, a
member of the clerical staff of ADB. On April 13, 1994, the Metropolitan Trial Court of Mandaluyong City, acting
pursuant to an advice from the Department of Foreign Affairs that petitioner enjoyed immunity from legal processes,
dismissed the criminal Informations against him. On a petition for certiorari and mandamus filed by the People, the
Regional Trial Court of Pasig City, Branch 160, annulled and set aside the order of the Metropolitan Trial Court
dismissing the criminal cases.2
Petitioner, thus, brought a petition for review with this Court. On January 28, 2000, we rendered the assailed
Decision denying the petition for review. We ruled, in essence, that the immunity granted to officers and staff of the
ADB is not absolute; it is limited to acts performed in an official capacity. Furthermore, we held that the immunity
cannot cover the commission of a crime such as slander or oral defamation in the name of official duty.
On October 18, 2000, the oral arguments of the parties were heard. This Court also granted the Motion for
Intervention of the Department of Foreign Affairs. Thereafter, the parties were directed to submit their respective
memorandum.
For the most part, petitioner's Motion for Reconsideration deals with the diplomatic immunity of the ADB, its
officials and staff, from legal and judicial processes in the Philippines, as well as the constitutional and political
bases thereof. It should be made clear that nowhere in the assailed Decision is diplomatic immunity denied, even
remotely. The issue in this case, rather, boils down to whether or not the statements allegedly made by petitioner
were uttered while in the performance of his official functions, in order for this case to fall squarely under the
provisions of Section 45 (a) of the "Agreement Between the Asian Development Bank and the Government of the
Republic of the Philippines Regarding the Headquarters of the Asian Development Bank," to wit:
Officers and staff of the Bank, including for the purpose of this Article experts and consultants performing
missions for the Bank, shall enjoy the following privileges and immunities:

78 U.S. 164 (1870)
Case
U.S. Supreme Court
The Sapphire, 78 U.S. 11 Wall. 164 164 (1870)
The Sapphire
78 U.S. (11 Wall.) 164
THIS WAS AN APPEAL FROM THE CIRCUIT COURT OF
THE UNITED STATES FOR THE DISTRICT OF CALIFORNIA
Syllabus
1. A foreign sovereign can bring a civil suit in the courts of the United States.
2. A claim arising by virtue of being such sovereign (such as an injury to a public ship of war) is not defeated, nor
does suit therefor abate, by a change in the person of the sovereign. Such change, if necessary, may be suggested on
the record.
3. If an injury to any party could be shown to arise from a continuation of the proceedings after a change in the
person of the sovereign, the court, in its discretion, would take order to prevent such a result.
4. If a vessel at anchor in a gale could avoid a collision threatened by another vessel and does not adopt the means
for doing so, she is a participant in the wrong, and must divide the loss with the other vessel.
The case was one of collision between the American ship Sapphire and the French transport Euryale, which took
place in the harbor of San Francisco on the morning of December 22, 1867, by which the Euryale was considerably
damaged. A libel was filed in the district court two days afterwards in the name of the Emperor Napoleon III, then
Emperor of the French, as owner of the Euryale, against theSapphire. The claimants filed an answer alleging, among
other things, that the damage was occasioned by the fault of the Euryale.Depositions were taken and the court
decreed in favor of the libellant and awarded him $15,000, the total amount claimed. The claimants appealed to the
circuit court, which affirmed the decree. They then, in July, 1869, appealed to this Court. In the summer of 1870,
Napoleon
Page 78 U. S. 165
III was deposed. The case came on to be argued here February 16, 1871. Three questions were raised:
1. The right of the Emperor of France to have brought suit in our courts.
2. Whether, if rightly brought, the suit had not become abated by the deposition of the Emperor Napoleon III.
3. The question of merits; one of fact, and depending upon evidence stated towards the conclusion of the opinion
(see infra, pp. 78 U. S. 169-170), where the point is considered.
Page 78 U. S. 167
MR. JUSTICE BRADLEY delivered the opinion of the Court.
The first question raised is as to the right of the French Emperor to sue in our courts. On this point, not the slightest
difficulty exists. A foreign sovereign, as well as any other foreign person, who has a demand of a civil nature against
any person here may prosecute it in our courts. To deny him this privilege would manifest a want of comity and
friendly feeling. Such a suit was sustained a want of comity and King of Spain in the Third Circuit by Justice
Washington and Judge Peters in 1810. [Footnote 1] The Constitution expressly extends the judicial power to
controversies between a state or citizens thereof and foreign states, citizens, or subjects without reference to the
subject matter of the controversy. Our own government has largely availed itself of the like privilege to bring suits in
the English courts in cases growing
Page 78 U. S. 168
out of our late civil war. Twelve or more of such suits are enumerated in the brief of the appellees, brought within the
last five years in the English law, chancery, and admiralty courts. There are numerous cases in the English reports in
which suits of foreign sovereigns have been sustained, though it is held that a sovereign cannot be forced into court
by suit. [Footnote 2]
The next question is whether the suit has become abated by the recent deposition of the Emperor Napoleon. We think
it has not. The reigning sovereign represents the national sovereignty, and that sovereignty is continuous and
perpetual, residing in the proper successors of the sovereign for the time being. Napoleon was the owner of
the Euryale, not as an individual but as sovereign of France. This is substantially averred in the libel. On his
deposition the sovereignty does not change, but merely the person or persons in whom it resides. The foreign state is
the true and real owner of its public vessels of war. The reigning Emperor or national assembly or other actual person
or party in power is but the agent and representative of the national sovereignty. A change in such representative
works no change in the national sovereignty or its rights. The next successor recognized by our government is
competent to carry on a suit already commenced and receive the fruits of it. A deed to or treaty with a sovereign as
such enures to his successors in the government of the country. If a substitution of names is necessary or proper, it is
a formal matter, and can be made by the court under its general power to preserve due symmetry in its forms of
proceeding. No allegation has been made that any change in the
Page 78 U. S. 169
real and substantial ownership of the Euryale has occurred by the recent devolution of the sovereign power. The
vessel has always belonged and still belongs to the French nation.
If a special case should arise in which it could be shown that injustice to the other party would ensue from a
continuance of the proceedings after the death or deposition of a sovereign, the court, in the exercise of its
discretionary power, would take such order as the exigency might require to prevent such a result.
The remaining question relates to the merits of the case. And on the merits of the case as presented by the record, we
think that the court below erred in imposing the whole damage upon the Sapphire. We think that the Euryale was
equally in fault, and that the damage ought to be divided between them. It is not our general practice to scrutinize
very carefully the weight of evidence in cases of collision, where the evidence is substantially conflicting and where
both district and circuit courts have concurred in a decree upon the merits. Our views upon this subject will be found
quite fully expressed by MR. JUSTICE CLIFFORD in the case of The Baltimore.[Footnote 3] But this case depends
upon a narrow point, the evidence on which is in our view so decidedly adverse to the sole liability of
the Sapphire that it becomes our duty to notice it.
The Euryale came to anchor in the harbor on the 14th of December, about six hundred yards from the wharf. She was
of four hundred and fifty tons burden, drew thirteen feet of water, and had out fifty-six fathoms of chain, and an
anchor weighing 3,500 pounds. TheSapphire, of thirteen hundred tons burden, came to anchor about the 18th of
December, about three hundred yards (as alleged both in the libel and answer) to the southeasterly of the Euryale, at
a point father up the harbor, and farther from the wharf. She had out about fifty fathoms of chain, and an anchor
weighing 3,600 to 3,800 pounds, and she was heavily laden, drawing about twenty-three feet of water.
Page 78 U. S. 170
On the night of the 21st of December, it commenced to blow pretty strong from the southeast, by midnight blowing a
six-knot breeze, and it kept increasing up to the time of the collision at five o'clock the next morning, when it seems
to have been blowing a gale. At half-past three in the morning, the tide changed from ebb to flood, the direction of
flood tide being southeasterly, directly contrary to that of the wind. And the captain of the Euryale says (and he is not
contradicted) that the wind was twice as strong as the tide. The weight of the evidence is that the Sapphire, under the
force of the wind, dragged her anchor and got inside of the Euryale -- that is, between her and the city. At a few
minutes past five, the collision occurred.
The libellant insists that the Sapphire was in fault in two points: 1st, in anchoring too near the Euryale in the first
instance; 2d, in not having out sufficient anchors. We think that the first charge is not sustained. Experienced pilots
testified that two hundred and fifty yards distance is a good and sufficient berth in that harbor. And it is to be noted
that the master of the Euryale made no complaint of too great proximity, although she and the Sapphire were lying in
the same relative position for several days. On the other point, we agree with the district and circuit courts that
the Sapphire was in fault. Had a second anchor been put out at an earlier period, the collision in all probability would
not have occurred. Indeed, the captain of the Sapphire gave orders to the first officer that if she was likely to start, to
put the second anchor down. But it was not done till the collision itself broke the ring-stopper and let it down. A
more careful watch would have led to the discovery of the vessel's having started, and would have prevented the
catastrophe which ensued.
But we are also satisfied that the Euryale was not free from fault. The captain was not on board. The first officer,
though on board, was not on deck from eleven o'clock until after the collision. Le Noir, the third officer, was officer
of the deck that night. He was called up by the head, or chief, of the watch at three o'clock to observe that
the Sapphire
Page 78 U. S. 171
was approaching nearer to them than she had been. He attributed it to her letting out more chain, and returned below,
and did not come on deck again until five o'clock, a few moments before the collision, when it was too late to avoid
it. The instant he came on deck, he ordered done the thing that could have saved them had it been done earlier -- the
jib to be hoisted. It would have sheered the vessel off and allowed the Sapphire to pass her. Such is the testimony of
the libellant's own witnesses. It is the judgment of the first officer of the ship. Why was not this done before? Why
was not the officer, on such a night, in such a gale, at his post? At four o'clock, the man in charge of the watch saw
the Sapphire approaching, and says he made a report to that effect. The first officer says that no report was made to
him. But the third officer, who was officer of the deck, does not say that it was not made to him. If the fact was not
communicated to the proper officer, that was in itself a fault. If it was communicated and not attended to, the case of
the libellant is not bettered. But the evidence is very strong that the officer received the information. Deveaux, the
head of the watch, says that he reported the fact at four o'clock, and Bioux, who had charge of the watch between
four and five o'clock, says that between those hours he saw the Sapphire with the wind astern, and heading the
current, coming towards the Euryale; that she continued to approach gradually, and that he reported this to Mr. Le
Noir between four and five o'clock. Here, then, was a clear neglect of proper precautions for an entire hour
immediately preceding the collision.
We cannot avoid the conviction that there was a want of proper care and vigilance on the part of the officers of
the Euryale, and that this contributed to produce the collision which ensued. Both parties being in fault, the damages
ought to be equally divided between them.
Decree of the circuit court reversed and the cause remitted to that court with directions to enter a decree in
conformity with this opinion.

VICTORY TRANSPORT INCORPORATED, owner of the S.S. HUDSON,
Petitioner-Appellee,
v.
COMISARIA GENERAL de ABASTECIMIENTOS y TRANSPORTES, voyage
charterer of theS.S. Hudson, Respondent-Appellant.
No. 338, Docket 28636.
United States Court of Appeals Second Circuit.
Argued March 10, 1964.
Decided Sept. 9, 1964.
Charles L. Trowbridge, New York City (Herbert M. Lord and Burlingham, Underwood, Barron, Wright &
White, New York City, on the brief), for petitioner-Appellee.
Edwin S. Shapiro, New York City (Harry Wallach, New York City, on the brief), for respondent-appellant.
Before SMITH, KAUFMAN and MARSHALL, Circuit Judges.
J. JOSEPH SMITH, Circuit Judge:
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1
This is an appeal from an order of the United States District Court for the Southern District of New York,
Thomas F. Murphy, District Judge, granting appellee's motion to compel arbitration and denying
appellant's cross motions to vacate service and dismiss the petition. We think the district court's disposition
of the motions correct and affirm the order.
2
The appellant, a branch of the Spanish Ministry of Commerce, voyagechartered the S.S. Hudson from its
owner, the appellee, to transport a cargo of surplus wheat, purchased pursuant to the Agricultural Trade
Development and Assistance Act, 7 U.S.C. 1691 et seq.,1 from Mobile, Alabama to one or two safe
Spanish ports. The charter agreement contained the New York Produce Arbitration Clause, providing for
the arbitration of disputes before three commercial men in New York.2 The ship was delayed and sustained
hull damage in discharging its cargo in Spanish ports that were allegedly unsafe for a ship of the Hudson's
size. When the appellant failed to pay for the damages or submit the dispute to arbitration, the appellee
instituted this proceeding under Section 4 of the United States Arbitration Act, 9 U.S.C. 4,3 to compel
arbitration. On March 22, 1963, appellee secured an ex parte order from the district court permitting
service of its petition by registered mail at appellant's Madrid office. Service pursuant to this order was
effected on April 1, 1963.4
3
On October 15, 1963 the appellant moved to vacate the extraterritorial service as unauthorized by statute.
Appearing specially and supported by an affidavit of the Spanish Consul, who stated that the appellant was
a branch of the Spanish Government and immune from suit, counsel for the appellant also moved to
dismiss the petition to compel arbitration because of a lack of jurisdiction and sovereign immunity.
Rejecting these cross-motions, Judge Murphy held that the court had in personam jurisdiction and granted
the appellee's motion to compel arbitration.
SOVEREIGN IMMUNITY
4
Appellant's primary contention is that as an arm of the soverign Government of Spain, it cannot be sued in
the courts of the United States without its consent, which it declines to accord in this case. There is
certainly a great deal of impressive precedent to support this contention, for the doctrine of the immunity
of foreign sovereigns from the jurisdiction of our courts was early entrenched in our law by Chief Justice
Marshall's historic decision in The Schooner Exchange v. McFaddon, 7 Cranch 116, 3 L.Ed. 287 (U.S.
1812). The doctrine originated in an era of personal sovereignty, when kings could theoretically do no
wrong and when the exercise of authority by one sovereign over another indicated hostility or superiority.
With the passing of that era, sovereign immunity has been retained by the courts chiefly to avoid possible
embarrassment to those responsible for the conduct of the nation's foreign relations. See Comment, The
Jurisdictional Immunity of Foreign Sovereigns, 63 YALE L.J. 1148 (1954). However, because of the
dramatic changes in the nature and functioning of sovereigns, particularly in the last half century, the
wisdom of retaining the doctrine has been cogently questioned. See, e.g., Lauterpacht, The Problem of
Jurisdictional Immunities of Foreign States, 28 BRIT. Y.B. INT'L L. 220 (1951). Growing concern for
individual rights and public morality, coupled with the increasing entry of governments into what had
previously been regarded as private pursuits, has led a substantial number of nations to abandon the
absolute theory of sovereign immunity in favor of a restrictive theory. See Dralle v. Rep. of
Czechoslovakia, 17 Int.L.Rep. 155 (Sup. Ct. of Austria 1950); SUCHARITKUL, STATE IMMUNITIES
AND TRADING ACTIVITIES IN INTERNATIONAL LAW (1959); Lauterpacht, supra.
5
Meeting in Brussels in 1926, representatives of twenty nations, including all the major powers except the
United States and Russia, signed a convention limiting sovereign immunity in the area of maritime
commerce to ships and cargoes employed exclusively for public and non-commercial purposes.5 After
World War II the United States began to restrict immunity by negotiating treaties obligating each
contracting party to waive its sovereign immunity for state-controlled enterprises engaged in business
activities within the territory of the other party. Fourteen such treaties were negotiated by our State
Department in the decade 1948 to 1958. Setser, The Immunity Waiver for State-Controlled Business
Enterprises in United States Commercial Treaties, Proceedings of Am.Soc.Int'l L. 89 (1961). And in 1952
our State Department, in a widely publicized letter from Acting Legal Adviser Jack B. Tate to the Acting
Attorney General Philip B. Perlman, announced that the Department would generally adhere to the
restrictive theory of sovereign immunity, recognizing immunity for a foreign state's public or sovereign
acts (jure imperii) but denying immunity to a foreign state's private or commercial acts (jure gestionis). 26
Dept. State Bull. 984 (1952).
6
In delineating the scope of a doctrine designed to avert possible embarrassment to the conduct of our
foreign relations, the courts have quite naturally deferred to the policy pronouncements of the State
Department. National City Bank of New York v. Republic of China, 348 U.S. 356, 360-361, 75 S.Ct. 423,
99 L.Ed. 389 (1955). See generally, Cardozo, Judicial Deference to State Department Suggestions:
Recognition of Prerogative or Abdication to Usurper, 48 CORN.L.Q. 461 (1963). The Supreme Court's
dictum in Republic of Mexico v. Hoffman, 324 U.S. 30, 35, 65 S.Ct. 530, 533, 89 L.Ed. 729 (1945)--'It is
therefore not for the courts to deny an immunity which our government has seen fit to allow, or to allow an
immunity on new grounds which the government has not seen fit to recognize'-- has been variously
construed,6 but we think it means at least that the courts should deny immunity where the State
Department has indicated, either directly or indirectly, that immunity need not be accorded. It makes no
sense for the courts to deny a litigant his day in court and to permit the disregard of legal obligations to
avoid embarrassing the State Department if that agency indicates it will not be embarrassed. Cf. National
City Bank v. Republic of China, supra, 348 U.S. at 360-361, 75 S.Ct. 423 (1955). Moreover, 'recognition
by the courts of an immunity upon principles which the political department of government has not
sanctioned may be equally embarrassing to it in securing the protection of our national interests and their
recognition by other nations.' Republic of Mexico v. Hoffman, supra, 324 U.S. at 36, 65 S.Ct. at 533.
7 only in clear cases. Since the State Department's failure or refusal to suggest immunity is significant,12 we
This is not to say that the courts will never grant immunity unless the State Department specifically
requests it. A claim of sovereign immunity may be presented to the court by either of two procedures. The
foreign sovereign may request its claim of immunity be recognized by the State Department, which will
normally present its suggestion to the court through the Attorney General or some law officer acting under
his direction. Alternatively, the accredited and recognized representative of the foreign sovereign may
present the claim of sovereign immunity directly to the court. Ex parte Muir, 254 U.S. 522, 41 S.Ct. 185,
65 L.Ed. 383 (1921). In some situations the State Department may find it expedient to make no response to
a request for immunity. Where, as here,7 the court has received no communication from the State
Department concerning the immunity of the Comisaria General, the court must decide for itself whether it
is the established policy of the State Department to recognize claims of immunity of this type. Republic of
Mexico v. Hoffman, supra, 324 U.S. at 36, 65 S.Ct. 530.
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8
Through the 'Tate letter' the State Department has made it clear that its policy is to decline immunity to
friendly foreign sovereigns in suits arising from private or commercial activity. But the 'Tate letter' offers
no guide-lines or criteria for differentiating between a sovereign's private and public acts. Nor have the
courts or commentators suggested any satisfactory test. Some have looked to the nature of the transaction,
categorizing as sovereign acts only activity which could not be performed by individuals.8 While this
criterion is relatively easy to apply, it ofttimes produces rather astonishing results, such as the holdings of
some European courts that purchases of bullets or shoes for the army, the erection of fortifications for
defense, or the rental of a house for an embassy, are private acts. See ALLEN, The Position of Foreign
States Before National Courts 31 (1933) and cases cited therein. Furthermore, this test merely postpones
the difficulty, for particular contracts in some instances may be made only by states.9 Others have looked
to the purpose of the transaction, categorizing as jure imperii all activities in which the object of
performance is public in character.10 But this test is even more unsatisfactory, for conceptually the modern
sovereign always acts for a public purpose. Lauterpacht, supra, 28 BRIT. Y.B. INT'L L. at 224.
Functionally the criterion is purely arbitrary and necessarily involves the court in projecting personal
notions about the proper realm of state functioning. See Lalive, supra, fn. 9, 3 RECUEIL DES COURS at
260 (1953). See also, Friedmann, The Growth of State Control Over the Individual and Its Effect Upon the
Rules of International State Responsibility, 19 BRIT. Y.B. INT'L L. 118, 128 (1938); Setser, The
Immunities of the State and Government Activities, 24 LAW & CONT. PROBS. 291, 309 (1959).
9
The conceptual difficulties involved in formulating a satisfactory method of differentiating between acts
jure imperii and acts jure gestionis have led many commentators to declare that the distinction is
unworkable.11 However, the Supreme Court has made it plain that when the State Department has been
silent on the question of immunity in a particular case, it is the court's duty to determine for itself whether
the foreign sovereign is entitled to immunity 'in conformity to the principles accepted by the department of
the government charged with the conduct of foreign relations.' Republic of Mexico v. Hoffman, supra, 324
U.S. at 35, 65 S.Ct. at 532. And since the State Department has publicly pronounced its adherence to the
distinction, we must apply it to the facts of this case.
10
The purpose of the restrictive theory of sovereign immunity is to try to accommodate the interest of
individuals doing business with foreign governments in having their legal rights determined by the courts,
with the interest of foreign governments in being free to perform certain political acts without undergoing
the embarrassment or hindrance of defending the propriety of such acts before foreign courts. Sovereign
immunity is a derogation from the normal exercise of jurisdiction by the courts and should be accorded
are disposed to deny a claim of sovereign immunity that has not been 'recognized and allowed' by the State
Department unless it is plain that the activity in question falls within one of the categories of strictly
political or public acts about which sovereigns have traditionally been quite sensitive.13 Such acts are
generally limited to the following categories:
11
(1) internal administrative acts, such as expulsion of an alien.
12
(2) legislative acts, such as nationalization.
13
(3) acts concerning the armed forces.
14
(4) acts concerning diplomatic activity.
15
(5) public loans.14
16
We do not think that the restrictive theory adopted by the State Department requires sacrificing the
interests of private litigants to international comity in other than these limited categories. Should
diplomacy require enlargement of these categories, the State Department can file a suggestion of immunity
with the court. Should diplomacy require contraction of these categories, the State Department can issue a
new or clarifying policy pronouncement.
17
The Comisaria General's chartering of the appellee's ship to transport a purchase of wheat is not a strictly
public or political act. Indeed, it partakes far more of the character of a private commercial act than a
public or political act.
18
The charter party has all the earmarks of a typical commercial transaction. It was executed for the
Comisaria General by 'El Jefe del Servicio Commercial,' the head of its commercial division. The wheat
was consigned to and shipped by a private commercial concern. And one of the most significant indicators
of the private commercial nature of this charter is the inclusion of the arbitration clause. The French Court
of Appeal, in dismissing a claim of sovereign immunity where the governmental charterer had agreed to
arbitration, pointed out:
19
'A contract relating to maritime transport is a private contract where the owner merely puts his ship and the
ship's crew at the disposal of the State and does not take a direct part in the performance of the public
service undertaken by the State in the latter's capacity as a charterer. The charter party does not contain any
clause peculiar to public law or unusual in private law. It provides for a time charter of the vessel which is
put at the disposal of the State chartering it. The insertion of the arbitration clause underlines the intention
of the parties to make their agreement subject to private law.' Myrtoon Steamship Company v. Agent
Judicaire Du Tresor, 24 Int.L.Rep. 205, 206 (1957).
20
Maritime transport has been included among the commercial or business activities specifically mentioned
in recent United States treaties restricting sovereign immunity.15 And the 1926 Brussels Convention, the
first major international attempt to restrict sovereign immunity, which Spain signed but never ratified,
denied immunity to all maritime governmental activities except vessels operated exclusively on non-
commercial service, such as warships, patrol vessels, or hospital ships.16
21
Even if we take a broader view of the transaction to encompass the purchase of wheat pursuant to the
Surplus Agricultural Commodities Agreement to help feed the people of Spain, the activity of the
Comisaria General remains more in the commercial than political realm. Appellant does not claim that the
wheat will be used for the public services of Spain; presumptively the wheat will be resold to Spanish
nationals. Whether the Comisaria General loses money or makes a profit on the sale, this purchasing
activity has been conducted through private channels of trade. Except for United States financing,
permitting payment in pesetas, the Comisaria General acted much like any private purchaser of wheat.
22
Our conclusion that the Comisaria General's activity is more properly labelled an act jure gestionis than
jure imperii is supported by the practice of those countries which have adopted the restrictive theory of
sovereign immunity. Thus the Commercial Tribunal of Alexandria declined to grant immunity to this same
Spanish instrumentality in a more difficult case-- a suit arising from the Comisaria's purchase of rice to
help feed the people of neutral Spain during wartime.
23
'It is not contended in the present case that the rice in question was bought by the Comisaria General for
the needs of the Spanish public services. On the contrary, it seems clearly established that the rice was
bought for the feeding of the Spanish population during a difficult period. In negotiating this purchase
herself, instead of leaving the matter to private enterprise, Spain proceeded in much the same manner as
any other Spanish trader would have done who wanted to buy rice in Egypt; that is to say, she got it out of
Egypt with the necessary permits and carried it to Spain in a Spanish ship in order to re-sell it on the usual
commercial lines. This being so, the Comisaria General cannot claim immunity from jurisdiction, and the
judgment entered against it must be confirmed.17
24
Though there are a few inconsistencies,18 the courts in those countries which have adopted the restrictive
theory have generally considered purchasing activity by a state instrumentality, particularly for resale to
nationals, as commercial or private activity.19
25
Finally, our conclusion that the Comisaria General's claim of sovereign immunity should be denied finds
support in the State Department's communication to the court in New York and Cuba Mail S.S. Co. v.
Republic of Korea, 132 F.Supp. 684, 685 (S.D.N.Y.1955). There the Republic of Korea was allegedly
responsible for damaging a ship while assisting in the unloading of a cargo of rice for distribution without
charge to its civilian and military personnel during the Korean War. Though suggesting that Korea's
property was immune from attachment, the State Department refused to suggest immunity 'inasmuch as the
particular acts out of which the cause of action arose are not shown to be of a purely governmental
character.' If the wartime transportation of rice to civilian and military personnel is not an act jure imperii,
a fortiori the peacetime transportation of wheat for presumptive resale is not an act jure imperii.20
THE ACT OF STATE DOCTRINE
26
The appellant also seeks to enter the sanctuary of sovereign immunity through the side door by urging that
since the acts complained of occurred in Spanish ports, which were designated as safe by a branch of the
Spanish Government, the act of state doctrine prohibits holding the Spanish Government to account for the
propriety of those acts. As most recently formulated by the Supreme Court, the act of state doctrine
'precludes the courts of this country from inquiring into the validity of the public acts a recognized foreign
sovereign power committed within its own territory.' Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398,
401, 84 S.Ct. 923, 926, 11 L.Ed.2d 804 (1964). The difficulty with appellant's argument is threefold. First
of all, the act of state doctrine applies only to the 'public acts' of a foreign sovereign, Restatement Foreign
Relations Law of U.S., 41c (Proposed Official Draft 1962), and we cannot see that designating ports as
safe for the S.S. Hudson was a public act of the Spanish Government. The designation of safe ports for the
discharge of cargo is an act frequently performed by merchants voyage-chartering a cargo ship. See
Gilmore and Black, THE LAW OF ADMIRALTY 179-181 (1957). It can hardly be termed an act of state
simply because a state instrumentality happened to be the voyage-charterer. Moreover, designation of the
ports as safe was not an act performed within the territory of Spain, nor was it performed by the
Government of Spain. Here the designation of the actual discharge ports was done on the bill of lading by
the appellant's shipper at Mobile, Alabama. Appellant's act of state argument is therefore considerably wide
of the mark.
JURISDICTION
27
Though is most cases jurisdiction over a foreign sovereign is obtained in an in rem proceeding, there is no
bar to the assertion of in personam jurisdiction. See Kunglig Jarnvagsstyrelsen v. Dexter & Carpenter, 300
F. 891 (S.D.N.Y. 1924) (L. Hand, J.), aff'd 32 F.2d 195 (2 Cir. 1929). Relying on the panel decision in
Petrol Shipping Corporation v. Kingdom of Greece, 326 F.2d 117 (2 Cir. 1964), appellant contends that
there is here no basis for the district court's assumption of in personam jurisdiction. In Petrol Shipping
Corp. v. Kingdom of Greece, a case factually similar to this one, the majority of the panel held only that
Greece could raise the defense of sovereign immunity by a letter from its ambassador sent directly to the
court. The full court, sitting in banc, altered the panel decision, vacated the district court's judgment
dismissing the petition to compel arbitration, and remanded for further proceedings. 332 F.2d 370 (2 Cir.
1964).
28
We hold that the district court had in personam jurisdiction to enter the order compelling arbitration. By
agreeing to arbitrate in New York, where the United States Arbitration Act makes such agreements
specifically enforceable, the Comisaria General must be deemed to have consented to the jurisdiction of
the court that could compel the arbitration proceeding in New York. To hold otherwise would be to render
the arbitration clause a nullity. In Farr & Co. v. Cia. Intercontinental De Navegacion, 243 F.2d 342 (2 Cir.
1957) and Orion Shipping & Trading Co. v. Eastern States Petro. Corp. of Panama, 284 F.2d 419 (2 Cir.
1960), this court held that 4 of the United States Arbitration Act provides sufficient jurisdictional basis for
the district court to order a foreign corporation which had agreed to arbitration in New York to submit to
arbitration. Unless the arbitration clause in this charter differs significantly from the arbitration clauses
specifically enforced in the Farr and Orion cases, it is clear that the court has in personam jurisdiction, for
we see no reason to treat a commercial branch of a foreign sovereign differently from a foreign
corporation. The arbitration clause construed in Farr provided: 'This submission may be made a rule of
court by either party.' The corresponding language in the arbitration clause in the instant case provides: 'For
the purpose of enforcing any award, this agreement may be made a rule of the Court.' Appellant argues that
this slight difference in wording requires a different result, for the appellee is seeking appointment of an
arbitrator, not enforcement of an award. We cannot agree. This fine distinction did not trouble this court in
Orion, where the corresponding language of the arbitration clause provided: 'For the purpose of enforcing
awards this agreement shall be made a Rule of the Court.' Implicit in the agreement to arbitrate is consent
to enforcement of that agreement.
29
The suggestion by the appellant that the subject matter of the controversy is without the admiralty
jurisdiction of the United States courts is utterly devoid of merit. It has long been settled that a charter-
party is a maritime contract and that disputes arising therefrom are within the admiralty jurisdiction of the
United States courts. Morewood v. Enequist, 23 How. 491, 64 U.S. 491, 16 L.Ed. 516 (1860).
SERVICE OF PROCESS
30
The appellant has also challenged the propriety of the extraterritorial service employed here. But since the
appellant as consented beforehand to the jurisdiction of the district court, the sole function of process in
this case was, as Judge Murphy correctly noted below, to notify the appellant that proceedings had
commenced. This function was certainly performed. Moreover, similar service of process on
nongovernmental foreign corporations was held sufficient in the Farr and Orion cases, supra. No rule of
international law requires special treatment for serving branches of foreign sovereigns. See
SUCHARITKUL, supra, at 350, 351.
31
Section 4 of the Arbitration Act provides that service of the petition to compel arbitration shall be made in
the manner provided by the Federal Rules of Civil Procedure. The language of Rule 4(d)(3), incorporated
by reference into Rule 4(d)(7), which permits service in the manner employed in the state courts, provides
for service on 'a domestic or foreign corporation or upon a partnership or other unincorporated association
which is subject to suit under a common name' and would seem broad enough to cover the Comisaria
General. Moreover, Rule 4(e) provided, as of March 22, 1963, that:
32
'Whenever a statute of the United States or an order of court provides for service of a summons, or of a
notice, or of an order in lieu of a summons upon a party not an inhabitant of or found within the state,
service shall be made under the circumstances and in the manner prescribed by the statute, rule, or order.'
33
Since the appellant had consented to the jurisdiction of the court, Judge Dawson's order authorizing service
by registered mail did not violate due process. And since service was effected pursuant to Judge Dawson's
order, such service complied with the terms of Rule 4(e).
34
The order of the district court is affirmed.
1
This statute is designed to use surplus agricultural commodities to expand international trade and to further
the foreign policy of the United States. It provides a means for the sale of such commodities through
private trade channels to governments of friendly nations for foreign currencies. In negotiating agreements
for the sale of surplus agricultural commodities to foreign countries the President is directed by 1701(b) to
'take appropriate steps to assure that private trade channels are used to the maximum extent practicable * *
*.' On May 22, 1961, Spain and the United States entered into an Agricultural Commodities Agreement
which permitted purchasers authorized by the Government of Spain to buy various amounts of surplus
commodities, including $14.4 million worth of wheat, by depositing pesetas to the account of the United
States
2
'Should any dispute arise between Owners and the Charterers, the matter in dispute shall be referred to
three persons at New York, one to be appointed by each of the parties hereto, and the third by the two so
chosen; their decision or that of any two of them shall be final, and for the purpose of enforcing any award,
this agreement may be made a rule of the Court. The Arbitrators shall be commercial men.'
3 'ships of war, Government yachts, patrol vessels, hospital ships, auxiliary vessels, supply ships, and other
9 U.S.C. 4
'A party aggrieved by the alleged failure, neglect, or refusal of another to arbitrate under a written
agreement for arbitration may petition any court of the United States which, save for such agreement,
would have jurisdiction under the judicial code at law, in equity, or in admiralty of the subject matter of a
suit arising out of the controversy between the parties, for an order directing that such arbitration proceed
in the manner provided for in such agreement. Five days' notice in writing of such application shall be
served upon the party in default. Service thereof shall be made in the manner provided by law for the
service of summons in the jurisdiction in which the proceeding is brought. The court shall hear the parties,
and upon being satisfied that the making of the agreement for arbitration or the failure to comply therewith
is not in issue, the court shall make an order directing the parties to proceed to arbitration in accordance
with the terms of the agreement. The hearing and proceedings, under such agreement, shall be within the
district in which the petition for an order directing such arbitration is filed. If the making of the arbitration
agreement or the failure, neglect, or refusal to perform the same be in issue, the court shall proceed
summarily to the trial thereof. If no jury trial be demanded by the party alleged to be in default, or if the
matter in dispute is within admiralty jurisdiction, the court shall hear and determine such issue. Where such
an issue is raised, the party alleged to be in default may, except in cases of admiralty, on or before the
return day of the notice of application, demand a jury trial of such issue, and upon such demand the court
shall make an order referring the issue or issues to a jury in the manner provided by law for referring to a
jury issues in an equity action, or may specially call a jury for that purpose. If the jury find that no
agreement in writing for arbitration was made or that there is no default in proceeding thereunder, the
proceeding shall be dismissed. If the jury find that an agreement for arbitration was made in writing and
that there is a default in proceeding thereunder, the court shall make an order summarily directing the
parties to proceed with the arbitration in accordance with the terms thereof.'
4 8
To make doubly sure that the appellant had been properly served, the appellee, on October 22, 1963,
sought to take advantage of the recent amendment to Rule 4(i) of the Fed. Rules of Civil Procedure by re-
serving the appellant by registered mail without a court order. Since we deem the initial service valid, we
need not pass on the validity of the second service
5 LAW SCHOOL RESEARCH IN INTERNATIONAL LAW, 386-391 (1931)
International Convention for the Unification of Certain Rules Concerning the Immunities of State Ships.
The French text of the Convention is set out in HARVARD RESEARCH IN INTERNATIONAL LAW,
426-429 (1931). An English translation prepared by the Department of State may be found in ALLEN,
THE POSITION OF FOREIGN STATES BEFORE NATIONAL COURTS, 303-308 (1933)
Article I of the Convention provided:
'Seagoing vessels owned or operated by States, cargoes owned by them, and cargoes and passengers
carried on Government vessels, and the States owning or operating such vessels, or owning such cargoes,
are subject in respect of claims relating to the operation of such vessels or the carriage of such cargoes, to
the same rules of liability and to the same obligations as those applicable to private vessels, cargoes, and
equipments.'
Article II provided that these liabilities and obligations may be enforced by the same rules and procedure
applied to private ships and cargoes, while Article III excepted from the application of the first articles
craft owned or operated by a State and used at the time a cause of action arises exclusively on
Governmental and noncommercial service * * *' However, Article III did provide for certain remedies
before the courts of the sovereign owning or operating a vessel as a public activity.
6
See Comment, supra, 63 YALE L.J. at 1157-1159
7
The plea of sovereign immunity for the Comisaria General in the district court was supported only by a
conclusionary affidavit of the Spanish Consul in New York. A consul is supposedly clothed with authority
to act for his government only in commercial matters. Since nothing in the record indicates that the
Spanish Consul was specially authorized to interpose a claim of sovereign immunity, the affidavit was
plainly insufficient. The Sao Vicente, 260 U.S. 151, 43 S.Ct. 15, 67 L.Ed. 179 (1922); The Anne, 16 U.S.
435, 3 Wheat. 435, 4 L.Ed. 428 (1818); The Secundus, 13 F.2d 469 (E.D.N.Y.1926); Harris & Co. Adv.
Inc. v. Republic of Cuba, 127 So.2d 687 (D.C.App.Fla.1961)
On appeal the Spanish Ambassador to the United States has written a letter directly to this court claiming
immunity for the Comisaria General and has moved for permission to appear specially in the proceeding.
We find it unnecessary to decide whether this procedure is sufficient to raise the claim of sovereign
immunity or whether the defense has been waived through a failure to present it properly. Under the view
we take of sovereign immunity, permitting the Spanish Ambassador to intervene at this stage in the
proceedings will not materially prejudice the appellee, who does not dispute appellant's sovereign status.
We therefore grant the motion of the Spanish Ambassador and treat the claim of sovereign immunity as
properly presented to the court.
Weiss, Competence ou l'incompetence des tribunaux a l'egard des Etats etrangers, RECUEIL DES
COURS, 525 (Hague Academy of Int'l L. 1923); De Paepe, De la competence civile a l'egard des Etats
etrangers et de leurs agents politiques, diplomatiques ou consulaires, 22 Journal du droit international 31,
33 (Clunet 1895); Draft Convention on the Competence of Courts in Regard to Foreign States, HARVARD
9
Lauterpacht, supra, 28 BRIT. Y.B. INT'L L. at 225; Lalive, L'immunite de jurisdiction des Etats et des
Organisations Internationales, 3 RECUEIL DES COURS 205, 259-260 (Hague Academy of Int'l Law
1953). For example, any individual may be able to purchase a boat, but only a sovereign may be able to
purchase a battleship. Should the purchase of a yacht be equated with the purchase of a battleship?
10
See Fensterwald, Sovereign Immunity and Soviet State Trading, 63 HARV. L.R. 614, 621 (1950);
SUCHARITKUL, supra, at 168-169
11
E.g., Lauterpacht, supra, 28 BRIT. Y.B. INT'L L. at 225-226; Fitzmaurice, State Immunity from
Proceedings in Foreign Courts, 14 BRIT. Y.B. INT'L L. 101, 123-124 (1933); Comment, supra, 63 YALE
L.J. at 1161-1162
12
National City Bank v. Republic of China, supra, 348 U.S. at 360, 75 S.Ct. 423; Compania Espanola de
Navegacion Maritima, S.A. v. The Navemar, 303 U.S. 68, 75, 58 S.Ct. 432, 82 L.Ed. 667 (1938)
13 Company, Ltd. v. Government of Kelantan, L.R. (1924) A.C. 797 with Ben Aiad c. Gouvernement tunisien,
In New York and Cuba Mail S.S. Co. v. Republic of Korea, 132 F.Supp. 684, 685 (S.D.N.Y.1955), the State Dalloz 305 (Cour de Cassation 1897)
Department declined to suggest immunity because the act in question was not 'purely governmental in
character.
14
Lalive, supra, 3 RECUEIL DES COURS at 285-286
15
A typical provision is contained in Article XVIII (Par. 3) of the FCN Treaty with Israel, signed August 23,
1951:
'No. enterprise of either Party, including corporations, associations, and government agencies and
instrumentalities, which is publicly owned or controlled shall, if it engages in commercial, manufacturing,
processing, shipping or other business activities within the territories of the other Party, claim or enjoy,
either for itself or for its property, immunity therein from taxation, suit, execution of judgment or other
liability to which privately owned and controlled enterprises are subject therein.' Quoted in Setser, 1961
Proceedings of Am. Soc. Int'l L. at 90.
16
See fn. 5, supra
17
Egyptian Delta Rice Mills Co. v. Comisaria General de Madrid, 55 Bulletin de legislation et le
jurisprudence egyptiennes, 114 (1942-3), quoted in Lauterpacht, supra, 28 BRIT.Y.B.INT'L L. at 255
18
Takhowsky v. Gouvernement federal suisse et Regnier, 48 Journal du droit international 179 (Clunet)
(Court of Appeal, Paris 1921) (holding that Switzerland was entitled to immunity in a suit arising from its
charter of ships to transport cocoa for the Swiss chocolate industry during World War I because the venture
was not exclusively commercial); Etienne v. Gouvernement neerlandais, Dalloz 84 (1948), Annual Digest,
Case No. 30 (Tribunal Commercial de la Rochelle 1947) (holding that a dhip requisitioned and operated by
the Dutch Government to transport wheat for the reprovisioning of the Netherlands was a political rather
than a commercial act). But these are decisions of courts of France where it is difficult to tell to what extent
the restrictive theory of sovereign immunity has been adopted. The French decisions are uncertain and
often contradictory. Compare Hamson, Immunity of Foreign States, The Practice of the French Courts, 27
BRIT.Y.B.INT'L L. 293 (1950), concluding that the French courts have departed very little from the
classical theory of immunity so far as the foreign State itself is concerned, with Lauterpacht supra, 28
BRIT.Y.B.INT'L L. at 260, concluding that France can no longer be included among countries adhering to
the absolute theory of immunit
19
E.g., Monnoyer et Bernard v. Etat Francaise, 3 Pasierisie Belge 129 (1927); Etat roumain v. Pascalet et
Cie., Dalloz 260 (1924); Stato di Romania c. Trutta, I Monitore dei Tribunali 288 (1926), Annual Digest
179 (1925-26); Societe pour la fabrication des cartouches c. Col M., Ministre de la Guerre de Bulgarie,
Belgique Judiciare 383 (1889); Et Ve Balik Kurumu v. B.N.S. Internat'l Sales Corp., 25 Misc.2d 299, 204
N.Y.S.2d 971 (Sup.Ct.1960), aff'd 17 A.D.2d 927, 233 N.Y.S.2d 1013 (A.D.1962); Pacific Molasses Co. v.
Comite de Ventas de Mieles, 30 Misc.2d 560, 219 N.Y.S.2d 1018 (Sup.Ct.1961). See generally,
Sucharitkul, supra, at 322, 324

20
Since in our view sovereign immunity does not apply, we find it unnecessary to consider whether the
agreement to arbitrate constituted an implied waiver of sovereign immunity. Compare Duff Development

United States Supreme Court
UNDERHILL v. HERNANDEZ, (1897)
No. 36
Argued: Decided: November 29, 1897
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
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 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.

AKSIONAIRNOYE OBSCHESTVO DLIA MECHANICHESKOYI OBRABOTKY DIEREVA (1) A. M. LUTHER
(COMPANY FOR MECHANICAL WOODWORKING A. M. LUTHER) v. JAMES SAGOR AND COMPANY.
[1921] 3 K.B. 532
[1920. A. 1861.]
COUNSEL: Leslie Scott K.C. and H. L. Murphy for the appellants.
Barrington-Ward K.C. and St. John Field for the respondents.
SOLICITORS: For appellants: H. W. & S. Patey.
For respondents: Linklaters & Paines.
JUDGES: Bankes, Warrington, and Scrutton L.JJ.
DATES 1921 April 29; May 2, 12.
International Law Recognition of Foreign Government Russian Soviet Republic Confiscatory Act Sale of
confiscated Goods Validity of Sale.
The Courts of this country will not inquire into the validity of the acts of a foreign government which has been
recognized by the Government of this country. In this respect it is all one whether the foreign government has been
recognized as a government de jure or de facto.
The Russian Socialist Federal Soviet Republic passed a decree in June, 1918, declaring all mechanical sawmills of a
certain capital value and all woodworking establishments belonging to private or limited companies to be the
property of the Republic. In 1919 agents of the Republic seized the plaintiffs mill or factory in Russia and the stock
of manufactured wood therein. In August, 1920, agents of the Republic purported to sell a quantity of the stock so
seized to the defendants, who imported it into England.
In letters dated in April, 1921, the Secretary of State for Foreign Affairs stated that His Majestys Government
recognized the Soviet Government as the de facto Government of Russia; that a government known as the
Provisional Government came into power in March, 1917, and was recognized by His Majestys Government, and
remained in session until December 13, 1917, and was then dispersed by the Soviet authorities.
In an action by the plaintiffs for a declaration that they were entitled to the wood above mentioned:
Held, that the Government of this country had recognized the Soviet Government as the de facto Government of
Russia existing at a date before the decree of June, 1918; that therefore the validity of that decree and the sale of the
wood to the defendants could not be impugned, and that the defendants were therefore entitled to judgment.
Judgment of Roche J. [1921] 1 K. B. 456 reversed on further facts.
APPEAL from the judgment of Roche J. (2) in an action tried before the learned judge without a jury.
The plaintiffs were a company incorporated in 1898 in the Empire of Russia according to the laws of Russia. Their
(1) [ Sic in the record; the transliteration is not quite correct or consistent. F. P.]
(2) [1921] 1 K. B. 456.
[*533] head office was at Reval, where they had a factory for the manufacture of veneer or plywood. They also had a
factory or mill at Staraja Russa, about 140 miles south of Petrograd, and there in the year 1919 they had a large
stock, not less than 1500 cubic metres, of manufactured boards stamped with the name Venesta or the letters V.
L., the name or trade mark of Venesta, Ld., a British company.
On June 20, 1918, a confiscatory decree purporting to issue from the Government of Russia was passed. The
following translation was accepted by the parties in the Court below as giving the meaning of the material portions
of the decree.
Decree of Council of Commissars for the People of June 20, 1918, which appeared in Izviestia in Moscow on June
30, 1918. No. 134.
By Article 1: All industrial and commercial establishments mentioned below with their capital and assets of
whatever nature are declared the property of the Russian Socialist Federative Republic (inter alia);
(17) All the mechanical saw mills of limited or private companies which have a capital of at least 1,000,000
roubles;
(18) All woodworking establishments equipped with machinery which belonged to private or limited companies.
Decree signed by Lenin in presence of Council of Commissars and by Commissars of the People;
TSIRIOUP NAGUINE RIKOF,
Business Director.

BOVITCH-BROVENITSCH,
Secretary of the Council.
In January, 1919, certain Commissaries or officials armed with authority from the Soviet Government took
possession of the plaintiffs factory or mill at Staraja Russa and of the manufactured goods lying there.
On August 14, 1920, a contract was made in London between L. B. Krassin, the representative of the Russian
Commercial Delegation in London, and the defendants whereby Krassin on behalf of the Russian Commercial
Delegation [*534] sold to the defendants, a firm carrying on business in London, a quantity of birch, alder, and aspen
plywood including the 1500 cubic metres of plywood seized by the Commissaries as above stated. The contract was
signed on behalf of the Russian Commercial Delegation by Commissary to Foreign Trade, Krassin; Secretary,
Klishko. It was under the seal of the Agents of the Soviets of the Peoples Commissaries.
Under this contract the defendants obtained possession of the 1500 cubic metres of plywood boards and imported
them into England.
The plaintiffs claimed a declaration that these goods were their property; an injunction restraining the defendants
their servants and agents from selling, pledging, or in any way dealing with them; and damages for conversion and
detention of them.
The defendants contended that the decree of June 20, 1918, and the subsequent seizure of the goods and sale of them
to the defendants were the acts of the Russian Socialist Federal Soviet Republic, a sovereign state, and were valid
and effectual to deprive the plaintiffs of the property in the goods and to transfer the same to the defendants.
The following letters relating to the position of L. B. Krassin, the Russian Commercial Delegation, and the Russian
Socialist Federal Soviet Republic were received in evidence before Roche J.:
(1.) A letter dated July 28, 1920, written on behalf of His Majestys Secretary of State for Foreign Affairs to the
solicitors for L. B. Krassin. It stated that Krassin was the authorized representative of the Soviet Government and
had been received by His Majestys Government for the purpose of carrying out certain negotiations. It further stated
that His Majestys Secretary of State regarded Krassin as a foreign representative and as one who in view of the
negotiations should be exempt from the process of the Courts.
(2.) A letter of October 5, 1920, written on behalf of His Majestys Secretary of State for Foreign Affairs to the
defendants solicitors which stated that: His Majestys [*535] Government assent to the claim of the Delegation to
represent in this country a State Government of Russia.
(3.) A letter dated November 27, 1920, written on behalf of His Majestys Secretary of State for Foreign Affairs to
the plaintiffs solicitors which stated that for a certain limited purpose His Majestys Government has regarded
Monsieur Krassin as exempt from the process of the Courts, and also for the like limited purpose His Majestys
Government has assented to the claim that that which Monsieur Krassin represents in this country is a State
Government of Russia, but that beyond these propositions the Foreign Office has not gone, nor moreover do these
expressions of opinion purport to decide difficult and, it may be, very special questions of law, upon which it may
become necessary for the Courts to pronounce. I am to add that His Majestys Government have never officially
recognized the Soviet Government in any way.
The defendants also contended that, by a treaty of peace concluded on February 2, 1920, between the Republic of
Esthonia and the Russian Soviet Republic, Reval was recognized as within Esthonian territory and Staraja Russa as
within the territory of the Russian Soviet Republic; that consequently the plaintiffs, whose head office was in Reval,
had become an Esthonian company; that they as Esthonian citizens were making a claim to property situate in
Russia; that under art. XIV. of the treaty mixed Russo-Esthonian Commissions had been established for deciding all
such claims; and that any claim of the plaintiffs to property which at the date of the treaty was at Staraja Russa must
be made through the mixed commissions and not otherwise.
Roche J. upon the evidence before him found that His Majestys Government had not recognized the Russian Soviet
Government as the government of a sovereign state or power. He also found that the plaintiffs had not become an
Esthonian company but had elected to remain a Russian company, which the treaty of February 2, 1920, enabled
them to do. He therefore gave judgment for the plaintiffs.
The defendants appealed.
[*536] After the date of the judgment further information was obtained from the Foreign Office touching the status
of the Soviet Government of Russia. The appellants applied for and obtained leave to bring this further information
before the Court. It was conveyed in the following letters:
On April 12, 1921, the appellants solicitors wrote to the Under-Secretary of State for Foreign Affairs asking for a
certificate for production to the Court of Appeal that the Government of the Russian Socialist Federal Soviet
Republic had been recognized by His Majestys Government as the de facto Government of Russia.
In answer to this request they received a letter dated April 20, 1921, in these terms: (1.) I am directed by Earl
Curzon of Kedleston to refer to your letter of April 12, asking for information as to the relations between His
Majestys Government and the Soviet Government of Russia.
(2.) I am to inform you that His Majestys Government recognize the Soviet Government as the de facto
Government of Russia.
In answer to a request for information concerning the Provisional Government, its duration and status, a letter was
written from the Foreign Office on April 22 stating that on the termination of the Imperial Government on March 14,
1917, the Provisional Government came into power and was recognized by His Majestys Government as the then
existing Government of Russia, that it remained in power until December 13, 1917, and was then dispersed by the
Soviet authorities.
On March 16, 1921, a trade agreement was executed between His Majestys Government and the Government of the
Russian Socialist Federal Soviet Republic. It was signed at London by Sir R. S. Horne on behalf of His Majestys
Government and by L. Krassin on behalf of the Russian Soviet Government. By clause 10 of this agreement the
Russian Soviet Government undertook to make no claim to dispose in any way of the funds or other property of the
late Imperial and Provisional Russian Governments in the United [*537] Kingdom. His Majestys Government gave
a corresponding undertaking as regards British Government funds and property in Russia.
Leslie Scott K.C. and H. L. Murphy for the appellants. The letters of April 20 and April 22, 1921, from the Foreign
Office make it clear (1.) that on April 20 the Soviet Government was recognized by His Majestys Government as the
de facto Government of Russia; (2.) that it succeeded the Provisional Government which came into power on March
14, 1917, first under Prince Lvov and then under M. Kerensky, and lasted until December, 1917; (3.) that the
Provisional Government while in existence was recognized by His Majestys Government. The recognition of a
government involves the recognition of its acts from the commencement of its existence: Williams v. Bruffy (1);
Underhill v. Hernandez (2); Oetjen v. Central Leather Co. (3) It is plain that the Soviet Government commenced its
existence in December, 1917. Acts done by that Government since December, 1917, will not be questioned by His
Majestys Courts of Justice, because the acts of a recognized government are not the subject of adjudication in the
Courts of the recognizing government: Underhill v. Hernandez (4); and the Courts of one country will not sit in
judgment on the acts of the government of another done within its own territory: Underhill v. Hernandez (5); Oetjen
v. Central Leather Co. (6) It follows that the decree of June 20, 1918, the seizure of the respondents goods in
January, 1919, and the sale on August 14, 1920, by L. B. Krassin on behalf of the Russian Commercial Delegation,
which was recognized as representing a State Government of Russia by His Majestys Government, as appears from
the letter of October 5, 1920, were acts the validity of which must be taken for granted.
Secondly, the claim of the respondents is a matter to be settled between the Russian and Esthonian Governments
(1) (1877) 96 U. S. 176.
(2) (1897) 168 U. S. 250.
(3) (1917) 246 U. S. 297.
(4) 168 U. S. 250, 254.
(5) 168 U. S. 252.
(6) 246 U. S. 303.
[*538] under the treaty of peace of February 2, 1920. Roche J. decided against the appellants on this point on the
ground that the respondents were in truth a Russian and not an Esthonian company. That is not a question to be
decided by the Courts of this country, but by the mixed commissions set up by the treaty.
Barrington-Ward K.C. and St. John Field for the respondents. The recognition of a foreign government may or may
not have a retrospective operation. If the government is recognized as the government de jure the recognition is
retrospective and the acts of that government from the beginning of its existence must be recognized as valid acts by
the Courts of the sovereign recognizing the foreign government. But if the foreign government is merely recognized
as the government de facto the recognition has no retrospective operation. The acts complained of were all done
before the Russian Soviet Republic was recognized. It is clear from the letter from the Foreign Office of November
27, 1920, that the Soviet Republic was not recognized until after that date. The alleged sale to the respondents took
place in the preceding August. Assuming therefore that the Russian Commercial Delegation, which is supposed to
have effected the sale, is the Russian Soviet Republic subsequently recognized, which is by no means clear, the acts
of the Delegation were never recognized by His Majestys Government.
Secondly, the Courts of this country are not bound to accept as valid all acts of what nature or kind soever done by a
recognized foreign government: Folliott v. Ogden (1), affirmed in Ogden v. Folliott (2); Wolff v. Oxholm (3);
Republic of Peru v. Dreyfus (4); Lecouturier v. Rey. (5) If the act is contrary to the morality or political institutions
of this country His Majestys Courts of Justice may treat it as null and void: Simpson v. Fogo (6); Kaufman v.
Gerson (7); Dicey on Conflict of Laws.(8) The decree of
(1) (1789) 1 H. Bl. 123.
(2) (1790) 3 T. R. 726.
(3) (1817) 6 M. & S. 92.
(4) (1888) 38 Ch. D. 348.
(5) [1910] A. C. 262.
(6) (1862) 1 H. & M. 195.
(7) [1904] 1 K. B. 591.
(8) 2nd ed. (1908), p. 36.
[*539] June 20, 1918, is not an act to command respect by any innate justice or morality. It is contrary to English
political principles and ought to be disregarded. The alleged sale by L. B. Krassin should meet with the same fate.
There is then nothing to bar the respondents claim.
Leslie Scott K.C. in reply. There is no difference in effect between recognition of a government as a government de
jure and recognition of a government as a government de facto. In either case the recognition validates acts done by
the government from the time when it can be ascertained as the government which is subsequently recognized. After
it has been recognized its acts cannot be questioned in a Court of law. It may be a question for private speculation
whether the decree of June 20, 1918, was a wise or an improvident one, a barbarous or a civilized institution. But
here we must take it as the law of an independent country, and the laws of every country must be equally regarded in
Courts of justice here, whether in private speculation they are wise or foolish: Wright v. Nutt . (1)
May 12. The following written judgments were delivered:
BANKES L.J. The action was brought to establish the plaintiff companys right to a quantity of veneer or plywood
which had been imported by the defendants from Russia. The plaintiffs case was that they are a Russian company
having a factory or mill at Staraja Russa in Russia for the manufacture of veneer or plywood, and that in the year
1919 the so-called Republican Government of Russia without any right or title to do so seized all the stock at their
mill and subsequently purported to sell the quantity in dispute in this action to the defendants. The plaintiffs
contended that the so-called Republican Government had no existence as a government, that it had never been
recognized by His Majestys Government, and that the seizure of their goods was pure robbery. As an alternative
they contended that the decree of the so-called government nationalizing all factories, as a result of which their
goods were seized,
(1) (1789) 1 H. Bl. 136, 149.
[*540] ] is not a decree which the Courts of this country would recognize.
The answer of the defendants was two-fold. In the first place they contended that the Republican Government which
had passed the decree nationalizing all factories was the de facto Government of Russia at the time, and had been
recognized by His Majestys Government as such, and that the decree was one to which the Courts of this country
could not refuse recognition. Secondly they contended that the plaintiff company was an Esthonian and not a Russian
company, and that as a result of the provisions of the treaty of peace between Russia and Esthonia the plaintiffs
complaint must be dealt with by a commission set up in pursuance of art. XIV. of that treaty. Roche J. decided the
two main points in the plaintiffs favour. Upon the evidence which was before the learned judge I think that his
decision was quite right. As the case was presented in the Court below the appellants relied on certain letters from
the Foreign Office as establishing that His Majestys Government had recognized the Soviet Government as the de
facto Government of Russia. The principal letters are referred to by the learned judge in his judgment. He took the
view that the letters relied on did not establish the appellants contention. In this view I entirely agree.
In this Court the appellants asked leave to adduce further evidence, and as the respondents raised no objection, the
evidence was given. It consisted of two letters from the Foreign Office dated respectively April 20 and 22, 1921. The
first is in reply to a letter dated April 12, which the appellants solicitors wrote to the Under Secretary of State for
Foreign Affairs, asking for a Certificate for production to the Court of Appeal that the Government of the Russian
Socialist Federal Soviet Republic is recognized by His Majestys Government as the de facto Government of
Russia. To this request a reply was received dated April 20, 1921, in these terms: I am directed by Earl Curzon of
Kedleston to refer to your letter of April 12, asking for information as to the relations between His Majestys
Government and [*541] the Soviet Government of Russia. (2.) I am to inform you that His Majestys Government
recognize the Soviet Government as the de facto Government of Russia. The letter of April 22 is in reply to a
request for information whether His Majestys Government recognized the Provisional Government of Russia, and as
to the period of its duration, and the extent of its jurisdiction. The answer contains (inter alia) the statement that the
Provisional Government came into power on March 14, 1917, that it was recognized by His Majestys Government
as the then existing Government of Russia, and that the Constituent Assembly remained in session until December
13, 1917, when it was dispersed by the Soviet authorities. The statement contained in the letter of April 20 is
accepted by the respondents counsel as the proper and sufficient proof of the recognition of the Soviet Government
as the de facto Government of Russia.
Under these circumstances the whole aspect of the cases is changed, and it becomes necessary to consider matters
which were not material in the Court below. The first is a question of law of very considerable importance namely,
what is the effect of the recognition by His Majestys Government in April, 1921, of the Soviet Government as the de
facto Government of Russia upon the past acts of that Government, and how far back, if at all, does that recognition
extend. The second is a question of fact, whether sufficient evidence was given to establish the identity of the Soviet
Government now recognized by His Majestys Government with the Government which seized and confiscated and
sold the appellants goods.
On the first point counsel have been unable to refer the Court to any English authority. Attention has been called to
three cases decided in the Supreme Court of the United States: Williams v. Bruffy (1); Underhill v. Hernandez (2);
and Oetjen v. Central Leather Co. (3) In none of these cases is any distinction attempted to be drawn in argument
between the effect of a recognition of a government as a de facto
(1) 96 U. S. 176.
(2) 168 U. S. 250.
(3) 246 U. S. 297.
[*542] government and a recognition of a government as a government de jure, nor is any decision given upon that
point; nor, except incidentally, is any mention made as to the effect of the recognition of a government upon its past
acts. The mention occurs in two passages, one in the judgment of Field J. in Williams v. Bruffy (1), where, after
discussing the essential differences between the Government of the Confederate States and the two kinds of de facto
governments which he says may exist, he explains that the second of the two kinds exists where a portion of the
inhabitants of a country have separated themselves from the parent state and established an independent government.
The validity of its acts, he says, both against the parent state and its citizens or subjects, depends entirely upon its
ultimate success. If it fail to establish itself permanently, all such acts perish with it. If it succeed, and become
recognized, its acts from the commencement of its existence are upheld as those of an independent nation. The
second mention of the point occurs in the judgment of Fuller C.J. in Underhill v. Hernandez. (2) He says, in speaking
of civil wars: 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. These are weighty expressions of opinion on a question of international
law. Neither learned judge cites any authority for his proposition. Each appears to treat the matter as one resting on
principle. On principle the views put forward by these learned judges appear to me to be sound, though there may be
cases in which the Courts of a country whose government has recognized the government of some other country as
the de facto government of that country may have to consider at what stage in its development the government so
recognized can, to use the language to which I have already referred of those learned judges, be said to have
commenced its existence. No difficulty of that kind arises in the present case, because, upon the construction
(1) 96 U. S. 186.
(2) 168 U. S. 253.
[*543] which I place upon the communication of the Foreign Office to which I have referred, this Court must treat
the Soviet Government, which the Government of this country has now recognized as the de facto Government of
Russia, as having commenced its existence at a date anterior to any date material to the dispute between the parties to
this appeal.
An attempt was made by the respondents counsel to draw a distinction between the effect of a recognition of a
government as a de facto government and the effect of a recognition of a government as a government de jure, and to
say that the latter form of recognition might relate back to acts of state of a date earlier than the date of recognition,
whereas the former could not. Wheaton quoting from Mountague Bernard states the distinction between a de jure and
a de facto government thus (1): A de jure government is one which, in the opinion of the person using the phrase,
ought to possess the powers of sovereignty, though at the time it may be deprived of them. A de facto government is
one which is really in possession of them, although the possession may be wrongful or precarious. For some
purposes no doubt a distinction can be drawn between the effect of the recognition by a sovereign state of the one
form of government or of the other, but for the present purpose in my opinion no distinction can be drawn. The
Government of this country having, to use the language just quoted, recognized the Soviet Government as the
Government really in possession of the powers of sovereignty in Russia, the acts of that Government must be treated
by the Courts of this country with all the respect due to the acts of a duly recognized foreign sovereign state.
It becomes material now to consider whether the appellants have given sufficient evidence to establish that the
confiscation and subsequent sale of the respondents property were the acts of the Government which His Majestys
Government have now recognized as the de facto Government of Russia. In my opinion they have. The decree of
confiscation as set out in the judgment of Roche J. as reported
(1) International Law, 5th English edition (1916), p. 36.
[*544] in the Law Reports (1) purports to be A decree of Council of Commissars for the People. The contract of
sale of the goods to the appellants dated August 14, 1920, purports to be made by L. B. Krassin on behalf of the
Russian Commercial Delegation. The trade agreement between this country and Russia of March 16, 1921, is made
between His Majestys Government and the Government of the Russian Socialist Federal Soviet Republic,
thereinafter referred to as the Russian Soviet Government, and is signed by M. Krassin as the representative of that
Government. From the letter from the Foreign Office addressed to Messrs. Linklater of April 22, 1921, it appears that
the Soviet authorities dispersed the then Constituent Assembly on December 13, 1917, from which date I think it
must be accepted that the Soviet Government assumed the position of the sovereign Government and purported to
act as such. The witness Rastorgoueff explained that the Council of Commissars for the People is the executive body
of the Soviet Republic. The witness Schotter deposed to the seizure of the plaintiffs goods at the factory being made
by persons holding official documents from the Soviet Government, and to the fact that at that time and up to the
date of the trial the power (as he expressed it) was in the hands of the Bolshevists. The witness Muller who described
himself as confidential clerk to the Russian Trade Delegation of the Russian Socialist Federal Soviet Republic, of
which M. Krassin was the head, deposed to the fact that since the end of 1917 the Russian Socialist Federal Soviet
Republic had in fact been ruling over that part of Russia in which the plaintiffs factory at Staraja Russa is situate.
Upon these materials I consider that it is established that the decree of confiscation of June, 1918, the seizure of the
plaintiffs goods in January, 1919, and the subsequent sale of them to the defendants in August, 1920, were all acts of
the Soviet Government which has now been recognized by His Majestys Government as the de facto Government of
Russia, and must be accepted by the Courts of this country as such.
(1) [1921] 1 K. B. 470.
[*545] It is necessary now to deal with the point made by the respondents, that the decree of confiscation of June,
1918, even if made by the Government which is now recognized by His Majestys Government as the de facto
Government of Russia, is in its nature so immoral, and so contrary to the principles of justice as recognized by this
country, that the Courts of this country ought not to pay any attention to it. This is a bold proposition. The question
before the Court is not one in which the assistance of the Court is asked to enforce the law of some foreign country
to which legitimate objection might be taken, as in Hope v. Hope (1) and Kaufman v. Gerson. (2) The question
before the Court is as to the title to goods lying in a foreign country which a subject of that country, being the owner
of them by the law of that country, has sold under an f.o.b. contract for export to this country. The Court is asked to
ignore the law of the foreign country under which the vendor acquired his title, and to lend its assistance to prevent
the purchaser dealing with the goods. I do not think that any authority can be produced to support the contention.
Authority appears to negative it. In Santos v. Illidge (3) Blackburn J. says: Assuming the taking to have been
prohibited by a British act, still the taking having been of property locally situated in a foreign country, in a manner
lawful according to the laws of that country, I apprehend that the property actually passed by the sale, and vested in
the purchasers, though they committed a felony according to our law by taking it. It would be otherwise if the
transfer were by a British subject of personal property situated within the British dominions; for, the contract passing
the property, being prohibited, would be held void, and so the property would not vest; and it would be questionable
how the case would have been, if it had been shown that the vendor was a domiciled British subject, though the
property was locally situated in Brazil. But, where, as we must take it to be here, a Brazilian vendor, in Brazil,
transferred property locally situated in Brazil,
(1) (1857) 8 D. M. & G. 731.
(2) [1904] 1 K. B. 591.
(3) (1860) 8 C. B. (N. S.) 861, 876.
[*546] I apprehend that though the vendees were British subjects the validity of the transfer must on every principle
of law depend upon the local law of Brazil, and not upon that of the country of the purchaser. See Story on the
Conflict of Laws, c. ix., p. 308 (ed. 1835). (1) The respondents position is rendered all the more difficult from the
fact that the vendor in the present case is a duly recognized sovereign state whose law conferred the title which is
challenged. Even if it was open to the Courts of this country to consider the morality or justice of the decree of June,
1918, I do not see how the Courts could treat this particular decree otherwise than as the expression by the de facto
government of a civilized country of a policy which it considered to be in the best interest of that country. It must be
quite immaterial for present purposes that the same views are not entertained by the Government of this country, are
repudiated by the vast majority of its citizens, and are not recognized by our laws. Taking the view I do of the point I
do not consider it necessary to discuss the authorities to which our attention has been called.
The only remaining point is one that does not become material having regard to my view of the evidence now before
this Court. In the Court below the appellants contended that the Courts of this country had no jurisdiction to entertain
the present dispute because the respondents are really an Esthonian company and not a Russian company, and that by
the terms of the treaty of peace the present claim is one which must be adjudicated upon by a commission appointed
under the treaty. There is in my opinion no substance in the point. Even if the appellants were right on their facts they
fail in my opinion in making out either that the present dispute falls within the language of the treaty or that if it did
the language of the treaty ousts the jurisdiction of the Courts of this country. Upon the facts, in my opinion, Roche J.
was quite right in deciding that the respondents never ceased to be a Russian company. Although I consider
(1) This edition was published in Edinburgh. The corresponding page in the 8th edition (Boston, 1883) is p. 533.
[*547] that upon the materials before him the learned judges judgment was quite correct, I think that upon the fresh
materials before this Court the appeal succeeds and the judgment must be set aside and entered for the appellants. As
the respondents succeeded, as I consider, rightly upon the evidence upon which the appellants relied in the Court
below, I think that the respondents should have the costs of the action, and the appellants should have the costs of
this appeal.
Since writing this judgment a further communication from the Foreign Office dated May 4, 1921, has been supplied
by the respondents solicitors to the members of the Court, and to the appellants solicitors. The communication was
made to a firm of solicitors interested in some other litigation. In the communication the writer states that he is
instructed to state that His Majestys Government recognize the Soviet Government of Russia as the de facto
Government of that country as from March 16, 1921. I have ascertained that the words as from should be read as
on. So read the communication adds nothing to the information already before the Court and I need not refer to it
further.
WARRINGTON L.J. The question in this case is whether the plaintiffs, or the defendants, are to be treated in this
country as the owners of certain goods formerly the property of the plaintiffs, but since seized and sold to the
defendants by persons purporting to act as the agents of the Russian Soviet Government. Roche J. has given
judgment in favour of the plaintiffs claim, and the defendants appeal. Roche J. founded his judgment on the
conclusion of fact arrived at by him on the evidence before him that the Russian Soviet Government had not been
recognized by the Government of this country, and therefore the Courts could not recognize it or hold that it had
sovereign power, or was able to deprive the plaintiff company of its property. With this finding on the materials
before the learned judge I entirely agree. Since the date of the judgment, however, it appears by a letter dated April
20, 1921, written by the Foreign Office [*548] to the defendants solicitors that His Majestys Government recognize
the Soviet Government as the de facto Government of Russia, and it appears as the result of the further letters
referred to by Bankes L.J. that the recognition took effect on March 16, 1921, the date of the trade agreement
between this country and Russia. The case therefore comes before us upon fresh materials of which we are bound to
take notice, and which make a radical alteration in the circumstances under which the question is to be decided.
It is quite unnecessary to state the facts in detail, they are sufficiently stated in the judgment of Roche J., and for the
present I will assume that the decree of June 20, 1918, declaring the establishments capital and assets of certain
companies, including such a company as the plaintiffs, to be the property of the Russian Socialist Federal Republic
was a decree of the same government as that which has since been recognized, and that the persons who afterwards
seized the goods in question and those who sold them to the defendants were acting as the agents of that government.
The question then is whether the Court has any power to question the validity of the proceedings under which the
property in the goods has prima facie been transferred to the defendants. The letter of the Secretary of State is clearly
conclusive as to the status of the Soviet Government namely, that it is an independent sovereign Government: see
Mighell v. The Sultan of Johore, per Lord Esher M.R. (1) It is well settled that the validity of the acts of an
independent sovereign government in relation to property and persons within its jurisdiction cannot be questioned in
the Courts of this country: 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: per Clarke J. delivering the judgment of the Supreme Court of the United States of America in Oetjen
v. Central Leather Co. (2) The existence of this principle of law is implicit in the speeches of both Lord Macnaghten
and Lord Shaw
(1) [1894] 1 Q. B. 149, 158.
(2) 268 U. S. 297, 303.
[*549] in Lecouturier v. Rey (1), and is not disputed by counsel for the respondents in the present case.
Some reliance was placed by the respondents upon the principle enunciated in such cases as Kaufman v. Gerson (2),
that the Courts of this country will not enforce a contract invalid by our law as being in contravention of some
essential principle of justice or morality, notwithstanding that by the law of the country where it was made no such
objection could be raised to it. In my opinion this principle has no application. The appellants are not seeking to
enforce such a contract. They are resisting an endeavour on the part of the respondents to induce the Court to ignore
and override legislative and executive acts of the Government of Russia and its agents affecting the title to property
in that country; it is that which, in my opinion, we are not at liberty to do.
But then it is said that at the time when the legislative or executive acts were done the persons assuming to act as the
Government of Russia had not been recognized by this country, and those acts therefore are not entitled to the respect
due to the acts of an independent sovereign state. This contention raises the question whether recognition is
retroactive to any and what extent. Assuming that the acts in question are those of the government subsequently
recognized I should have thought that in principle recognition would be retroactive at any rate to such date as our
Government accept as that by which the government in question in fact established its authority. It appears from the
letter of the Foreign Office dated April 22, 1921, that that date is anterior to any of the events material to the present
case. Recognition is the act through which it becomes apparent that an old state is ready to deal with a new state as
an international person and a member of the family of nations. (3) If this is so then provided the act in question was
an act of the state so recognized it must, in my opinion, be entitled to the same respect as the act of a sovereign state,
whether done before or after recognition.
(1) [1910] A. C. 262.
(2) [1904] 1 K. B. 591.
(3) Oppenheim, International Law, vol. i., 3rd ed. (1920), p. 135.
[*550] We have not been referred to, nor have I found, any authority in English law on the point, but there are
decisions of the Supreme Court of America directly supporting the view I have expressed. The first of those is the
judgment of Field J. delivering the opinion of the Supreme Court in Williams v. Bruffy. (1) Speaking of de facto
governments he says: The latter are of two kinds. One of them is such as exists after it has expelled the regularly
constituted authorities from the seats of power and the public offices, and established its own functionaries in their
places, so as to represent in fact the sovereignty of the nation. .... As far as other nations are concerned, such a
government is treated as in most respects possessing rightful authority; its contracts and treaties are usually enforced;
its acquisitions are retained; its legislation is in general recognized; and the rights acquired under it are, with few
exceptions respected after the restoration of the authorities which were expelled. It is true that there are here no
express words affirming the validity of the acts of such a de facto government as from the commencement of its
existence, but that such a view is implied is clear; the learned judge is obviously speaking of all the acts of such a
government after it has come to represent the sovereignty of the nation. In the case of the other kind of de facto
governments namely, where a portion of the inhabitants of a country have separated themselves from the parent
state and established an independent government, his view is quite plainly expressed. He says: If it succeed, and
become recognized, its acts from the commencement of its existence are upheld as those of an independent nation,
and (speaking of the American States after their separation from Great Britain) he says: Having made good their
declaration of independence, everything they did from that date was as valid as if their independence had been at
once acknowledged. (2) The same view is expressed in the judgment already referred to in Oetjen v. Central Leather
Co. (3) It is true that in this case
(1) 96 U. S. 176, 185.
(2) 96 U. S. 186.
(3) 246 U. S. 297, 302.
[*551] the Court is applying the principle to a government recognized as the de jure government, but in my opinion
there is no difference for the present purpose between a government recognized as such de jure and one recognized
de facto, In the latter case, as well as in the former, the government in question acquires the right to be treated by the
recognizing state as an independent sovereign state, and none the less that our Government does not pretend to
express any opinion on the legality or otherwise of the means by which its power has been obtained. In fact I rather
think a de jure government in international law means one which, in the opinion of the person using the phrase,
ought to possess the powers of sovereignty, though at the time it may be deprived of them; while a de facto
government is one which is really in possession of them, although the possession may be wrongful or precarious.
(1) I express no opinion on the question whether the retroactive effect of recognition is so wide as to cover every act
of the recognized government from the commencement of its existence. It is unnecessary to do so in the present case
for the reason that our Government clearly treats the Soviet Government as having effectively displaced the previous
Government at a date anterior to the earliest of the relevant events. I am of opinion, therefore, that on the
assumptions mentioned above the Court is not in a position to question the validity of the acts whereby the property
in the goods in question has been taken from the plaintiffs and transferred to the defendants.
I have now to consider whether those assumptions are justified. I think they are. In my opinion it is sufficiently
proved that the Council of Commissars by whom the decree of June 20, 1918, purported to have been made were the
persons at that time exercising supreme authority in Russia, and that the actual seizure of the goods in question was
in pursuance of that decree, and by persons acting under the authority of the Government. The contract for sale to the
defendants was made by M. Krassin as the representative of the Commercial Delegation in this country, which was
(1) Wheaton, International Law, 5th English edition (1916), p. 36.
[*552] treated by our Government as representing A State Government of Russia. (See the letter of October 5,
1920, from the Foreign Office.) Was the Government afterwards recognized the same Government as that by which
the several acts above referred to were done? There is no evidence of any change of government in Russia since
before June 20, 1918, and in clause 10 of the trade agreement between this country and the Russian Soviet
Government the succession of Governments in Russia is described as The late Imperial and Provisional Russian
Governments, and the Russian Soviet Government, and in the letter of April 22, 1921, already referred to, it is
stated that it was the Soviet authorities who displaced the Provisional Government. I think, therefore, we are entitled
to infer that the Government recognized as the Soviet Government existed before the date of the decree, and has been
the Government of Russia ever since.
A further point was taken by the appellants founded on the suggestion that the plaintiff company must, since the
recognition of Esthonia as a separate independent state, be treated as an Esthonian subject, and that its rights are
regulated exclusively by certain treaty stipulations between Russia and Esthonia. Roche J. decided against the
appellants on this point. I am quite content with his judgment in this respect, and desire to add nothing thereto. On
the other point, however, I am of opinion that the appeal succeeds, and that judgment ought to have been entered and
ought now to be entered for the defendants in the action.
SCRUTTON L.J. This appeal, which raises questions of general importance, relates to the ownership of certain wood
goods which came to England from Russia by way of Esthonia. The plaintiffs, a Russian company, claim them as
their property because they were made by the companys servants in Russia in 1918, at their factory at Staraja Russa.
The defendants, an American firm, claim them under a purchase on August 14, 1920, from one Krassin, claiming to
be the representative in England of the Government in Russia, [*553] and selling the goods as the property of that
Government. Going a step further, the defendants allege that the goods became the property of that Government by
virtue of a Government decree of June 20, 1918, nationalizing all wood factories and their property, followed by a
taking possession of the goods by the Government under that decree in January, 1919. Roche J. decided in favour of
the plaintiffs, and the defendants appeal.
The plaintiffs head office before the war was in Reval, then in Russia. One of the defendants points was that now by
the treaty of peace between Russia and Esthonia Reval formed part of Esthonian territory; that the plaintiffs had thus
become an Esthonian company, and were therefore confined in their remedies to the method prescribed by that treaty
of peace. On this I agree with Roche J. that by their proceedings in evidence before us the company preserved
themselves as a Russian company. If they had failed I am not satisfied that the treaty prevented them from protecting
their rights of property in foreign countries.
On the more serious question of the position of the Government of Russia, this Court is in a different position from
Roche J. In his judgment on December 21, 1920, he stated that he was satisfied that His Majestys Government had
not recognized the Soviet Government as the Government of a Russian Federal Republic or of any sovereign state or
power. There were laid before us letters from the Foreign Office, one dated April 20, 1921, stating that His
Majestys Government recognize the Soviet Government as the de facto Government of Russia; one dated April 22,
1921, stating that the Provisional Government (the Government of M. Kerensky) was displaced by the All Russian
Congress of Workmens, Soldiers, and Peasants deputies on November 8, 1917, and the Constituent Assembly
dispersed by the Soviet authorities on December 13, 1917; and also a trade agreement made on March 16, 1921,
between the Government of the United Kingdom and the Government of the Russian Socialist Federal Soviet
Republic, acting by L. Krassin. This gentleman is the person who sold [*554] the goods to the defendants on behalf
of the Russian Commercial Delegation. There was evidence that this delegation was a department of the Russian
Socialist Federal Soviet Republic, as was the Soviet of Peoples Commissaries by whom the decree nationalizing
woodworking factories was made.
An appeal to this Court is a rehearing, and it has been frequently decided that the Court must give the judgment
which the judge below would have given had any retrospective statute, passed since the date of his judgment, been in
force at that date. His Majestys Government having in 1921 clearly recognized the Soviet Government as the de
facto Government of Russia, the questions argued before us were (1.) Whether that recognition extended back to
August 14, 1920, when L. B. Krassin sold the goods in question to the defendants, or to June 20, 1918, when the
decree nationalizing the factories was passed. This would include the question whether the government de facto on
those dates was the same government as was recognized by the British Government in 1921, or a predecessor in title
of that government; (2.) whether, assuming that recognition to extend to the dates in question, yet the legislation in
question in confiscating private property without compensation was so contrary to British moral and political ideas
that the English Courts would decline to recognize it, or to give effect to rights derived from it.
The principle of the immunity of foreign states from the jurisdiction of this country was stated by this Court in the
Parlement Belge (1): We are of opinion that the proposition deduced from the earlier cases in an earlier part of this
judgment is the correct exposition of the law of nations, viz., that as a consequence of the absolute independence of
every sovereign authority and of the international comity which induces every sovereign state to respect the
independence of every other sovereign state, each and every one declines to exercise by means of any of its Courts,
any of its territorial jurisdiction over the person of any sovereign or ambassador
(1) (1880) 5 P. D. 197, 217.
[*555] of any other state, or over the public property of any state which is destined to its public use, or over the
property of any ambassador, though such sovereign, ambassador or property be within its territory, and therefore, but
for the common agreement, subject to its jurisdiction. On this question the case of Vavasseur v. Krupp (1) is
instructive. Shells alleged to infringe an English patent were landed in this country, but on the Mikado of Japan
claiming the goods as the public property of his state the Court ordered them to be released to him, without any
inquiry whether in fact they infringed an English patent and so were, if found in England, liable to destruction. If M.
Krassin had brought these goods with him into England, and declared on behalf of his Government that they were the
property of the Russian Government, in my view no English Court could investigate the truth of that statement. To
do so would not be consistent with the comity of nations as between independent sovereign states. In Morgan v.
Larivire (2) the opinions as to the power of the Court to deal with a trust fund in which a foreign government was
interested were obiter dicta as the Court held there was in fact no trust fund. If by any misadventure the authorized
representative of a sovereign state should claim property not really belonging to the state it appears to me that the
remedy is by diplomatic mean between states, not by legal proceedings against an independent sovereign. The case
may be different where the sovereign state submits to the jurisdiction as plaintiff, and asks the Court to use its
remedies in favour of the plaintiff. But where the sovereign state is defendant I cannot conceive the Courts
investigating the truth of its allegation that the goods in question, which it exported from its own territory, are its
public property. In Vavasseur v. Krupp (1) the Mikado, in joining as defendant, was held only to have done so in
order more effectively to call the attention of the Court to the fact that inadvertently it had interfered by injunction
with the property of a sovereign state. What the Court cannot do directly it cannot in my view do indirectly. If it
(1) (1878) 9 Ch. D. 351.
(2) (1875) L. R. 7 H. L. 423, 430.
[*556] could not question the title of the Government of Russia to goods brought by that Government to England, it
cannot indirectly question it in the hands of a purchaser from that Government by denying that the Government
could confer any good title to the property. This immunity follows from recognition as a sovereign state. Should
there be any government which appropriates other peoples property without compensation, the remedy appears to be
to refuse to recognize it as a sovereign state. Then the Courts could investigate the title without infringing the comity
of nations. But it is impossible to recognize a government and yet claim to exercise jurisdiction over its person or
property against its will. Further, the Courts in questions whether a particular person or institution is a sovereign
must be guided only by the statement of the sovereign on whose behalf they exercise jurisdiction. As was said by this
Court in Mighell v. Sultan of Johore (1): When once there is the authoritative certificate of the Queen through her
minister of state as to the status of another sovereign, that in the Courts of this country is decisive. In the present
case we have from the Foreign Office a recognition of the Soviet Republic in 1921 as the de facto Government, and a
statement that in 1917 the Soviet authorities expelled the previous Government recognized by His Majesty. It
appears to me that this binds us to recognize the decree of 1918 by a department of the Soviet Republic, and the sale
in 1920 by the Soviet Republic of property claimed by them to be theirs under that decree, as acts of a sovereign
state the validity of which cannot be questioned by the Courts of this country, unless it is possible to do so for the
second reason argued before us, incompatibility with the moral and political policy of the United Kingdom.
This view renders it unnecessary for me to express a final opinion whether and to what extent a recognition of a de
facto government is retrospective to previous acts and times. It appears to me that a recognition of a government as
de facto the government in one year does not necessarily
(1) [1894] 1 Q. B. 149, 158.
[*557] recognize that it was the de facto government from the first moment when some of the individuals supporting
its cause began to resist or to attack the then established government. It may well be a question when first the
struggling body attained such power that it was a government de facto, and over what area, and that you cannot
answer that question by knowing that some years later the Sovereign recognized it as the government de facto over a
particular area. When that question is to be answered, the Courts must ask the Sovereign for information; but here the
Foreign Office letters appear to show that since the beginning of 1918 the Soviet Republic has been the Government
de facto of Russia. On the first point therefore I am of opinion that the defendants show a title derived from a
recognized sovereign state, which by the comity of nations cannot be questioned in these Courts unless the second
ground to be referred to is sufficient justification for questioning it. We were referred to decisions of the Supreme
Court of the United States dealing with a similar state of facts: Oetjen v. Central Leather Co. (1); Underhill v.
Hernandez (2); Williams v. Bruffy. (3) These decisions, while deserving of the highest respect in our Courts, are not
binding on us. But it is satisfactory to find that the principles there stated are in accordance with the views already
expressed, except that I should prefer at present to reserve my opinion as to the exact meaning to be given to the
principle that when a Government which originates in revolution or revolt is recognized by the political department
of our Government as the de jure Government of the country in which it is established, such recognition is
retroactive in effect and validates all the actions and conduct of the Government so recognized from the
commencement of its existence. (4) The definition of the last six words may require very careful consideration.
It remains to consider the argument that the English Courts should refuse to recognize the Soviet legislation and
In my view, therefore, on the new materials available since the judgment of Roche J., the plaintiffs fail in their
(1) 246 U. S. 297. action, and the judgment below should be set aside.
(2) 168 U. S. 250.
(3) 96 U. S. 176. As to costs I agree with the judgment of Bankes L.J.
(4) 246 U. S. 302, 303.
[*558] titles derived under it as confiscatory and unjust. This was based on the general principle stated by Mr. Dicey Appeal allowed.
in his work on the Conflict of Laws (1) that English Courts will not enforce a right otherwise duly acquired under Article 1, Section 8, Clause 11
the law of a foreign country .... (B) where the enforcement of such right is inconsistent with the policy of English Document 15
law, or with the moral rules upheld by English law, or with the maintenance of English political institutions. When
this is expanded later in the same work (2), the only head applicable to this case is (Inconsistency with) Morality,
i.e., as supported by English Courts. There are very few instances in which this principle has been applied. Rights
derived from a contract for the sale of slaves made in a country where such a sale is legal have been enforced by
English Courts: Santos v. Illidge. (3) Gaming debts incurred abroad where gaming is legal have been enforced here:
Quarrier v. Colston (4); though securities payable in England for gaming debts of the same character have not been
enforced: Moulis v. Owen. (5) Two cases in particular in which English Courts have ignored foreign law of which
they disapproved, Simpson v. Fogo (6) and Kaufman v. Gerson (7), have been the subject of considerable adverse
comment. The former can perhaps be treated as a retaliation by English Courts on foreign states whose tribunals
refuse to recognize rights acquired by English law. The latter decision, in which English Courts refused to recognize
a contract validly made in France on the ground that it was contrary to English principles of morality, is adversely
criticized by Mr. Dicey (8), who treats it as a mistaken application of the sound principle that English Courts will not
enforce foreign contracts, valid where made, where the Court deems the contract to be in contravention of some
essential principle of justice and morality. But it appears a serious breach of international comity, if a state is
recognized as a sovereign independent state, to

(1) 2nd ed. (1908), p. 33.

(2) Ibid. p. 36.
(3) 8 C. B. (N. S.) 861.
(4) (1842) 1 Ph. 147.
(5) [1907] 1 K. B. 746.
(6) 1 H. & M. 195, 247.
(7) [1904] 1 K. B. 591.
(8) Conflict of Laws, 2nd ed. (1908), App. Note 3, p. 727.
[*559] postulate that its legislation is contrary to essential principles of justice and morality. Such an allegation
might well with a susceptible foreign government become a casus belli; and should in my view be the action of the
Sovereign through his ministers, and not of the judges in reference to a state which their Sovereign has recognized.
The English Courts act on the rule that an intention to take away the property of a subject without giving to him a
legal right to compensation for the loss of it is not to be imputed to the Legislature unless that intention is expressed
in unequivocal terms: Central Control Board v. Cannon Brewery Co. (1) If it were they must give effect to it, and
can hardly be more rigid in their dealings with foreign legislation. Individuals must contribute to the welfare of the
state, and at present British citizens who may contribute to the state more than half their income in income tax and
super tax, and a large proportion of their capital in death duties, can hardly declare a foreign state immoral which
considers (though we may think wrongly) that to vest individual property in the state as representing all the citizens
is the best form of proprietary right. I do not feel able to come to the conclusion that the legislation of a state
recognized by my Sovereign as an independent sovereign state is so contrary to moral principle that the judges ought
not to recognize it. The responsibility for recognition or non-recognition with the consequences of each rests on the
political advisers of the Sovereign and not on the judges.
Brown v. United States
8 Cranch 110 1814
Marshall, Ch. J. delivered the opinion of the Court, as follows:
The material facts in this case are these:
The Emulous owned by John Delano and others, citizens of the United States, was chartered to a company carrying
on trade in Great Britain, one of whom was an American citizen, for the purpose of carrying a cargo from Savannah
to Plymouth. After the cargo was put on board, the vessel was stopped in port by the embargo of the 4th of April,
1812. On the 25th of the same month, it was agreed between the master of the ship and the agent of the shippers, that
she should proceed with her cargo to New Bedford, where her owners resided, and remain there without prejudice to
the charter party. In pursuance of this agreement, the Emulous proceeded to New Bedford, where she continued until
after the declaration of war. In October or November, the ship was unloaded and the cargo, except the pine timber,
was landed. The pine timber was floated up a salt water creek, where, at low tide, the ends of the timber rested on the
mud, where it was secured from floating out with the tide, by impediments fastened in the entrance of the creek. On
the 7th of November, 1812, the cargo was sold by the agent of the owners, who is an American citizen, to the
Claimant, who is also an American citizen. On the 19th of April, a libel was filed by the attorney for the United
States, in the district Court of Massachusetts, against the said cargo, as well on behalf of the United States of
America as for and in behalf of John Delano and of all other persons concerned. It does not appear that this seizure
was made under any instructions from the president of the United States; nor is there any evidence of its having his
sanction, unless the libels being filed and prosecuted by the law officer who represents the government, must imply
that sanction.
On the contrary, it is admitted that the seizure was made by an individual, and the libel filed at his instance, by the
district attorney who acted from his own impressions of what appertained to his duty. The property was claimed by
Armitz Brown under the purchase made in the preceding November.
The district Court dismissed the libel. The Circuit Court reversed this sentence, and condemned the pine timber as
enemy property forfeited to the United States. From the sentence of the Circuit Court, the Claimant appealed to this
Court.
The material question made at bar is this. Can the pine timber, even admitting the property not to be changed by the
sale in November, be condemned as prize of war?
The cargo of the Emulous having been legally acquired and put on board the vessel, having been detained by an
embargo not intended to act on foreign property, the vessel having sailed before the war, from Savannah, under a
stipulation to re-land the cargo in some port of the United States, the re-landing having been made with respect to the
residue of the cargo, and the pine timber having been floated into shallow water, where it was secured and in the
custody of the owner of the ship, an American citizen, the Court cannot perceive any solid distinction, so far as
respects confiscation, between this property and other British property found on land at the commencement of
hostilities. It will therefore be considered as a question relating to such property generally, and to be governed by the
same rule.
Respecting the power of government no doubt is entertained. That war gives to the sovereign full right to take the
persons and confiscate the property of the enemy wherever found, is conceded. The mitigations of this rigid rule,
which the humane and wise policy of modern times has introduced into practice, will more or less affect the exercise
of this right, but cannot impair the right itself. That remains undiminished, and when the sovereign authority shall
chuse to bring it into operation, the judicial department must give effect to its will. But until that will shall be
expressed, no power of condemnation can exist in the Court.
The questions to be decided by the Court are:
1st. May enemy's property, found on land at the commencement of hostilities, be seized and condemned as a
necessary consequence of the declaration of war?
2d. Is there any legislative act which authorizes such seizure and condemnation?
Since, in this country, from the structure of our government, proceedings to condemn the property of an enemy found
within our territory at the declaration of war, can be sustained only upon the principle that they are instituted in
execution of some existing law, we are led to ask,
Is the declaration of war such a law? Does that declaration, by its own operation, so vest the property of the enemy in
the government, as to support proceedings for its seizure and confiscation, or does it vest only a right, the assertion
of which depends on the will of the sovereign power?
The universal practice of forbearing to seize and confiscate debts and credits, the principle universally received, that
the right to them revives on the restoration of peace, would seem to prove that war is not an absolute confiscation of
this property, but simply confers the right of confiscation.
Between debts contracted under the faith of laws, and property acquired in the course of trade, on the faith of the
same laws, reason draws no distinction; and, although, in practice, vessels with their cargoes, found in port at the
declaration of war, may have been seized, it is not believed that modern usage would sanction the seizure of the
goods of an enemy on land, which were acquired in peace in the course of trade. Such a proceeding is rare, and
would be deemed a harsh exercise of the rights of war. But although the practice in this respect may not be uniform,
that circumstance does not essentially affect the question. The enquiry is, whether such property vests in the
sovereign by the mere declaration of war, or remains subject to a right of confiscation, the exercise of which depends
on the national will: and the rule which applies to one case, so far as respects the operation of a declaration of war on
the thing itself, must apply to all others over which war gives an equal right. The right of the sovereign to confiscate
debts being precisely the same with the right to confiscate other property found in the country, the operation of a
declaration of war on debts and on other property found within the country must be the same. What then is this
operation?
Even Bynkershoek, who maintains the broad principle, that in war every thing done against an enemy is lawful; that
he may be destroyed, though unarmed and defenceless; that fraud, or even poison, may be employed against him;
that a most unlimited right is acquired to his person and property; admits that war does not transfer to the sovereign a
debt due to his enemy; and, therefore, if payment of such debt be not exacted, peace revives the former right of the
creditor; "because," he says, "the occupation which is had by war consists more in fact than in law." He adds to his
observations on this subject, "let it not, however, be supposed that it is only true of actions, that they are not
condemned ipso jure, for other things also belonging to the enemy may be concealed and escape condemnation."
Vattel says, that "the sovereign can neither detain the persons nor the property of those subjects of the enemy who are
within his dominions at the time of the declaration."
It is true that this rule is, in terms, applied by Vattel to the property of those only who are personally within the
territory at the commencement of hostilities; but it applies equally to things in action and to things in possession; and
if war did, of itself, without any further exercise of the sovereign will, vest the property of the enemy in the
sovereign, his presence could not exempt it from this operation of war. Nor can a reason be perceived for
maintaining that the public faith is more entirely pledged for the security of property trusted in the territory of the
nation in time of peace, if it be accompanied by its owner, than if it be confided to the care of others.
Chitty, after stating the general right of seizure, says, "But, in strict justice, that right can take effect only on those
possessions of a belligerent which have come to the hands of his adversary after the declaration of hostilities."
The modern rule then would seem to be, that tangible property belonging to an enemy and found in the country at the
commencement of war, ought not to be immediately confiscated; and in almost every commercial treaty an article is
inserted stipulating for the right to withdraw such property.
This rule appears to be totally incompatible with the idea, that war does of itself vest the property in the belligerent
government. It may be considered as the opinion of all who have written on the jus belli, that war gives the right to
confiscate, but does not itself confiscate the property of the enemy; and their rules go to the exercise of this right.
The constitution of the United States was framed at a time when this rule, introduced by commerce in favor of
moderation and humanity, was received throughout the civilized world. In expounding that constitution, a
construction ought not lightly to be admitted which would give to a declaration of war an effect in this country it
does not possess elsewhere, and which would fetter that exercise of entire discretion respecting enemy property,
which may enable the government to apply to the enemy the rule that he applies to us.
If we look to the constitution itself, we find this general reasoning much strengthened by the words of that
instrument.
That the declaration of war has only the effect of placing the two nations in a state of hostility, of producing a state of
war, of giving those rights which war confers; but not of operating, by its own force, any of those results, such as a
transfer of property, which are usually produced by ulterior measures of government, is fairly deducible from the
enumeration of powers which accompanies that of declaring war. "Congress shall have power"--"to declare war,
grant letters of marque and reprisal, and make rules concerning captures on land and water."
It would be restraining this clause within narrower limits than the words themselves import, to say that the power to
make rules concerning captures on land and water, is to be confined to captures which are exterritorial. If it extends
to rules respecting enemy property found within the territory, then we perceive an express grant to congress of the
power in question as an independent substantive power, not included in that of declaring war.
The acts of congress furnish many instances of an opinion that the declaration of war does not, of itself, authorize
proceedings against the persons or property of the enemy found, at the time, within the territory.
War gives an equal right over persons and property: and if its declaration is not considered as prescribing a law
respecting the person of an enemy found in our country, neither does it prescribe a law for his property. The act
concerning alien enemies, which confers on the president very great discretionary powers respecting their persons,
affords a strong implication that he did not possess those powers by virtue of the declaration of war.
The "act for the safe keeping and accommodation of prisoners of war," is of the same character.
The act prohibiting trade with the enemy, contains this clause:
"And be it further enacted, That the president of the United States be, and he is hereby authorized to give, at any time
within six months after the passage of this act, passports for the safe transportation of any ship or other property
belonging to British subjects, and which is now within the limits of the United States."
The phraseology of this law shows that the property of a British subject was not considered by the legislature as
being vested in the United States by the declaration of war; and the authority which the act confers on the president,
is manifestly considered as one which he did not previously possess.
The proposition that a declaration of war does not, in itself, enact a confiscation of the property of the enemy within
the territory of the belligerent, is believed to be entirely free from doubt. Is there in the act of congress, by which war
is declared against Great Britain, any expression which would indicate such an intention?
That act, after placing the two nations in a state of war, authorizes the president of the United States to use the whole
land and naval force of the United States to carry the war into effect, and "to issue to private armed vessels of the
United States, commissions or letters of marque and general reprisal against the vessels, goods and effects of the
government of the united kingdom of Great Britain and Ireland, and the subjects thereof."
That reprisals may be made on enemy property found within the United States at the declaration of war, if such be
the will of the nation, has been admitted; but it is not admitted that, in the declaration of war, the nation has
expressed its will to that effect.
It cannot be necessary to employ argument in showing that when the attorney for the United States institutes
proceedings at law for the confiscation of enemy property found on land, or floating in one of our creeks, in the care
and custody of one of our citizens, he is not acting under the authority of letters of marque and reprisal, still less
under the authority of such letters issued to a private armed vessel.
The "act concerning letters of marque, prizes and prize goods," certainly contains nothing to authorize this seizure.
There being no other act of congress which bears upon the subject, it is considered as proved that the legislature has
not confiscated enemy property which was within the United States at the declaration of war, and that this sentence
of condemnation cannot be sustained.
One view, however, has been taken of this subject which deserves to be further considered.
It is urged that, in executing the laws of war, the executive may seize and the Courts condemn all property which,
according to the modern law of nations, is subject to confiscation, although it might require an act of the legislature
to justify the condemnation of that property which, according to modern usage, ought not to be confiscated.

This argument must assume for its basis the position that modern usage constitutes a rule which acts directly upon
the thing itself by its own force, and not through the sovereign power. This position is not allowed. This usage is a
guide which the sovereign follows or abandons at his will. The rule, like other precepts of morality, of humanity, and
even of wisdom, is addressed to the judgment of the sovereign; and although it cannot be disregarded by him without
obloquy, yet it may be disregarded.
The rule is, in its nature, flexible. It is subject to infinite modification. It is not an immutable rule of law, but depends
on political considerations which may continually vary.
Commercial nations, in the situation of the United States, have always a considerable quantity of property in the
possession of their neighbors. When war breaks out, the question, what shall be done with enemy property in our
country, is a question rather of policy than of law. The rule which we apply to the property of our enemy, will be
applied by him to the property of our citizens. Like all other questions of policy, it is proper for the consideration of a
department which can modify it at will; not for the consideration of a department which can pursue only the law as it
is written. It is proper for the consideration of the legislature, not of the executive or judiciary.
It appears to the Court, that the power of confiscating enemy property is in the legislature, and that the legislature has
not yet declared its will to confiscate property which was within our territory at the declaration of war. The Court is
therefore of opinion that there is error in the sentence of condemnation pronounced in the Circuit Court in this case,
and doth direct that the same be reversed and annulled, and that the sentence of the District Court be affirmed.
Story, J.
In this case, I have the misfortune to differ in opinion from my brethren; and as the grounds of the decree were fully
stated in an opinion delivered in the Court below, I shall make no apology for reading it in this place.
"This is a prize allegation filed by the district attorney, in behalf of the United States, and of John Delano, against
550 tons of pine timber, part of the cargo of the American ship Emulous, which was seized as enemies' property,
about the 5th day of April, 1813, after the same had been discharged from said ship, and while afloat in a creek or
dock at New Bedford, where the tide ebbs and flows.
From the evidence in this case, it appears that the ship Emulous is owned by the said John Delano, John Johnson,
Levi Jenny, and Joshua Delano of New Bedford, and citizens of the United States. On the 3d day of February 1812,
the owners, by their agents, entered into a charter-party with Elijah Brown as agent of Messrs. Christopher Idle,
Brother and Co. and James Brown, of London, merchants, for said ship, to proceed from the port of Charleston,
South Carolina, (where the ship then lay,) to Savannah, in Georgia, and there take on board a cargo of timber and
staves, at a certain freight stipulated in the charter-party, and proceed with the same to Plymouth, in England, 'for
orders to unload there or at any other of his majesty's dock-yards in England.' The ship accordingly proceeded to
Savannah, took on board the agreed cargo, and was there stopped by the embargo laid by Congress on the 4th of
April 1812. On the 25th of the same April, it was agreed between Mr. E. Brown and the master of the ship, that she
should proceed with the cargo to, and lay at New Bedford, without prejudice to the charter-party. The ship
accordingly proceeded for New Bedford, and arrived there in the latter part of May 1812, where, it seems, the cargo
was finally, but the particular time is not stated, unloaded by the owners of the ship, the staves put into a warehouse,
and the timber into a salt water creek or dock, where it has ever since remained, waterborne, under the custody of
said John Delano, by whom the subsequent seizure was made, for his own benefit and the benefit of the United
States. On the 7th November, 1812, Mr. Elijah Brown, as agent for the British owners, (one of whom, James Brown,
is his brother,) sold the whole cargo to the present claimant, Mr. Armitz Brown (who it should seem is also his
brother) for 2433 dollars and 67 cents, payable in nine months, for which the claimant gave his note accordingly. The
master of the ship, Capt. Allen, swears that, at the time of entering into the charter-party, Mr. Elijah Brown stated to
him that the British owners had contracted with the British government to furnish a large quantity of timber to be
delivered in some of his majesty's dock-yards.
Besides the claim of Mr. Brown, there is a claim interposed by the owners of the ship Emulous, praying for an
allowance to them of their expenses and charges in the premises.
A preliminary exception has been taken to the libel for a supposed incongruity in blending the rights of the United
States and of the informer in the manner of a qui tam action at the common law.
I do not think this exception is entitled to much consideration. It is, at most, but an irregularity which cannot affect
the nature of the proceedings, or oust the jurisdiction of this Court. If the informer cannot legally take any interest,
the United States have still a right, if their title is otherwise well founded, to claim a condemnation: Nor would a
proceeding of this nature be deemed a fatal irregularity in Courts having jurisdiction of seizures, whose proceedings
are governed by much more rigid rules than those of the admiralty. It is a principle clearly settled at the common law,
that any person might seize uncustomed goods to the use of himself and the king, and thereupon inform of the
seizure; and if, in the exchequer, the informer be not entitled to any part, the whole shall, on such information, be
adjudged to the king. For this doctrine we have the authority of lord Hale. Harg. law tracts, 227. And the solemn
judgment of the Court, in Roe v. Roe, Hardr. 185.--and Malden v. Bartlett, Parker, 105. The same rule most
undoubtedly exists in the prize Court, and, as I apprehend, applies with greater latitude. All property captured
belongs originally to the crown; and individuals can acquire a title thereto in no other manner than by grant from the
crown. The Elsebe, 5. Rob. 173.--11. East, 619.--The Maria Francoise. 6. Rob. 282. This, however, does not preclude
the right to seize; on the contrary, it is an indisputable principle in the English prize Courts, that a subject may seize
hostile property for the use of the crown, wherever it is found; and it rests in the discretion of the crown whether it
will or will not ratify and consummate the seizure by proceeding to condemnation. But to the prize Court it is a
matter of pure indifference whether the seizure proceeded originally from the crown, or has been adopted by it; and
whether the crown would take jure coronae, by its transcendant prerogative, or jure admiralitatis, as a power annexed
by its grant to the office of lord high admiral. The cases of captures by noncommissioned vessels, by commanders on
foreign stations, anterior to war, by private individuals in port or on the coasts, and by naval commanders on shore
on unauthorised expeditions, are all very strong illustrations of the principle. The Aquila, 1. Rob. 37.--The Twee
Gesuster, 2. Rob. 284, note.--The Rebeckah, 1. Rob. 227.--The Gertruyda, 2. Rob. 211.--The Melomane, 5. Rob.
41.--The Charlotte, 4. Rob. 282.--The Richmond, 5. Rob. 325.--Thorshaven, 1. Edw. 102.--Hale in Harg. law tracts,
ch. 28. p. 245. And in cases where private captors seek condemnation to themselves, it is the settled course of the
Court, on failure of their title, to decree condemnation to the crown or the admiralty, as the circumstances require.
The Walsingham Packet, 2. Rob. 77.--The Etrusco, 4. Rob. 262. note.--and the cases cited supra. Nor can I consider
these principles of the British Courts a departure from the law of nations. The authority of Puffendorf and Vattel are
introduced to shew that private subjects are not at liberty to seize the property of enemies without the commission of
the sovereign, and if they do they are considered as pirates. But when attentively considered, it strikes me that, taking
the full scope of these authors, they will not be found to support so broad a position. Puff. B. 8. ch. 6. 21.--Vattel,
B. 3. ch. 15. 223, 224, 225, 226, 227. Vattel himself admits ( 234.) that the declaration of war, which enjoins the
subjects at large to attack the enemy's subjects, implies a general order; and that to commit hostilities on our enemy
without an order from our sovereign after the war, is not a violation so much of the law of nations as of the public
law applicable to the sovereignty of our own nation, ( 225.) And he explicitly states, ( 226.) that, by the law of
nations, when once two nations are engaged in war, all the subjects of the one may commit hostilities against those of
the other, and do them all the mischief authorized by the state of war. All that he contends for is, that though, by the
declaration, all the subjects in general are ordered to attack the enemy, yet that by custom this is usually restrained to
persons acting under commission; and that the general order does not invite the subjects to undertake any offensive
expedition without a commission or particular order; ( 227.) and that if they do, they are not usually treated by the
enemy in a manner as favorable as other prisoners of war, ( 226.) And Vattel ( 227.) explicitly declares, that the
declaration of war "authorizes, indeed, and even obliges every subject, of whatever rank, to secure the persons and
things belonging to the enemy, when they fall into his hands. And he then goes on to state cases in which the
authority of the sovereign may be presumed, ( 228.) The whole doctrine of Vattel, fairly considered, amounts to no
more than this, that the subject is not required, by the mere declaration of war, to originate predatory expeditions
against the enemy; that he is not authorized to wage war contrary to the will of his own sovereign; and that, though
the ordinary declaration of war imports a general authority to attack the enemy and his property, yet custom has so
far restrained its meaning, that it is in general confined to persons acting under the particular or constructive
commission of the sovereign. If, therefore, the subject do undertake a predatory expedition, it is an infringement of
the public law of his own country, whose sovereignty he thus invades, but it is not a violation of the law of nations of
which the enemy has a right to complain. But if the property of the enemy fall into the hands of a subject, he is
bound to secure it.
For every purpose applicable to the present case, it does not seem necessary to controvert these positions; and,
whatever may be the correctness of the others, I am perfectly satisfied that the position is well founded, that no
subject can legally commit hostilities, or capture property of an enemy, when, either expressly or constructively, the
sovereign has prohibited it. But suppose he does, I would ask if the sovereign may not ratify his proceedings; and
thus, by a retroactive operation, give validity to them? Of this there seems to me no legal doubt. The subject seizes at
his peril, and the sovereign decides, in the last resort, whether he will approve or disapprove of the act. Thorshaven,
1, Edw. 102. The authority of Puffendorf is still less in favor of the position of the Claimant's counsel. In the section
cited (book 8, ch. 6, sec. 21.) Puffendorf considers the question to whom property captured in war belongs; a
question also examined by Vattel in the 229th section of the book and chapter above referred to. In the course of that
discussion, Puffendorf observes, 'that it may be very justly questioned, whether every thing taken in war, by private
hostilities, and by the bravery of private subjects that have no commission to warrant them, belongeth to them that
take it. For this is also a part of the war, to appoint what persons are to act in a hostile manner against the enemy, and
how far: and, in consequence, no private person hath power to make devastations in an enemy's country or to carry
off spoil or plunder without permission from his sovereign: and the sovereign is to decide how far private men, when
they are permitted, are to use that liberty of plunder; and whether they are to be the sole proprietors in the booty or
only to share a part of it: so that all a private adventurer in war can pretend to, is no more than what his sovereign
will please to allow him; for to be a soldier and to act offensively, a man must be commissioned by public authority.'
As to the point upon which Puffendorf here expresses his doubts, I suppose that no person, at this day, entertains any
doubts. It is now clear, as I have already stated, that all captures in war enure to the sovereign, and can become
private property only by his grant. But is there any thing in Puffendorf to authorize the doctrine, that the subject so
seizing property of the enemy, is guilty of a very enormous crime--of the odious crime of piracy? And is there, in this
language, any thing to show that the sovereign may not adopt the acts of his subjects, in such a case, and give them
the effect of full and perfect ratification? It has not been pretended, that I recollect, that Grotius supports the position
contended for. To me it seems pretty clear that his opinions lean rather the other way; viz: to support the
indiscriminate right of captors to all property captured by them. Grotius, lib. 3, ch. 6, sec. 2, sec. 10, sec. 12.
Bynkershoek has not discussed the question in direct terms. In one place (Bynk. Pub. Juris, ch. 3,) he says, that he is
not guilty of any crime, by the laws of war, who invades a hostile shore in hopes of getting booty. It is true that, in
another place (id. ch. 20,) he admits, in conformity to his doctrine elsewhere, (id. ch. 17,) that if an uncommissioned
cruizer should sail for the purpose of making hostile captures, she might be dealt with as a pirate, if she made any
captures except in self-defence. But this he expressly grounds upon the municipal edicts of his own country in
relation to captures made by its own subjects. And he says, every declaration of war not only permits but expressly
orders all subjects to injure the enemy by every possible means; not only to avert the danger of capture, but to
capture and strip the enemy of all his property. And, looking to the general scope of his observations, (id. ch. 3, 4, &
ch. 16 & 17.) I think it may, not unfairly, be argued that, independent of particular edicts, the subjects of hostile
nations might lawfully seize each other's property wherever found: at least, he states nothing from which it can be
inferred that the sovereign might not avail himself of property captured from the enemy by uncommissioned
subjects. On the whole, I hold that the true doctrine of the law of nations, found in foreign jurists, is, that private
citizens cannot acquire to themselves a title to hostile property, unless it is seized under the commission of their
sovereign; and that, if they depredate upon the enemy, they act upon their peril, and may be liable to punishment,
unless their acts are adopted by their sovereign. That, in modern times, the mere declaration of war is not supposed to
clothe the citizens with authority to capture hostile property, but that they may lawfully seize hostile property in their
own defence, and are bound to secure, for the use of the sovereign, all hostile property which falls into their hands. If
the principles of British prize law go further, I am free to say that I consider them as the law of this country.
I have been led into this discussion of the doctrine of foreign jurists, farther than I originally intended; because the
practice of this Court in prize proceedings must, as I have already intimated, be governed by the rules of admiralty
law disclosed in English reports, in preference to the mere dicta of elementary writers. I thought it my duty, however,
to notice these authorities, because they seem generally relied on by the Claimant's counsel. In my judgment, the
libel is well and properly brought; at least for all the purposes of justice between the parties before the Court; and I
overrule the exception taken to its sufficiency.
Having disposed of this objection, I come now to consider the objection made by the United States against the
sufficiency of the claim of Mr. Brown; and I am entirely satisfied that his claim must be rejected. It is a well known
rule of the prize Court, that the onus probandi lies on the Claimant; he must make out a good and sufficient title
before he can call upon the captors to shew any ground for the capture. The Walsingham packet, 2, Rob. 77. If,
therefore, the Claimant make no title, or trace it only by illegal transactions, his claim must be rejected, and the Court
left to dispose of the cause, as the other parties may establish their rights. In the present case, Mr. Brown claims a
title by virtue of a contract and sale made by alien enemies since the war: I say by alien enemies; for it is of no
importance what the character of the agent is: the transaction must have the same legal construction as though made
by the aliens themselvs. Now admitting that this sale was not colorable, but bona fide, which, however, I am not, at
present, disposed to believe, still it was a contract made with enemies, pending a known war; and therefore invalid.
No principle of national or municipal law is better settled, than that all contracts with an enemy, made during war,
are utterly void. This principle has grown hoary under the reverend respect of centuries; (19, Edw. 4, 6, cited Theol.
Dig. lib. 1, ch. 6, sec. 21. Ex parte Bonsmaker, 13, Ves. jun. 71--Briston v. Towers, 6, T. R. 45,) and cannot now be
shaken without uprooting the very foundations of national law. Bynk. Quaest. Pub. Juris, ch. 3.
I, therefore, altogether reject the claim interposed by Mr. Brown. What, then, is to be done with the property? It is
contended, on the part of the United States, that it ought to be condemned to the United States, with a recompense, in
the nature of salvage, to be awarded to Mr. Delano. On the part of the Claimant's counsel (who, under the
circumstances, must be considered as arguing as amicus curiae to inform the conscience of the Court) it is contended,
1st. That this Court, as a Court of prize, has no proper jurisdiction over the cause. 2d. That if it have jurisdiction, it
cannot award condemnation to the United States, for several reasons. 1st. Because, by the law of nations, as now
understood, no government can lawfully confiscate the debts, credits, or visible property of alien enemies, which
have been contracted or come into the country during peace. 2d. Because, if the law of nations does not, the common
law does afford such immunity from confiscation to property situated like the present. 3d. Because, if the right to
confiscate exist, it can be exercised only by a positive act of congress, who have not yet legislated to this extent. 4th.
Because, if the last position be not fully accurate, yet, at all events, this process, being a high prerogative power,
ought not to be exercised, except by express instructions from the president, which are not shown in this case.
Some of these questions are of vast importance and most extensive operation; and I am exceedingly obliged to the
gentlemen who have argued them with so much ability and learning, for the light which they have thrown upon a
path so intricate and obscure. I have given these questions as much consideration as the state of my health and the
brevity of time would allow; and I shall now give them a distinct and separate discussion, that I may at least disclose
the sources of my errors, if any, and enable those who unite higher powers of discernment with more extensive
knowledge, to give a more exact and just opinion.
And first . . . As to the jurisdiction of this Court in matters of prize.
This depends partly on the prize act of 26th June, 1812, ch. 107, 6, and partly on the true extent and meaning of the
admiralty and maritime jurisdiction conferred on the Courts of the United States. The act of 26th June, 1812, ch. 107,
provides that in all cases of captured vessels, goods and effects which shall be brought within the jurisdiction of the
United States, the district Court shall have exclusive original cognizance thereof, as in civil causes of admiralty and
maritime jurisdiction. The act of 18th June, 1812, ch. 102, declaring war, authorizes the president to issue letters of
marque and reprisal to private armed ships against the vessels, goods and effects of the British government and its
subjects; and to use the whole land and naval force of the United States to carry the war into effect. In neither of
these acts is there any limitation as to the places where captures may be made on the land or on the seas; and, of
course, it would seem that the right of the Courts to adjudicate respecting captures would be co-extensive with such
captures, wherever made, unless the jurisdiction conferred is manifestly confined by the former act to captures made
by private armed vessels. It is not, however, necessary closely to sift this point, as it may now be considered as
settled law, that the Courts of the United States, under the judicial act of 30th September, 1789, ch. 20, have, by the
delegation of all civil causes of admiralty and maritime jurisdiction, at least as full jurisdiction of all causes of prize
as the admiralty in England. Glass and al. v. the sloop Betsey and al. 3 Dall. 6. Talbot v. Janson. 3 Dall. 133.
Penhallow and al. v. Doane's administrators. 3 Dall. 54. Jennings v. Carson, 4 Cranch, 2. Over what captures, then,
has the admiralty jurisdiction as a prize Court? This is a question of considerable intricacy, and has not as yet, to my
knowledge, been fully settled. It has been doubted whether the admiralty has an inherent jurisdiction of prize, or
obtains it by virtue of the commission usually issued on the breaking out of war. That the exercise of the jurisdiction
is of very high antiquity and beyond the time of memory, seems to be incontestible. It is found recognized in various
articles of the black book of the admiralty, in public treaties and proclamations of a very early date, and in the most
venerable relics of ancient jurisprudence. See Robb. Coll. Marit. Intro. p. 6, 7. Id. Instructions, 3 H. 8, p. 10, art. 18,
&c. Id. p. 12, note letter. Edw. 3, A. D. 1343. Treaty Henry 7 and Charles 8, A. D. 1497. Rob. Coll. Marit. p. 83 and
p. 98, art. 8. Rob. Coll. Mar. p. 189, note. Roughton, art. 19, 20, &c. &c. passim. In Lindo v. Rodney, Doug. 613,
note, Lord Mansfield, in discussing the subject, admits the immemorial antiquity of the prize jurisdiction of the
admiralty; but leaves it uncertain whether it was coeval with the instance jurisdiction, and whether it is constituted by
special commission, or only called into exercise thereby. After the doubts of so eminent a judge, it would not become
me to express a decided opinion. But taking the fact that, in the earliest times, the jurisdiction is found in the
possession of the admiralty, independent of any known special commission; that, in other countries, and especially in
France, upon whose ancient prize ordinances the administration of prize law seems, in a great measure, to have been
modelled, (Vide Ordin. of France, A. D. 1400, Rob. Coll. Marit. p. 75. Ordin. of France, A. D. 1584. Id. p. 105.
Treaty Henry 7 and Charles 8. Id. p. 83, and Rob. note, Id. 105) the jurisdiction has uniformly belonged to the
admiralty; there seems very strong reason to presume that it always constituted an ordinary and not an extraordinary
branch of the admiralty powers: and so I apprehend it was considered by the Supreme Court of the United States, in
Glass and al. v. the Betsey, 3 Dall. 6.
However this question may be, as to the right of the admiralty to take cognizance of mere captures made on the land,
exclusively by land forces, as to which I give no opinion, it is very clear that its jurisdiction is not confined to mere
captures at sea. The prize jurisdiction does not depend upon locality, but upon the subject matter. The words of the
prize commission contain authority to proceed upon all and all manner of captures, seizures, prizes and reprisals of
all ships and goods that are and shall be taken. The admiralty, therefore, not only takes cognizance of all captures
made at sea, in creeks, havens and rivers, but also of all captures made on land, where the same have been made by a
naval force, or by co-operation with a naval force. This exercise of jurisdiction is settled by the most solemn
adjudications. Key and Hubbard v. Pearse, cited in Le Caux v. Eden, Doug. 606. Lindo v. Rodney, Doug. 613, note.
The capture of the Cape of Good Hope, 2 Rob. 274. The Stella del Norte, 5 Rob. 349. The island of Trinidad, 5 Rob.
92. Thorshaven, 1 Edw. 102. The capture of Chrinsurah, 1 Deten. 179. The Rebeckah, 1 Rob. 227. The Gertruyda, 2
Rob. 211. The Maria Francoise, 6 Rob. 282.
Such, then, being the acknowledged extent of the prize jurisdiction of the admiralty, it is, at least in as ample an
extent, conferred on the Courts of the United States. For the determination, therefore, of the case before the Court, it
is not necessary to claim a more ample jurisdiction; for the capture or seizure, though made in port, was made while
the property was waterborne. Had it been landed and remained on land, it would have deserved consideration
whether it could have been proceeded against as prize, under the admiralty jurisdiction, or whether, if liable to
seizure and condemnation in our Courts, the remedy ought not to have been pursued by a process applicable to
municipal confiscations. On these points I give no opinion. See the case of the Oester Eems cited in the Two Friends,
1 Rob. 284, note. Hale de Portubus Maris, &c. in Harg. Law tracts, ch. 28, p. 245, &c. Parker Rep. 267.
Having disposed of the question as to the jurisdiction of this Court, I come to one of a more general nature; viz.
Whether, by the modern law of nations, the sovereign has a right to confiscate the debts due to his enemy, or the
goods of his enemy found within his territory at the commencement of the war. I might spare myself the
consideration of the question as to debts; but, as it has been ably argued, I will submit some views respecting it,
because they will illustrate and confirm the doctrine applicable to goods. It seems conceded, and indeed is quite too
clear for argument, that, in former times, the right to confiscate debts was admitted as a doctrine of national law. It
had the countenance of the civil law. (Dig. lib. 44. tit. 4.--id. lib. 49, tit. 15,)--of Grotius, (De jure belli et pacis, lib. 3,
ch. 2, 2, ch. 6. 2 ch. 7, 3 and 4, ch. 13, 1, 2.)--of Puffendorf, (De jure Nat. et Nat. lib. 8, ch. 6, 23,)--and
lastly of Bynkershoek; (Quaest. Pub. Juris, lib. 1, ch. 7.) who is himself of the highest authority, and pronounces his
opinion in the most explicit manner. Down to the year 1737, it may be considered as the opinion of jurists that the
right was unquestionable. It is, then, incumbent on those who assume a different doctrine, to prove that, since that
period, it has by the general consent of nations, become incorporated into the code of public law. I take upon me to
say that no jurist of reputation can be found who has denied the right of confiscation of enemies debts. Vattel has
been supposed to be the most favorable to the new doctrine. He certainly does not deny the right to confiscate; and if
he may be thought to hesitate in admitting it, nothing more can be gathered from it than that he considers that, in the
present times, a relaxation of the rigor of the law has been in practice among the sovereigns of Europe. Vattel, lib. 3,
ch. 5, 77. Surely a relaxation of the law in practice cannot be admitted to constitute an abolition in principle, when
the principle is asserted, as late as 1737, by Bynkershoek, and the relaxation shewn by Vattel in 1775. In another
place, however, Vattel, speaking on the subject of reprisals, admits the right to seize the property of the nation or its
subjects by way of reprisal, and, if war ensues, to confiscate the property so seized. The only exception he makes, is
of property which has been deposited in the hands of the nation, and intrusted to the public faith; as is the case of
property in the public funds. Vattel, lib. 2, ch. 18, 342, 343, 344. The very exception evinces pretty strongly the
opinion of Vattel as to the general rule. Of the character of Vattel as a jurist, I shall not undertake to express an
opinion. That he has great merit is conceded; though a learned civilian, sir James MacIntosh, informs us that he has
fallen into great mistakes in important 'practical discussion of public law.' Discourse on the law of nations, p. 32,
note. But if he is singly to be opposed to the weight of Grotius and Puffendorf, and, above all, Bynkershoek, it will
be difficult for him to sustain so unequal a contest. I have been pressed with the opinion of a very distinguished
writer of our own country on this subject.--Camillus, No. 18 to 23, on the British treaty of 1794. I admit, in the
fullest manner, the great merit of the argument which he has adduced against the confiscation of private debts due to
enemy subjects. Looking to the measure not as of strict right, but as of sound policy and national honor, I have no
hesitation to say that the argument is unanswerable. He proves incontrovertibly what the highest interest of nations
dictates with a view to permanent policy: but I have not been able to perceive the proofs by which he overthrows the
ancient principle. In respect to the opinion of Grotius, quoted by him in No. 20, as indicating a doubt by Grotius of
his own principles, I cannot help thinking that the learned writer has himself fallen into a mistake. Grotius, in the
place referred to, lib. 3, ch. 20, 16. is not adverting to the right of confiscation, but merely to the general results of
a treaty of peace. He says ( 15.) that, after a peace, no action lies for damages done in the war; but ( 16,) that debts
due before the war are not, by the mere operations of the war, released, but remain suspended during the war, and the
right to recover them revives at the peace. It is impossible to doubt the meaning of Grotius, when the preceding and
succeeding sections are taken in connexion. Grotius, therefore, is not inconsistent with himself, nor is 'Bynkershoek
more inconsistent;' for the latter explicitly avows the same doctrine, but considers it inapplicable to debts confiscated
during the war; for these are completely extinguished. Bynk. Quaest. Pub. Juris, ch. 7.
It is supposed by the same learned writer, that the principle of confiscating debts had been abandoned for more than a
century. That the practice was intermitted, is certainly no very clear proof of an abandonment of the principle.
Motives of policy and the general interests of commerce may combine to induce a nation not to inforce its strict
rights, but it ought not therefore to be construed to release them. It may, however, be well doubted if the practice is
quite so uniform as it is supposed. The case of the Silesia loan, which exercised the highest talents of the English
nation, is an instance to the contrary, almost within half a century, (in 1752,) In the very elaborate discussions of
national law to which that case gave birth, there is not the slightest intimation that the law of nations prohibited a
sovereign from confiscating debts due to his enemies, even where the debts were due from the nation; though there is
a very able statement of its injustice in that particular case: and the English memorial admits that when sovereigns or
states borrow money from foreigners, it is very commonly expressed in the contract, that it should not be seized as
reprisals, or in case of war. Now it strikes me that this very circumstance shews in a strong light the general opinion
as to the ordinary right of confiscation. The stipulations of particular treaties of the United States have been cited, in
corroboration of their general doctrine, by the claimant's counsel. These treaties certainly shew the opinion of the
government as to the impolicy of enforcing the right of confiscation against debts and actions. See treaty with Great
Britain, 1794, art. 10--with France 1778, art. 20--with Holland, 8th October 1782, art. 18--with Prussia, 11th July
1799, art. 23--with Morocco, 1787, art. 24--But I cannot admit them to be evidence for the purpose for which they
have been introduced. It may be argued with quite as much if not greater force, that these stipulations imply an
acknowledgement of the general right of confiscation, and provide for a liberal relaxation between the parties. I hold,
with Bynkershoek, (Quaest. Pub. Jur. ch. 7.) that where such treaties exist, they must be observed; where there are
none, the general right prevails. It has been further supposed, that the common law of England is against the right of
confiscating debts; and the declaration of Magna Charta, ch. 30, has been cited to shew the liberal views of the
British constitution. This declaration, so far as is necessary to the present purpose, is as follows: 'If they' (i. e. foreign
merchants,) 'be of a land making war against us, and be found in our realm at the beginning of the war, they shall be
attached without harm of body or goods (rerum) until it be known unto us, or our chief justice, how our merchants be
entreated, then in the land making war against us, and if our merchants be well entreated there, theirs shall be
likewise with us.' I quote the translation of lord Coke, (2, Just. 27.)--This would certainly seem to be a very liberal
provision; and if its true construction applied to all property and persons, as well transiently in the country as
domiciled and fixed there, it would certainly be entitled to all the encomiums which it has received. Montesq. Spirit
of Laws, lib. 20, ch. 14. How far it is now considered as binding, in relation to vessels and goods found within the
realm at the commencement of the war, I shall hereafter consider. It will be observed, however, that this article of
Magna Charta, does not protect the debts or property of foreigners who are without the realm: it is confined to
foreigners within the realm upon the public faith on the breaking out of the war. Now it seems to be the established
rule of the common law, that all choses in action, belonging to an enemy, are forfeitable to the crown; and that the
crown is at liberty, at any time during the war, to institute a process, and thereby appropriate them to itself. This was
the doctrine of the year books, and stands confirmed by the solemn decision of the exchequer, in the Attorney
General v. Weeden, Parker Rep. 267.--Maynard's Edw. 2, cited ibid.--It is a prerogative of the crown which, I admit,
has been very rarely enforced; (See lord Alvanley's observations in Furtado v. Rodgers, 3, Bos. and Pub. 191,) but its
existence cannot admit of a legal doubt. On a review of authorities, I am entirely satisfied that, by the rigor of the law
of nations and of the common law, the sovereign of a nation may lawfully confiscate the debts of his enemy, during
war, or by way of reprisal: and I will add, that I think this opinion fully confirmed by the judgement of the Supreme
Court in Ware v. Hylton, 3, Dall. 199, where the doctrine was explicitly asserted by some of the judges, reluctantly
admitted by others, and denied by none.
In respect to the goods of an enemy found within the dominions of a belligerent power, the right of confiscation is
most amply admitted by Grotius, and Puffendorf, and Bynkershoek, and Burlamaqui, and Rutherforth and Vattel. See
Grotius, and Puffendorf, and Bynkershoek ubi supra; and Bynk. Qu. Pub. Jur. c. 4, and 6. 2, Burlam. p. 209, sec. 12,
p. 219, sec. 2, p. 221, sec. 11. Ruth. lib. 2, c. 9, p. 558 to 573. Such, also, is the rule of the common law. Hale in
Harg. law tracts, p. 245, c. 18. Vattel has indeed contended (and in this he is followed by Azuni, Part. 2, ch. 4, art. 2,
sec. 7,) that the sovereign declaring war, can neither detain the persons nor the property of those subjects of the
enemy who are within his dominions at the time of the declaration, because they came into the country upon the
public faith. This exception (which, in terms, is confined to the property of persons who are within the country,)
seems highly reasonable in itself, and is an extension of the rule in Magna Charta. But, even limited as it is, it does
not seem followed in practice; and Bynkershoek is an authority the other way. Bynk. Quaest. Pub. Jur. c. 2, 3, 7. In
England, the provision in Magna Charta seems, in practice, to have been confined to foreign merchants domiciled
there; and not extended to others who came to ports of the realm for occasional trade. Indeed, from the language of
some authorities, it would seem that the clause was inserted, not so much to benefit foreign merchants, as to provide
a remedy for their own subjects, in cases of hostile injuries of foreign countries. (See the opinion of Ch. J. Lee in
Key v. Pearse, cited Doug. 606, 607.) However this may be, it is very certain that Great Britain has uniformly seized,
as prize, all vessels and cargoes of her enemies found afloat in her ports at the commencement of war. Nay, she has
proceeded yet farther, and, in contemplation of hostilities, laid embargoes on foreign vessels and cargoes, that she
might, at all events, secure the prey. It cannot be necessary for me to quote authorities on this point. In the articles
respecting the droits of admiralty in 1665, there is a very formal recognition of the rights of the crown to all vessels
and cargoes seized before hostilities. The Rebeckah, 1, Rob. 227, and id. 230, note (a.) This exercise of hostile right--
of the summum jus, is so far, indeed, from being obsolete, that it is in constant operation, and, in the present
hostilities, has been applied to the property of the citizens of the United States. Of a similar character, is the detention
of American seamen found in her service at the commencement of the war, as prisoners of war; a practice which
violates the spirit, though not the letter, of Magna Charta; and, certainly, can, in equity and good faith, find few
advocates. Of the right of Great Britain thus to seize vessels and cargoes found in her ports on the breaking out of
war, I do not find any denial in authorities which are entitled to much weight; and I, therefore, consider the rule of
the law of nations to be, that every such exercise of authority is lawful, and rests in the sound discretion of the
sovereign of the nation.
The next question is, whether congress (for with them rests the sovereignty of the nation as to the right of making
war, and declaring its limits and effects) have authorized the seizure of enemies' property afloat in our ports. The act
of 18th June, 1812, ch. 102, is in very general terms, declaring war against Great Britain, and authorizing the
president to employ the public forces to carry it into effect. Independent of such express authority, I think that, as the
executive of the nation, he must, as an incident of the office, have a right to employ all the usual and customary
means acknowledged in war, to carry it into effect. And there being no limitation in the act, it seems to follow that
the executive may authorize the capture of all enemies' property, wherever, by the law of nations, it may be lawfully
seized. In cases where no grant is made by congress, all such captures, made under the authority of the executive,
must enure to the use of the government. That the executive is not restrained from authorizing captures on land, is
clear from the provisions of the act. He may employ and actually has employed the land forces for that purpose; and
no one has doubted the legality of the conduct. That captures may be made, within our own ports, by commissioned
ships, seems a natural result of the language--of the generality of expression in relation to the authority to grant
letters of marque and reprisal to private armed vessels, which the act does not confine to captures on the high seas,
and is supported by the known usage of Great Britain in similar cases. It would be strange indeed, if the executive
could not authorize or ratify a capture in our own ports, unless by granting a commission to a public or private ship. I
am not bold enough to interpose a limitation where congress have not chosen to make one; and I hold, that, by the act
declaring war, the executive may authorize all captures which, by the modern law of nations, are permitted and
approved. It will be at once perceived, that in this doctrine I do not mean to include the right to confiscate debts due
to enemy subjects. This, though a strictly national right, is so justly deemed odious in modern times, and is so
generally discountenanced, that nothing but an express act of congress would satisfy my mind that it ought to be
included among the fair objects of warfare; more especially as our own government have declared it unjust and
impolitic. But if congress should enact such a law, however much I might regret it, I am not aware that foreign
nations, with whom we have no treaty to the contrary, could, on the footing of the rigid law of nations, complain,
though they might deem it a violation of the modern policy.
On the whole, I am satisfied that congress have authorized a seizure and condemnation of enemy property found in
our ports under the circumstances of the present case. And the executive may lawfully authorize proceedings to
enforce the confiscation of the same property before the proper tribunals of the United States. The district attorney is,
for this purpose, the proper agent of the executive and of the United States. From the character and duties of his
station, he is bound to guard the rights of the United States, and to secure their interests. Whenever he choses to
institute proceedings on behalf of the United States, it is presumed by Courts of law that he has the sanction of the
proper authorities; and that presumption will avail, until the executive or the legislature disavow the proceedings, and
sanction a restoration of the property.
I have taken up more time than I originally intended, in discussing the various subjects submitted in the argument.
An apology will be found in their extraordinary importance. If I shall have successfully shewn that the principles of
prize law, as admitted in England and in the United States, have the sanction of the principles of public law and
public jurists, I shall not regret the labor that has been employed, although, in this particular case, I may pronounce
an erroneous sentence.
I reverse the decree of the district Court, and condemn the 550 tons of timber to the United States; subject, however,
to the right of the owners of the Emulous to a reimbursement of their actual charges and expenses for the custody of
the property, which I shall reserve for further consideration; and I shall order the said property to be sold, and the
proceeds brought into Court to abide the further order of the Court."
Such is the opinion which I had the honor to pronounce in the Circuit Court; and upon the most mature reflection, I
adhere to it. The argument in this Court, urged on behalf of the Claimant, has put in controversy the same points
which were urged before me. But as the opinion of this Court admits many of the principles for which I contended, I
shall confine my additional remarks to such as have been overruled by my brethren.
It seems to have been taken for granted in the argument of counsel that the opinion held in the Circuit Court
proceeded, in some degree, upon a supposition that a declaration of war operates per se an actual confiscation of
enemy's property found within our territory. To me this is a perfectly novel doctrine. It was not argued, on either side,
in the Circuit Court, and certainly never received the slightest countenance from the Court. I disclaim, therefore, any
intention to support a doctrine which I always supposed to be wholly untenable. I go yet further, and admit that a
declaration of war does not, of itself, import a confiscation of enemies' property within or without the country, on the
land or on the high seas. The title of the enemy is not by war divested, but remains in proprio vigore, until a hostile
seizure and possession has impaired his title. All that I contend for is, that a declaration of war gives a right to
confiscate enemies' property, and enables the power to whom the execution of the laws and the prosecution of the
war are confided, to enforce that right. If, indeed, there be a limit imposed as to the extent to which hostilities may be
carried by the executive, I admit that the executive cannot lawfully transcend that limit; but if no such limit exist, the
war may be carried on according to the principles of the modern law of nations, and enforced when, and where, and
on what property the executive chooses.
In no act whatsoever, that I recollect, have congress declared the confiscation of enemies' property. They have
authorized the president to grant letters of marque and general reprisal, which he may revoke and annul at his
pleasure: and even as to captures actually made under such commissions, no absolute title by confiscation vests in
the captors, until a sentence of condemnation. If, therefore, British property had come into our ports since the war,
and the president had declined to issue letters of marque and reprisal, there is no act of congress which, in terms,
declares it confiscated and subjects it to condemnation. If, nevertheless, it be confiscable, the right of confiscation
results not from the express provisions of any statute, but from the very state of war, which subjects the hostile
property to the disposal of the government. But until the title should be divested by some overt act of the government
and some judicial sentence, the property would unquestionably remain in the British owners, and if a peace should
intervene, it would be completely beyond the reach of subsequent condemnation.
There is, then, no distinction recognized by any act of congress, between enemies' property which was within our
ports at the commencement of war, and enemies' property found elsewhere. Neither are declared ipso facto
confiscated; and each, as I contend, are merely confiscable.
I will now consider what, in point of law, is the operation of the acts of Congress made in relation to the present war.
The act of 18th June, 1812, ch. 102, declares war to exist between Great Britain and the United States, and authorizes
the president of the United States to use the land and naval force of the United States to carry the same into effect;
and further authorizes him to issue letters of marque, &c. to private armed vessels, against the vessels, goods and
effects of the government of Great Britain and the subjects thereof.
The prize act of 26th June, 1812, ch. 107, confers the power on the president to issue instructions to private armed
vessels, for the regulation of their conduct. The act of 6th July, 1812, ch. 128, authorizes the president to make
regulations, &c. for the support and exchange of prisoners of war. The act of 6th July, 1812, ch. 129, respecting trade
with the enemy, authorizes the president to grant passports for the property of British subjects within the limits of the
United States during the space of six months, and protects certain British packets, &c. with despatches, from capture.
The act of 3d March, 1813, ch. 203, vests in the president the power of retaliation for any violation of the rules and
usages of civilized warfare by Great Britain.
These are all the acts which confer powers, or make provisions touching the management of the war. In no one of
them is there the slightest limitation upon the executive powers growing out of a state of war; and they exist,
therefore, in their full and perfect vigour. By the constitution, the executive is charged with the faithful execution of
the laws; and the language of the act declaring war authorizes him to carry it into effect. In what manner, and to what
extent, shall he carry it into effect? What are the legitimate objects of the warfare which he is to wage? There is no
act of the legislature defining the powers, objects or mode of warfare: by what rule, then, must he be governed? I
think the only rational answer is by the law of nations as applied to a state of war. Whatever act is legitimate,
whatever act is approved by the law, or hostilities among civilized nations, such he may, in his discretion, adopt and
exercise; for with him the sovereignty of the nation rests as to the execution of the laws. If any of such acts are
disapproved by the legislature, it is in their power to narrow and limit the extent to which the rights of war shall be
exercised; but until such limit is assigned, the executive must have all the right of modern warfare vested in him, to
be exercised in his sound discretion, or he can have none. Upon what principle, I would ask, can he have an implied
authority to adopt one and not another? The best manner of annoying, injuring and pressing the enemy, must, from
the nature of things, vary under different circumstances; and the executive is responsible to the nation for the faithful
discharge of his duty, under all the changes of hostilities.
But it is said that a declaration of war does not, of itself, import a right to confiscate enemies' property found within
the country at the commencement of war. I cannot admit this position in the extent in which it is laid down. Nothing,
in my judgment, is more clear from authority, than the right to seize hostile property afloat in our ports at the
commencement of war. It is the settled practice of nations, and the modern rule of Great Britain herself, applied (as
appears from the affidavits in this very cause) to American property in the present war; applied, also, to property not
merely on board of ships, but to spars floating alongside of them--I forbear, however, to press this point, because my
opinion in the Court below contains a full discussion of it.
It is also said that a declaration of war does not carry with it the right to confiscate property found in our country at
the commencement of war, because the constitution itself, in giving congress the power "to declare war, grant letters
of marque and reprisal, and make rules concerning captures on land and water," has clearly evinced that the power to
declare war did not, ex vi terminorum, include a right to capture property every where, and that the power to make
rules concerning captures on land and water, may well be considered as a substantive power as to captures of
property within our own territory. In my judgment, if this argument prove any thing, it proves too much. If the power
to make rules respecting captures, &c. be a substantive power, it is equally applicable to all captures, wherever made,
on land or on water. The terms of the grant import no limitation as to place; and I am not aware how we can place
around them a narrower limit than the terms import. Upon the same construction, the power to grant letters of
marque and reprisal is a substantive power; and a declaration of war could not, of itself, authorize any seizure
whatsoever of hostile property, unless this power was called into exercise. I cannot, therefore, yield assent to this
argument. The power to declare war, in my opinion, includes all the powers incident to war, and necessary to carry it
into effect. If the constitution had been silent as to letters of marque and captures, it would not have narrowed the
authority of congress. The authority to grant letters of marque and reprisal, and to regulate captures, are ordinary and
necessary incidents to the power of declaring war. It would be utterly ineffectual without them. The expression,
therefore, of that which is implied in the very nature of the grant, cannot weaken the force of the grant itself. The
words are merely explanatory, and introduced ex abundanti cautela. It might be as well contended; that the power "to
provide and maintain a navy," did not include the power to regulate and govern it, because there is in the constitution
an express provision to this effect. And yet I suppose that no person would doubt that congress, independent of such
express provision, would have the power to regulate and govern the navy; and if they should authorize the executive
"to provide and maintain a navy," it seems to me as clear that he must have the incidental power to make rules for its
government. In truth, it is by no means unfrequent in the constitution to add clauses of a special nature to general
powers which embrace them, and to provide affirmatively for certain powers, without meaning thereby to negative
the existence of powers of a more general nature. The power to provide "for the common defence and general
welfare," could hardly be doubted to include the power "to borrow money;" the power "to coin money," to include
the power "to regulate the value therof;" and the power "to raise and support armies," to include the power "to make
rules for the government and regulation" thereof. On the other hand, the affirmative power "to define and punish
piracies and felonies committed on the high seas," has never been supposed to negative the right to punish other
offences on the high seas; and congress have actually legislated to a more enlarged extent. I cannot therefore
persuade myself that the argument against the doctrine for which I contend, is at all affected by any provision in the
constitution.
The opinion of my brethren seems to admit that the effect of hostilities is to confer all the rights which war confers;
and it seems tacitly to concede, that, by virtue of the declaration of war, the executive would have a right to seize
enemies' property which should actually come within our territory during the war. Certainly no such power is given
directly by any statute. And if the argument be correct, that the power to make captures on land or water must be
expressly called into exercise by congress, before the executive can, even after war, enforce a capture and
condemnation, it will be very difficult to support the concession. Suppose a British ship of war or merchant ship
should now come within our ports, there is no statute declaring such ship actually confiscated. There is no express
authority either for the navy or army to make a capture of her; and although the executive might authorize a private
armed ship so to do, yet it would depend altogether on the will of the owners of the ship, whether they would so do
or not. Can it be possible that the executive has not the power to authorize such seizure? And if he may authorize a
seizure by the army or navy, why not by private individuals if they will volunteer for the purpose?
The act declaring war has authorized the executive to employ the land and naval force of the United States, to carry it
into effect. When and where shall he carry it into effect? Congress have not declared that any captures shall be made
on land; and if this be a substantive power, not included in a declaration of war, how can the executive make captures
on land, when congress have not expressed their will to this effect? The power to employ the army and navy might
well be exercised in preventing invasion, and in the common defence, without unnecessarily including a right to
capture, if the right to capture be not an incident of war: and upon what ground, then, can the executive plan and
execute foreign expeditions or foreign captures? Upon what ground can he authorize a Canadian campaign, or seize a
British fort or territory, and occupy it by right of capture and conquest I am utterly at a loss to perceive, unless it be
that the power to carry the war into effect, gives every incidental power which the law of nations authorizes and
approves in a state of war. I am at a loss to perceive how the power exists, to seize and capture enemy's property
which was without our territory at the commencement of the war, and not the power to seize that which was within
our territory at the same period. Neither are expressly given nor denied (except as to private armed ships,) and how
can either be assumed except as an incident of war, acknowledged upon national and public principles? It may be
suggested that the executive, "as commander in chief of the army and navy," has the power to make foreign
conquests. But this is utterly inadmissible, if the right to authorize captures resides as a substantive power in
congress, and does not follow as an incident of a declaration of war: and certainly the rights of the "commander in
chief" must be restrained to such acts as are allowed by the laws. Besides, the same difficulty meets us here as in the
former case; if his powers, as commander in chief, authorize him to make captures without the territory, why not
within the territory?
The acts respecting alien enemies and prisoners of war, have been supposed, even in a state of actual war, to confer
new powers on the executive. I cannot accede to the inference in the extent to which it is claimed. In general, these
acts may be deemed mere regulations of war, limiting and directing the discretion of the executive; and it cannot be
doubted that Congress had a perfect right to prescribe such regulations. To regulate the exercise of the rights of war
as to enemies, does not, however, imply that such rights have not an independent existence. Besides, it is clear that
the act respecting alien enemies applies only to aliens resident within the country; and not to the property of aliens,
who are not so resident. I might answer, in the same manner, the argument drawn from the act of 6th July 1812, ch.
129, 4, and the act of 3d of March 1813, ch. 203.--But even admitting that these acts did confer some new powers,
still, as these powers do not respect the present case, I cannot consider them as affording even a legislative
implication against the existence of the powers for which I contend.
It has been supposed that my opinion assumes for its basis the position, that modern usage constitutes a rule which
acts directly on the thing itself by its own force, and not through the sovereign power. Certainly I do not admit this
supposition to be correct. My argument proceeds upon the ground, that when the legislative authority, to whom the
right to declare war is confided, has declared war in its most unlimited manner, the executive authority, to whom the
execution of the war is confided, is bound to carry it into effect. He has a discretion vested in him, as to the manner
and extent; but he cannot lawfully transcend the rules of warfare established among civilized nations. He cannot
lawfully exercise powers or authorize proceedings which the civilized world repudiates and disclaims. The
sovereignty, as to declaring war and limiting its effects, rests with the legislature. The sovereignty, as to its execution,
rests with the president. If the legislature do not limit the nature of the war, all the regulations and rights of general
war attach upon it. I do not, therefore, contend that modern usage of nations constitutes a rule acting on enemies'
property, so as to produce confiscation of itself, and not through the sovereign power: on the contrary, I consider
enemies' property in no case whatsoever confiscated by the mere declaration of war; it is only liable to be confiscated
at the discretion of the sovereign power having the conduct and execution of the war. The modern usage of nations is
resorted to merely as a limitation of this discretion, not as conferring the authority to exercise it. The sovereignty to
execute it is supposed already to exist in the president, by the very terms of the constitution: and I would again ask, if
this general power to confiscate enemies' property does not exist in the executive, to be exercised in his discretion,
how is it possible that he can have authority to seize and confiscate any enemies' property coming into the country
since the war, or found in the enemies' territory?--Yet I understood the opinion of my brethren to proceed upon the
tacit acknowledgement that the executive may seize and confiscate such property, under the circumstances which I
have stated.

United States Supreme Court
THE SCHOONER EXCHANGE v. MCFADDON, (1812)
Argued: Decided: February 24, 1812
Present. All the judges.
THIS being a cause in which the sovereign right claimed by NAPOLEON, the reigning emperor of the French, and
the political relations between the United States and France, were involved, it was, upon the suggestion of the
Attorney General, ordered to a hearing in preference to other causes which stood before it on the docket. [11 U.S.
116, 117] It was an appeal from the sentence of the Circuit Court of the United States, for the district of
Pennsylvania, which reversed the sentence of the District Court, and ordered the vessel to be restored to the
libellants.
The case was this-on the 24th of August, 1811, John McFaddon & William Greetham, of the State of Maryland, filed
their libel in the District Court of the United States, for the District of Pennsylvania, against the Schooner Exchange,
setting forth that they were her sole owners, on the 27th of October, 1809, when she sailed from Baltimore, bound to
St. Sebastians, in Spain. That while lawfully and peaceably pursuing her voyage, she was on the 30th of December,
1810, violently and foreibly taken by certain persons, acting under the decrees and orders of NAPOLEON, Emperor
of the French, out of the custody of the libellants, and of their captain and agent, and was disposed of by those
persons, or some of them, in violation of the rights of the libellants, and of the law of nations in that behalf. That she
had been brought into the port of Philadelphia, and was then in the jurisdiction of that court, in possession of a
certain Dennis M. Begon, her reputed captain or master. That no sentence or decree of condemnation had been
pronounced against her, by any court of competent jurisdiction; but that the property of the libellants in her, remained
unchanged and in fult force. They therefore prayed the usual process of the court, to attach the vessel, and that she
might be restored to them.
Upon this libel the usual process was issued, returnable on the 30th of August, 1811, which was executed and
returned accordingly, but no person appeared to claim the vessel in opposition to the libellants. On the 6th of
September, the usual proclamation was made for all persons to appear and show cause why the vessel should not be
restored to her former owners, but no person appeared.
On the 13th of September, a like proclamation was made, but no appearnace was entered.
On the 20th of September, Mr. Dallas, the Attorney [11 U.S. 116, 118] of the United States, for the District of
Pennsylvania, appeared, and (at the instance of the executive department of the government of the United States, as it
is understood,) filed a suggestion, to the following effect:
Protecting that he does not know, and does not admit the truth of the allegations contained in the libel, he suggests
and gives the court to understand and be informed,
That in as much as there exists between the United States of America and Napoleon, emperor of France and king of
Italy, &c. &c. a state of peace and amity; the public vessels of his said Imperial and Royal Majesty, conforming to
the law of nations, and laws of the said United States, may freely enter the ports and harbors of the said United
States, and at pleasure depart therefrom without seizure, arrest, detention or molestation. That a certain public vessel
described, and known as the Balaou, or vessel, No. 5, belonging to his said Imperial and Royal Majesty, and actually
employed in his service, under the command of the Sieur Begon, upon a voyage from Europe to the Indies, having
encountered great stress of weather upon the high seas, was compelled to enter the port of Philadelphia, for
refreshment and repairs, about the 22d of July, 1811. That having entered the said port from necessity, and not
voluntarily; having procured the requisite refreshments and repairs, and having conformed in all things to the law of
nations and the laws of the United States, was about to depart from the said port of Philadelphia, and to resume her
voyage in the service of his said Imperial and Royal Majesty, when on the 24th of August, 1811, she was seized,
arrested, and detained in pursuant of the process of attachment issued upon the prayer of the libellants. That the said
public vessel had not, at any time, been violently and forcibly taken or captured from the libellants, their captain and
agent on the high seas, as prize of war, or otherwise; but that if the said public vessel, belonging to his said Imperial
and Royal Majesty as aforesaid, ever was a vessel navigating under the flag of the United States, and possessed by
the libellants, citizens thereof, as in their libel is alleged, (which nevertheless, [11 U.S. 116, 119] the said Attorney
does not admit) the property of the libellants, in the said vessel was seized and divested, and the same became vested
in his Imperial and Royal Majesty, within a port of his empire, or of a country occupied by his arms, out of the
jurisdiction of the United States, and of any particular state of the United States, according to the decrees and laws of
France, in such case provided. And the said Attorney submitting, whether, in consideration of the premises, the court
will take cognizance of the cause, respectfully prays that the court will be pleased to order and decree, that the
process of attachment, heretofore issued, be quashed; that the libel be dismissed with costs; and that the said public
vessel, her tackle, &c. belonging to his said Imperial and Royal Majesty, be released, &c. And the said Attorney
brings here into court, the original commission of the said Sieur Begon, &c.
On the 27th of September, 1811, the libellants filed their answer to the suggestion of the District Attorney, to which
they except, because it does not appear to be made for, or on behalf, or at the instance of the United States, or any
other body politic or person.
They aver, that the schooner is not a public vessel, belonging to his Imperial and Royal Majesty, but is the private
property of the libellants. They deny that she was compelled by stress of weather, to enter the port of Philadelphia, or
that she came otherwise than voluntarily; and that the property of the libellants in the vessel never was divested, or
vested in his Imperial and Royal Majesty, within a port of his empire, or of a country occupied by his arms.
The District Attorney, produced the affidavits of the Sieur Begon, and the French coasul, verifying the commission
of the captain, and stating the fact, that the public vessels of the Emperor of France never carry with them any other
document or evidence that they belong to him, than his flag, the commission, and the possession of his officers.
In the commission it was stated, that the vessel was armed at Bayonne.
On the 4th of October, 1811, the District Judge dismissed [11 U.S. 116, 120] the libel with costs, upon the ground,
that a public armed vessel of a foreign sovereign, in amity with our government, is not subject to the ordinary
judicial tribunals of the country, so far as regards the question of title, by which such sovereign claims to hold the
vessel.
From this sentence, the libellants appealed to the Circuit Court, where it was reversed, on the 28th of October, 1811.
From this sentence of reversal, the District Attorney, appealed to this Court.
DALLAS, Attorney of the United States, for the district of Pennsylvania, contended,
1. That this is not a case of admiralty and maritime jurisdiction.
2. That the public character of the vessel is sufficiently proved; and
3. That being a public national vessel of France, she is not liable to the ordinary judicial process of this country.
1. It ought to appear upon the proceedings themselves that this is a case of admiralty and maritime jurisdiction.
In England the jurisdiction of the Court of admiralty comprehends three branches. 1. The criminal jurisdiction, for
the punishment of offences committed upon the high seas, or submitted to its cognizance by the statute law.
2. The prize jurisdiction, as to captures as prize of war, on the high seas. 3. The Instance Court, which has
jurisdiction of torts committed at sea, in which case locality is essential; and of maritime contracts, which are also
perhaps local.
The district Courts of the United States, have the same three branches of jurisdiction, but the jurisdiction [11 U.S.
116, 121] must be shewn in the proceedings, together with the authority to seize within our waters. Laws United
States, Vol. 1. p. 53, sect. 9. 11. Vol. 3. p. 91. sect. 6. 3. Dall. 6.
But the libel does not bring the case within either of those branches of jurisdiction. The libel simply states that while
she was lawfully and peaceably pursuing her voyage, she was forcibly seized under the decrees of Napoleon,
emperor of the French. It does not allege any crime upon the high seas. It does not state the seizure to be as prize of
war. It does not allege a tort committed upon the high seas, nor any maritime contract. The admiralty has no
jurisdiction upon the mere possession of the vessel in our harbors, unconnected with a tort on the high seas. Nor
upon a tort committed here, or in a foreign country-nor upon a mere question of title. 2. Browne, civ. and ad. law
110, 111, 113, 114, 115, 116, 117.
There is not a single instance of admiralty jurisdiction exercised in this country without possession, coupled with a
maritime tort.
2. As to the proof of the public character of the vessel. The flag, the public commission, and the possession of the
officer, have always been sufficient evidence, at sea or in port-and for fiscal or executive purposes. Why should it not
be sufficient evidence in a judicial proceeding? No public vessel ever carries any other documents. No other proof of
property in the sovereign is ever required. It is acknowledged in all our treaties. Even the common law requires only
the best evidence which the nature of the case admits.
In the case of Mr. Pichon, 4. Dall. 321. no other evidence of his public character was produced or required, than a
letter from Talleyrand, the French minister for foreign affairs. Upon that evidence he was discharged.
HARPER, for the Appellees.
Admitted that the commission, the flag, and the possession, were sufficient evidence of the public character of the
vessel. [11 U.S. 116, 122] DALLAS-The principal question then is, whether a public national vessel of France,
coming into the United States to repair, is liable to be arrested upon the claim of title by an individual?
This vessel was seized by a sovereign, in virtue of his sovereign prerogative. In such a case, the claim of the
individual merges in the right of the offended sovereign. The size of the vessel can make no difference. Upon
principle, the Royal George, belonging to his Britannic majesty is as liable to this process, as the Balaou No. 5.
Suppose a British frigate lying at New York, and one of her seaman should escape and libel her for his wages-the
same argument which will support this case would support that.
This was one of the seizures under the Rambouillet decree. We do not justify that decree, but we say that whenever
the act is done by a sovereign in his sovereign character, it becomes a matter of negotiation, or of reprisals, or of war,
according to its importance.
It is proved that she arrived in distress-that she had been sent on a distant mission with a military cargo. No assent to
submit to the ordinary jurisdiction of the country, can be presumed in such a case as that. She had committed no
offence while here. She did not come to trade. There was no implied waver of the peculiar immunities of a public
vessel. The right of free passage was open to her, as it was to the public vessels of every other nation, except
England, whose ships were expressly excluded by a particular statute.
But put the question generally, can a vessel of war, for any cause, be attached at the suit of an individual. In doubtful
cases the argument ab inconvenienti, ought to have great weight. The jurisdiction now claimed would extend to all
men, to all suits, to torts and to contracts; to every vessel seized in a foreign port and taken into the public service.
Impressed seamen might libel a whole British squadron for their wages. The peace of our ports and harbors would be
at the mercy of the individuals. It would be impossible to carry it into practice. The sentence of the Court could not
be executed. It is beautiful in theory to exclaim 'fiat [11 U.S. 116, 123] Justitia-ruat coelum, but justice is to be
administered with a due regard to the law of nations, and to the rights of other sovereigns. When an individual
receives an injury from a foreign sovereign, he must complain to his own government, who will make it a matter of
negotiation, and if justice be refused may grant reprisals.
Our acts of Congress never subject foreign public vessels to forfeiture. The non-intercourse act (as it is called)
forfeits private, but not public British vessels-the public vessels are forbidden to come, if they do come, you order
them to depart. If they refuse and you are not strong enough to drive them away, you prohibit supplies to them; but
you do not subject them to forfeiture.
We do not, however, deny the right of a nation to change the public law as to foreign nations, upon giving notice. We
may forbid the entrance of their public ships, and punish the breach of this prohibition by forfeiture; nor do we deny
the obligation of a foreign sovereign to conform to pre-existing laws, as to offences-and as to the acquisition of
property; nor his liability for his private debts and contracts. Vattel, 426. B. 2. c. 18. sect. 340. 344. 346. So if a
sovereign descend from the throne and become a merchant, he submits to the laws of the country. If he contract
private debts, his private funds are liable. So if he charter a vessel, the cargo is liable for the freight.
But in the present case he appears in his sovereign character; the commander of the national vessel exercises a part of
his sovereign power; and in such a case no consent to submit to the ordinary judicial tribunals of the country can be
implied. Such implied consent must depend on the act, on the person, and on the subject.
Such consent is implied where the municipal law, previously provides and changes the law of nations-where it
regulates trade-where it defines and punishes crimes, and where it fixes the tenure of property real or personal. But it
cannot be implied where the law of nations is unchanged- nor where the implication is destructive of the
independence, the equality, and dignity of the sovereign. Such a jurisdiction is not given by the consistitution of the
United States, nor [11 U.S. 116, 124] is it mentioned in the judiciary acts. If so important a jurisdiction was
intended to be given, it would certainly have been mentioned and regulated by law. It cannot be derived from any
practical construction of our laws. In 1794, the public vessels were not seized, but ordered away. The impost law,
(Laws of U. S. Vol. 4 p. 331, sect. 31) excepts public vessels, from the obligation to make report and entry. The act of
March 3d, 1805, (Vol. 7. p. 334, sect. 4) for the preservation of peace in our ports and harbors, gives authority to the
president to prohibit the foreign armed vessels from entering our ports, and to order those to depart which may have
entared, and if they refuse to depart, to prohibit all intercourse with them, and to drive them away; but not to seize
them. Public vessels were excepted from the embargo, in 1807 and 1808. (Laws U. S. Vol. 9. p. 7, sect. 2, and p. 243.
sect. 1, 2, and 3.)
The judicial construction of the law by the courts in Pennsylvania, was, that a state could not be subjected to judicial
process, unless by the words of the Constitution of the United States: and many sound minds were of opinion that
even those did not give the jurisdiction; and when it was finally decided in the Supreme Court of the United States
that a suit might be maintained against a state in the Federal Courts, the states amended the constitution so as not to
admit of that construction.
The case of Nathan v. the Commonwealth of Virginia, 1 Dall. 77, was a foreign attachment against some military
stores belonging to the state of Virginia: the object of which was to compel an appearance; and the court refused to
compel the sheriff to return the writ; being of opinion that Virginia being a sovereign state could not be compelled to
appear in a court in Pennsylvania. The present process against the vessel is to compel an appearance. It is true the
master may give security; but to compel him to do so is to bring the emperor into court, and to subject him, in his
sovereign character, to the jurisdiction of the courts of the United States.
The Cassius, (in the case of United States v. Judge [11 U.S. 116, 125] Peters, 3 Dall. 121, and Ketland, qui tam v.
the Cassius, 2 Dall. 365) had violated a municipal law of the United States; yet, being a public vessel of France, the
government of the United States directed the attorney general to file a suggestion, stating the character of the vessel,
which it was supposed would have taken the case out of the jurisdiction of the court. But the case went off upon
another objection to the jurisdiction.
There is then no municipal law, nor any practical construction by the executive, the legislative, or the judicial
department of our government, which authorizes the jurisdiction now claimed; we can only have recourse to the law
of nations to try the validity of that claim. That law requires the consent of the sovereign, either express or implied,
before he can be subjected to a foreign jurisdiction, 2 Rutherford, 163 to 170. There is no express assent of a foreign
sovereign to the jurisdiction over his prerogative. The distinction is between his private acts, and his acts as
sovereign, and between his private and his public property. Vat. B. 2, p. 343, ch. 14. 213, 216. 2 Ruth. 536. Vat. 707,
B. 4. c. 7, 108, Martyn 181. Ruth. 54. Galliani B. 1, c. 5.
The cases of implied assent are, 1. Trade, when his goods are liable for freight, or liable to his factor for advances,
&c. or liable to pay duties. In all which cases there is a specific lien on the goods. 2. In case he acquire property in
the country, whether real or personal. 3. In case of offences against existing laws, such as entering when prohibited,
or breaking the peace when in port. But the law of nations excludes the implication and presumption in every case
where the sovereignty is concerned-as 1. In the case of an ambassador-2. Of the sovereign himself-3. The passing of
his armies through the country, in which case he retains all his rights of sovereignty and jurisdiction over his army-4.
In case of his navy passing through our waters.
The British government, although it authorizes the search of private ships for their seamen, disclaims the right to
search ships of war, even on the ocean, the place of common jurisdiction.
Bynkershock, p. 39, c. 4. for the first time asserts a [11 U.S. 116, 126] principle not recognized by any prior writer:
viz. that the goods of the sovereign, however acquired, whether of a public or private nature, are liable to process to
compel an appearance. But he does not cite one adjudged case, nor one writer upon the law of nations to support
him. The only case he cites is from Huber, and that denies the jurisdiction. The exima which he cites is only a kind of
chronicle or journal, like the annual register.
It is a book of no authority. The case of the queen of Spain's ship arrested at Flushing, and the queen of Bohemia's in
1654, which were released by the states general, are against him. His book clearly shows that the practice of nations
is against his doctrine. It is evident that the alludes to a practice of citation in the states of Holland, or among the
members of the Germanic body.
The general principle is against him. He is opposed by other writers and supported by none. He is opposed by the
practice of nations and supported by no judicial decision.
If the courts of the United States should exercise such a jurisdiction it will amount to a judicial declaration of war.
There is already a case before this court in which it will be called upon to decide whether St. Domingo be an
independant nation; and another in which it is to determine whether the crown of Spain belongs to Ferdinand the 7th
or Joseph Bonaparte. If this court is to exercise jurisdiction upon subjects of this nature, it will absorb all the
functions of government, and leave nothing for the legislative or executive departments to perform.
HARE, contra.
The position which we are to meet, is understood to be this, That the possession of property by a foreign sovereign,
without the limits of his jurisdiction, and within the limits of the United States, precludes all enquiry into the title of
the thing within his possession.
This principle, we say, is unfounded. The general rule is that all sovereignty is strictly local, and cannot [11 U.S. 116,
127] be exercised beyond the territorial limits. This flows from the nature of sovereignty, which being supreme
power, cannot exist where it is not supreme. 4 Cranch, 279, Rose v. Himely. There is no instance of its actual extra-
territorial operation, except where by fiction of law it is supposed to be territorial; or at most where it exclusively
operates upon its own subjects. The household of an ambassador is supposed to be within the territorial jurisdiction
of his sovereign. Vattel 448, Martyn 228, 230.
In other respects the rights of an ambassador are his own rights founded in considerations appertaining exclusively to
the ambassadorial character. In the vessels belonging either to his nation or to himself, he may exercise, on the high
seas, a limited jurisdiction. The same principle operates here. The ship is considered as part of his territory. But in
this case his jurisdiction extends over his own subjects only. His armies abroad are also subject to his jurisdiction,
but this is the result of positive compact, without which they cannot go abroad.
The general principle then being in our favor, our adversaries must show the exception.
Whatever is within the extent of a country, is within the authority of its sovereign; and if any dispute arises
concerning the effects within the country or passing through it, it must be decided by the judge of the place. Vat. 446.
Unless the case now before the court be an exception, this rule is universal. It grows out of the first principles of
government, which in giving security assumes jurisdiction.
The general authority over the property of foreigners is as absolute as over the property of subjects.
The arguments in favor of the exception are drawn rather from inconvenience than from principle, but cannot be
supported upon either ground.
As it regards the private property of the sovereign, [11 U.S. 116, 128] why not assume jurisdiction? Because it is
said, it would violate his dignity, inasmuch as it is to be presumed that he will never to wrong. Such a presumption,
contrary to the fact, may be calculated to give him weight at home, but can be of no use abroad. It is not universally
adopted even at home. The king of England may be sued by monstrans de droit. States may prescribe the mode in
which they shall be sued. This is a matter of internal regulation. Will you then respect a foreign sovereign more than
his own subjects are bound to respect him?
If the sovereign of any free country should unlawfully seize the goods of one of his subjects, he would be liable in
his private capacity like any other person. As regards the public property of a foreign sovereign, why should there be
any distinction, where the only object of the suit is merely to ascertain the right.
His public service may suffer, but will you respect that service at the expence of the rights of your own citizens?
But it is said, if you arrest this vessel you may arrest a fleet. This is true-and when a foreign fleet shall have been
created by the plunder of our own citizens, let it be arrested.
But the danger of such a case is remote and improbable. The libel must be supported by oath and probable cause. A
judge would not hastily direct process against a flect.
But consider the inconveniencies on the other side. Your own citizens plundered. Your national rights violated. Your
courts deaf to the complaints of the injured. Your government not redressing their wrongs, but giving a sanction to
their spoliators.
The argument of our opponents allows no remedy to the citizen although dispossessed of his property within the
limits of our own territory. Although the ship should have been seized in the Delaware, and converted into a public
armed vessel, we are supposed to have no redress. It does not appear upon the face of the present proceedings, that
this was not the case. [11 U.S. 116, 129] The argument of inconvenience is equally applicable to cases it which our
own laws authorize process to issue. Thus, under the act of June 5th, 1794, 3, Vol. 3. p. 89, if any ship shall be armed
in any of the waters of the United States, with intent to be employed in the service of any foreign state to cruize
against the subjects of another foreign state with whom the United States are at peace , such ship shall be forfeited.
So also in case a foreign armed ship should be found smuggling. In cases of tort then, there is a remedy against the
public armed ship of a foreign sovereign. It is obvious also that there must be such remedy in cases of contract. As in
the case of material men for repairs-Bottomary and mortgage-wreck and pledges. If he may pledge, the pledge may
be proceeded against. If then there are cases both of tort and contract in which there is a remedy, why not in this?
It is in vain to urge against the right of proceeding, the inconveniences that may result from the mode.
On principle, then, there is no foundation for the exception. Nor is it warranted by authority.
Vattel, B. 2, 83, says 'Many sovereigns have 'fiefs, and other properties, in the lands of another 'prince: they therefore
possess them in the manner of 'other individuals.' Thus the kings of England did homage for the lands they held in
France.
Martins (p. 85, 182, Book 5, sect. 9) says that the supreme police extends over the property of a sovereign.
The cases of Glass v. Sloop Betsy, 3 Dall. 6-Rose v. Himely and Hudson v. Guestier, 4 Cranch 279. The
Cosmopolite, 3 Rob. 269, and the authority of Azuni 245, 246, affirm the right, in certain cases, of examining the
legality of the prizes of foreign sovereigns.
Prizes are made for account of the sovereign. In England they are distributed according to the prize act; but if made
by a non-commissioned vessel, they are droits of the admiralty. [11 U.S. 116, 130] The possession of the captors is
the possession of the sovereign. In these cases therefore the right of the sovereign to the thing in his possession is
subjected to judicial investigation.
Bynkershoek upon Ambassadors, 40 to 46, expressly states that the property of the sovereign, public and private, is
subject to the authority of the judge of the place. 2 Rutherford 476, 382. The case of the Swedish convoy is also an
authority to the same effect.
The Constitution of the United States, Art. 3, sect. 2, expressly gives the courts of the United States jurisdiction in
cases between citizens and foreign states.
The cases cited on the other side refer only to suits brought directly against a sovereign, or to compel his appearance.
But such cases are wholly inapplicable, because not brought in consequence of your jurisdiction over the thing
within your territory, but to create a jurisdiction over the person which is without it.
In Massachusetts suits between foreigners by process of attachment, cannot be sustained; but the right to the thing in
dispute, whether between foreigners or others, will be ascertained there.
You cannot draw to your jurisdiction those who owe you neither a local nor an absolute allegrance; but you may
enquire into the validity of every claim to a thing within your jurisdiction.
This doctrine is peculiarly applicable to sovereigns:--
In the case of Olmsteaa v. Rittenhouse's executors, (5 Cranch 115, under the name of United States v. Judge Peters)
the state of Pennsylvania contended that the District Court had not jurisdiction, because she, as a sovereign state,
claimed the money in the hands of the executors, and was really the party interested; but this court decided that, as
the state was not ostensibly a party, and as the thing was within the jurisdiction of the Court, the District Court
should proceed to enforce its sentence; thereby clearly marking the distinction between a suit against a sovereign,
and a process against a thing claimed by a sovereign. [11 U.S. 116, 131] HARPER, on the same side.
Two questions are raised in this case.
1. Whether this be a case of admiralty jurisdiction, and
2. Whether a judicial remedy can be given for a wrong done by a foreign sovereign.
1. The libel states the seizure to have been made 'during the voyage'- and the answer to the claim denies that she was
seized in port it follows therefore that she must have been seized upon the high seas.
2. As to the general power to interfere in case of an illegal seizure made by a foreign sovereign.
Sovereignty is absolute and universal. This is the general rule. But it is contended that there is an exception in four
cases.
1. As to the persor of a foreign sovereign.
2. As to his ambassadors.
3. As to his armies; and
4. As to his property-which last is said to be an inference from the three former cases. But the three former cases are
all founded upon consent, and the latter is not; consequently there can be no analogy between them. Besides, these
cases are not exceptions to the sovereignty, but merely exemptions form the ordinary judicial process, by consent of
the sovereign. If a foreign sovereign comes secretly into the country, he is not protected from ordinary process; but
when he comes openly in his character as a sovereign, an assent is implied, and he comes with all the immunities
incident to his dignity, according to the common understanding of the word. All the cases supposed to be against us
are founded upon consent. Bynkerstock also places it upon the ground of consent, and he is supported by Barbeyrac
and Galliani. [11 U.S. 116, 132] The positive authorities against the exemption of the property of the sovereign
from the ordinary judicial process, are Bynkershoek 25, Martins 182, and 2 Rutherford 476. The Constitution of the
United States takes for granted the suability of the states, and merely provides the means of carrying the principle
into effect. The exemption of the sovereign himself, his ambassador and his armies, depends upon particular reasons
which do not apply to his property, nor to his ships of war.
PINKNEY, Attorney General, in reply.
When wrongs are inflicted by one nation upon another, in tempestuous times, they cannot be redressed by the
judicial department. Its power cannot extend beyond the territorial jurisdiction. However unjust a confiscation may
be, a judicial condemnation closes the judicial eye upon its enormity. The right to demand redress belongs to the
executive department, which alone represents the sovereignty of the nation in its intercourse with other nations.
The simple fact in this case is, that an individual is seeking, in the ordinary course of justice, redress against the act
of a foreign sovereign. But the rights of a foreign sovereign cannot be submitted to a judicial tribunal. He is supposed
to be out of the country, although he may happen to be within it.
An ambassador is unquestionably exempt from the ordinary jurisdiction; but if he commit violence it may be
lawfully repelled by the injured individual-so if he commit public violence he may be opposed by the nation. This
right arises from the necessity of the case. But as to ordinary cases he is to be referred to the tribunals of his own
country. In cases where those tribunals cannot interfere to prevent the injury, the jurisdiction of the country, for that
purpose, may interfere; but when the act is done, and prevention is too late, he must he referred to his own tribunals.
We claim for this vessel, an immunity from the ordinary jurisdiction, as extensive as that of an ambassador, [11 U.S.
116, 133] or of the Sovereign himself;-but no further.-If she attempt violence, she may be restrained.
The constitution of the United States, decides nothing-it only provides, a tribunal, if a case can by possibility exist.
The statutes of the United States, are in hostility to the idea of jurisdiction.-Private vessels are made liable to
confiscation, but public vessels are to be driven away. The remedy is by opposing Sovereign to Sovereign, not by
subjecting him to the ordinary jurisdiction.
The jurisdiction over things and persons, is the same in substance. The arrest of the thing is to obtain jurisdiction
over the person.
A distinction is taken between civil and territorial jurisdiction, civil jurisdiction is referred to consent;-it binds all
who have consented. Territorial jurisdiction goes farther; it operates upon those who have not assented-such as
aliens-but the alien must do something-he must come within the territory whereby he submits to the jurisdiction-so if
he purchases property within the country, or sends property into the territory, in ordinary cases, his assent is implied.
But if the property of an alien, be forcibly or fraudulently carried within the territory, no consent is implied, and
consequently there is no ground for jurisdiction.
If a foreign Sovereign be found in the ferritory, he is not liable to the ordinary jurisdiction. Vattel places his
exemption on the ground, that he did not intend to submit to it.-Rutherford, on the ground of the assent of the other
Sovereign.
The case of the Ambassador is precisely in point-his immunities depend upon the implied assent. The reason is, that
he may be independent. Grotius, places it upon the conventional, and Rutherford, upon the natural law of nations.
So in the case of the passage of troops through a neutral territory, the permission to pass, implies a compact, that they
should enjoy all necessary immunities. [11 U.S. 116, 134] From the nature of the case, they cannot be subject to the
ordinary jurisdiction of the country, through which they pass. To suffer one of the soldiers to be arrested for a debt
due to a citizen of that country, would be inconsistent with the permission to pass.
We are asked, whence we infer the immunity of the public armed vessel of a sovereign. We answer from the nature
of sovereignty, and from the universal practice of nations from the time of Tyre and Sidon.
Sovereigns are equal. It is the duty of a sovereign, not to submit his rights to the decision of a co-sovereign. He is the
sole arbiter of his own rights. He acknowledges no superior, but God alone. To his equals, he shown respect, but not
submission.
This vessel is not the ordinary property of a sovereign.-It is his national property-a public ship of war duly
commissioned. There is no difference in principle between such a vessel, and an army passing through the territory.
She has the same rights. She has your permission to pass, and you are bound to give her all necessary immunities.
You gave her an saylum as the property of a great and powerful nation, you must not suffer her to be thereby
entrapped in the fangs of a municipal court. She was charged with public despatches; she visited your ports in itinere.
It was a defiexion merely, that she might more effectually perform her voyage. It was a mere passage through your
jurisdiction. Her commander had an unquestionable right to exclusive jurisdiction over her crew. In the eye of the
law of nations, she was at home, whether in your ports, or upon the high seas. The exemption from delay, is more
necessary than the exemption from final condemnation.
By the usage of states, no other evidence is required of the property of a sovereign than his commission and flag.
This is strong evidence, that such property is not subject to the ordinary jurisdiction of the country. Otherwise other
documents would be required and would be furnished. No others are required at sea, nor on shore. This usage of
nations is universally known, and as the vessel sailed upon the faith of such a usage, [11 U.S. 116, 135] good faith
requires that you should receive the flag and commission as evidence of the character of the vessel.
This court will not decide this case upon the authority of the slovenly treatise of Bynkershoek, or the ravings of that
sciolist Martins, but upon the broad principles of national law, and national independence. One would as soon
consult Gibbons or Hobbs, for the doctrines of our holy religion as Martins for the principles of the law of nations.
Bynkershoek, upon this point, draws his authorities from Dutch courts, and Dutch jurists. Not one of his cases was
adjudged, except that cited from Huber. And in one of the cases, the states general requested that the vessel should be
discharged, which had been arrested in Zealand, for a debt due from Spain, saying that they would write to the Queen
of Spain, to pay her debts, or they would be obliged to issue letters of marque and reprisal,- which was the proper
course. The other cases were only abortive attempts to subject national property to the ordinary jurisdiction of the
country.
The case of the Swedish convoy, was upon the ground, that the convoy resisted by force the right of search. It was
war quoad hoc; and the seizure was made as prize of war. But that case was never decided.
In the case of Glass v. The Sloop Betsy, the privateers commission was to capture the property of an enemy, but she
had captured that of a friend.-The court did not subject the privateer to their jurisdiction, but the prize which she had
wrongfully made.
March 3d. All the Judges being present.
MARSHALL, Ch. J. Delivered the opinion of the Court as follows:
This case involves the very delicate and important inquiry, whether an American citizen can assert, in an American
court, a title to an armed national vessel, found within the waters of the United States.
The question has been considered with an earnest solicitude, that the decision may conform to those principles [11
U.S. 116, 136] of national and municipal law by which it ought to be regulated.
In exploring an unbeaten path, with few, if any, aids from precedents or written law, the court has found it necessary
to rely much on general principles, and on a a train of reasoning, founded on cases in some degree analogous to this.
The jurisdiction of courts is a branch of that which is possessed by the nation as an independent sovereign power.
The jurisdiction of the nation within its own territory is necessarily exclusive and absolute. It is susceptible of no
limitation not imposed by itself. Any restriction upon it, deriving validity from an external source, would imply a
diminution of its sovereignty to the extent of the restriction, and an investment of that sovereignty to the same extent
in that power which could impose such restriction.
All exceptions, therefore, to the full and complete power of a nation within its own territories, must be traced up to
the consent of the nation itself. They can flow from no other legitimate source.
This consent may be either express or implied. In the latter case, it is less determinate, exposed more to the
uncertainties of construction; but, if understood, not less obligatory.
The world being composed of distinct sovereignties, possessing equal rights and equal independence, whose mutual
benefit is promoted by intercourse with each other, and by an interchange of those good offices which humanity
dictates and its wants require, all sovereigns have consented to a relaxation in practice, in cases under certain
peculiar circumstances, of that absolute and complete jurisdiction within their respective territories which
sovereignty confers.
This consent may, in some instances, be tested by common usage, and by common opinion, growing out of that
usage. [11 U.S. 116, 137] A nation would justly be considered as violating its faith, although that faith might not be
expressly plighted, which should suddenly and without previous notice, exercise its territorial powers in a manner
not consonant to the usages and received obligations of the civilized world.
This full and absolute territorial jurisdiction being alike the attribute of every sovereign, and being incapable of
conferriing extra- territorial power, would not seem to contemplate foreign sovereigns nor their sovereign rights as
its objects. One sovereign being in no respect amenable to another; and being bound by obligations of the highest
character not to degrade the dignity of his nation, by placing himself or its sovereign rights within the jurisdiction of
another, can be supposed to enter a foreign territory only under an express license, or in the confidence that the
immunities belonging to his independent sovereign station, though not expressly stipulated, are reserved by
implication, and will be extended to him.
This perfect equality and absolute independence of sovereigns, and this common interest impelling them to mutual
intercourse, and an interchange of good offices with each other, have given rise to a class of cases in which every
sovereign is understood to wave the exercise of a part of that complete exclusive territorial jurisdiction, which has
been stated to be the attribute of every nation.
1st. One of these is admitted to be the exemption of the person of the sovereign from arrest or detention within a
foreign territory.
If he enters that territory with the knowledge and license of its sovereign, that license, although containing no
stipulation exempting his person from arrest, is universally understood to imply such stipulation.
Why has the whole civilized world concurred in this construction? The answer cannot be mistaken. A foreign
sovereign is not understood as intending to subject himself to a jurisdiction incompatible with his dignity, and the
dignity of his nation, and it is to avoid this subjection [11 U.S. 116, 138] that the license has been obtained. The
character to whom it is given, and the object for which it is granted, equally require that it should be construed to
impart full security to the person who has obtained it. This security, however, need not be expressed; it is implied
from the circumstances of the case.
Should one sovereign enter the territory of another, without the consent of that other, expressed or implied, it would
present a question which does not appear to be perfectly settled, a decision of which, is not necessary to any
conclusion to which the Court may come in the cause under consideration. If he did not thereby expose himself to
the territorial jurisdiction of the sovereign, whose dominions he had entered, it would seem to be because all
sovereigns impliedly engage not to avail themselves of a power over their equal, which a romantic confidence in
their magnanimity has placed in their hands.
2d. A second case, standing on the same principles with the first, is the immunity which all civilized nations allow to
foreign ministers.
Whatever may be the principle on which this immunity is established, whether we consider him as in the place of the
sovereign he represents, or by a political fiction suppose him to be extra-territorial, and, therefore, in point of law,
not within the jurisdiction of the sovereign at whose Court he resides; still the immunity itself is granted by the
governing power of the nation to which the minister is deputed. This fiction of exterritoriality could not be erected
and supported against the will of the sovereign of the territory. He is supposed to assent to it.
This consent is not expressed. It is true that in some countries, and in this among others, a special law is enacted for
the case. But the law obviously proceeds on the idea of prescribing the punishment of an act previously unlawful, not
of granting to a foreign minister a privilege which he would not otherwise possess.
The assent of the sovereign to the very important and extensive exemptions from territorial jurisdiction [11 U.S. 116,
139] which are admitted to attach to foreign ministers, is implied from the considerations that, without such
exemption, every sovereign would hazard his own dignity by employing a public minister abroad. His minister
would owe temporary and local allegiance to a foreign prince, and would be less competent to the objects of his
mission. A sovereign committing the interests of his nation with a foreign power, to the care of a person whom he has
selected for that purpose, cannot intend to subject his minister in any degree to that power; and, therefore, a consent
to receive him, implies a consent that he shall possess those privileges which his principal intended he should retain-
privileges which are essential to the dignity of his sovereign, and to the duties he is bound to perform.
In what cases a minister, by infracting the laws of the country in which he resides, may subject himself to other
punishment than will be inflicted by his own sovereign, is an inquiry foreign to the present purpose. If his crimes be
such as to render him amenable to the local jurisdiction, it must be because they forfeit the privileges annexed to his
character; and the minister, by violating the conditions under which he was received as the representative of a foreign
sovereign, has surrendered the immunities granted on those conditions; or, according to the true meaning of the
original assent, has ceased to be entitled to them.
3d. A third case in which a sovereign is understood to cede a portion of his territorial jurisdiction is, where he allows
the troops of a foreign prince to pass through his dominions.
In such case, without any express declaration waving jurisdiction over the army to which this right of passage has
been granted, the sovereign who should attempt to exercise it would certainly be considered as violating his faith. By
exercising it, the purpose for which the free passage was granted would be defeated, and a portion of the military
force of a foreign independent nation would be diverted from those national objects and duties to which it was
applicable, and would be withdrawn from the control of the sovereign whose power and whose safety might greatly
depend on retaining [11 U.S. 116, 140] the exclusive command and disposition of this force. The grant of a free
passage therefore implies a waver of all jurisdiction over the troops during their passage, and permits the foreign
general to use that discipline, and to inflict those punishments which the government of his army may require.
But if, without such express permit, an army should be led through the territories of a foreign prince, might the
jurisdiction of the territory be rightfully exercised over the individuals composing this army?
Without doubt, a military force can never gain immunities of any other description than those which war gives, by
entering a foreign territory against the will of its sovereign. But if his consent, instead of being expressed by a
particular license, be expressed by a general declaration that foreign troops may pass through a specified tract of
country, a distinction between such general permit and a particular license is not perceived. It would seem reasonable
that every immunity which would be conferred by a special license, would be in like manner conferred by such
general permit.
We have seen that a license to pass through a territory implies immunities not expressed, and it is material to enquire
why the license itself may not be presumed?
It is obvious that the passage of an army through a foreign territory will probably be at all times inconvenient and
injurious, and would often be imminently dangerous to the sovereign through whose dominion it passed. Such a
practice would break down some of the most decisive distinctions between peace and war, and would reduce a nation
to the necessity of resisting by war an act not absolutely hostile in its character, or of exposing itself to the stratagems
and frauds of a power whose integrity might be doubted, and who might enter the country under deceitful pretexts. It
is for reasons like these that the general license to foreigners to enter the dominions of a friendly power, is never
understood to extend to a military force; and an army marching into the dominions of another sovereign, may justly
be considered as committing an act of hostility; and, if not opposed by force, acquires no privilege by its irregular
and improper [11 U.S. 116, 141] conduct. It may however well be questioned whether any other than the sovereign
power of the state be capable of deciding that such military commander is without a license.
But the rule which is applicable to armies, does not appear to be equally applicable to ships of war entering the parts
of a friendly power. The injury inseparable from the march of an army through an inhabited country, and the dangers
often, indeed generally, attending it, do not ensue from admitting a ship of war, without special license, into a
friendly port. A different rule therefore with respect to this species of military force has been generally adopted. If,
for reasons of state, the ports of a nation generally, or any particular ports be closed against vessels of war generally,
or the vessels of any particular nation, notice is usually given of such determination. If there be no prohibition, the
ports of a friendly nation are considered as open to the public ships of all powers with whom it is at peace, and they
are supposed to enter such ports and to remain in them while allowed to remain, under the protection of the
government of the place.
In almost every instance, the treaties between civilized nations contain a stipulation to this effect in favor of vessels
driven in by stress of weather or other urgent necessity. In such cases the sovereign is bound by compact to authorize
foreign vessels to enter his ports. The treaty binds him to allow vessels in distress to find refuge and asylum in his
ports, and this is a license which he is not at liberty to retract. It would be difficult to assign a reason for withholding
from a license thus granted, any immunity from local jurisdiction which would be implied in a special license.
If there be no treaty applicable to the case, and the sovereign, from motives deemed adequate by himself, permits his
ports to remain open to the public ships of foreign friendly powers, the conclusion seems irresistable, that they enter
by his assent. And if they enter by his assent necessarily implied, no just reason is perceived by the Court for
distinguishing their case from that of vessels which enter by express assent. [11 U.S. 116, 142] In all the cases of
exemption which have been reviewed, much has been implied, but the obligation of what was implied has been
found equal to the obligation of that which was expressed. Are there reasons for denying the application of this
principle to ships of war?
In this part of the subject a difficulty is to be encountered, the seriousness of which is acknowledged, but which the
Court will not attempt to evade.
Those treaties which provide for the admission and safe departure of public vessels entering a port from stress of
weather, or other urgent cause, provide in like manner for the private vessels of the nation; and where public vessels
enter a port under the general license which is implied merely from the absence of a prohibition, they are, it may be
urged, in the same condition with merchant vessels entering the same port for the purposes of trade who cannot
thereby claim any exemption from the jurisdiction of the country. It may be contended, certainly with much
plausibility if not correctness, that the same rule, and same principle are applicable to public and private ships; and
since it is admitted that private ships entering without special license become subject to the local jurisdiction, it is
demanded on what authority an exception is made in favor of ships of war.
It is by no means conceded, that a private vessel really availing herself of an asylum provided by treaty, and not
attempting to trade, would become amenable to the local jurisdiction, unless she committed some act forfeiting the
protection she claims under compact. On the contrary, motives may be assigned for stipulating, and according
immunities to vessels in cases of distress, which would not be demanded for, or allowed to those which enter
voluntarily and for ordinary purposes. On this part of the subject, however, the Court does not mean to indicate any
opinion. The case itself may possibly occur, and ought not to be prejudged.
Without deciding how far such stipulations in favor of distressed vessels, as are usual in treaties, may exempt private
ships from the jurisdiction of the place, it may safely be asserted, that the whole reasoning upon which such
exemption has been implied in other cases, [11 U.S. 116, 143] applies with full force to the exemption of ships of
war in this.
'It is impossible to conceive,' says Vattel, 'that a Prince who sends an ambassador or any other minister can have any
intention of subjecting him to the authority of a foreign power; and this consideration furnishes an additional
argument, which completely establishes the independency of a public minister. If it cannot be reasonably presumed
that his sovereign means to subject him to the authority of the prince to whom he is sent, the latter, in receiving the
minister, consents to admit him on the footing of independency; and thus there exists between the two princes a tacit
convention, which gives a new force to the natural obligation.'
Equally impossible is it to conceive, whatever may be the construction as to private ships, that a prince who
stipulates a passage for his troops, or an asylum for his ships of war in distress, should mean to subject his army or
his navy to the jurisdiction of a foreign sovereign. And if this cannot be presumed, the sovereign of the port must be
considered as having conceded the privilege to the extent in which it must have been understood to be asked.
To the Court, it appears, that where, without treaty, the ports of a nation are open to the private and public ships of a
friendly power, whose subjects have also liberty without special license, to enter the country for business or
amusement, a clear distinction is to be drawn between the rights accorded to private individuals or private trading
vessels, and those accorded to public armed ships which constitute a part of the military force of the nation.
The preceding reasoning, has maintained the propositions that all exemptions from territorial jurisdiction, must be
derived from the consent of the sovereign of the territory; that this consent may be implied or expressed; and that
when implied, its extent must be regulated by the nature of the case, and the views under which the parties requiring
and conceding it must be supposed to act. [11 U.S. 116, 144] When private individuals of one nation spread
themselves through another as business or caprice may direct, mingling indiscriminately with the inhabitants of that
other, or when merchant vessels enter for the purposes of trade, it would be obviously inconvenient and dangerous to
society, and would subject the laws to continual infraction, and the government to degradation, if such individuals or
merchants did not owe temporary and local allegiance, and were not amenable to the jurisdiction of the country. Nor
can the foreign sovereign have any motive for wishing such exemption. His subjects thus passing into foreign
countries, are not employed by him, nor are they engaged in national pursuits. Consequently there are powerful
motives for not exempting persons of this description from the jurisdiction of the country in which they are found,
and no one motive for requiring it. The implied license, therefore, under which they enter can never be construed to
grant such exemption.
But in all respects different is the situation of a public armed ship. She constitutes a part of the military force of her
nation; acts under the immediate and direct command of the sovereign; is employed by him in national objects. He
has many and powerful motives for preventing those objects from being defeated by the interference of a foreign by, and in the service of the emperor of France. The evidence of this fact is not controverted. But it is contended, that
state. Such interference cannot take place without affecting his power and his dignity. The implied license therefore it constitutes no bar to an enquiry into the validity of the title, by which the emperor holds this vessel. Every person,
under which such vessel enters a friendly port, may reasonably be construed, and it seems to the Court, ought to be it is alleged, who is entitled to property brought within the jurisdiction of our Courts, has a [11 U.S. 116, 147] right
construed, as containing an exemption from the jurisdiction of the sovereign, within whose territory she claims the to assert his title in those Courts, unless there be some law taking his case out of the general rule. It is therefore said
rites of hospitality. to be the right, and if it be the right, it is the duty of the Court, to enquire whether this title has been extinguished by
Upon these principles, by the unanimous consent of nations, a foreigner is amenable to the laws of the place; but an act, the validity of which is recognized by national or municipal law.
certainly in practice, nations have not yet asserted their jurisdiction over the public armed ships of a foreign If the preceding reasoning be correct, the Exchange, being a public armed ship, in the service of a foreign sovereign,
sovereign entering a port open for their reception. with whom the government of the United States is at peace, and having entered an American port open for her
Bynkershoek, a jurist of great reputation, has indeed maintained that the property of a foreign sovereign is not reception, on the terms on which ships of war are generally permitted to enter the ports of a friendly power, must be
distinguishable by any legal exemption from the [11 U.S. 116, 145] property of an ordinary individual, and has considered as having come into the American territory, under an implied promise, that while necessarily within it,
quoted several cases in which courts have exercised jurisdiction over causes in which a foreign sovereign was made and demeaning herself in a friendly manner, she should be exempt from the jurisdiction of the country.
a party defendant. If this opinion be correct, there seems to be a necessity for admitting that the fact might be disclosed to the Court by
Without indicating any opinion on this question, it may safely be affirmed, that there is a manifest distinction the suggestion of the Attorney for the United States.
between the private property of the person who happens to be a prince, and that military force which supports the I am directed to deliver it, as the opinion of the Court, that the sentence of the Circuit Court, reversing the sentence
sovereign power, and maintains the dignity and the independence of a nation. A prince, by acquiring private property of the District Court, in the case of the Exchange be reversed, and that of the District Court, dismissing the libel, be
in a foreign country, may possibly be considered as subjecting that property to the territorial jurisdiction; he may be affirmed.
considered as so far laying down the prince, and assuming the character of a private individual; but this he cannot be
presumed to do with respect to any portion of that armed force, which upholds his crown, and the nation heis
enrusted to govern.
The only applicable case cited by Bynkershoek, is that of the Spanish ships of war seized in Flushing for a debt due
from the king of Spain. In that case, the states general interposed; and there is reason to believe, from the manner in
which the transaction is stated, that, either by the interference of government, or the decision of the court, the vessels
were released.
This case of the Spanish vessels is, it is believed, the only case furnished by the history of the world, of an attempt
made by an individual to assert a claim against a foreign prince, by seizing the armed vessels of the nation. That this
proceeding was at once arrested by the government, in a nation which appears to have asserted the power of
proceeding in the same manner against the private property of the prince, would seem to furnish no feeble argument
in support of the universality of the opinion in favor of the exemption claimed for ships of war. The distinction made
in our own laws between public and private ships would appear to proceed from the same opinion.
It seems then to the Court, to be a principle of public law, that national ships of war, entering the port of a friendly
power open for their reception, are to be considered [11 U.S. 116, 146] as exempted by the consent of that power
from its jurisdiction.
Without doubt, the sovereign of the place is capable of destroying this implication. He may claim and exercise
jurisdiction either by employing force, or by subjecting such vessels to the ordinary tribunals. But until such power
be exerted in a manner not to be misunderstood, the sovereign cannot be considered as having imparted to the
ordinary tribunals a jurisdiction, which it would be a breach of faith to exercise. Those general statutory provisions
therefore which are descriptive of the ordinary jurisdiction of the judicial tribunals, which give an individual whose
property has been wrested from him, a right to claim that property in the courts of the country, in which it is found,
ought not, in the opinion of this Court, to be so construed as to give them jurisdiction in a case, in which the
sovereign power has impliedly consented to wave its jurisdiction.
The arguments in favor of this opinion which have been drawn from the general inability of the judicial power to
enforce its decisions in cases of this description, from the consideration, that the sovereign power of the nation is
alone competent to avenge wrongs committed by a sovereign, that the questions to which such wrongs give birth are
rather questions of policy than of law, that they are for diplomatic, rather than legal discussion, are of great weight,
and merit serious attention. But the argument has already been drawn to a length, which forbids a particular
examination of these points.
The principles which have been stated, will now be applied to the case at bar.
In the present state of the evidence and proceedings, the Exchange must be considered as a vessel, which was the
property of the Libellants, whose claim is repelled by the fact, that she is now a national armed vessel, commissioned

United States Supreme Court
NATIONAL BANK v. REPUBLIC OF CHINA, (1955)
No. 30
Argued: November 9, 1954 Decided: March 7, 1955
1. The Republic of China sued an American bank in a Federal District Court of recover $200,000 deposited in the
bank by a governmental agency of the Republic. The bank interposed counterclaims seeking an affirmative judgment
for $1,634,432 on defaulted treasury notes of the Republic. The Republic pleaded sovereign immunity. Held: The
counterclaims should not have been dismissed. Pp. 357-366.
(a) Having been recognized as a sovereign by the Executive, the Republic of China and its governmental agencies
enjoy a foreign sovereign's immunities to the same extent as any other country recognized by the United States. p.
358.
(b) This case does not involve an attempt to bring a recognized foreign government into court as a defendant. A
foreign government is invoking our law but resisting a claim against it which fairly would curtail its recovery. Pp.
361-362.
(c) The contention that the counterclaim here involved is not based on the subject matter of the Republic's suit does
not require a different result. Pp. 364-365.
2. That the bank, on certiorari, dropped its demand for affirmative relief did not reduce the counterclaim to a mere
defense or deprive this Court of jurisdiction. P. 358, n. 2.
208 F.2d 627, reversed and remanded.
Wm. Harvey Reeves argued the cause for petitioner. With him on the brief was Chauncey B. Garver.
Louis J. Gusmano argued the cause for respondents. With him on a brief for the Republic of China were Cletus
Keating and Robert E. Kline, Jr. [348 U.S. 356, 357]
MR. JUSTICE FRANKFURTER delivered the opinion of the Court.
The Shanghai-Nanking Railway Administration, an official agency of respondent Republic of China, established a
$200,000 deposit account in 1948 with the New York head office of petitioner National City Bank of New York.
Subsequently, respondent sought to withdraw the funds, but petitioner refused to pay, and respondent brought suit in
Federal District Court under 48 Stat. 184, as amended, 12 U.S.C. 632.
In addition to various defenses, petitioner interposed two counterclaims seeking an affirmative judgment for
$1,634,432 on defaulted Treasury Notes of respondent owned by petitioner. 1 After a plea of sovereign immunity, the
District Court dismissed the counterclaims, 108 F. Supp. 766, and entered judgment on them pursuant to Rule 54 (b),
Federal Rules of Civil Procedure. Petitioner appealed, and while the appeal was pending sought leave from the
District Court to amend the counterclaims by denominating them setoffs and including additional data. The District
Court denied leave. 14 F. R. D. 186. The Court of Appeals for the Second Circuit affirmed the dismissal and the
denial on the ground that the counterclaims were not based on the subject matter of respondent's suit (whether they
be treated as requests for affirmative [348 U.S. 356, 358] relief or as setoffs) and, therefore, it would be an invasion
of respondent's sovereign immunity for our courts to permit them to be pursued. 208 F.2d 627. Because of the
importance of the question and its first appearance in this Court, we granted certiorari. 2 347 U.S. 951 .
The status of the Republic of China in our courts is a matter for determination by the Executive and is outside the
competence of this Court. Accordingly, we start with the fact that the Republic and its governmental agencies enjoy a
foreign sovereign's immunities to the same extent as any other country duly recognized by the United States. See
Guaranty Trust Co. v. United States, 304 U.S. 126, 137 -138.
The freedom of a foreign sovereign from being haled into court as a defendant has impressive title-deeds. Very early
in our history this immunity was recognized, De Moitez v. The South Carolina, Bee 422, 17 Fed. Cas. 574, No. 9,697
(Admiralty Court of Pa., 1781, Francis Hopkinson, J.), and it has since become part of the fabric of our law. It has
become such solely through adjudications of this Court. Unlike the special position accorded our States as party
defendants by the Eleventh Amendment, [348 U.S. 356, 359] the privileged position of a foreign state is not an
explicit command of the Constitution. It rests on considerations of policy given legal sanction by this Court. To be
sure, the nonsuability of the United States without its consent is likewise derived from considerations of policy. But
these are of a different order from those that give a foreign nation such immunity. It is idle to repeat or rehearse the
different considerations set forth in Mr. Chief Justice Marshall's classic opinion in The Schooner Exchange v.
M'Faddon, 7 Cranch 116.
But even the immunity enjoyed by the United States as territorial sovereign is a legal doctrine which has not been
favored by the test of time. It has increasingly been found to be in conflict with the growing subjection of
governmental action to the moral judgment. A reflection of this steady shift in attitude toward the American
sovereign's immunity is found in such observations in unanimous opinions of this Court as "Public opinion as to the
peculiar rights and preferences due to the sovereign has changed," Davis v. Pringle, 268 U.S. 315, 318 ; "There is no
doubt an intermittent tendency on the part of governments to be a little less grasping than they have been in the past .
. .," White v. Mechanics Securities Corp., 269 U.S. 283, 301 ; ". . . the present climate of opinion . . . has brought
governmental immunity from suit into disfavor . . .," Keifer & Keifer v. Reconstruction Finance Corp., 306 U.S. 381,
391 . This chilly feeling against sovereign immunity began to reflect itself in federal legislation in 1797. 3 At that
early day Congress decided that when the United States sues an individual, the individual can set off all debts
properly due him from the sovereign. And because of the objections to ad hoc legislative allowance of private claims,
Congress a hundred [348 U.S. 356, 360] years ago created the Court of Claims, 4 where the United States, like any
other obligor, may affirmatively be held to its undertakings. This amenability to suit has become a commonplace in
regard to the various agencies which carry out "the enlarged scope of government in economic affairs," Keifer &
Keifer v. Reconstruction Finance Corp., supra, at 390. The substantive sweep of amenability to judicial process has
likewise grown apace. 5
The outlook and feeling thus reflected are not merely relevant to our problem. They are important. The claims of
dominant opinion rooted in sentiments of justice and public morality are among the most powerful shaping-forces in
lawmaking by courts. Legislation and adjudication are interacting influences in the development of law. A steady
legislative trend, presumably manifesting a strong social policy, properly makes demands on the judicial process. See
James M. Landis, Statutes and the Sources of Law, in Harvard Legal Essays (1934), p. 213 et seq.; Harlan F. Stone,
The Common Law in the United States, 50 Harv. L. Rev. 4, 13-16.
More immediately touching the evolution of legal doctrines regarding a foreign sovereign's immunity is the
restrictive policy that our State Department has taken toward the claim of such immunity. As the responsible agency
for the conduct of foreign affairs, the State Department is the normal means of suggesting to the courts that a
sovereign be granted immunity from a particular suit. Ex parte Republic of Peru, 318 U.S. 578, 581 . Its failure or
refusal to suggest such immunity has been accorded significant weight by this Court. See Compania Espanola de
Navigacion Maritima, S. A. v. The Navemar, [348 U.S. 356, 361] 303 U.S. 68 ; Republic of Mexico v. Hoffman,
324 U.S. 30 . And this for the reason that a major consideration for the rule enunciated in The Schooner Exchange is
the embarrassing consequences which judicial rejection of a claim of sovereign immunity may have on diplomatic
relations. Recently the State Department has pronounced broadly against recognizing sovereign immunity for the
commercial operations of a foreign government, 26 Dept. State Bull. 984 (1952), despite the fact that this Court
thirty years earlier rejected the weighty opinion of Judge Mack in The Pesaro, 277 F. 473 (see, also his opinion in
The Gloria, 286 F. 188), for differentiating between commercial and war vessels of governments. Berizzi Bros. Co. v.
Steamship Pesaro, 271 U.S. 562 .
And so we come to the immediate situation before us. The short of the matter is that we are not dealing with an
attempt to bring a recognized foreign government into one of our courts as a defendant and subject it to the rule of
law to which nongovernmental obligors must bow. We have a foreign government invoking our law but resisting a
claim against it which fairly would curtail its recovery. 6 It wants our law, like any other [348 U.S. 356, 362]
litigant, but it wants our law free from the claims of justice. It becomes vital, therefore, to examine the extent to
which the considerations which led this Court to bar a suit against a sovereign in The Schooner Exchange are
applicable here to foreclose a court from determining, according to prevailing law, whether the Republic of China's
claim against the National City Bank would be unjustly enforced by disregarding legitimate claims against the
Republic of China. As expounded in The Schooner Exchange, the doctrine is one of implied consent by the territorial
sovereign to exempt the foreign sovereign from its "exclusive and absolute" jurisdiction, the implication deriving
from standards of public morality, fair dealing, reciprocal self-interest, and respect for the "power and dignity" of the
foreign sovereign. 7 [348 U.S. 356, 363]
(a) The Court of Claims is available to foreign nationals (or their governments) on a simple condition: that the
foreign national's government can be sued in its courts on claims by our citizens. 8 An American or a Chinese 9
could sue in the Court of Claims for default on a United States bond, 28 U.S.C. 1491 (4), or could counterclaim - to
the extent of the Government's claim - in a suit by the United States in any court, 28 U.S.C. 2406; see United States
v. Wilkins, 6 Wheat. 135; cf. United States v. Bank of the Metropolis, 15 Pet. 377; United States v. United States F.
& G. Co., 309 U.S. 506, 511 . Thus it seems only fair to subject a foreign sovereign, coming into our courts by its
own choice, to a liability substantially less than our own Government long ago willingly assumed.
(b) The Republic of China is apparently suable on contract claims in its own courts, 10 and Americans have the same
rights as Chinese in those courts. 11 No parochial bias is manifest in our courts which would make it an affront to the
"power and dignity" of the Republic of China for us to subject it to counterclaims in our courts when it entertains
affirmative suits in its own. Decisions of the Chinese courts which seem to grant absolute [348 U.S. 356, 364]
immunity from direct suit to foreign sovereign 12 are inapposite in this context and in light of our State Department's
reluctance to raise the defense of sovereign immunity in foreign courts, see 26 Dept. State Bull. 984, 985 (1952); cf.
41 Stat. 527, 46 U.S.C. 747.
(c) Respondent urges that fiscal management falls within the category of immune operations of a foreign government
as defined by the State Department's 1952 pronouncement. This is not to be denied, but it is beside the point. A
sovereign has freely come as a suitor into our courts; our State Department neither has been asked nor has it given
the slightest intimation that in its judgment allowance of counterclaims in such a situation would embarrass friendly
relations with the Republic of China.
(d) It is recognized that a counterclaim based on the subject matter of a sovereign's suit is allowed to cut into the
doctrine of immunity. 13 This is proof positive that the doctrine is not absolute, and that considerations of fair play
must be taken into account in its application. But the limitation of "based on the subject matter" is too indeterminate,
indeed too capricious, to mark the bounds of the limitations on the doctrine of sovereign immunity. There is great
diversity among courts on what is and what is not a claim "based on the subject matter of the suit" or "growing out of
the same transaction." See Clark, Code Pleading (2d ed.), 653-660; cf. United States v. National City Bank of New
York, 83 F.2d 236 (C. A. 2d Cir.). No doubt the present counterclaims cannot fairly be deemed to be related to the
[348 U.S. 356, 365] Railway Agency's deposit of funds except insofar as the transactions between the Republic of
China and the petitioner may be regarded as aspects of a continuous business relationship. The point is that the
ultimate thrust of the consideration of fair dealing which allows a setoff or counterclaim based on the same subject
matter reaches the present situation. The considerations found controlling in The Schooner Exchange are not here
present, and no consent to immunity can properly be implied. This conclusion was anticipated by Mr. Justice
Washington on circuit four years after he had been of the Court which decided The Schooner Exchange. 14 [348
U.S. 356, 366]
The judgment of the Court of Appeals must be reversed and the case remanded to the District Court with directions
to reinstate the counterclaims and for further proceedings not inconsistent with this opinion.
Reversed.
MR. JUSTICE DOUGLAS took no part in the consideration or decision of this case.
Footnotes
[ Footnote 1 ] The Treasury Note on which the first counterclaim is based was pledged by the Republic of China in
1920 to secure a loan to the Pacific Development Company by a banking syndicate in which petitioner participated.
The loan was not repaid, and during the liquidation of the Development Company the syndicate bought the collateral
at a public sale. The Treasury Notes on which the second counterclaim is based were purchased by petitioner's
Shanghai branch at the time of issue in 1947-1948. The record allows us to assume that the petitioner gave full value
as its share of the loan to the Development Company and bought the notes in the second counterclaim at par.
[ Footnote 2 ] At the outset respondent argues that since petitioner on certiorari has dropped its demand for
affirmative relief, the case is not properly before us. It is conceded that dismissal of independent counterclaims
would ordinarily contain the requisite finality on which to base our jurisdiction, but respondent contends that when
petitioner reduced its counterclaims to mere demands for setoff, the claims became defenses and, as such, non
reviewable until the respondent's suit had been concluded below. We reject this view. A counterclaim does not
dwindle to a defense solely because it is confined - as a result of the accepted jurisprudence of sovereign immunity,
see United States v. Shaw, 309 U.S. 495 - to reducing the sovereign's recovery. The District Court's judgment, as
affirmed by the Court of Appeals, terminated a separable and distinct segment of the litigation.
[ Footnote 3 ] Act of Mar. 3, 1797, 3, 4, 1 Stat. 514-515. The present version appears in 28 U.S.C. 2406.
[ Footnote 4 ] Act of Feb. 24, 1855, 10 Stat. 612, as amended, 12 Stat. 765, 14 Stat. 9; see United States v. Jones, 119
U.S. 477 .
[ Footnote 5 ] The most recent development is the subjection of the Government to tort liability. Act of Aug. 2, 1946,
now 28 U.S.C. 1346 (b).
[ Footnote 6 ] Those cases that have dealt with the problem include: Republic of China v. American Express Co., 195
F.2d 230 (C. A. 2d Cir.); United States v. National City Bank of New York, 83 F.2d 236 (C. A. 2d Cir.); In re
Patterson-MacDonald Shipbuilding Co., 293 F. 192 (C. A. 9th Cir.); Kingdom of Roumania v. Guaranty Trust Co.,
250 F. 341 (C. A. 2d Cir.); Hungarian People's Republic v. Cecil Associates, Inc., 118 F. Supp. 954 (D.C. S. D. N.
Y.); Republic of China v. Pang-Tsu Mow, 105 F. Supp. 411 (D.C. D.C.); United States v. National City Bank of New
York, 90 F. Supp. 448 (D.C. S. D. N. Y.); United States v. New York Trust Co., 75 F. Supp. 583 (D.C. S. D. N. Y.);
Kingdom of Norway v. Federal Sugar Refining Co., 286 F. 188 (D.C. S. D. N. Y., Mack, J.); French Republic v.
Inland Nav. Co., 263 F. 410 (D.C. E. D. Mo.); Union of Soviet Republics v. Belaiew, 42 T. L. R. 21 (K. B. Div.);
South African Republic v. La Compagnie Franco-Belge, 1898. 1 Ch. 190; cf. Guaranty Trust Co. v. United States,
304 U.S. 126 ; Dexter & Carpenter, [348 U.S. 356, 362] Inc. v. Kunglig Jarnvagsstyrelsen, 43 F.2d 705 (C. A. 2d
Cir.); Strousberg v. Republic of Costa Rica, 44 L. T. R. (N. S.) 199 (C. A.); Claim of the Russian Volunteer Fleet
against the British Admiralty, Annual Digest of Public International Law Cases 1925-1926, p. 210 (British Admiralty
Transport Arbitration Board; affirmed by Court of Appeal).
Of the cited American decisions, only two district court cases directly involved the dismissal of counterclaims not
based on the subject matter of the sovereign's suit and not seeking affirmative judgment: Republic of China v. Pang-
Tsu Mow, supra, and United States v. New York Trust Co., supra.
[ Footnote 7 ] 7 Cranch, at 136-137, 143-144. For a comprehensive critique of the doctrine as it has subsequently
been applied, see Lauterpacht, The Problem of Jurisdictional Immunities of Foreign States, 28 Brit. Y. B. Int'l L. 220.
The Privy Council recently rejected the view of Lord Justice Scrutton in The Jupiter, 1924. P. 236 (C. A.), that the
mere assertion of a claim by a foreign government to property the subject of an action by a private party compels the
court to stay the action and decline jurisdiction. Juan Ysmael & Co. v. Republic of Indonesia, 1954. 3 W. L. R. 531.
Earl Jowitt reviewed the decisions and indicated some of the subtleties into which the doctrine has led the English
courts. Cf. Republic of Mexico v. Hoffman, 324 U.S. 30, 38 -42 (concurring opinion).
[ Footnote 8 ] 28 U.S.C. 2502. The earliest version of this statute appears in 15 Stat. 243 (Act of July 27, 1868); see
United States v. O'Keefe. 11 Wall. 178; cf. 43 Stat. 1113, 46 U.S.C. 785; Westfal-Larsen & Co. v. United States, 41
F.2d 550 (D.C. N. D. Calif.). That an American citizen can sue the Chinese Government in Chinese courts, see
Judicial Yuan Interpretation No. 6 (Feb. 16, 1929).
[ Footnote 9 ] See Treaty of Nov. 4, 1946, Art. VI, 4, 63 Stat. 1305.
[ Footnote 10 ] Judicial Yuan Interpretation No. 373 (Dec. 15, 1930); Supreme Court Uniform Interpretation No.
1933 (Peking, June 22, 1925), 3 China L. Rev., No. 2, p. 84; cf. Judicial Yuan Interpretation No. 6 (Feb. 16, 1929);
Constitution of the Republic of China, Art. 24 (1947).
[ Footnote 11 ] Treaty of Nov. 4, 1946, Art. VI, 4, 63 Stat. 1305.
[ Footnote 12 ] See Rizaeff Freres v. The Soviet Mercantile Fleet, 3 China L. Rev., No. 6, p. 14 (Provisional Court of
Shanghai 1927).
[ Footnote 13 ] E. g., Hungarian People's Republic v. Cecil Associates, Inc., 118 F. Supp. 954 (D.C. S. D. N. Y.);
French Republic v. Inland Nav. Co., 263 F. 410 (D.C. E. D. Mo.); cf. Republic of China v. American Express Co.,
195 F.2d 230 (C. A. 2d Cir.).
[ Footnote 14 ] The case is King of Spain v. Oliver, 1 Pet. C. C. 276, 14 Fed. Cas. 572, No. 7,813 (C. C. D. Pa.). The
King of Spain had sued two Americans for duties he alleged they owed him on shipments of goods they had made to
the Spanish American colonies under royal licenses. The defendants replied that they had obtained the licenses from
and paid the duties to Hope & Co., a Dutch concern which had a commercial concession from the King in return for
which it had promised, inter alia, to pay duties on shipments to the colonies. Hope had also negotiated a loan for the
King in what appears to have been an unrelated transaction, and the King had pledged all his public revenues to
repay the loan. Instead of handing over the duties received from defendants to the King, Hope applied them to reduce
the debt due from the King on the loan.
Mr. Justice Washington directed a verdict for the defendants. First he held that there was no privity of contract
between the defendants and the King, so that payment to Hope discharged them. But assuming that there was privity
he ruled that the duties had been properly applied by Hope to reduce the King's debt to it. "Let it be, as was argued,
that the consent of the Spanish government, under the administration of Joseph [Bonaparte, who had, while in power,
agreed that the duties be applied to reduce the debt], was invalid and of no obligation upon Ferdinand; still,
Ferdinand, as the successor of his father [Charles IV, to whom the loan had been made], and the nation, were and are
bound to pay the debt due in Holland; and if it has been in part discharged, out of funds charged with the payment of
it [because they were public revenues], in the hands of Hope and Co., the payments of the duties, have in effect been
made to the plaintiff, [348 U.S. 356, 366] because he owes, of the debt due in Holland, less than what was
originally due, by the amount of duties which were applied to its discharge by Hope and Co. After such an
application, which I repeat it, Hope and Co. were authorised to make, under all the circumstances of the case, this
action cannot be supported, to recover the amount of the duties so appropriated." 1 Pet. C. C., at 289-290, 14 Fed.
Cas., at 577.
MR. JUSTICE REED, with whom MR. JUSTICE BURTON and MR. JUSTICE CLARK join, dissenting.
Some data must be premised if discussion is to be confined to a reasonable space. We start with the postulate that the
sovereign is released from the jurisdiction of its own courts except as it may specifically submit itself to their power.
1
That does not create a situation of irresponsibility. Satisfaction of sovereign liability may be had through the
legislative organ which recognizes a moral obligation to pay the creditors of the government and to compensate those
injured by it.
A sovereign's freedom from judicial control does not arise from or depend upon the will of the courts. As was said in
The Schooner Exchange in speaking of the immunity of a foreign government, it depends upon "the will of the
sovereign of the territory." ". . . all exemptions [348 U.S. 356, 367] from territorial jurisdiction, must be derived
from the consent of the sovereign . . . ." 7 Cranch 116, 138, 143. The immunity rests on the ground that no
enforceable right exists "against the authority that makes the law on which the right depends." 2
The reason for the sovereign's consent to the exclusion of foreign sovereignties from the general jurisdiction of its
courts was said by Chief Justice Marshall to rest on this proposition:
"The world being composed of distinct sovereignties, possessing equal rights and equal independence, whose mutual
benefit is promoted by intercourse with each other, and by an interchange of those good offices which humanity
dictates and its wants require, all sovereigns have consented to a relaxation in practice, in cases under certain
peculiar circumstances, of that absolute and complete jurisdiction within their respective territories which
sovereignty confers.
"This consent may, in some instances, be tested by common usage, and by common opinion, growing out of that
usage." 7 Cranch, at 136.
It might be summarized by the word "comity." 3 The local sovereign may, of course, withdraw such consent.
"Without doubt, the sovereign of the place is capable of destroying this implication. He may claim and exercise
jurisdiction either by employing force, or by subjecting such vessels to the ordinary tribunal. But until such power be
exerted in a manner not to be misunderstood, the sovereign cannot be considered [348 U.S. 356, 368] as having
imparted to the ordinary tribunal a jurisdiction, which it would be a breach of faith to exercise." Id., at 146. 4
An ancillary principle of law is that, in determining whether a defendant is a sovereign, the courts follow the
guidance of the political branch. 5 In this case the sovereignty of the Republic of China is not questioned.
Furthermore, the Chinese Government Treasury Note and its 36th Year Short Term Treasury Notes upon which the
City Bank's counterclaims rest are sovereign obligations, jure imperii in form, of the highest public character.
Consequently, the attitude of the Department of State as to the desirability of relaxing the strict rule of immunity as
to acts of commerce, jure gestionis, is inapplicable. See 26 Dept. State Bull. 984 (1952), referred to in the Court's
opinion, p. 361.
If the foregoing statements of law are sound, the Republic of China as a foreign sovereign is free from direct suits in
our courts on the notes here in question unless the Congress of the United States has enacted a statute that restricts its
immunity. This it has not done. The question in this case thus comes down to whether the Republic of China, by
bringing this suit for the recovery of a bank deposit, waived its immunity and subjected itself to a counterclaim under
the Fed. Rules Civ. Proc., Rule 13. Under the words of (c) of that Rule, judgment over against the Republic of China
would seem to be authorized if the counterclaim were for more than plaintiff's claim. But there would be no
jurisdiction to render such judgment in an American court. It would violate the [348 U.S. 356, 369] immunity of a
foreign sovereign to do so. 6 In the present case, the Court evidently feels that, since the counterclaims is limited to
the amount of the Republic of China's claim, there is jurisdiction to allow a setoff to that extent. But the mere fact
that a judgment over is not sought should not be relied upon to avoid the jurisdictional immunity of a foreign
sovereign. I find no justification for the Court's restricting that immunity in the absence of legislative or executive
action. 7 [348 U.S. 356, 370]
Affirmative legislative action was necessary to allow such a limited setoff against the United States. 8 Action of a
similar nature should be required to authorize this setoff. The comity that gave the foreign sovereign full immunity
from process was, as The Schooner Exchange pointed out, p. 146, only to be withdrawn "in a manner not to be
misunderstood." That is by legislation. 9 The judicial creation of such jurisdiction over the property of a friendly
nation might well merit the stricture of Chief Justice Marshall:
"A nation would justly be considered as violating its faith, although that faith might not be expressly plighted, which [ Footnote 7 ] Probably because it is obvious that there is no tenable distinction between the setoff of an unrelated
should suddenly and without previous notice, exercise its territorial powers in a manner not consonant to the usages claim, a proceeding for a judgment over on a counterclaim, and a direct suit against a foreign sovereign, few cases
and received obligations of the civilized world." 7 Cranch, at 137. have dealt with this phase of the immunity of a foreign sovereign from claims. None that have discussed the issue
International relations are pre-eminently a matter of public policy. Judicial views of supposed public interests are not have reached the result which the Court takes today. In addition to the two cases cited in note 6 of the majority
the touchstone whereby to determine the law. 10 [348 U.S. 356, 371] The change from a generous to a opinion, the same issue here presented was considered and decided in accord with my position in the only foreign
parsimonious application of the principle of sovereign immunity should come from Congress or the Executive. Our case discussing the issue that has come to my attention. In The State of Belgium v. E. A. G. de Badts, Nederlandsche
courts possess great powers and have solemn obligations. Our country allots power to the judiciary in the confidence Jurisprudentie, 1923, p. 618, Ann. Dig. of Pub. Int'l Law Cases 1919-1922, p. 129, the Belgian Government, a
that, in view of the separation of powers, judicial authority will not undertake determinations which are the primary foreign sovereign, brought suit in the Dutch courts for an account of the sale of a certain cargo of wheat. The
concern of other branches of our Government. Differences of view exist as to the desirable scope of sovereign defendant sought to set off an entirely unrelated claim which he had against the Belgian Government. The court held:
immunity and the necessity for non judicial determinations. 11 But surely it is better that the decisions be left to "That the Court had no jurisdiction to take cognisance of the counterclaim against the Belgian State. A State which is
those organs of Government that have the responsibility for determining public policy in carrying out foreign affairs. entitled to claim immunity from foreign jurisdiction does not lose this right by the fact that it submits to that
The establishment of political or economic policies is not for the courts. Such action would be an abuse of judicial jurisdiction in another suit. The correctness of this statement is not impaired by the circumstance that the two actions
power. It is only by a conscious and determined purpose to keep the functions of the various branches of government are, for the sake of convenience, joined in the same proceedings, [348 U.S. 356, 370] since the counter-claim does
separate that the courts can most effectively carry out their duties. I would leave this question of the jurisdictional not lose, in consequence thereof, its independent character. This is so particularly in cases in which the plaintiff
immunity of foreign sovereigns to the other branches. Government bases its claim on a private law title, but in counter-claim is sued for acts performed in its sovereign
The Court determines, however, that the question of changing the limitation of the immunity of foreign sovereigns capacity."
pertains to its functions. Even on the assumption that such is a proper matter for judicial concern, I would reach a Nor can the majority derive much support from King of Spain v. Oliver, 1 Pet. C. C. 276, cited on p. 365, n. 14, of
different conclusion than does the Court. If a direct suit cannot be brought against a foreign sovereign (as is the Court's opinion. The question of sovereign immunity was not considered or even mentioned in that case, since no
conceded), why should we allow the same claim to be used as an offset to destroy the sovereign's right to recover? setoff or counterclaim was asserted against the foreign sovereign. The court simply held that payment, in the manner
Why should the City Bank be able to assert its notes against the Republic of China, even defensively, when other and under the circumstances there presented, was a good defense to a suit on a debt.
noteholders not obligated to the sovereign are prevented from collecting their notes? [348 U.S. 356, 372] Here we
have an entirely disconnected claim on overdue national notes brought forward as a defense to an action to recover a
bank deposit. The Court recognizes that the counterclaim is not related to China's cause of action against the City
Bank. It says:
"The point is that the ultimate thrust of the consideration of fair dealing which allows a setoff or counterclaim based
on the same subject matter reaches the present situation."
The counterclaim here is of much the same character as a suit against a foreign sovereign. Deposits may be the
lifeblood necessary for national existence. It is not wise for us to tell the nations of the world that any assets they
may have in the United States, now or in the future, upon which suit must be brought, are subject to every
counterclaim their debtors can acquire against them at par or at a discount. It is unfair to our foreign friends and
detrimental to our own financial and mercantile interests. For fairness we need not go beyond the allowance of
counterclaims arising out of transactions foreign sovereigns seek to enforce in our courts. It seems to me that the
Court sanctions a circuitous evasion of the well-established rule prohibiting direct suits against foreign sovereigns.
I would affirm.
[ Footnote 1 ] United States v. Clarke, 8 Pet. 436, 444; Kansas v. United States, 204 U.S. 331, 341 ; Larson v.
Domestic & Foreign Com. Corp., 337 U.S. 682, 703 .
[ Footnote 2 ] Kawananakoa v. Polyblank, 205 U.S. 349, 353 ; United States v. Shaw, 309 U.S. 495, 501 . Cf. Duff
Development Co. v. Government of Kelantan, 1924. A. C. 797.
[ Footnote 3 ] Compania Naviera Vascongado v. S. S. Cristina, 1938. A. C. 485, 498.
[ Footnote 4 ] See Berizzi Bros. Co. v. S. S. Pesaro, 271 U.S. 562, 571 et seq.
[ Footnote 5 ] Ex parte Peru, 318 U.S. 578, 588 ; Mexico v. Hoffman, 324 U.S. 30, 35 . Cf. Duff Development Co. v.
Government of Kelantan, supra, at 815.
[ Footnote 6 ] Cf. United States. v. Shaw, 309 U.S. 495, 502 . In South African Republic v. La Compagnie Franco-
Belge, 1898. 1 Ch. 190, 198, a foreign sovereign sued to enjoin the use of deposited funds. On a counterclaim not
connected with the issue concerning the funds, Mr. Justice North held the foreign government could not be sued,
citing Duke of Brunswick v. King of Hanover, 6 Beav. 68, and Strousberg v. Republic of Costa Rica, 29 Weekly
Reporter 125, 44 L. T. R. (N. S.) 199.

United States Supreme Court
SAUDI ARABIA v. NELSON, (1993)
No. 91-522
Argued: November 30, 1992 Decided: March 23, 1993
The respondents Nelson, a married couple, filed this action for damages against petitioners, the Kingdom of Saudi
Arabia, a Saudi hospital, and the hospital's purchasing agent in the United States. They alleged, among other things,
that respondent husband suffered personal injuries as a result of the Saudi Government's unlawful detention and
torture of him and petitioners' negligent failure to warn him of the possibility of severe retaliatory action if he
attempted to report on-the-job hazards. The Nelsons asserted jurisdiction under the Foreign Sovereign Immunities
Act of 1976, 28 U.S.C. 1605(a)(2), which confers jurisdiction where an action is "based upon a commercial activity
carried on in the United States by the foreign state." The District Court dismissed for lack of subject matter
jurisdiction. The Court of Appeals reversed, concluding that respondent husband's recruitment and hiring were
"commercial activities" upon which the Nelsons' action was "based" for purposes of 1605(a)(2).
Held:
The Nelsons' action is not "based upon a commercial activity" within the meaning of the first clause of 1605(a)(2),
and the Act therefore confers no jurisdiction over their suit. Pp. 355-363.
(a) This action is not "based upon" a commercial activity. Although the Act does not define "based upon," the phrase
is most naturally read to mean those elements of a claim that, if proven, would entitle a plaintiff to relief under his
theory of the case, and the statutory context confirms that the phrase requires something more than a mere
connection with, or relation to, commercial activity. Even taking the Nelsons' allegations about respondent husband's
recruitment and employment as true, those facts alone entitle the Nelsons to nothing under their theory of the case.
While these arguably commercial activities may have led to the commission of the torts that allegedly injured the
Nelsons, it is only those torts upon which their action is "based" for purposes of the Act. Pp. 355-358.
(b) Petitioners' tortious conduct fails to qualify as "commercial activity" within the meaning of the Act. This Court
has ruled that the Act largely codifies the so-called "restrictive" theory of foreign sovereign immunity, Republic of
Argentina v. Weltover, Inc., 504 U.S. 607, 612 , and that a state engages in commercial activity under that theory
where [507 U.S. 349, 350] it exercises only those powers that can also be exercised by private citizens, rather than
those powers peculiar to sovereigns, id., at 614. The intentional conduct alleged here (the Saudi Government's
wrongful arrest, imprisonment, and torture of Nelson) boils down to abuse of the power of the police. However
monstrous such abuse undoubtedly may be, a foreign state's exercise of that power has long been understood for
purposes of the restrictive theory as peculiarly sovereign in nature. The Nelsons' argument that respondent husband's
mistreatment constituted retaliation for his reporting of safety violations, and was therefore commercial in character,
does not alter the fact that the powers allegedly abused were those of police and penal officers. In any event, that
argument goes to the purpose of petitioners' conduct, which the Act explicitly renders irrelevant to the determination
of an activity's commercial character. Pp. 358-363.
(c) The Nelsons' attempt to claim failure to warn is merely a semantic ploy. A plaintiff could recast virtually any
claim of intentional tort committed by sovereign act as a claim of failure to warn. To give jurisdictional significance
to this feint of language would effectively thwart the Act's manifest purpose to codify the restrictive theory of foreign
sovereign immunity. Cf. United States v. Shearer, 473 U.S. 52, 54 -55 (opinion of Burger, C.J.). P. 363.
923 F.2d 1528, reversed.
SOUTER, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and O'CONNOR, SCALIA, and
THOMAS, JJ., joined, and in which KENNEDY, J., joined except for the last paragraph of Part II. WHITE, J., filed
an opinion concurring in the judgment, in which BLACKMUN, J., joined, post, p. 364. KENNEDY, J., filed an
opinion concurring in part and dissenting in part, in which BLACKMUN and STEVENS, JJ., joined as to Parts I-B
and II, post, p. 370. BLACKMUN, J., filed an opinion concurring in the judgment in part and dissenting in part, post,
p. 376. STEVENS, J., filed a dissenting opinion, post, p. 377.
Everett C. Johnson, Jr., argued the cause for petitioners. With him on the briefs were Mark E. Newell and Marc
Cooper.
Jeffrey P. Minear argued the cause for the United States as amicus curiae urging reversal. With him on the brief were
Solicitor General Starr, Assistant Attorney General Gerson, Deputy Solicitor General Roberts, Douglas Letter, and
Edwin D. Williamson. [507 U.S. 349, 351]
Paul Schott Stevens argued the cause for respondents. With him on the brief were Leonard Garment, Abraham D.
Sofaer, William R. Stein, and Anthony D'Amato. *
[ Footnote * ] Briefs of amici curiae urging affirmance were filed for Human Rights Watch by Ellen Lutz, Kenneth
Roth, and Jeffrey L. Braun; and for the International Human Rights Law Group et al. by Douglas G. Robinson, Julia
E. Sullivan, Andrew L. Sandler, Michael Ratner, Steven M. Schneebaum, Janelle M. Diller, and Harold Koh.
JUSTICE SOUTER delivered the opinion of the Court.
The Foreign Sovereign Immunities Act of 1976 entitles foreign states to immunity from the jurisdiction of courts in
the United States, 28 U.S.C. 1604, subject to certain enumerated exceptions. 1605. One is that a foreign state shall
not be immune in any case "in which the action is based upon a commercial activity carried on in the United States
by the foreign state." 1605(a)(2). We hold that respondents' action alleging personal injury resulting from unlawful
detention and torture by the Saudi Government is not "based upon a commercial activity" within the meaning of the
Act, which consequently confers no jurisdiction over respondents' suit.
I cause. Id., at 5-6, 14, 18-19. Finally, counts VIII, XII, and XVI allege that Vivian Nelson sustained derivative injury
Because this case comes to us on a motion to dismiss the complaint, we assume that we have truthful factual
allegations before us, see United States v. Gaubert, 499 U.S. 315, 327 (1991), though many of those allegations are
subject to dispute, see Brief for Petitioners 3, n. 3; see also n. 1, infra. Petitioner Kingdom of Saudi Arabia owns and
operates petitioner King Faisal Specialist Hospital in Riyadh, as well as petitioner Royspec Purchasing Services, the
hospital's corporate purchasing agent in the United States. App. 91. The Hospital Corporation of America, Ltd.
(HCA), an independent corporation existing under the laws of the Cayman Islands, recruits Americans for
employment at the hospital [507 U.S. 349, 352] under an agreement signed with Saudi Arabia in 1973. Id., at 73.
In its recruitment effort, HCA placed an advertisement in a trade periodical seeking applications for a position as a
monitoring systems engineer at the hospital. The advertisement drew the attention of respondent Scott Nelson in
September, 1983, while Nelson was in the United States. After interviewing for the position in Saudi Arabia, Nelson
returned to the United States, where he signed an employment contract with the hospital, id., at 4, satisfied personnel
processing requirements, and attended an orientation session that HCA conducted for hospital employees. In the
course of that program, HCA identified Royspec as the point of contact in the United States for family members who
might wish to reach Nelson in an emergency. Id., at 33.
In December, 1983, Nelson went to Saudi Arabia and began work at the hospital, monitoring all "facilities,
equipment, utilities and maintenance systems to insure the safety of patients, hospital staff, and others." Id., at 4. He
did his job without significant incident until March, 1984, when he discovered safety defects in the hospital's oxygen
and nitrous oxide lines that posed fire hazards and otherwise endangered patients' lives. Id., at 57-58. Over a period
of several months, Nelson repeatedly advised hospital officials of the safety defects and reported the defects to a
Saudi Government commission as well. Id., at 4-5. Hospital officials instructed Nelson to ignore the problems. Id., at
58.
The hospital's response to Nelson's reports changed, however, on September 27, 1984, when certain hospital
employees summoned him to the hospital's security office where agents of the Saudi Government arrested him. 1
The agents [507 U.S. 349, 353] transported Nelson to a jail cell, in which they "shackled, tortured and bea[t]" him,
id., at 5, and kept him four days without food, id., at 59. Although Nelson did not understand Arabic, government
agents forced him to sign a statement written in that language, the content of which he did not know; a hospital
employee who was supposed to act as Nelson's interpreter advised him to sign "anything" the agents gave him to
avoid further beatings. Ibid. Two days later, government agents transferred Nelson to the Al Sijan Prison "to await
trial on unknown charges." Ibid.
At the prison, Nelson was confined in an overcrowded cell area infested with rats, where he had to fight other
prisoners for food and from which he was taken only once a week for fresh air and exercise. Ibid. Although police
interrogators repeatedly questioned him in Arabic, Nelson did not learn the nature of the charges, if any, against him.
Id., at 5. For several days, the Saudi Government failed to advise Nelson's family of his whereabouts, though a Saudi
official eventually told Nelson's wife, respondent Vivian Nelson, that he could arrange for her husband's release if
she provided sexual favors. Ibid.
Although officials from the United States Embassy visited Nelson twice during his detention, they concluded that his
allegations of Saudi mistreatment were "not credible," and made no protest to Saudi authorities. Id., at 64. It was
only at the personal request of a United States Senator that the Saudi Government released Nelson, 39 days after his
arrest, on November 5, 1984. Id., at 60. Seven days later, after failing to convince him to return to work at the
hospital, the Saudi Government allowed Nelson to leave the country. Id., at 60-61.
In 1988, Nelson and his wife filed this action against petitioners in the United States District Court for the Southern
District of Florida seeking damages for personal injury. The Nelsons' complaint sets out 16 causes of action, which
fall into three categories. Counts II through VII and counts X, XI, XIV, and XV allege that petitioners committed
[507 U.S. 349, 354] various intentional torts, including battery, unlawful detainment, wrongful arrest and
imprisonment, false imprisonment, inhuman torture, disruption of normal family life, and infliction of mental
anguish. Id., at 6-11, 15, 19-20. Counts I, IX, and XIII charge petitioners with negligently failing to warn Nelson of
otherwise undisclosed dangers of his employment, namely, that, if he attempted to report safety hazards, the hospital
would likely retaliate against him and the Saudi Government might detain and physically abuse him without legal
resulting from petitioners' actions. Id., at 11-12, 16, 20. Presumably because the employment contract provided that
Saudi courts would have exclusive jurisdiction over claims for breach of contract, id., at 47, the Nelsons raised no
such matters.
The District Court dismissed for lack of subject matter jurisdiction under the Foreign Sovereign Immunities Act of
1976, 28 U.S.C. 1330, 1602 et seq. It rejected the Nelsons' argument that jurisdiction existed, under the first clause of
1605(a)(2), because the action was one "based upon a commercial activity" that petitioners had "carried on in the
United States." Although HCA's recruitment of Nelson in the United States might properly be attributed to Saudi
Arabia and the hospital, the District Court reasoned, it did not amount to commercial activity "carried on in the
United States" for purposes of the Act. Id., at 94-95. The court explained that there was no sufficient "nexus"
between Nelson's recruitment and the injuries alleged. "Although [the Nelsons] argu[e] that, but for [Scott Nelson's]
recruitment in the United States, he would not have taken the job, been arrested, and suffered the personal injuries,
the court said, "this `connection' [is] far too tenuous to support jurisdiction" under the Act. Id., at 97. Likewise, the
court concluded that Royspec's commercial activity in the United States, purchasing supplies and equipment for the
hospital, id., at [507 U.S. 349, 355] 93-94, had no nexus with the personal injuries alleged in the complaint;
Royspec had simply provided a way for Nelson's family to reach him in an emergency, id., at 96.
The Court of Appeals reversed. 923 F.2d 1528 (CA11 1991). It concluded that Nelson's recruitment and hiring were
commercial activities of Saudi Arabia and the hospital, carried on in the United States for purposes of the Act, id., at
1533, and that the Nelsons' action was "based upon" these activities within the meaning of the statute, id., at 1533-
1536. There was, the court reasoned, a sufficient nexus between those commercial activities and the wrongful acts
that had allegedly injured the Nelsons: "the detention and torture of Nelson are so intertwined with his employment
at the Hospital," the court explained, "that they are `based upon' his recruitment and hiring" in the United States. Id.,
at 1535. The court also found jurisdiction to hear the claims against Royspec. Id., at 1536. 2 After the Court of
Appeals denied petitioners' suggestion for rehearing en banc, App. 133, we granted certiorari, 504 U.S. 972 (1992).
We now reverse.
II
The Foreign Sovereign Immunities Act "provides the sole basis for obtaining jurisdiction over a foreign state in the
courts of this country." Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 443 (1989). Under the
Act, a foreign state is presumptively immune from the jurisdiction of United States courts; unless a specified
exception applies, a federal court lacks subject matter jurisdiction over a claim against a foreign state. Verlinden B.V.
v. Central Bank of Nigeria, 461 U.S. 480, 488 -489 (1983); see 28 U.S.C. 1604; J. Dellapenna, Suing Foreign
Governments and Their Corporations 11, and n. 64 (1988). [507 U.S. 349, 356]
Only one such exception is said to apply here. The first clause of 1605(a)(2) of the Act provides that a foreign state
shall not be immune from the jurisdiction of United States courts in any case "in which the action is based upon a
commercial activity carried on in the United States by the foreign state." 3 The Act defines such activity as
"commercial activity carried on by such state and having substantial contact with the United States," 1603(e), and
provides that a commercial activity may be "either a regular course of commercial conduct or a particular
commercial transaction or act," the "commercial character of [which] shall be determined by reference to" its
"nature," rather than its "purpose," 1603(d).
There is no dispute here that Saudi Arabia, the hospital, and Royspec all qualify as "foreign state[s]" within the
meaning of the Act. Brief for Respondents 3; see 28 U.S.C. 1603(a), (b) (term "`foreign state'" includes "`an agency
or instrumentality of a foreign state'"). For there to be jurisdiction in this case, therefore, the Nelsons' action must be
"based upon" some "commercial activity" by petitioners that had "substantial contact" with the United States within
the meaning of the Act. Because we conclude that the suit is not based upon any commercial activity by petitioners,
we need not reach the issue of substantial contact with the United States.
We begin our analysis by identifying the particular conduct on which the Nelsons' action is "based" for purposes of
the Act. See Texas Trading & Milling Corp. v. Federal [507 U.S. 349, 357] Republic of Nigeria, 647 F.2d 300, 308
(CA2 1981), cert. denied, 454 U.S. 1148 (1982); Donoghue, Taking the "Sovereign" Out of the Foreign Sovereign
Immunities Act: A Functional Approach to the Commercial Activity Exception, 17 Yale J.Int'l L. 489, 500 (1992).
Although the Act contains no definition of the phrase "based upon," and the relatively sparse legislative history
offers no assistance, guidance is hardly necessary. In denoting conduct that forms the "basis," or "foundation," for a
claim, see Black's Law Dictionary 151 (6th ed. 1990) (defining "base"); Random House Dictionary 172 (2d ed.
1987) (same); Webster's Third New International Dictionary 180, 181 (1976) (defining "base" and "based"), the
phrase is read most naturally to mean those elements of a claim that, if proven, would entitle a plaintiff to relief
under his theory of the case. See Callejo v. Bancomer, S.A., 764 F.2d 1101, 1109 (CA5 1985) (focus should be on the
"gravamen of the complaint"); accord, Santos v. Compagnie Nationale Air France, 934 F.2d 890, 893 (CA7 1991)
("An action is based upon the elements that prove the claim, no more and no less"); Millen Industries, Inc. v.
Coordination Council for North American Affairs, 272 U.S. App. D.C. 240, 246, 855 F.2d 879, 885 (1988).
What the natural meaning of the phrase "based upon" suggests, the context confirms. Earlier, see n. 3, supra, we
noted that 1605(a)(2) contains two clauses following the one at issue here. The second allows for jurisdiction where a
suit "is based . . . upon an act performed in the United States in connection with a commercial activity of the foreign
state elsewhere," and the third speaks in like terms, allowing for jurisdiction where an action "is based . . . upon an
act outside the territory of the United States in connection with a commercial activity of the foreign state elsewhere
and that act causes a direct effect in the United States." Distinctions among descriptions juxtaposed against each
other are naturally understood to be significant, see Melkonyan v. Sullivan, [507 U.S. 349, 358] 501 U.S. 89, 94 -95
(1991), and Congress manifestly understood there to be a difference between a suit "based upon" commercial activity
and one "based upon" acts performed "in connection with" such activity. The only reasonable reading of the former
term calls for something more than a mere connection with, or relation to, commercial activity. 4
In this case, the Nelsons have alleged that petitioners recruited Scott Nelson for work at the hospital, signed an
employment contract with him, and subsequently employed him. While these activities led to the conduct that
eventually injured the Nelsons, they are not the basis for the Nelsons' suit. Even taking each of the Nelsons'
allegations about Scott Nelson's recruitment and employment as true, those facts alone entitle the Nelsons to nothing
under their theory of the case. The Nelsons have not, after all, alleged breach of contract, see supra, at 354, but
personal injuries caused by petitioners' intentional wrongs and by petitioners' negligent failure to warn Scott Nelson
that they might commit those wrongs. Those torts, and not the arguably commercial activities that preceded their
commission, form the basis for the Nelsons' suit.
Petitioners' tortious conduct itself fails to qualify as "commercial activity" within the meaning of the Act, although
the Act is too "`obtuse'" to be of much help in reaching that conclusion. Callejo, supra, at 1107 (citation omitted). We
have seen already that the Act defines "commercial activity" as "either a regular course of commercial conduct or a
particular [507 U.S. 349, 359] commercial transaction or act," and provides that "[t]he commercial character of an
activity shall be determined by reference to the nature of the course of conduct or particular transaction or act, rather
than by reference to its purpose." 28 U.S.C. 1603(d). If this is a definition, it is one distinguished only by its
diffidence; as we observed in our most recent case on the subject, it "leaves the critical term `commercial' largely
undefined." Republic of Argentina v. Weltover, Inc., 504 U.S. 607, 612 (1992); see Donoghue, supra, at 499;
Lowenfeld, Litigating a Sovereign Immunity Claim - The Haiti Case, 49 N.Y.U.L.Rev. 377, 435, n. 244 (1974)
(commenting on then-draft Act) ("Start with `activity,' proceed via `conduct' or `transaction' to `character,' then refer
to `nature,' and then go back to `commercial,' the term you started out to define in the first place"); G. Born & D.
Westin, International Civil Litigation in United States Courts 479-480 (2d ed. 1992). We do not, however, have the
option to throw up our hands. The term has to be given some interpretation, and congressional diffidence necessarily
results in judicial responsibility to determine what a "commercial activity" is for purposes of the Act.
We took up the task just last Term in Weltover, supra, which involved Argentina's unilateral refinancing of bonds it
had issued under a plan to stabilize its currency. Bondholders sued Argentina in federal court, asserting jurisdiction
under the third clause of 1605(a)(2). In the course of holding the refinancing to be a commercial activity for purposes
of the Act, we observed that the statute "largely codifies the so-called `restrictive' theory of foreign sovereign
immunity first endorsed by the State Department in 1952." 504 U.S., at 612 . We accordingly held that the meaning
of "commercial" for purposes of the Act must be the meaning Congress understood the restrictive theory to require at
the time it passed the statute. See id., at 612-613.
Under the restrictive, as opposed to the "absolute," theory of foreign sovereign immunity, a state is immune from the
[507 U.S. 349, 360] jurisdiction of foreign courts as to its sovereign or public acts (jure imperii), but not as to those
that are private or commercial in character (jure gestionis). Verlinden B. V. v. Central Bank of Nigeria, 461 U.S., at
487 ; Alfred Dunhill of London, Inc. v. Republic of Cuba, 425 U.S. 682, 698 (1976) (plurality opinion); see 28
U.S.C. 1602; see also Dunhill, supra, at 711 (Appendix 2 to the opinion of the Court) (Letter to the Attorney General
from Jack B. Tate, Acting Legal Adviser, Dept. of State, May 19, 1952); Hill, A Policy Analysis of the American Law
of Foreign State Immunity, 50 Ford.L.Rev. 155, 168 (1981). We explained in Weltover, supra, at 614 (quoting
Dunhill, supra, at 704), that a state engages in commercial activity under the restrictive theory where it exercises
"`only those powers that can also be exercised by private citizens,'" as distinct from those "`powers peculiar to
sovereigns.'" Put differently, a foreign state engages in commercial activity for purposes of the restrictive theory only
where it acts "in the manner of a private player within" the market. 504 U.S., at 614 ; see Restatement (Third) of the
Foreign Relations Law of the United States 451 (1987) ("Under international law, a state or state instrumentality is
immune from the jurisdiction of the courts of another state, except with respect to claims arising out of activities of
the kind that may be carried on by private persons").
We emphasized in Weltover that whether a state acts "in the manner of" a private party is a question of behavior, not
motivation:
"[B]ecause the Act provides that the commercial character of an act is to be determined by reference to its `nature,'
rather than its `purpose,' the question is not whether the foreign government is acting with a profit motive or instead
with the aim of fulfilling uniquely sovereign objectives. Rather, the issue is whether the particular actions that the
foreign state performs (whatever [507 U.S. 349, 361] the motive behind them) are the type of actions by which a
private party engages in `trade and traffic or commerce.'" Weltover, supra, at 614 (citations omitted) (emphasis in
original).
We did not ignore the difficulty of distinguishing "`purpose' (i.e., the reason why the foreign state engages in the
activity) from `nature' (i.e., the outward form of the conduct that the foreign state performs or agrees to perform),"
but recognized that the Act "unmistakably commands" us to observe the distinction. 504 U.S., at 617 (emphasis in
original). Because Argentina had merely dealt in the bond market in the manner of a private player, we held, its
refinancing of the bonds qualified as a commercial activity for purposes of the Act despite the apparent governmental
motivation. Ibid.
Unlike Argentina's activities that we considered in Weltover, the intentional conduct alleged here (the Saudi
Government' wrongful arrest, imprisonment, and torture of Nelson) could not qualify as commercial under the
restrictive theory. The conduct boils down to abuse of the power of its police by the Saudi Government, and however
monstrous such abuse undoubtedly may be, a foreign state's exercise of the power of its police has long been
understood for purposes of the restrictive theory as peculiarly sovereign in nature. See Arango v. Guzman Travel
Advisors Corp., 621 F.2d 1371, 1379 (CA5 1980); Victory Transport Inc. v. Comisaria General de Abastecimientos y
Transportes, 336 F.2d 354, 360 (CA2 1964) (restrictive theory does extend immunity to a foreign state's "internal
administrative acts"), cert. denied, 381 U.S. 934 (1965); Herbage v. Meese, 747 F.Supp. 60, 67 (DC 1990),
affirmance order, 292 U.S. App. D.C. 84, 946 F.2d 1564; (1991); K. Randall, Federal Courts and the International
Human Rights Paradigm 93 (1990) (the Act's commercial activity exception is irrelevant to cases alleging [507 U.S.
349, 362] that a foreign state has violated human rights). 5 Exercise of the powers of police and penal officers is not
the sort of action by which private parties can engage in commerce. "[S]uch acts as legislation, or the expulsion of an
alien, or a denial of justice, cannot be performed by an individual acting in his own name. They can be performed
only by the state acting as such." Lauterpacht, The Problem of Jurisdictional Immunities of Foreign States, 28
Brit.Y.B.Int'l L. 220, 225 (1952); see also id., at 237.
The Nelsons and their amici urge us to give significance to their assertion that the Saudi Government subjected
Nelson to the abuse alleged as retaliation for his persistence in reporting hospital safety violations, and argue that the
character of the mistreatment was consequently commercial. One amicus, indeed, goes so far as to suggest that the
Saudi Government "often uses detention and torture to resolve commercial disputes." Brief for Human Rights Watch
as [507 U.S. 349, 363] Amicus Curiae 6. But this argument does not alter the fact that the powers allegedly abused
were those of police and penal officers. In any event, the argument is off the point, for it goes to purpose, the very
fact the Act renders irrelevant to the question of an activity's commercial character. Whatever may have been the
Saudi Government's motivation for its allegedly abusive treatment of Nelson, it remains the case that the Nelsons'
action is based upon a sovereign activity immune from the subject matter jurisdiction of United States courts under
the Act.
In addition to the intentionally tortious conduct, the Nelsons claim a separate basis for recovery in petitioners' failure
to warn Scott Nelson of the hidden dangers associated with his employment. The Nelsons allege that, at the time
petitioners recruited Scott Nelson and thereafter, they failed to warn him of the possibility of severe retaliatory action
if he attempted to disclose any safety hazards he might discover on the job. See supra, at 354. In other words,
petitioners bore a duty to warn of their own propensity for tortious conduct. But this is merely a semantic ploy. For
aught we can see, a plaintiff could recast virtually any claim of intentional tort committed by sovereign act as a claim
of failure to warn, simply by charging the defendant with an obligation to announce its own tortious propensity
before indulging it. To give jurisdictional significance to this feint of language would effectively thwart the Act's
manifest purpose to codify the restrictive theory of foreign sovereign immunity. Cf. United States v. Shearer, 473
U.S. 52, 54 -55 (1985) (opinion of Burger, C.J.).
III
The Nelsons' action is not "based upon a commercial activity" within the meaning of the first clause of 1605(a)(2) of
the Act, and the judgment of the Court of Appeals is accordingly reversed.
It is so ordered.
Footnotes
[ Footnote 1 ] Petitioners assert that the Saudi Government arrested Nelson because he had falsely represented to the
hospital that he had received a degree from the Massachusetts Institute of Technology and had provided the hospital
with a forged diploma to verify his claim. Brief for Petitioners 5. The Nelsons concede these misrepresentations, but
dispute that they occasioned Scott Nelson's arrest. Brief for Respondents 9.
[ Footnote 2 ] The Court of Appeals expressly declined to address the act of state doctrine, 923 F.2d, at 1536, and we
do not consider that doctrine here.
[ Footnote 3 ] In full, 1605(a)(2) provides that "[a] foreign state shall not be immune from the jurisdiction of courts
of the United States or of the States in any case . . . in which the action is based upon a commercial activity carried
on in the United States by the foreign state; or upon an act performed in the United States in connection with a
commercial activity of the foreign state elsewhere; or upon an act outside the territory of the United States in
connection with a commercial activity of the foreign state elsewhere and that act causes a direct effect in the United
States.
[ Footnote 4 ] We do not mean to suggest that the first clause of 1605(a)(2) necessarily requires that each and every
element of a claim be commercial activity by a foreign state, and we do not address the case where a claim consists
of both commercial and sovereign elements. We do conclude, however, that, where a claim rests entirely upon
activities sovereign in character, as here, see infra, at 361-363, jurisdiction will not exist under that clause regardless
of any connection the sovereign acts may have with commercial activity.
[ Footnote 5 ] The State Department's practice prior to the passage of the Act supports this understanding. Prior to the
Act's passage, the State Department would determine in the first instance whether a foreign state was entitled to
immunity and make an appropriate recommendation to the courts. See Verlinden B.V. v. Central Bank of Nigeria,
461 U.S. 480, 486 -488 (1983). A compilation of available materials demonstrates that the Department recognized
immunity with respect to claims involving the exercise of the power of the police or military of a foreign state. See
Sovereign Immunity Decisions of the Department of State, May, 1952 to January, 1977 (M. Sandler, D. Vagts, & B.
Ristau eds.), in 1977 Digest of United States Practice in International Law 1017, 1045-1046 (claim that Cuban armed
guard seized cash from plaintiff at Havana airport); id. at 1053-1054 (claim that Saudi militia fired on plaintiffs and
caused personal and property damage).
JUSTICE WHITE points to an episode in which the State Department declined to recognize immunity with respect
to a claim by Jamaican nationals, working in the United States, against the British West Indies Central Labour
Organization, a foreign governmental agency. See id. at 1062-1063; post at 367-368, n. 3. In our view, that episode
bears little relation to this case, for the Jamaican nationals did not allege mistreatment by the police of a foreign state.
[507 U.S. 349, 364]
JUSTICE WHITE, with whom JUSTICE BLACKMUN joins, concurring in the judgment.
According to respondents' complaint, Nelson's employer retaliated against him for reporting safety problems by
"summon[ing him] . . . to the hospital's security office from which he was transported to a jail cell." App. 5. Once
there, he allegedly was "shackled, tortured and beaten by persons acting at the direction, instigation, provocation,
instruction or request of" petitioners - Saudi Arabia, King Faisal Specialist Hospital, and Royspec. Id. at 5, 14, 18.
The majority concludes that petitioners enjoy sovereign immunity because respondents' action is not "based upon a
commercial activity." I disagree. I nonetheless concur in the judgment because, in my view, the commercial conduct
upon which respondents base their complaint was not "carried on in the United States."
I
A
As the majority notes, the first step in the analysis is to identify the conduct on which the action is based.
Respondents have pointed to two distinct possibilities. The first, seemingly pressed at trial and on appeal, consists of
the recruiting and hiring activity in the United States. See Brief for Appellant in No. 89-5981 (CA11), pp. 12-15.
Although this conduct would undoubtedly qualify as "commercial," I agree with the majority that it is "not the basis
for the Nelsons' suit," ante, at 358, for it is unrelated to the elements of respondents' complaint.
In a partial change of course, respondents suggest to this Court both in their brief and at oral argument that we focus
on the hospital's commercial activity in Saudi Arabia, its employment practices and disciplinary procedures. Under
this view, the Court would then work its way back to the recruiting and hiring activity in order to establish that the
commercial conduct in fact had "substantial contact" with the United [507 U.S. 349, 365] States. See Brief for
Respondents 22, 24-25, 31; Tr. of Oral Arg. 44-45. The majority never reaches this second stage, finding instead that
petitioners' conduct is not commercial, because it "is not the sort of action by which private parties can engage in
commerce." Ante, at 362. If by that the majority means that it is not the manner in which private parties ought to
engage in commerce, I wholeheartedly agree. That, however, is not the relevant inquiry. Rather, the question we must
ask is whether it is the manner in which private parties at times do engage in commerce.
B
To run and operate a hospital, even a public hospital, is to engage in a commercial enterprise. The majority never
concedes this point, but it does not deny it either, and, to my mind, the matter is self-evident. By the same token,
warning an employee when he blows the whistle and taking retaliatory action, such as harassment, involuntary
transfer, discharge, or other tortious behavior, although not prototypical commercial acts, are certainly well within
the bounds of commercial activity. The House and Senate Reports accompanying the legislation virtually compel this
conclusion, explaining as they do that "a foreign government's . . . employment or engagement of laborers, clerical
staff or marketing agents . . . would be among those included within" the definition of commercial activity. H.R.Rep.
No. 94-1487, p. 16 (1976) (House Report); S. Rep. No. 94-1310, p. 16 (1976) (Senate Report). Nelson alleges that
petitioners harmed him in the course of engaging in their commercial enterprise, as a direct result of their
commercial acts. His claim, in other words, is "based upon commercial activity."
Indeed, I am somewhat at a loss as to what exactly the majority believes petitioners have done that a private
employer could not. As countless cases attest, retaliation for [507 U.S. 349, 366] whistle blowing is not a practice
foreign to the marketplace. 1 Congress passed a statute in response to such behavior, see Whistleblower Protection
Act of 1989, 5 U.S.C. 1213 et seq. (1988 ed., Supp. III), as have numerous States. On occasion, private employers
also have been known to retaliate by enlisting the help of police officers to falsely arrest employees. See, e.g.,
Rosario v. Amalgamated Ladies Garment Cutters' Union, 605 F.2d 1228, 1233, 1247-1248 (CA2 1979), cert. denied,
446 U.S. 919 (1980). More generally, private parties have been held liable for conspiring with public authorities to
effectuate an arrest, see, e.g., Adickes v. S.H. Kress & Co., 398 U.S. 144 (1970), and for using private security
personnel for the same purposes, see Albright v. Longview Police Dept., 884 F.2d 835, 841-842 (CA5 1989).
Therefore, had the hospital retaliated against Nelson by hiring thugs to do the job, I assume the majority - no longer
able to describe this conduct as "a foreign state's exercise of the power of its police," ante, at 361, - would consent to
calling it "commercial." For, in such circumstances, the state-run hospital would be operating as any private
participant in the marketplace, and respondents' action would be based on the operation by Saudi Arabia's agents of a
commercial business. 2 [507 U.S. 349, 367]
At the heart of the majority's conclusion, in other words, is the fact that the hospital in this case chose to call in
government security forces. See ante, at 362. I find this fixation on the intervention of police officers, and the
ensuing characterization of the conduct as "peculiarly sovereign in nature," ante, at 361, to be misguided. To begin, it
fails to capture respondents' complaint in full. Far from being directed solely at the activities of the Saudi police, it
alleges that agents of the hospital summoned Nelson to its security office because he reported safety concerns, and
that the hospital played a part in the subsequent beating and imprisonment. App. 5, 14. Without more, that type of
behavior hardly qualifies as sovereign. Thus, even assuming for the sake of argument that the role of the official
police somehow affected the nature of petitioners' conduct, the claim cannot be said to "rest[] entirely upon activities
sovereign in character." See ante, at 358, n. 4. At the very least it "consists of both commercial and sovereign
elements," thereby presenting the specific question the majority chooses to elude. See ibid. The majority's single-
minded focus on the exercise of police power, while certainly simplifying the case, thus hardly does it justice. 3
[507 U.S. 349, 368]
Reliance on the fact that Nelson's employer enlisted the help of public, rather than private, security personnel is also
at odds with Congress' intent. The purpose of the commercial exception being to prevent foreign states from taking
refuge behind their sovereignty when they act as market participants, it seems to me that this is precisely the type of
distinction we should seek to avoid. Because both the hospital and the police are agents of the state, the case in my
mind turns on whether the sovereign is acting in a commercial capacity, not on whether it resorts to thugs or
government officers to carry on its business. That, when the hospital calls in security to get even with a whistle
blower, it comes clothed in police apparel says more about the state-owned nature of the commercial enterprise than
about the noncommercial nature of its tortious conduct. I had thought the [507 U.S. 349, 369] issue put to rest some
time ago when, in a slightly different context, CHIEF JUSTICE Marshall observed:
"It is, we think, a sound principle that, when a government becomes a partner in any trading company, it divests
itself, so far as concerns the transactions of that company, of its sovereign character and takes that of a private
citizen. Instead of communicating to the company its privileges and its prerogatives, it descends to a level with those
with whom it associates itself, and takes the character which belongs to its associates, and to the business which is to
be transacted." Bank of United States v. Planters' Bank of Georgia, 22 U.S. (9 Wheat.) 904, 907 (1824).
See also Alfred Dunhill of London, Inc. v. Republic of Cuba, 425 U.S. 682, 695 -696 (1976) (plurality opinion).
C Digest of United States Practice in International Law 1062. Significantly, the State Department did not take refuge
Contrary to the majority's suggestion, ante, at 363, this conclusion does not involve inquiring into the purpose of the
conduct. Matters would be different, I suppose, if Nelson had been recruited to work in the Saudi police force and,
having reported safety violations, suffered retributive punishment, for there the Saudi authorities would be engaged
in distinctly sovereign activities. Cf. House Report, at 16 ("Also public or governmental and not commercial in
nature would be the employment of diplomatic, civil service, or military personnel"); Senate Report, at 16. The same
would be true if Nelson was a mere tourist in Saudi Arabia and had been summarily expelled by order of
immigration officials. See Arango v. Guzman Travel Advisors Corp., 621 F.2d 1371 (CA5 1980). In this instance,
however, the state-owned hospital was engaged in ordinary commercial business, and, "[i]n their commercial
capacities, foreign governments do not exercise powers peculiar to sovereigns. Instead, they exercise only those
powers that can also be exercised by private [507 U.S. 349, 370] citizens." Alfred Dunhill, supra, at 704 (plurality
opinion). As we recently stated, "when a foreign government acts, not as regulator of a market, but in the manner of a
private player within it, the foreign sovereign's actions are "commercial" within the meaning of the FSIA." Republic
of Argentina v. Weltover, Inc., 504 U.S. 607, 614 (1992). That, I believe, is the case here.
II
Nevertheless, I reach the same conclusion as the majority because petitioners' commercial activity was not "carried
on in the United States." The Act defines such conduct as "commercial activity . . . having substantial contact with
the United States." 28 U.S.C. 1603(e). Respondents point to the hospital's recruitment efforts in the United States,
including advertising in the American media, and the signing of the employment contract in Miami. See Brief for
Respondents 43-45. As I earlier noted, while these may very well qualify as commercial activity in the United States,
they do not constitute the commercial activity upon which respondents' action is based. Conversely, petitioners'
commercial conduct in Saudi Arabia, though constituting the basis of the Nelsons' suit, lacks a sufficient nexus to the
United States. Neither the hospital's employment practices nor its disciplinary procedures have any apparent
connection to this country. On that basis, I agree that the Act does not grant the Nelsons access to our courts.
[ Footnote 1 ] See, e.g., English v. General Electric Co., 496 U.S. 72, 75 -76 (1990); Belline v. K-Mart Corp., 940
F.2d 184, 186-189 (CA7 1991); White v. General Motors Corp., 908 F.2d 669, 671 (CA10 1990), cert. denied, 498
U.S. 1069 (1991); Sanchez v. Unemployment Ins. Appeals Bd., 36 Cal.3d 575, 205 Cal.Rptr. 501, 685 P.2d 61
(1984); Collier v. Superior Court of Los Angeles County, 228 Cal.App. 3d 1117, 279 Cal.Rptr. 453 (1991).
[ Footnote 2 ] "[W]hen the foreign state enters the marketplace or when it acts as a private party, there is no
justification in modern international law for allowing the foreign state to avoid the economic costs of . . . the
accidents which it may cause. . . . The law should not permit the foreign state to shift these everyday burdens of the
marketplace onto the shoulders of private parties." Testimony of Monroe Leigh, Legal Adviser, Department of State,
Hearings on H.R. 11315 before the Subcommittee on Administrative Law and Governmental Relations of the House
Committee on the Judiciary, 94th Cong., 2d Sess., 27 (1976).
[ Footnote 3 ] In contrast, the cases cited by the majority involve action that did not take place in a commercial
context and that could be considered purely sovereign. For instance, in Arango v. Guzman Travel Advisors Corp.,
621 F.2d 1371 (CA5 1980), plaintiffs were expelled from the Dominican Republic pursuant to a decision by
immigration officials that they were "`undesirable aliens.'" Id., at 1373. As the Court of Appeals reasoned, the
airline's actions "were not commercial. [It] was impressed into service to perform these functions . . . by Dominican
immigration officials pursuant to that country's laws." Id., at 1379. Nor was there a hint of commercial activity in
Herbage v. Meese, 747 F.Supp. 60 (DC 1990), affirmance order, 292 U.S. App. D.C. 84, 946 F.2d 1564 (1991), an
extradition case that did not so much as mention the commercial activity exception.
Absence of a commercial context also distinguishes those incidents relied on by the majority that pre-date passage of
the Foreign Sovereign Immunities Act. See ante at 362, n. 5. Yet the majority gives short shrift to an occurrence that
most closely resembles the instant case and [507 U.S. 349, 368] that suggests strongly that the hospital's enlistment
of, and cooperation with, the police should not entitle it to immunity. The incident involved allegations that an
agency of the Jamaican Government conspired to have Jamaican nationals working in the United States "falsely
arrested, imprisoned and blacklisted, and to deprive them of wages and other employee rights." Sovereign Immunity
Decisions of the Department of State, May, 1952 to January, 1977 (M. Sandler, D. Vagts, & B. Ristau eds.), in 1977
behind the words "arres[t]" and "impriso[n]" and decide that the actions were sovereign in nature. Rather, it declined
to recognize immunity, focusing on the fact that private parties acting in an employment context could do exactly
what the Jamaican agency was alleged to have done: "[T]he activities under consideration are of a private nature. . . .
The Department of State is impressed by the fact that the activities of the British West Indies Central Labour
Organization are very much akin to those that might be conducted by a labor union or by a private employment
agency - arranging and servicing an agreement between private employers and employees. Although it may be
argued that some of the acts performed by the British West Indies Central Labour Organization in this case are
consular in nature, the Department believes that they arise from the involvement of the British West Indies Central
Labour Organization in the private employer-employee contractual relationship, rather than from a consular
responsibility, and cannot be separated therefrom." Id., at 1063.
JUSTICE KENNEDY, with whom JUSTICE BLACKMUN and JUSTICE STEVENS join as to Parts I-B and II,
concurring in part and dissenting in part.
I join all of the Court's opinion except the last paragraph of Part II, where, with almost no explanation, the Court
rules that, like the intentional tort claim, the claims based on negligent failure to warn are outside the subject matter
jurisdiction of the federal courts. These claims stand on a much different footing from the intentional tort claims for
[507 U.S. 349, 371] purposes of the Foreign Sovereign Immunities Act (FSIA). In my view, they ought to be
remanded to the District Court for further consideration.
I The Court's summary treatment may stem from doubts about the underlying validity of the negligence cause of
A action. The Court dismisses the claims because it fears that, if it did not, "a plaintiff could recast virtually any claim
I agree with the Court's holding that the Nelsons' claims of intentional wrongdoing by the hospital and the Kingdom
of Saudi Arabia are based on sovereign, not commercial, activity, and so fall outside the commercial activity
exception to the grant of foreign sovereign immunity contained in 28 U.S.C. 1604. The intentional tort counts of the
Nelsons' complaint recite the alleged unlawful arrest, imprisonment, and torture of Mr. Nelson by the Saudi police
acting in their official capacities. These are not the sort of activities by which a private party conducts its business
affairs; if we classified them as commercial, the commercial activity exception would in large measure swallow the
rule of foreign sovereign immunity Congress enacted in the FSIA.
B the substantive law determining the liability of a foreign state." First Nat. City Bank v. Banco Para el Comercio
By the same token, however, the Nelsons' claims alleging that the hospital, the Kingdom, and Royspec were
negligent in failing during their recruitment of Nelson to warn him of foreseeable dangers are based upon
commercial activity having substantial contact with the United States. As such, they are within the commercial
activity exception and the jurisdiction of the federal courts. Unlike the intentional tort counts of the complaint, the
failure to warn counts do not complain of a police beating in Saudi Arabia; rather, they complain of a negligent
omission made during the recruiting of a hospital employee in the United States. To obtain relief, the Nelsons would
be obliged to prove that the hospital's recruiting agent did not tell Nelson about the foreseeable hazards of his
prospective employment in Saudi Arabia. Under the Court's test, this omission is what the negligence counts are
"based upon." See ante, at 356. [507 U.S. 349, 372]
Omission of important information during employee recruiting is commercial activity as we have described it. See
Republic of Argentina v. Weltover, Inc., 504 U.S. 607 (1992). It seems plain that recruiting employees is an activity
undertaken by private hospitals in the normal course of business. Locating and hiring employees implicates no power
unique to the sovereign. In explaining the terms and conditions of employment, including the risks and rewards of a
particular job, a governmental entity acts in "the manner of a private player within" the commercial marketplace. Id.,
at 614. Under the FSIA, as a result, it must satisfy the same general duties of care that apply to private actors under
state law. If a private company with operations in Saudi Arabia would be obliged in the course of its recruiting
activities subject to state law to tell a prospective employee about the risk of arbitrary arrest and torture by Saudi
authorities, then so would King Faisal Specialist Hospital.
The recruiting activity alleged in the failure to warn counts of the complaint also satisfies the final requirement for
invoking the commercial activity exception: that the claims be based upon commercial activity "having substantial
contact with the United States." 28 U.S.C. 1603(e). Nelson's recruitment was performed by Hospital Corporation of
America Ltd. (HCA), a wholly owned subsidiary of a United States corporation, which, for a period of at least 16
years beginning in 1973, acted as the Kingdom of Saudi Arabia's exclusive agent for recruiting employees for the
hospital. HCA, in the regular course of its business, seeks employees for the hospital in the American labor market.
HCA advertised in an American magazine, seeking applicants for the position Nelson later filled. Nelson saw the ad
in the United States and contacted HCA in Tennessee. After an interview in Saudi Arabia, Nelson returned to Florida,
where he signed an employment contract and underwent personnel processing and application procedures. Before
leaving to take his job at the hospital, Nelson attended an [507 U.S. 349, 373] orientation session conducted by
HCA in Tennessee for new employees. These activities have more than substantial contact with the United States;
most of them were "carried on in the United States." 28 U.S.C. 1605(a) (2). In alleging that the petitioners neglected
during these activities to tell him what they were bound to under state law, Nelson meets all of the statutory
requirements for invoking federal jurisdiction under the commercial activity exception.
II
Having met the jurisdictional prerequisites of the FSIA, the Nelsons' failure to warn claims should survive
petitioners' motion under Federal Rule of Civil Procedure 12(b)(1) to dismiss for want of subject matter jurisdiction.
Yet instead of remanding these claims to the District Court for further proceedings, the majority dismisses them in a
single short paragraph. This is peculiar, since the Court suggests no reason to question the conclusion that the failure
to warn claims are based on commercial activity having substantial contact with the United States; indeed, the Court
does not purport to analyze these claims in light of the statutory requirements for jurisdiction.
of intentional tort committed by a sovereign act as a claim of failure to warn, simply by charging the defendant with
an obligation to announce its own tortious propensity before indulging it." Ante, at 363. In the majority's view, "[t]o
give jurisdictional significance to this feint of language would effectively thwart the Act's manifest purpose to codify
the restrictive theory of foreign sovereign immunity." Ibid. These doubts, however, are not relevant to the analytical
task at hand. [507 U.S. 349, 374]
The FSIA states that, with respect to any claim against a foreign sovereign that falls within the statutory exceptions
to immunity listed in 1605, "the foreign state shall be liable in the same manner and to the same extent as a private
individual under like circumstances." 28 U.S.C. 1606. The Act incorporates state law, and "was not intended to affect
Exterior de Cuba, 462 U.S. 611, 620 (1983). If the governing state law, which has not yet been determined, would
permit an injured person to plead and prove a tortious wrong for failure to warn against a private defendant under
facts similar to those in this case, we have no authority under the FSIA to ordain otherwise for those suing a
sovereign entity. "[W]here state law provides a rule of liability governing private individuals, the FSIA requires the
application of that rule to foreign states in like circumstances." Id., at 622, n. 11.
The majority's citation of United States v. Shearer, 473 U.S. 52, 54 -55 (1985) (opinion of Burger, C.J.), see ante, at
363, provides no authority for dismissing the failure to warn claims. Shearer refused to permit a plaintiff to recast in
negligence terms what was essentially an intentional tort claim, but that case was decided under the doctrine of Feres
v. United States, 340 U.S. 135 (1950). The Feres doctrine is a creature of federal common law that allows the Court
much greater latitude to make rules of pleading than we have in the current case. Here, our only task is to interpret
the explicit terms of the FSIA. The Court's conclusion in Shearer was also based upon the fact that the intentional
tort exception to the Federal Tort Claims Act at issue there, 28 U.S.C. 2680(h), precludes "[a]ny claim arising out of"
the specified intentional torts. This language suggests that Congress intended immunity under the FTCA to cover
more than those claims which simply sounded in intentional tort. There is no equivalent language in the commercial
activity [507 U.S. 349, 375] exception to the FSIA. It is also worth noting that the Court has not adopted a uniform
rule barring the recasting of intentional tort claims as negligence claims under the FTCA; under certain
circumstances, we have permitted recovery in that situation. See Sheridan v. United States, 487 U.S. 392 (1988).
As a matter of substantive tort law, it is not a novel proposition or a play on words to describe with precision the
conduct upon which various causes of action are based, or to recognize that a single injury can arise from multiple
causes, each of which constitutes an actionable wrong. See Restatement (Second) of Torts 447-449 (1965); Sheridan,
supra, at 405 (KENNEDY, J., concurring in judgment); Wilson v. Garcia, 471 U.S. 261, 272 (1985). In Sheridan, for
example, this Court permitted an action for negligent supervision to go forward under the FTCA when a suit based
upon the intentional tort that was the immediate cause of injury was barred under the statute. See 487 U.S., at 400 .
As the Court observed, "it is both settled and undisputed that, in at least some situations, the fact that an injury was
directly caused by an assault or battery will not preclude liability against the Government for negligently allowing
the assault to occur." Id., at 398.
We need not determine, however, that, on remand, the Nelsons will succeed on their failure to warn claims. Quite
apart from potential problems of state tort law that might bar recovery, the Nelsons appear to face an obstacle based
upon the former adjudication of their related lawsuit against Saudi Arabia's recruiting agent, HCA. The District Court
dismissed that suit, which raised an identical failure to warn claim, not only as time-barred, but also on the merits.
See Nelson v. Hospital Corp. of America, No. 88-0484-CIV-Nesbitt (SD Fla., Nov. 1, 1990). That decision was
affirmed on appeal, judgment order reported at 946 F.2d 1546 (CA11 1991), and may be entitled to preclusive effect
with respect to the Nelsons' similar claims against the sovereign [507 U.S. 349, 376] defendants, whose recruitment
of Nelson took place almost entirely through HCA. See generally Montana v. United States, 440 U.S. 147, 153
(1979) ("a final judgment on the merits bars further claims by parties or their privies based on the same cause of
action"); Lawlor v. National Screen Service Corp., 349 U.S. 322, 330 (1955) (defendants not party to a prior suit may
invoke res judicata if "their liability was . . . `altogether dependent upon the culpability' of the [prior] defendants")
(quoting Bigelow v. Old Dominion Copper Mining & Smelting Co., 225 U.S. 111, 127 (1912)); 18 C. Wright, A.
Miller, & E. Cooper, Federal Practice and Procedure 4463, p. 567 (1981) (recognizing general rule that "judgment in
an action against either party to a vicarious liability relationship establishe[s] preclusion in favor of the other"); "(a) A foreign state shall not be immune from the jurisdiction of courts of the United States or of the States in any
Restatement (Second) of Judgments 51 (1982). case -
But the question of claim preclusion, like the substantive validity under state law of the Nelsons' negligence cause of .....
action, has not yet been litigated, and is outside the proper sphere of our review. "[I]t is not our practice to reexamine "(2) in which the action is based upon a commercial activity carried on in the United States by the foreign state." 28
a question of state law of [this] kind or, without good reason, to pass upon it in the first instance." Sheridan, supra, at U.S.C. 1605(a)(2).
401. That a remand to the District Court may be of no avail to the Nelsons is irrelevant to our task here; if the
jurisdictional requirements of the FSIA are met, the case must be remanded to the trial court for further proceedings. The key terms of this provision are defined in 1603. Section 1603(e) defines "commercial activity carried on in the
In my view, the FSIA conferred subject matter jurisdiction on the District Court to entertain the failure to warn United States by a foreign state" as "commercial activity carried on by such state and having substantial contact with
claims, and with all respect, I dissent from the Court's refusal to remand them. the United States." Section 1603(d), in turn defines "commercial activity" as "either a regular course of commercial
conduct or a particular commercial transaction or act." Thus, interpolating the definitions from 1603 into 1605(a)(2)
JUSTICE BLACKMUN, concurring in the judgment in part and dissenting in part. produces this equivalence:
I join JUSTICE WHITE's opinion because it finds that respondents' intentional tort claims are "based upon a "A foreign state shall not be immune from the jurisdiction of courts of the United States or of the States in any case
commercial activity," and that the commercial activity at issue in those claims was not "carried on in the United in which the action is based upon a regular course of commercial conduct or a particular commercial transaction
States." I [507 U.S. 349, 377] join JUSTICE KENNEDY's opinion insofar as it concludes that the "failure to warn" carried on by such state and having substantial contact with the United States."
claims should be remanded.
[ Footnote 2 ] See, e.g., Maritime International Nominees Establishment v. Republic of Guinea, 224 U.S. App. D.C.
JUSTICE STEVENS, dissenting. 119, 130, n. 18, 693 F.2d 1094, 1105, n. 18 (1982) ("the immunity determination involves considerations distinct
Under the Foreign Sovereign Immunities Act of 1976 (FSIA), a foreign state is subject to the jurisdiction of from the issue of personal jurisdiction, and the FSIA's interlocking provisions are most profitably analyzed when
American courts if two conditions are met: the action must be "based upon a commercial activity" and that activity these distinctions are kept in mind"). See also J. Dellapenna, Suing Foreign Governments and Their [507 U.S. 349,
must have a "substantial contact with the United States." 1 These two conditions should be separately analyzed, 378] Corporations 66, 144 (1988) ("The nexus rules must be analyzed separately from the substantive immunity
because they serve two different purposes. The former excludes commercial activity from the scope of the foreign rules . . . in order to understand jurisdictional questions under the Act" and because "the laws regulating . . .
sovereign's immunity from suit; the second identifies the contacts with the United States that support the assertion of jurisdiction . . . and immunity serve different purposes, and thus require different dispositions") (footnotes omitted).
jurisdiction over the defendant. 2 [507 U.S. 349, 378] [ Footnote 3 ] Though this case does not require resolution of that question (because petitioners' contacts with the
In this case, as JUSTICE WHITE has demonstrated, petitioner kingdom of Saudi Arabia's operation of the hospital United States satisfy, in my view, the more narrow requirements of "specific" jurisdiction), I am inclined to agree
and its employment practices and disciplinary procedures are "commercial activities" within the meaning of the with the view expressed by Judge Higginbotham in his separate opinion in Vencedora Oceanica Navigacion, S.A. v.
statute, and respondent Scott Nelson's claim that he was punished for acts performed in the course of his employment Compagnie Nationale Algerienne de Navigation, 730 F.2d 195, 204-205 (1984) (concurring in part and dissenting in
was unquestionably "based upon" those activities. Thus, the first statutory condition is satisfied; petitioner is not part) that the first clause of 1605(a)(2), interpreted in light of the relevant legislative history and the second and third
entitled to immunity from the claims asserted by respondent. clauses of the provision, does authorize "general" jurisdiction over foreign entities that engage in substantial
Unlike JUSTICE WHITE, however, I am also convinced that petitioner's commercial activities - whether defined as commercial activities in the United States.
the regular course of conduct of operating a hospital or, more specifically, as the commercial transaction of engaging [ Footnote 4 ] My affirmance would extend to respondents' failure to warn claims. I am therefore in agreement with
respondent "as an employee with specific responsibilities in that enterprise," Brief for Respondents 25 - have JUSTICE KENNEDY's analysis of that aspect of the case. [507 U.S. 349, 380]
sufficient contact with the United States to justify the exercise of federal jurisdiction. Petitioner Royspec maintains
an office in Maryland and purchases hospital supplies and equipment in this country. For nearly two decades, the
hospital's American agent has maintained an office in the United States and regularly engaged in the recruitment of
personnel in this country. Respondent himself was recruited in the United States and entered into his employment
contract with the hospital in the United States. Before traveling to Saudi Arabia to assume his position at the hospital,
respondent attended an orientation program in Tennessee. The position for which respondent was recruited and
ultimately hired was that of a monitoring systems manager, a troubleshooter, and, taking respondent's allegations as
true, it was precisely respondent's performance of those responsibilities that led to the hospital's retaliatory actions
against him. [507 U.S. 349, 379]
Whether the first clause of 1605(a)(2) broadly authorizes "general" jurisdiction over foreign entities that engage in
substantial commercial activity in this country, or, more narrowly, authorizes only "specific" jurisdiction over
particular commercial claims that have a substantial contact with the United States, 3 petitioners' contacts with the
United States in this case are, in my view, plainly sufficient to subject petitioners to suit in this country on a claim
arising out of its nonimmune commercial activity relating to respondent. If the same activities had been performed
by a private business, I have no doubt jurisdiction would be upheld. And that, of course, should be a touchstone of
our inquiry; for as JUSTICE WHITE explains, ante, at 366, n. 2, 6, and when a foreign nation sheds its uniquely
sovereign status and seeks out the benefits of the private marketplace, it must, like any private party, bear the burdens
and responsibilities imposed by that marketplace. I would therefore affirm the judgment of the Court of Appeals. 4
[ Footnote 1 ] Section 4(a) of the FSIA provides:

Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 183591 October 14, 2008
THE PROVINCE OF NORTH COTABATO, duly represented by GOVERNOR JESUS SACDALAN and/or VICE-
GOVERNOR EMMANUEL PIOL, for and in his own behalf, petitioners,
vs.
THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON ANCESTRAL DOMAIN
(GRP), represented by SEC. RODOLFO GARCIA, ATTY. LEAH ARMAMENTO, ATTY. SEDFREY
CANDELARIA, MARK RYAN SULLIVAN and/or GEN. HERMOGENES ESPERON, JR., the latter in his
capacity as the present and duly-appointed Presidential Adviser on the Peace Process (OPAPP) or the so-called
Office of the Presidential Adviser on the Peace Process, respondents.
x--------------------------------------------x
G.R. No. 183752 October 14, 2008
CITY GOVERNMENT OF ZAMBOANGA, as represented by HON. CELSO L. LOBREGAT, City Mayor of
Zamboanga, and in his personal capacity as resident of the City of Zamboanga, Rep. MA. ISABELLE G.
CLIMACO, District 1, and Rep. ERICO BASILIO A. FABIAN, District 2, City of Zamboanga, petitioners,
vs.
THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE NEGOTIATING PANEL (GRP), as
represented by RODOLFO C. GARCIA, LEAH ARMAMENTO, SEDFREY CANDELARIA, MARK RYAN
SULLIVAN and HERMOGENES ESPERON, in his capacity as the Presidential Adviser on Peace Process,
respondents.
x--------------------------------------------x
G.R. No. 183951 October 14, 2008
THE PROVINCIAL GOVERNMENT OF ZAMBOANGA DEL NORTE, as represented by HON. ROLANDO E.
YEBES, in his capacity as Provincial Governor, HON. FRANCIS H. OLVIS, in his capacity as Vice-Governor and
Presiding Officer of the Sangguniang Panlalawigan, HON. CECILIA JALOSJOS CARREON, Congresswoman, 1st
Congressional District, HON. CESAR G. JALOSJOS, Congressman, 3rd Congressional District, and Members of
the Sangguniang Panlalawigan of the Province of Zamboanga del Norte, namely, HON. SETH FREDERICK P.
JALOSJOS, HON. FERNANDO R. CABIGON, JR., HON. ULDARICO M. MEJORADA II, HON. EDIONAR M.
ZAMORAS, HON. EDGAR J. BAGUIO, HON. CEDRIC L. ADRIATICO, HON. FELIXBERTO C. BOLANDO,
HON. JOSEPH BRENDO C. AJERO, HON. NORBIDEIRI B. EDDING, HON. ANECITO S. DARUNDAY, HON.
ANGELICA J. CARREON and HON. LUZVIMINDA E. TORRINO, petitioners,
vs.
THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE NEGOTIATING PANEL [GRP], as
represented by HON. RODOLFO C. GARCIA and HON. HERMOGENES ESPERON, in his capacity as the
Presidential Adviser of Peace Process, respondents.
x--------------------------------------------x
G.R. No. 183962 October 14, 2008
ERNESTO M. MACEDA, JEJOMAR C. BINAY, and AQUILINO L. PIMENTEL III, petitioners,
vs.
THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE NEGOTIATING PANEL, represented
by its Chairman RODOLFO C. GARCIA, and the MORO ISLAMIC LIBERATION FRONT PEACE
NEGOTIATING PANEL, represented by its Chairman MOHAGHER IQBAL, respondents.
x--------------------------------------------x
FRANKLIN M. DRILON and ADEL ABBAS TAMANO, petitioners-in-intervention.

x--------------------------------------------x
x--------------------------------------------x

G.R. No. 183893 October 14, 2008

SEN. MANUEL A. ROXAS, petitioners-in-intervention.

THE CITY OF ILIGAN, duly represented by CITY MAYOR LAWRENCE LLUCH CRUZ, petitioner,
x--------------------------------------------x
vs.
THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON ANCESTRAL DOMAIN
(GRP), represented by SEC. RODOLFO GARCIA, ATTY. LEAH ARMAMENTO, ATTY. SEDFREY MUNICIPALITY OF LINAMON duly represented by its Municipal Mayor NOEL N. DEANO, petitioners-in-
CANDELARIA, MARK RYAN SULLIVAN; GEN. HERMOGENES ESPERON, JR., in his capacity as the present intervention,
and duly appointed Presidential Adviser on the Peace Process; and/or SEC. EDUARDO ERMITA, in his capacity as
Executive Secretary. respondents. x--------------------------------------------x
THE CITY OF ISABELA, BASILAN PROVINCE, represented by MAYOR CHERRYLYN P. SANTOS-AKBAR,
petitioners-in-intervention.
x--------------------------------------------x
THE PROVINCE OF SULTAN KUDARAT, rep. by HON. SUHARTO T. MANGUDADATU, in his capacity as
Provincial Governor and a resident of the Province of Sultan Kudarat, petitioner-in-intervention.
x-------------------------------------------x
RUY ELIAS LOPEZ, for and in his own behalf and on behalf of Indigenous Peoples in Mindanao Not Belonging to
the MILF, petitioner-in-intervention.
x--------------------------------------------x
CARLO B. GOMEZ, GERARDO S. DILIG, NESARIO G. AWAT, JOSELITO C. ALISUAG and RICHALEX G.
JAGMIS, as citizens and residents of Palawan, petitioners-in-intervention.
x--------------------------------------------x
MARINO RIDAO and KISIN BUXANI, petitioners-in-intervention.
x--------------------------------------------x
MUSLIM LEGAL ASSISTANCE FOUNDATION, INC (MUSLAF), respondent-in-intervention.
x--------------------------------------------x
MUSLIM MULTI-SECTORAL MOVEMENT FOR PEACE & DEVELOPMENT (MMMPD), respondent-in-
intervention.
x--------------------------------------------x
DECISION
CARPIO MORALES, J.:
Subject of these consolidated cases is the extent of the powers of the President in pursuing the peace process. While
the facts surrounding this controversy center on the armed conflict in Mindanao between the government and the
Moro Islamic Liberation Front (MILF), the legal issue involved has a bearing on all areas in the country where there
has been a long-standing armed conflict. Yet again, the Court is tasked to perform a delicate balancing act. It must
uncompromisingly delineate the bounds within which the President may lawfully exercise her discretion, but it must
do so in strict adherence to the Constitution, lest its ruling unduly restricts the freedom of action vested by that same
Constitution in the Chief Executive precisely to enable her to pursue the peace process effectively.
I. FACTUAL ANTECEDENTS OF THE PETITIONS
On August 5, 2008, the Government of the Republic of the Philippines (GRP) and the MILF, through the
Chairpersons of their respective peace negotiating panels, were scheduled to sign a Memorandum of Agreement on
the Ancestral Domain (MOA-AD) Aspect of the GRP-MILF Tripoli Agreement on Peace of 2001 in Kuala Lumpur,
Malaysia.
The MILF is a rebel group which was established in March 1984 when, under the leadership of the late Salamat
Hashim, it splintered from the Moro National Liberation Front (MNLF) then headed by Nur Misuari, on the ground,
among others, of what Salamat perceived to be the manipulation of the MNLF away from an Islamic basis towards
Marxist-Maoist orientations.1
The signing of the MOA-AD between the GRP and the MILF was not to materialize, however, for upon motion of
petitioners, specifically those who filed their cases before the scheduled signing of the MOA-AD, this Court issued a
Temporary Restraining Order enjoining the GRP from signing the same.
The MOA-AD was preceded by a long process of negotiation and the concluding of several prior agreements
between the two parties beginning in 1996, when the GRP-MILF peace negotiations began. On July 18, 1997, the
GRP and MILF Peace Panels signed the Agreement on General Cessation of Hostilities. The following year, they
signed the General Framework of Agreement of Intent on August 27, 1998.
The Solicitor General, who represents respondents, summarizes the MOA-AD by stating that the same contained,
among others, the commitment of the parties to pursue peace negotiations, protect and respect human rights,
negotiate with sincerity in the resolution and pacific settlement of the conflict, and refrain from the use of threat or
force to attain undue advantage while the peace negotiations on the substantive agenda are on-going.2
Early on, however, it was evident that there was not going to be any smooth sailing in the GRP-MILF peace process.
Towards the end of 1999 up to early 2000, the MILF attacked a number of municipalities in Central Mindanao and,
in March 2000, it took control of the town hall of Kauswagan, Lanao del Norte.3 In response, then President Joseph
Estrada declared and carried out an "all-out-war" against the MILF.
When President Gloria Macapagal-Arroyo assumed office, the military offensive against the MILF was suspended
and the government sought a resumption of the peace talks. The MILF, according to a leading MILF member,
initially responded with deep reservation, but when President Arroyo asked the Government of Malaysia through
Prime Minister Mahathir Mohammad to help convince the MILF to return to the negotiating table, the MILF
convened its Central Committee to seriously discuss the matter and, eventually, decided to meet with the GRP.4
The parties met in Kuala Lumpur on March 24, 2001, with the talks being facilitated by the Malaysian government,
the parties signing on the same date the Agreement on the General Framework for the Resumption of Peace Talks
Between the GRP and the MILF. The MILF thereafter suspended all its military actions.5
Formal peace talks between the parties were held in Tripoli, Libya from June 20-22, 2001, the outcome of which was
the GRP-MILF Tripoli Agreement on Peace (Tripoli Agreement 2001) containing the basic principles and agenda on
the following aspects of the negotiation: Security Aspect, Rehabilitation Aspect, and Ancestral Domain Aspect. With
regard to the Ancestral Domain Aspect, the parties in Tripoli Agreement 2001 simply agreed "that the same be
discussed further by the Parties in their next meeting."
A second round of peace talks was held in Cyberjaya, Malaysia on August 5-7, 2001 which ended with the signing of
the Implementing Guidelines on the Security Aspect of the Tripoli Agreement 2001 leading to a ceasefire status
between the parties. This was followed by the Implementing Guidelines on the Humanitarian Rehabilitation and
Development Aspects of the Tripoli Agreement 2001, which was signed on May 7, 2002 at Putrajaya, Malaysia.
Nonetheless, there were many incidence of violence between government forces and the MILF from 2002 to 2003.
Meanwhile, then MILF Chairman Salamat Hashim passed away on July 13, 2003 and he was replaced by Al Haj
Murad, who was then the chief peace negotiator of the MILF. Murad's position as chief peace negotiator was taken
over by Mohagher Iqbal.6
In 2005, several exploratory talks were held between the parties in Kuala Lumpur, eventually leading to the crafting
of the draft MOA-AD in its final form, which, as mentioned, was set to be signed last August 5, 2008.
II. STATEMENT OF THE PROCEEDINGS
Before the Court is what is perhaps the most contentious "consensus" ever embodied in an instrument - the MOA-
AD which is assailed principally by the present petitions bearing docket numbers 183591, 183752, 183893, 183951
and 183962.
Commonly impleaded as respondents are the GRP Peace Panel on Ancestral Domain7 and the Presidential Adviser
on the Peace Process (PAPP) Hermogenes Esperon, Jr.
On July 23, 2008, the Province of North Cotabato8 and Vice-Governor Emmanuel Piol filed a petition, docketed as
G.R. No. 183591, for Mandamus and Prohibition with Prayer for the Issuance of Writ of Preliminary Injunction and
Temporary Restraining Order.9 Invoking the right to information on matters of public concern, petitioners seek to
compel respondents to disclose and furnish them the complete and official copies of the MOA-AD including its
attachments, and to prohibit the slated signing of the MOA-AD, pending the disclosure of the contents of the MOA-
AD and the holding of a public consultation thereon. Supplementarily, petitioners pray that the MOA-AD be
declared unconstitutional.10
This initial petition was followed by another one, docketed as G.R. No. 183752, also for Mandamus and
Prohibition11 filed by the City of Zamboanga,12 Mayor Celso Lobregat, Rep. Ma. Isabelle Climaco and Rep. Erico
Basilio Fabian who likewise pray for similar injunctive reliefs. Petitioners herein moreover pray that the City of
Zamboanga be excluded from the Bangsamoro Homeland and/or Bangsamoro Juridical Entity and, in the alternative,
that the MOA-AD be declared null and void.
By Resolution of August 4, 2008, the Court issued a Temporary Restraining Order commanding and directing public
respondents and their agents to cease and desist from formally signing the MOA-AD.13 The Court also required the
Solicitor General to submit to the Court and petitioners the official copy of the final draft of the MOA-AD,14 to
which she complied.15
Meanwhile, the City of Iligan16 filed a petition for Injunction and/or Declaratory Relief, docketed as G.R. No.
183893, praying that respondents be enjoined from signing the MOA-AD or, if the same had already been signed,
from implementing the same, and that the MOA-AD be declared unconstitutional. Petitioners herein additionally
implead Executive Secretary Eduardo Ermita as respondent.
The Province of Zamboanga del Norte,17 Governor Rolando Yebes, Vice-Governor Francis Olvis, Rep. Cecilia
Jalosjos-Carreon, Rep. Cesar Jalosjos, and the members18 of the Sangguniang Panlalawigan of Zamboanga del
Norte filed on August 15, 2008 a petition for Certiorari, Mandamus and Prohibition,19 docketed as G.R. No. 183951.
They pray, inter alia, that the MOA-AD be declared null and void and without operative effect, and that respondents
be enjoined from executing the MOA-AD.
On August 19, 2008, Ernesto Maceda, Jejomar Binay, and Aquilino Pimentel III filed a petition for Prohibition,20
docketed as G.R. No. 183962, praying for a judgment prohibiting and permanently enjoining respondents from
formally signing and executing the MOA-AD and or any other agreement derived therefrom or similar thereto, and
nullifying the MOA-AD for being unconstitutional and illegal. Petitioners herein additionally implead as respondent
the MILF Peace Negotiating Panel represented by its Chairman Mohagher Iqbal.
Various parties moved to intervene and were granted leave of court to file their petitions-/comments-in-intervention.
Petitioners-in-Intervention include Senator Manuel A. Roxas, former Senate President Franklin Drilon and Atty. Adel
Tamano, the City of Isabela21 and Mayor Cherrylyn Santos-Akbar, the Province of Sultan Kudarat22 and Gov.
Suharto Mangudadatu, the Municipality of Linamon in Lanao del Norte,23 Ruy Elias Lopez of Davao City and of
the Bagobo tribe, Sangguniang Panlungsod member Marino Ridao and businessman Kisin Buxani, both of Cotabato
City; and lawyers Carlo Gomez, Gerardo Dilig, Nesario Awat, Joselito Alisuag, Richalex Jagmis, all of Palawan City.
The Muslim Legal Assistance Foundation, Inc. (Muslaf) and the Muslim Multi-Sectoral Movement for Peace and
Development (MMMPD) filed their respective Comments-in-Intervention.
By subsequent Resolutions, the Court ordered the consolidation of the petitions. Respondents filed Comments on the
petitions, while some of petitioners submitted their respective Replies.
Respondents, by Manifestation and Motion of August 19, 2008, stated that the Executive Department shall
thoroughly review the MOA-AD and pursue further negotiations to address the issues hurled against it, and thus
moved to dismiss the cases. In the succeeding exchange of pleadings, respondents' motion was met with vigorous
opposition from petitioners.
The cases were heard on oral argument on August 15, 22 and 29, 2008 that tackled the following principal issues:
1. Whether the petitions have become moot and academic
(i) insofar as the mandamus aspect is concerned, in view of the disclosure of official copies of the final draft of the
Memorandum of Agreement (MOA); and
(ii) insofar as the prohibition aspect involving the Local Government Units is concerned, if it is considered that
consultation has become fait accompli with the finalization of the draft;
2. Whether the constitutionality and the legality of the MOA is ripe for adjudication;
3. Whether respondent Government of the Republic of the Philippines Peace Panel committed grave abuse of
discretion amounting to lack or excess of jurisdiction when it negotiated and initiated the MOA vis--vis ISSUES
Nos. 4 and 5;
4. Whether there is a violation of the people's right to information on matters of public concern (1987 Constitution,
Article III, Sec. 7) under a state policy of full disclosure of all its transactions involving public interest (1987
Constitution, Article II, Sec. 28) including public consultation under Republic Act No. 7160 (LOCAL
GOVERNMENT CODE OF 1991)[;]
If it is in the affirmative, whether prohibition under Rule 65 of the 1997 Rules of Civil Procedure is an appropriate
remedy;
5. Whether by signing the MOA, the Government of the Republic of the Philippines would be BINDING itself
a) to create and recognize the Bangsamoro Juridical Entity (BJE) as a separate state, or a juridical, territorial or
political subdivision not recognized by law;
b) to revise or amend the Constitution and existing laws to conform to the MOA;
c) to concede to or recognize the claim of the Moro Islamic Liberation Front for ancestral domain in violation of
Republic Act No. 8371 (THE INDIGENOUS PEOPLES RIGHTS ACT OF 1997), particularly Section 3(g) &
Chapter VII (DELINEATION, RECOGNITION OF ANCESTRAL DOMAINS)[;]
If in the affirmative, whether the Executive Branch has the authority to so bind the Government of the Republic of
the Philippines;
6. Whether the inclusion/exclusion of the Province of North Cotabato, Cities of Zamboanga, Iligan and Isabela, and
the Municipality of Linamon, Lanao del Norte in/from the areas covered by the projected Bangsamoro Homeland is
a justiciable question; and
7. Whether desistance from signing the MOA derogates any prior valid commitments of the Government of the
Republic of the Philippines.24
The Court, thereafter, ordered the parties to submit their respective Memoranda. Most of the parties submitted their
memoranda on time.
III. OVERVIEW OF THE MOA-AD
As a necessary backdrop to the consideration of the objections raised in the subject five petitions and six petitions-in-
intervention against the MOA-AD, as well as the two comments-in-intervention in favor of the MOA-AD, the Court
takes an overview of the MOA.
The MOA-AD identifies the Parties to it as the GRP and the MILF.
Under the heading "Terms of Reference" (TOR), the MOA-AD includes not only four earlier agreements between
the GRP and MILF, but also two agreements between the GRP and the MNLF: the 1976 Tripoli Agreement, and the
Final Peace Agreement on the Implementation of the 1976 Tripoli Agreement, signed on September 2, 1996 during
the administration of President Fidel Ramos.
The MOA-AD also identifies as TOR two local statutes - the organic act for the Autonomous Region in Muslim
Mindanao (ARMM)25 and the Indigenous Peoples Rights Act (IPRA),26 and several international law instruments -
the ILO Convention No. 169 Concerning Indigenous and Tribal Peoples in Independent Countries in relation to the
UN Declaration on the Rights of the Indigenous Peoples, and the UN Charter, among others.
The MOA-AD includes as a final TOR the generic category of "compact rights entrenchment emanating from the
regime of dar-ul-mua'hada (or territory under compact) and dar-ul-sulh (or territory under peace agreement) that
partakes the nature of a treaty device."
During the height of the Muslim Empire, early Muslim jurists tended to see the world through a simple dichotomy:
there was the dar-ul-Islam (the Abode of Islam) and dar-ul-harb (the Abode of War). The first referred to those lands
where Islamic laws held sway, while the second denoted those lands where Muslims were persecuted or where
Muslim laws were outlawed or ineffective.27 This way of viewing the world, however, became more complex
through the centuries as the Islamic world became part of the international community of nations.
As Muslim States entered into treaties with their neighbors, even with distant States and inter-governmental
organizations, the classical division of the world into dar-ul-Islam and dar-ul-harb eventually lost its meaning. New
terms were drawn up to describe novel ways of perceiving non-Muslim territories. For instance, areas like dar-ul-
mua'hada (land of compact) and dar-ul-sulh (land of treaty) referred to countries which, though under a secular
regime, maintained peaceful and cooperative relations with Muslim States, having been bound to each other by treaty
or agreement. Dar-ul-aman (land of order), on the other hand, referred to countries which, though not bound by
treaty with Muslim States, maintained freedom of religion for Muslims.28
It thus appears that the "compact rights entrenchment" emanating from the regime of dar-ul-mua'hada and dar-ul-sulh
simply refers to all other agreements between the MILF and the Philippine government - the Philippines being the
land of compact and peace agreement - that partake of the nature of a treaty device, "treaty" being broadly defined as
"any solemn agreement in writing that sets out understandings, obligations, and benefits for both parties which
provides for a framework that elaborates the principles declared in the [MOA-AD]."29
The MOA-AD states that the Parties "HAVE AGREED AND ACKNOWLEDGED AS FOLLOWS," and starts with
its main body.
The main body of the MOA-AD is divided into four strands, namely, Concepts and Principles, Territory, Resources,
and Governance.
A. CONCEPTS AND PRINCIPLES
This strand begins with the statement that it is "the birthright of all Moros and all Indigenous peoples of Mindanao to
identify themselves and be accepted as Bangsamoros.'" It defines "Bangsamoro people" as the natives or original
inhabitants of Mindanao and its adjacent islands including Palawan and the Sulu archipelago at the time of conquest
or colonization, and their descendants whether mixed or of full blood, including their spouses.30
Thus, the concept of "Bangsamoro," as defined in this strand of the MOA-AD, includes not only "Moros" as
traditionally understood even by Muslims,31 but all indigenous peoples of Mindanao and its adjacent islands. The
MOA-AD adds that the freedom of choice of indigenous peoples shall be respected. What this freedom of choice
consists in has not been specifically defined.
The MOA-AD proceeds to refer to the "Bangsamoro homeland," the ownership of which is vested exclusively in the
Bangsamoro people by virtue of their prior rights of occupation.32 Both parties to the MOA-AD acknowledge that
ancestral domain does not form part of the public domain.33
The Bangsamoro people are acknowledged as having the right to self-governance, which right is said to be rooted on
ancestral territoriality exercised originally under the suzerain authority of their sultanates and the Pat a Pangampong
ku Ranaw. The sultanates were described as states or "karajaan/kadatuan" resembling a body politic endowed with
all the elements of a nation-state in the modern sense.34
The MOA-AD thus grounds the right to self-governance of the Bangsamoro people on the past suzerain authority of
the sultanates. As gathered, the territory defined as the Bangsamoro homeland was ruled by several sultanates and,
specifically in the case of the Maranao, by the Pat a Pangampong ku Ranaw, a confederation of independent
principalities (pangampong) each ruled by datus and sultans, none of whom was supreme over the others.35
The MOA-AD goes on to describe the Bangsamoro people as "the First Nation' with defined territory and with a
system of government having entered into treaties of amity and commerce with foreign nations."
The term "First Nation" is of Canadian origin referring to the indigenous peoples of that territory, particularly those
known as Indians. In Canada, each of these indigenous peoples is equally entitled to be called "First Nation," hence,
all of them are usually described collectively by the plural "First Nations."36 To that extent, the MOA-AD, by
identifying the Bangsamoro people as "the First Nation" - suggesting its exclusive entitlement to that designation -
departs from the Canadian usage of the term.
The MOA-AD then mentions for the first time the "Bangsamoro Juridical Entity" (BJE) to which it grants the
authority and jurisdiction over the Ancestral Domain and Ancestral Lands of the Bangsamoro.37
B. TERRITORY
The territory of the Bangsamoro homeland is described as the land mass as well as the maritime, terrestrial, fluvial
and alluvial domains, including the aerial domain and the atmospheric space above it, embracing the Mindanao-
Sulu-Palawan geographic region.38
More specifically, the core of the BJE is defined as the present geographic area of the ARMM - thus constituting the
following areas: Lanao del Sur, Maguindanao, Sulu, Tawi-Tawi, Basilan, and Marawi City. Significantly, this core
also includes certain municipalities of Lanao del Norte that voted for inclusion in the ARMM in the 2001
plebiscite.39
Outside of this core, the BJE is to cover other provinces, cities, municipalities and barangays, which are grouped into
two categories, Category A and Category B. Each of these areas is to be subjected to a plebiscite to be held on
different dates, years apart from each other. Thus, Category A areas are to be subjected to a plebiscite not later than
twelve (12) months following the signing of the MOA-AD.40 Category B areas, also called "Special Intervention
Areas," on the other hand, are to be subjected to a plebiscite twenty-five (25) years from the signing of a separate
agreement - the Comprehensive Compact.41
The Parties to the MOA-AD stipulate that the BJE shall have jurisdiction over all natural resources within its
"internal waters," defined as extending fifteen (15) kilometers from the coastline of the BJE area;42 that the BJE
shall also have "territorial waters," which shall stretch beyond the BJE internal waters up to the baselines of the
Republic of the Philippines (RP) south east and south west of mainland Mindanao; and that within these territorial
waters, the BJE and the "Central Government" (used interchangeably with RP) shall exercise joint jurisdiction,
authority and management over all natural resources.43 Notably, the jurisdiction over the internal waters is not
similarly described as "joint."
The MOA-AD further provides for the sharing of minerals on the territorial waters between the Central Government
and the BJE, in favor of the latter, through production sharing and economic cooperation agreement.44 The activities
which the Parties are allowed to conduct on the territorial waters are enumerated, among which are the exploration
and utilization of natural resources, regulation of shipping and fishing activities, and the enforcement of police and
safety measures.45 There is no similar provision on the sharing of minerals and allowed activities with respect to the
internal waters of the BJE.
C. RESOURCES
The MOA-AD states that the BJE is free to enter into any economic cooperation and trade relations with foreign
countries and shall have the option to establish trade missions in those countries. Such relationships and
understandings, however, are not to include aggression against the GRP. The BJE may also enter into environmental
cooperation agreements.46
The external defense of the BJE is to remain the duty and obligation of the Central Government. The Central
Government is also bound to "take necessary steps to ensure the BJE's participation in international meetings and
events" like those of the ASEAN and the specialized agencies of the UN. The BJE is to be entitled to participate in
Philippine official missions and delegations for the negotiation of border agreements or protocols for environmental
protection and equitable sharing of incomes and revenues involving the bodies of water adjacent to or between the
islands forming part of the ancestral domain.47
With regard to the right of exploring for, producing, and obtaining all potential sources of energy, petroleum, fossil
fuel, mineral oil and natural gas, the jurisdiction and control thereon is to be vested in the BJE "as the party having
control within its territorial jurisdiction." This right carries the proviso that, "in times of national emergency, when
public interest so requires," the Central Government may, for a fixed period and under reasonable terms as may be
agreed upon by both Parties, assume or direct the operation of such resources.48
The sharing between the Central Government and the BJE of total production pertaining to natural resources is to be
75:25 in favor of the BJE.49
The MOA-AD provides that legitimate grievances of the Bangsamoro people arising from any unjust dispossession
of their territorial and proprietary rights, customary land tenures, or their marginalization shall be acknowledged.
Whenever restoration is no longer possible, reparation is to be in such form as mutually determined by the Parties.50
The BJE may modify or cancel the forest concessions, timber licenses, contracts or agreements, mining concessions,
Mineral Production and Sharing Agreements (MPSA), Industrial Forest Management Agreements (IFMA), and other
land tenure instruments granted by the Philippine Government, including those issued by the present ARMM.51
D. GOVERNANCE
The MOA-AD binds the Parties to invite a multinational third-party to observe and monitor the implementation of
the Comprehensive Compact. This compact is to embody the "details for the effective enforcement" and "the
mechanisms and modalities for the actual implementation" of the MOA-AD. The MOA-AD explicitly provides that
the participation of the third party shall not in any way affect the status of the relationship between the Central
Government and the BJE.52
The "associative" relationship
between the Central Government
and the BJE
The MOA-AD describes the relationship of the Central Government and the BJE as "associative," characterized by
shared authority and responsibility. And it states that the structure of governance is to be based on executive,
legislative, judicial, and administrative institutions with defined powers and functions in the Comprehensive
Compact.
The MOA-AD provides that its provisions requiring "amendments to the existing legal framework" shall take effect
upon signing of the Comprehensive Compact and upon effecting the aforesaid amendments, with due regard to the
non-derogation of prior agreements and within the stipulated timeframe to be contained in the Comprehensive
Compact. As will be discussed later, much of the present controversy hangs on the legality of this provision.
The BJE is granted the power to build, develop and maintain its own institutions inclusive of civil service, electoral,
financial and banking, education, legislation, legal, economic, police and internal security force, judicial system and
correctional institutions, the details of which shall be discussed in the negotiation of the comprehensive compact.
As stated early on, the MOA-AD was set to be signed on August 5, 2008 by Rodolfo Garcia and Mohagher Iqbal,
Chairpersons of the Peace Negotiating Panels of the GRP and the MILF, respectively. Notably, the penultimate
paragraph of the MOA-AD identifies the signatories as "the representatives of the Parties," meaning the GRP and
MILF themselves, and not merely of the negotiating panels.53 In addition, the signature page of the MOA-AD states
that it is "WITNESSED BY" Datuk Othman Bin Abd Razak, Special Adviser to the Prime Minister of Malaysia,
"ENDORSED BY" Ambassador Sayed Elmasry, Adviser to Organization of the Islamic Conference (OIC) Secretary
General and Special Envoy for Peace Process in Southern Philippines, and SIGNED "IN THE PRESENCE OF" Dr.
Albert G. Romulo, Secretary of Foreign Affairs of RP and Dato' Seri Utama Dr. Rais Bin Yatim, Minister of Foreign
Affairs, Malaysia, all of whom were scheduled to sign the Agreement last August 5, 2008.
Annexed to the MOA-AD are two documents containing the respective lists cum maps of the provinces,
municipalities, and barangays under Categories A and B earlier mentioned in the discussion on the strand on
TERRITORY.
IV. PROCEDURAL ISSUES
A. RIPENESS
The power of judicial review is limited to actual cases or controversies.54 Courts decline to issue advisory opinions
or to resolve hypothetical or feigned problems, or mere academic questions.55 The limitation of the power of judicial
review to actual cases and controversies defines the role assigned to the judiciary in a tripartite allocation of power,
to assure that the courts will not intrude into areas committed to the other branches of government.56
An actual case or controversy involves a conflict of legal rights, an assertion of opposite legal claims, susceptible of
judicial resolution as distinguished from a hypothetical or abstract difference or dispute. There must be a contrariety
of legal rights that can be interpreted and enforced on the basis of existing law and jurisprudence.57 The Court can
decide the constitutionality of an act or treaty only when a proper case between opposing parties is submitted for
judicial determination.58
Related to the requirement of an actual case or controversy is the requirement of ripeness. A question is ripe for
adjudication when the act being challenged has had a direct adverse effect on the individual challenging it.59 For a
case to be considered ripe for adjudication, it is a prerequisite that something had then been accomplished or
performed by either branch before a court may come into the picture,60 and the petitioner must allege the existence
of an immediate or threatened injury to itself as a result of the challenged action.61 He must show that he has
sustained or is immediately in danger of sustaining some direct injury as a result of the act complained of.62
The Solicitor General argues that there is no justiciable controversy that is ripe for judicial review in the present
petitions, reasoning that
The unsigned MOA-AD is simply a list of consensus points subject to further negotiations and legislative enactments
as well as constitutional processes aimed at attaining a final peaceful agreement. Simply put, the MOA-AD remains
to be a proposal that does not automatically create legally demandable rights and obligations until the list of
operative acts required have been duly complied with. x x x
xxxx
In the cases at bar, it is respectfully submitted that this Honorable Court has no authority to pass upon issues based
on hypothetical or feigned constitutional problems or interests with no concrete bases. Considering the preliminary
character of the MOA-AD, there are no concrete acts that could possibly violate petitioners' and intervenors' rights
since the acts complained of are mere contemplated steps toward the formulation of a final peace agreement. Plainly,
petitioners and intervenors' perceived injury, if at all, is merely imaginary and illusory apart from being unfounded
and based on mere conjectures. (Underscoring supplied)
The Solicitor General cites63 the following provisions of the MOA-AD:
TERRITORY
xxxx
2. Toward this end, the Parties enter into the following stipulations:
xxxx
d. Without derogating from the requirements of prior agreements, the Government stipulates to conduct and deliver,
using all possible legal measures, within twelve (12) months following the signing of the MOA-AD, a plebiscite
covering the areas as enumerated in the list and depicted in the map as Category A attached herein (the "Annex").
The Annex constitutes an integral part of this framework agreement. Toward this end, the Parties shall endeavor to
complete the negotiations and resolve all outstanding issues on the Comprehensive Compact within fifteen (15)
months from the signing of the MOA-AD.
xxxx
GOVERNANCE
xxxx
7. The Parties agree that mechanisms and modalities for the actual implementation of this MOA-AD shall be spelt
out in the Comprehensive Compact to mutually take such steps to enable it to occur effectively.
Any provisions of the MOA-AD requiring amendments to the existing legal framework shall come into force upon
the signing of a Comprehensive Compact and upon effecting the necessary changes to the legal framework with due
regard to non-derogation of prior agreements and within the stipulated timeframe to be contained in the
Comprehensive Compact.64 (Underscoring supplied)
The Solicitor General's arguments fail to persuade.
Concrete acts under the MOA-AD are not necessary to render the present controversy ripe. In Pimentel, Jr. v.
Aguirre,65 this Court held:
x x x [B]y the mere enactment of the questioned law or the approval of the challenged action, the dispute is said to
have ripened into a judicial controversy even without any other overt act. Indeed, even a singular violation of the
Constitution and/or the law is enough to awaken judicial duty.
xxxx
By the same token, when an act of the President, who in our constitutional scheme is a coequal of Congress, is
seriously alleged to have infringed the Constitution and the laws x x x settling the dispute becomes the duty and the
responsibility of the courts.66
In Santa Fe Independent School District v. Doe,67 the United States Supreme Court held that the challenge to the
constitutionality of the school's policy allowing student-led prayers and speeches before games was ripe for
adjudication, even if no public prayer had yet been led under the policy, because the policy was being challenged as
unconstitutional on its face.68
That the law or act in question is not yet effective does not negate ripeness. For example, in New York v. United
States,69 decided in 1992, the United States Supreme Court held that the action by the State of New York
challenging the provisions of the Low-Level Radioactive Waste Policy Act was ripe for adjudication even if the
questioned provision was not to take effect until January 1, 1996, because the parties agreed that New York had to
take immediate action to avoid the provision's consequences.70
The present petitions pray for Certiorari,71 Prohibition, and Mandamus. Certiorari and Prohibition are remedies
granted by law when any tribunal, board or officer has acted, in the case of certiorari, or is proceeding, in the case of
prohibition, without or in excess of its jurisdiction or with grave abuse of discretion amounting to lack or excess of
jurisdiction.72 Mandamus is a remedy granted by law when any tribunal, corporation, board, officer or person
unlawfully neglects the performance of an act which the law specifically enjoins as a duty resulting from an office,
trust, or station, or unlawfully excludes another from the use or enjoyment of a right or office to which such other is
entitled.73 Certiorari, Mandamus and Prohibition are appropriate remedies to raise constitutional issues and to
review and/or prohibit/nullify, when proper, acts of legislative and executive officials.74
The authority of the GRP Negotiating Panel is defined by Executive Order No. 3 (E.O. No. 3), issued on February
28, 2001.75 The said executive order requires that "[t]he government's policy framework for peace, including the
systematic approach and the administrative structure for carrying out the comprehensive peace process x x x be
governed by this Executive Order."76
The present petitions allege that respondents GRP Panel and PAPP Esperon drafted the terms of the MOA-AD
without consulting the local government units or communities affected, nor informing them of the proceedings. As
will be discussed in greater detail later, such omission, by itself, constitutes a departure by respondents from their
mandate under E.O. No. 3.
Furthermore, the petitions allege that the provisions of the MOA-AD violate the Constitution. The MOA-AD
provides that "any provisions of the MOA-AD requiring amendments to the existing legal framework shall come into
force upon the signing of a Comprehensive Compact and upon effecting the necessary changes to the legal
framework," implying an amendment of the Constitution to accommodate the MOA-AD. This stipulation, in effect,
guaranteed to the MILF the amendment of the Constitution. Such act constitutes another violation of its authority.
Again, these points will be discussed in more detail later.
As the petitions allege acts or omissions on the part of respondent that exceed their authority, by violating their duties
under E.O. No. 3 and the provisions of the Constitution and statutes, the petitions make a prima facie case for
Certiorari, Prohibition, and Mandamus, and an actual case or controversy ripe for adjudication exists. When an act of
a branch of government is seriously alleged to have infringed the Constitution, it becomes not only the right but in
fact the duty of the judiciary to settle the dispute.77
B. LOCUS STANDI
For a party to have locus standi, one must allege "such a personal stake in the outcome of the controversy as to
assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends
for illumination of difficult constitutional questions."78
Because constitutional cases are often public actions in which the relief sought is likely to affect other persons, a
preliminary question frequently arises as to this interest in the constitutional question raised.79
When suing as a citizen, the person complaining must allege that he has been or is about to be denied some right or
privilege to which he is lawfully entitled or that he is about to be subjected to some burdens or penalties by reason of
the statute or act complained of.80 When the issue concerns a public right, it is sufficient that the petitioner is a
citizen and has an interest in the execution of the laws.81
For a taxpayer, one is allowed to sue where there is an assertion that public funds are illegally disbursed or deflected
to an illegal purpose, or that there is a wastage of public funds through the enforcement of an invalid or
unconstitutional law.82 The Court retains discretion whether or not to allow a taxpayer's suit.83
In the case of a legislator or member of Congress, an act of the Executive that injures the institution of Congress
causes a derivative but nonetheless substantial injury that can be questioned by legislators. A member of the House
of Representatives has standing to maintain inviolate the prerogatives, powers and privileges vested by the
Constitution in his office.84
An organization may be granted standing to assert the rights of its members,85 but the mere invocation by the
Integrated Bar of the Philippines or any member of the legal profession of the duty to preserve the rule of law does
not suffice to clothe it with standing.86
As regards a local government unit (LGU), it can seek relief in order to protect or vindicate an interest of its own,
and of the other LGUs.87
Intervenors, meanwhile, may be given legal standing upon showing of facts that satisfy the requirements of the law
authorizing intervention,88 such as a legal interest in the matter in litigation, or in the success of either of the parties.
In any case, the Court has discretion to relax the procedural technicality on locus standi, given the liberal attitude it
has exercised, highlighted in the case of David v. Macapagal-Arroyo,89 where technicalities of procedure were
brushed aside, the constitutional issues raised being of paramount public interest or of transcendental importance
deserving the attention of the Court in view of their seriousness, novelty and weight as precedents.90 The Court's
forbearing stance on locus standi on issues involving constitutional issues has for its purpose the protection of
fundamental rights.
In not a few cases, the Court, in keeping with its duty under the Constitution to determine whether the other branches
of government have kept themselves within the limits of the Constitution and the laws and have not abused the
discretion given them, has brushed aside technical rules of procedure.91
In the petitions at bar, petitioners Province of North Cotabato (G.R. No. 183591) Province of Zamboanga del Norte
(G.R. No. 183951), City of Iligan (G.R. No. 183893) and City of Zamboanga (G.R. No. 183752) and petitioners-in-
intervention Province of Sultan Kudarat, City of Isabela and Municipality of Linamon have locus standi in view of
the direct and substantial injury that they, as LGUs, would suffer as their territories, whether in whole or in part, are
to be included in the intended domain of the BJE. These petitioners allege that they did not vote for their inclusion in
the ARMM which would be expanded to form the BJE territory. Petitioners' legal standing is thus beyond doubt.
In G.R. No. 183962, petitioners Ernesto Maceda, Jejomar Binay and Aquilino Pimentel III would have no standing
as citizens and taxpayers for their failure to specify that they would be denied some right or privilege or there would
be wastage of public funds. The fact that they are a former Senator, an incumbent mayor of Makati City, and a
resident of Cagayan de Oro, respectively, is of no consequence. Considering their invocation of the transcendental
importance of the issues at hand, however, the Court grants them standing.
Intervenors Franklin Drilon and Adel Tamano, in alleging their standing as taxpayers, assert that government funds
would be expended for the conduct of an illegal and unconstitutional plebiscite to delineate the BJE territory. On that
score alone, they can be given legal standing. Their allegation that the issues involved in these petitions are of
"undeniable transcendental importance" clothes them with added basis for their personality to intervene in these
petitions.
With regard to Senator Manuel Roxas, his standing is premised on his being a member of the Senate and a citizen to
enforce compliance by respondents of the public's constitutional right to be informed of the MOA-AD, as well as on
a genuine legal interest in the matter in litigation, or in the success or failure of either of the parties. He thus
possesses the requisite standing as an intervenor.
With respect to Intervenors Ruy Elias Lopez, as a former congressman of the 3rd district of Davao City, a taxpayer
and a member of the Bagobo tribe; Carlo B. Gomez, et al., as members of the IBP Palawan chapter, citizens and
taxpayers; Marino Ridao, as taxpayer, resident and member of the Sangguniang Panlungsod of Cotabato City; and
Kisin Buxani, as taxpayer, they failed to allege any proper legal interest in the present petitions. Just the same, the
Court exercises its discretion to relax the procedural technicality on locus standi given the paramount public interest
in the issues at hand.
Intervening respondents Muslim Multi-Sectoral Movement for Peace and Development, an advocacy group for
justice and the attainment of peace and prosperity in Muslim Mindanao; and Muslim Legal Assistance Foundation
Inc., a non-government organization of Muslim lawyers, allege that they stand to be benefited or prejudiced, as the
case may be, in the resolution of the petitions concerning the MOA-AD, and prays for the denial of the petitions on
the grounds therein stated. Such legal interest suffices to clothe them with standing.
B. MOOTNESS
Respondents insist that the present petitions have been rendered moot with the satisfaction of all the reliefs prayed
for by petitioners and the subsequent pronouncement of the Executive Secretary that "[n]o matter what the Supreme
Court ultimately decides[,] the government will not sign the MOA."92
In lending credence to this policy decision, the Solicitor General points out that the President had already disbanded
the GRP Peace Panel.93
In David v. Macapagal-Arroyo,94 this Court held that the "moot and academic" principle not being a magical
formula that automatically dissuades courts in resolving a case, it will decide cases, otherwise moot and academic, if
it finds that (a) there is a grave violation of the Constitution;95 (b) the situation is of exceptional character and
paramount public interest is involved;96 (c) the constitutional issue raised requires formulation of controlling
principles to guide the bench, the bar, and the public;97 and (d) the case is capable of repetition yet evading
review.98
Another exclusionary circumstance that may be considered is where there is a voluntary cessation of the activity
complained of by the defendant or doer. Thus, once a suit is filed and the doer voluntarily ceases the challenged
conduct, it does not automatically deprive the tribunal of power to hear and determine the case and does not render
the case moot especially when the plaintiff seeks damages or prays for injunctive relief against the possible
recurrence of the violation.99
The present petitions fall squarely into these exceptions to thus thrust them into the domain of judicial review. The
grounds cited above in David are just as applicable in the present cases as they were, not only in David, but also in
Province of Batangas v. Romulo100 and Manalo v. Calderon101 where the Court similarly decided them on the
merits, supervening events that would ordinarily have rendered the same moot notwithstanding.
Petitions not mooted
Contrary then to the asseverations of respondents, the non-signing of the MOA-AD and the eventual dissolution of
the GRP Peace Panel did not moot the present petitions. It bears emphasis that the signing of the MOA-AD did not
push through due to the Court's issuance of a Temporary Restraining Order.
Contrary too to respondents' position, the MOA-AD cannot be considered a mere "list of consensus points,"
especially given its nomenclature, the need to have it signed or initialed by all the parties concerned on August 5,
2008, and the far-reaching Constitutional implications of these "consensus points," foremost of which is the creation
of the BJE.
In fact, as what will, in the main, be discussed, there is a commitment on the part of respondents to amend and effect
necessary changes to the existing legal framework for certain provisions of the MOA-AD to take effect.
Consequently, the present petitions are not confined to the terms and provisions of the MOA-AD, but to other on-
going and future negotiations and agreements necessary for its realization. The petitions have not, therefore, been
rendered moot and academic simply by the public disclosure of the MOA-AD,102 the manifestation that it will not
be signed as well as the disbanding of the GRP Panel not withstanding.
Petitions are imbued with paramount public interest
There is no gainsaying that the petitions are imbued with paramount public interest, involving a significant part of
the country's territory and the wide-ranging political modifications of affected LGUs. The assertion that the MOA-
AD is subject to further legal enactments including possible Constitutional amendments more than ever provides
impetus for the Court to formulate controlling principles to guide the bench, the bar, the public and, in this case, the
government and its negotiating entity.
Respondents cite Suplico v. NEDA, et al.103 where the Court did not "pontificat[e] on issues which no longer
legitimately constitute an actual case or controversy [as this] will do more harm than good to the nation as a whole."
The present petitions must be differentiated from Suplico. Primarily, in Suplico, what was assailed and eventually
cancelled was a stand-alone government procurement contract for a national broadband network involving a one-
time contractual relation between two parties-the government and a private foreign corporation. As the issues therein
involved specific government procurement policies and standard principles on contracts, the majority opinion in
Suplico found nothing exceptional therein, the factual circumstances being peculiar only to the transactions and
parties involved in the controversy.
The MOA-AD is part of a series of agreements
In the present controversy, the MOA-AD is a significant part of a series of agreements necessary to carry out the
Tripoli Agreement 2001. The MOA-AD which dwells on the Ancestral Domain Aspect of said Tripoli Agreement is
the third such component to be undertaken following the implementation of the Security Aspect in August 2001 and
the Humanitarian, Rehabilitation and Development Aspect in May 2002.
Accordingly, even if the Executive Secretary, in his Memorandum of August 28, 2008 to the Solicitor General, has
stated that "no matter what the Supreme Court ultimately decides[,] the government will not sign the MOA[-AD],"
mootness will not set in in light of the terms of the Tripoli Agreement 2001.
Need to formulate principles-guidelines
Surely, the present MOA-AD can be renegotiated or another one will be drawn up to carry out the Ancestral Domain
Aspect of the Tripoli Agreement 2001, in another or in any form, which could contain similar or significantly drastic
provisions. While the Court notes the word of the Executive Secretary that the government "is committed to securing
an agreement that is both constitutional and equitable because that is the only way that long-lasting peace can be
assured," it is minded to render a decision on the merits in the present petitions to formulate controlling principles to
guide the bench, the bar, the public and, most especially, the government in negotiating with the MILF regarding
Ancestral Domain.
Respondents invite the Court's attention to the separate opinion of then Chief Justice Artemio Panganiban in
Sanlakas v. Reyes104 in which he stated that the doctrine of "capable of repetition yet evading review" can override
mootness, "provided the party raising it in a proper case has been and/or continue to be prejudiced or damaged as a
direct result of their issuance." They contend that the Court must have jurisdiction over the subject matter for the
doctrine to be invoked.
The present petitions all contain prayers for Prohibition over which this Court exercises original jurisdiction. While
G.R. No. 183893 (City of Iligan v. GRP) is a petition for Injunction and Declaratory Relief, the Court will treat it as
one for Prohibition as it has far reaching implications and raises questions that need to be resolved.105 At all events,
the Court has jurisdiction over most if not the rest of the petitions.
Indeed, the present petitions afford a proper venue for the Court to again apply the doctrine immediately referred to
as what it had done in a number of landmark cases.106 There is a reasonable expectation that petitioners, particularly
the Provinces of North Cotabato, Zamboanga del Norte and Sultan Kudarat, the Cities of Zamboanga, Iligan and
Isabela, and the Municipality of Linamon, will again be subjected to the same problem in the future as respondents'
actions are capable of repetition, in another or any form.
It is with respect to the prayers for Mandamus that the petitions have become moot, respondents having, by
Compliance of August 7, 2008, provided this Court and petitioners with official copies of the final draft of the MOA-
AD and its annexes. Too, intervenors have been furnished, or have procured for themselves, copies of the MOA-AD.
V. SUBSTANTIVE ISSUES
As culled from the Petitions and Petitions-in-Intervention, there are basically two SUBSTANTIVE issues to be
resolved, one relating to the manner in which the MOA-AD was negotiated and finalized, the other relating to its
provisions, viz:
1. Did respondents violate constitutional and statutory provisions on public consultation and the right to information
when they negotiated and later initialed the MOA-AD?
2. Do the contents of the MOA-AD violate the Constitution and the laws?
ON THE FIRST SUBSTANTIVE ISSUE
Petitioners invoke their constitutional right to information on matters of public concern, as provided in Section 7,
Article III on the Bill of Rights:
Sec. 7. The right of the people to information on matters of public concern shall be recognized. Access to official
records, and to documents, and papers pertaining to official acts, transactions, or decisions, as well as to government
research data used as basis for policy development, shall be afforded the citizen, subject to such limitations as may
be provided by law.107
As early as 1948, in Subido v. Ozaeta,108 the Court has recognized the statutory right to examine and inspect public
records, a right which was eventually accorded constitutional status.
The right of access to public documents, as enshrined in both the 1973 Constitution and the 1987 Constitution, has
been recognized as a self-executory constitutional right.109
In the 1976 case of Baldoza v. Hon. Judge Dimaano,110 the Court ruled that access to public records is predicated on
the right of the people to acquire information on matters of public concern since, undoubtedly, in a democracy, the
pubic has a legitimate interest in matters of social and political significance.
x x x The incorporation of this right in the Constitution is a recognition of the fundamental role of free exchange of
information in a democracy. There can be no realistic perception by the public of the nation's problems, nor a
meaningful democratic decision-making if they are denied access to information of general interest. Information is
needed to enable the members of society to cope with the exigencies of the times. As has been aptly observed:
"Maintaining the flow of such information depends on protection for both its acquisition and its dissemination since,
if either process is interrupted, the flow inevitably ceases." x x x111
In the same way that free discussion enables members of society to cope with the exigencies of their time, access to
information of general interest aids the people in democratic decision-making by giving them a better perspective of
the vital issues confronting the nation112 so that they may be able to criticize and participate in the affairs of the
government in a responsible, reasonable and effective manner. It is by ensuring an unfettered and uninhibited
exchange of ideas among a well-informed public that a government remains responsive to the changes desired by the
people.113
The MOA-AD is a matter of public concern
That the subject of the information sought in the present cases is a matter of public concern114 faces no serious
challenge. In fact, respondents admit that the MOA-AD is indeed of public concern.115 In previous cases, the Court
found that the regularity of real estate transactions entered in the Register of Deeds,116 the need for adequate notice
to the public of the various laws,117 the civil service eligibility of a public employee,118 the proper management of
GSIS funds allegedly used to grant loans to public officials,119 the recovery of the Marcoses' alleged ill-gotten
wealth,120 and the identity of party-list nominees,121 among others, are matters of public concern. Undoubtedly, the
MOA-AD subject of the present cases is of public concern, involving as it does the sovereignty and territorial
integrity of the State, which directly affects the lives of the public at large.
Matters of public concern covered by the right to information include steps and negotiations leading to the
consummation of the contract. In not distinguishing as to the executory nature or commercial character of
agreements, the Court has categorically ruled:
x x x [T]he right to information "contemplates inclusion of negotiations leading to the consummation of the
transaction." Certainly, a consummated contract is not a requirement for the exercise of the right to information.
Otherwise, the people can never exercise the right if no contract is consummated, and if one is consummated, it may
be too late for the public to expose its defects.
Requiring a consummated contract will keep the public in the dark until the contract, which may be grossly
disadvantageous to the government or even illegal, becomes fait accompli. This negates the State policy of full
transparency on matters of public concern, a situation which the framers of the Constitution could not have intended.
Such a requirement will prevent the citizenry from participating in the public discussion of any proposed contract,
effectively truncating a basic right enshrined in the Bill of Rights. We can allow neither an emasculation of a
constitutional right, nor a retreat by the State of its avowed "policy of full disclosure of all its transactions involving
public interest."122 (Emphasis and italics in the original)
Intended as a "splendid symmetry"123 to the right to information under the Bill of Rights is the policy of public
disclosure under Section 28, Article II of the Constitution reading:
Sec. 28. Subject to reasonable conditions prescribed by law, the State adopts and implements a policy of full public
disclosure of all its transactions involving public interest.124
The policy of full public disclosure enunciated in above-quoted Section 28 complements the right of access to
information on matters of public concern found in the Bill of Rights. The right to information guarantees the right of
the people to demand information, while Section 28 recognizes the duty of officialdom to give information even if
nobody demands.125
The policy of public disclosure establishes a concrete ethical principle for the conduct of public affairs in a genuinely
open democracy, with the people's right to know as the centerpiece. It is a mandate of the State to be accountable by
following such policy.126 These provisions are vital to the exercise of the freedom of expression and essential to
hold public officials at all times accountable to the people.127
Whether Section 28 is self-executory, the records of the deliberations of the Constitutional Commission so disclose:
MR. SUAREZ. And since this is not self-executory, this policy will not be enunciated or will not be in force and
effect until after Congress shall have provided it.
MR. OPLE. I expect it to influence the climate of public ethics immediately but, of course, the implementing law
will have to be enacted by Congress, Mr. Presiding Officer.128
The following discourse, after Commissioner Hilario Davide, Jr., sought clarification on the issue, is enlightening.
MR. DAVIDE. I would like to get some clarifications on this. Mr. Presiding Officer, did I get the Gentleman
correctly as having said that this is not a self-executing provision? It would require a legislation by Congress to
implement?
MR. OPLE. Yes. Originally, it was going to be self-executing, but I accepted an amendment from Commissioner
Regalado, so that the safeguards on national interest are modified by the clause "as may be provided by law"
MR. DAVIDE. But as worded, does it not mean that this will immediately take effect and Congress may provide for
reasonable safeguards on the sole ground national interest?
MR. OPLE. Yes. I think so, Mr. Presiding Officer, I said earlier that it should immediately influence the climate of
the conduct of public affairs but, of course, Congress here may no longer pass a law revoking it, or if this is
approved, revoking this principle, which is inconsistent with this policy.129 (Emphasis supplied)
Indubitably, the effectivity of the policy of public disclosure need not await the passing of a statute. As Congress
cannot revoke this principle, it is merely directed to provide for "reasonable safeguards." The complete and effective
exercise of the right to information necessitates that its complementary provision on public disclosure derive the
same self-executory nature. Since both provisions go hand-in-hand, it is absurd to say that the broader130 right to
information on matters of public concern is already enforceable while the correlative duty of the State to disclose its
transactions involving public interest is not enforceable until there is an enabling law. Respondents cannot thus point
to the absence of an implementing legislation as an excuse in not effecting such policy.
An essential element of these freedoms is to keep open a continuing dialogue or process of communication between
the government and the people. It is in the interest of the State that the channels for free political discussion be
maintained to the end that the government may perceive and be responsive to the people's will.131 Envisioned to be
corollary to the twin rights to information and disclosure is the design for feedback mechanisms.
MS. ROSARIO BRAID. Yes. And lastly, Mr. Presiding Officer, will the people be able to participate? Will the
government provide feedback mechanisms so that the people can participate and can react where the existing media
facilities are not able to provide full feedback mechanisms to the government? I suppose this will be part of the
government implementing operational mechanisms.
MR. OPLE. Yes. I think through their elected representatives and that is how these courses take place. There is a
message and a feedback, both ways.
xxxx
MS. ROSARIO BRAID. Mr. Presiding Officer, may I just make one last sentence?
I think when we talk about the feedback network, we are not talking about public officials but also network of private
business o[r] community-based organizations that will be reacting. As a matter of fact, we will put more credence or
credibility on the private network of volunteers and voluntary community-based organizations. So I do not think we
are afraid that there will be another OMA in the making.132 (Emphasis supplied)
The imperative of a public consultation, as a species of the right to information, is evident in the "marching orders"
to respondents. The mechanics for the duty to disclose information and to conduct public consultation regarding the
peace agenda and process is manifestly provided by E.O. No. 3.133 The preambulatory clause of E.O. No. 3 declares
that there is a need to further enhance the contribution of civil society to the comprehensive peace process by
institutionalizing the people's participation.
One of the three underlying principles of the comprehensive peace process is that it "should be community-based,
reflecting the sentiments, values and principles important to all Filipinos" and "shall be defined not by the
government alone, nor by the different contending groups only, but by all Filipinos as one community."134 Included
as a component of the comprehensive peace process is consensus-building and empowerment for peace, which
includes "continuing consultations on both national and local levels to build consensus for a peace agenda and
process, and the mobilization and facilitation of people's participation in the peace process."135
Clearly, E.O. No. 3 contemplates not just the conduct of a plebiscite to effectuate "continuing" consultations,
contrary to respondents' position that plebiscite is "more than sufficient consultation."136
Further, E.O. No. 3 enumerates the functions and responsibilities of the PAPP, one of which is to "[c]onduct regular
dialogues with the National Peace Forum (NPF) and other peace partners to seek relevant information, comments,
recommendations as well as to render appropriate and timely reports on the progress of the comprehensive peace
process."137 E.O. No. 3 mandates the establishment of the NPF to be "the principal forum for the PAPP to consult
with and seek advi[c]e from the peace advocates, peace partners and concerned sectors of society on both national
and local levels, on the implementation of the comprehensive peace process, as well as for government[-]civil
society dialogue and consensus-building on peace agenda and initiatives."138
In fine, E.O. No. 3 establishes petitioners' right to be consulted on the peace agenda, as a corollary to the
constitutional right to information and disclosure.
PAPP Esperon committed grave abuse of discretion
The PAPP committed grave abuse of discretion when he failed to carry out the pertinent consultation. The furtive
process by which the MOA-AD was designed and crafted runs contrary to and in excess of the legal authority, and
amounts to a whimsical, capricious, oppressive, arbitrary and despotic exercise thereof.
The Court may not, of course, require the PAPP to conduct the consultation in a particular way or manner. It may,
however, require him to comply with the law and discharge the functions within the authority granted by the
President.139
Petitioners are not claiming a seat at the negotiating table, contrary to respondents' retort in justifying the denial of
petitioners' right to be consulted. Respondents' stance manifests the manner by which they treat the salient provisions
of E.O. No. 3 on people's participation. Such disregard of the express mandate of the President is not much different
from superficial conduct toward token provisos that border on classic lip service.140 It illustrates a gross evasion of
positive duty and a virtual refusal to perform the duty enjoined.
As for respondents' invocation of the doctrine of executive privilege, it is not tenable under the premises. The
argument defies sound reason when contrasted with E.O. No. 3's explicit provisions on continuing consultation and
dialogue on both national and local levels. The executive order even recognizes the exercise of the public's right even
before the GRP makes its official recommendations or before the government proffers its definite propositions.141 It
bear emphasis that E.O. No. 3 seeks to elicit relevant advice, information, comments and recommendations from the
people through dialogue.
AT ALL EVENTS, respondents effectively waived the defense of executive privilege in view of their unqualified
disclosure of the official copies of the final draft of the MOA-AD. By unconditionally complying with the Court's
August 4, 2008 Resolution, without a prayer for the document's disclosure in camera, or without a manifestation that
it was complying therewith ex abundante ad cautelam.
Petitioners' assertion that the Local Government Code (LGC) of 1991 declares it a State policy to "require all
national agencies and offices to conduct periodic consultations with appropriate local government units, non-
governmental and people's organizations, and other concerned sectors of the community before any project or
program is implemented in their respective jurisdictions"142 is well-taken. The LGC chapter on intergovernmental
relations puts flesh into this avowed policy:
Prior Consultations Required. - No project or program shall be implemented by government authorities unless the
consultations mentioned in Sections 2 (c) and 26 hereof are complied with, and prior approval of the sanggunian
concerned is obtained: Provided, That occupants in areas where such projects are to be implemented shall not be
evicted unless appropriate relocation sites have been provided, in accordance with the provisions of the
Constitution.143 (Italics and underscoring supplied)
In Lina, Jr. v. Hon. Pao,144 the Court held that the above-stated policy and above-quoted provision of the LGU
apply only to national programs or projects which are to be implemented in a particular local community. Among the
programs and projects covered are those that are critical to the environment and human ecology including those that
may call for the eviction of a particular group of people residing in the locality where these will be implemented.145
The MOA-AD is one peculiar program that unequivocally and unilaterally vests ownership of a vast territory to the
Bangsamoro people,146 which could pervasively and drastically result to the diaspora or displacement of a great
number of inhabitants from their total environment.
With respect to the indigenous cultural communities/indigenous peoples (ICCs/IPs), whose interests are represented
herein by petitioner Lopez and are adversely affected by the MOA-AD, the ICCs/IPs have, under the IPRA, the right
to participate fully at all levels of decision-making in matters which may affect their rights, lives and destinies.147
The MOA-AD, an instrument recognizing ancestral domain, failed to justify its non-compliance with the clear-cut
mechanisms ordained in said Act,148 which entails, among other things, the observance of the free and prior
informed consent of the ICCs/IPs.
Notably, the IPRA does not grant the Executive Department or any government agency the power to delineate and
recognize an ancestral domain claim by mere agreement or compromise. The recognition of the ancestral domain is
the raison d'etre of the MOA-AD, without which all other stipulations or "consensus points" necessarily must fail. In
proceeding to make a sweeping declaration on ancestral domain, without complying with the IPRA, which is cited as
one of the TOR of the MOA-AD, respondents clearly transcended the boundaries of their authority. As it seems, even
the heart of the MOA-AD is still subject to necessary changes to the legal framework. While paragraph 7 on
Governance suspends the effectivity of all provisions requiring changes to the legal framework, such clause is itself
invalid, as will be discussed in the following section.
Indeed, ours is an open society, with all the acts of the government subject to public scrutiny and available always to
public cognizance. This has to be so if the country is to remain democratic, with sovereignty residing in the people
and all government authority emanating from them.149
ON THE SECOND SUBSTANTIVE ISSUE
With regard to the provisions of the MOA-AD, there can be no question that they cannot all be accommodated under
the present Constitution and laws. Respondents have admitted as much in the oral arguments before this Court, and
the MOA-AD itself recognizes the need to amend the existing legal framework to render effective at least some of its
provisions. Respondents, nonetheless, counter that the MOA-AD is free of any legal infirmity because any
provisions therein which are inconsistent with the present legal framework will not be effective until the necessary
changes to that framework are made. The validity of this argument will be considered later. For now, the Court shall
pass upon how
The MOA-AD is inconsistent with the Constitution and laws as presently worded.
In general, the objections against the MOA-AD center on the extent of the powers conceded therein to the BJE.
Petitioners assert that the powers granted to the BJE exceed those granted to any local government under present
laws, and even go beyond those of the present ARMM. Before assessing some of the specific powers that would
have been vested in the BJE, however, it would be useful to turn first to a general idea that serves as a unifying link
to the different provisions of the MOA-AD, namely, the international law concept of association. Significantly, the
MOA-AD explicitly alludes to this concept, indicating that the Parties actually framed its provisions with it in mind.
Association is referred to in paragraph 3 on TERRITORY, paragraph 11 on RESOURCES, and paragraph 4 on
GOVERNANCE. It is in the last mentioned provision, however, that the MOA-AD most clearly uses it to describe
the envisioned relationship between the BJE and the Central Government.
4. The relationship between the Central Government and the Bangsamoro juridical entity shall be associative
characterized by shared authority and responsibility with a structure of governance based on executive, legislative,
judicial and administrative institutions with defined powers and functions in the comprehensive compact. A period of
transition shall be established in a comprehensive peace compact specifying the relationship between the Central
Government and the BJE. (Emphasis and underscoring supplied)
The nature of the "associative" relationship may have been intended to be defined more precisely in the still to be
forged Comprehensive Compact. Nonetheless, given that there is a concept of "association" in international law, and
the MOA-AD - by its inclusion of international law instruments in its TOR- placed itself in an international legal
context, that concept of association may be brought to bear in understanding the use of the term "associative" in the
MOA-AD.
Keitner and Reisman state that
[a]n association is formed when two states of unequal power voluntarily establish durable links. In the basic model,
one state, the associate, delegates certain responsibilities to the other, the principal, while maintaining its
international status as a state. Free associations represent a middle ground between integration and independence. x x
x150 (Emphasis and underscoring supplied)
For purposes of illustration, the Republic of the Marshall Islands and the Federated States of Micronesia (FSM),
formerly part of the U.S.-administered Trust Territory of the Pacific Islands,151 are associated states of the U.S.
pursuant to a Compact of Free Association. The currency in these countries is the U.S. dollar, indicating their very
close ties with the U.S., yet they issue their own travel documents, which is a mark of their statehood. Their
international legal status as states was confirmed by the UN Security Council and by their admission to UN
membership.
According to their compacts of free association, the Marshall Islands and the FSM generally have the capacity to
conduct foreign affairs in their own name and right, such capacity extending to matters such as the law of the sea,
marine resources, trade, banking, postal, civil aviation, and cultural relations. The U.S. government, when
conducting its foreign affairs, is obligated to consult with the governments of the Marshall Islands or the FSM on
matters which it (U.S. government) regards as relating to or affecting either government.
In the event of attacks or threats against the Marshall Islands or the FSM, the U.S. government has the authority and
obligation to defend them as if they were part of U.S. territory. The U.S. government, moreover, has the option of
establishing and using military areas and facilities within these associated states and has the right to bar the military
personnel of any third country from having access to these territories for military purposes.
It bears noting that in U.S. constitutional and international practice, free association is understood as an international
association between sovereigns. The Compact of Free Association is a treaty which is subordinate to the associated
nation's national constitution, and each party may terminate the association consistent with the right of independence.
It has been said that, with the admission of the U.S.-associated states to the UN in 1990, the UN recognized that the
American model of free association is actually based on an underlying status of independence.152
In international practice, the "associated state" arrangement has usually been used as a transitional device of former
colonies on their way to full independence. Examples of states that have passed through the status of associated
states as a transitional phase are Antigua, St. Kitts-Nevis-Anguilla, Dominica, St. Lucia, St. Vincent and Grenada. All
have since become independent states.153
Back to the MOA-AD, it contains many provisions which are consistent with the international legal concept of
association, specifically the following: the BJE's capacity to enter into economic and trade relations with foreign
countries, the commitment of the Central Government to ensure the BJE's participation in meetings and events in the
ASEAN and the specialized UN agencies, and the continuing responsibility of the Central Government over external
defense. Moreover, the BJE's right to participate in Philippine official missions bearing on negotiation of border
agreements, environmental protection, and sharing of revenues pertaining to the bodies of water adjacent to or
between the islands forming part of the ancestral domain, resembles the right of the governments of FSM and the
Marshall Islands to be consulted by the U.S. government on any foreign affairs matter affecting them.
These provisions of the MOA indicate, among other things, that the Parties aimed to vest in the BJE the status of an
associated state or, at any rate, a status closely approximating it.
The concept of association is not recognized under the present Constitution
No province, city, or municipality, not even the ARMM, is recognized under our laws as having an "associative"
relationship with the national government. Indeed, the concept implies powers that go beyond anything ever granted
by the Constitution to any local or regional government. It also implies the recognition of the associated entity as a
state. The Constitution, however, does not contemplate any state in this jurisdiction other than the Philippine State,
much less does it provide for a transitory status that aims to prepare any part of Philippine territory for independence.
Even the mere concept animating many of the MOA-AD's provisions, therefore, already requires for its validity the
amendment of constitutional provisions, specifically the following provisions of Article X:
SECTION 1. The territorial and political subdivisions of the Republic of the Philippines are the provinces, cities,
municipalities, and barangays. There shall be autonomous regions in Muslim Mindanao and the Cordilleras as
hereinafter provided.
SECTION 15. There shall be created autonomous regions in Muslim Mindanao and in the Cordilleras consisting of
provinces, cities, municipalities, and geographical areas sharing common and distinctive historical and cultural
heritage, economic and social structures, and other relevant characteristics within the framework of this Constitution
and the national sovereignty as well as territorial integrity of the Republic of the Philippines.
The BJE is a far more powerful
entity than the autonomous region
recognized in the Constitution
It is not merely an expanded version of the ARMM, the status of its relationship with the national government being
fundamentally different from that of the ARMM. Indeed, BJE is a state in all but name as it meets the criteria of a
state laid down in the Montevideo Convention,154 namely, a permanent population, a defined territory, a
government, and a capacity to enter into relations with other states.
Even assuming arguendo that the MOA-AD would not necessarily sever any portion of Philippine territory, the spirit
animating it - which has betrayed itself by its use of the concept of association - runs counter to the national
sovereignty and territorial integrity of the Republic.
The defining concept underlying the relationship between the national government and the BJE being itself contrary
to the present Constitution, it is not surprising that many of the specific provisions of the MOA-AD on the formation
and powers of the BJE are in conflict with the Constitution and the laws.
Article X, Section 18 of the Constitution provides that "[t]he creation of the autonomous region shall be effective
when approved by a majority of the votes cast by the constituent units in a plebiscite called for the purpose, provided
that only provinces, cities, and geographic areas voting favorably in such plebiscite shall be included in the
autonomous region." (Emphasis supplied)
As reflected above, the BJE is more of a state than an autonomous region. But even assuming that it is covered by
the term "autonomous region" in the constitutional provision just quoted, the MOA-AD would still be in conflict
with it. Under paragraph 2(c) on TERRITORY in relation to 2(d) and 2(e), the present geographic area of the ARMM
and, in addition, the municipalities of Lanao del Norte which voted for inclusion in the ARMM during the 2001
plebiscite - Baloi, Munai, Nunungan, Pantar, Tagoloan and Tangkal - are automatically part of the BJE without need
of another plebiscite, in contrast to the areas under Categories A and B mentioned earlier in the overview. That the
present components of the ARMM and the above-mentioned municipalities voted for inclusion therein in 2001,
however, does not render another plebiscite unnecessary under the Constitution, precisely because what these areas
voted for then was their inclusion in the ARMM, not the BJE.
The MOA-AD, moreover, would not
comply with Article X, Section 20 of
the Constitution
since that provision defines the powers of autonomous regions as follows:
SECTION 20. Within its territorial jurisdiction and subject to the provisions of this Constitution and national laws,
the organic act of autonomous regions shall provide for legislative powers over:
(1) Administrative organization;
(2) Creation of sources of revenues;
(3) Ancestral domain and natural resources;
(4) Personal, family, and property relations;
(5) Regional urban and rural planning development;
(6) Economic, social, and tourism development;
(7) Educational policies;
(8) Preservation and development of the cultural heritage; and
(9) Such other matters as may be authorized by law for the promotion of the general welfare of the people of the
region. (Underscoring supplied)
Again on the premise that the BJE may be regarded as an autonomous region, the MOA-AD would require an
amendment that would expand the above-quoted provision. The mere passage of new legislation pursuant to sub-
paragraph No. 9 of said constitutional provision would not suffice, since any new law that might vest in the BJE the
powers found in the MOA-AD must, itself, comply with other provisions of the Constitution. It would not do, for
instance, to merely pass legislation vesting the BJE with treaty-making power in order to accommodate paragraph 4
of the strand on RESOURCES which states: "The BJE is free to enter into any economic cooperation and trade
relations with foreign countries: provided, however, that such relationships and understandings do not include
aggression against the Government of the Republic of the Philippines x x x." Under our constitutional system, it is
only the President who has that power. Pimentel v. Executive Secretary155 instructs:
In our system of government, the President, being the head of state, is regarded as the sole organ and authority in
external relations and is the country's sole representative with foreign nations. As the chief architect of foreign
policy, the President acts as the country's mouthpiece with respect to international affairs. Hence, the President is
vested with the authority to deal with foreign states and governments, extend or withhold recognition, maintain
diplomatic relations, enter into treaties, and otherwise transact the business of foreign relations. In the realm of
treaty-making, the President has the sole authority to negotiate with other states. (Emphasis and underscoring
supplied)
Article II, Section 22 of the Constitution must also be amended if the scheme envisioned in the MOA-AD is to be
effected. That constitutional provision states: "The State recognizes and promotes the rights of indigenous cultural
communities within the framework of national unity and development." (Underscoring supplied) An associative
arrangement does not uphold national unity. While there may be a semblance of unity because of the associative ties
between the BJE and the national government, the act of placing a portion of Philippine territory in a status which, in
international practice, has generally been a preparation for independence, is certainly not conducive to national unity.
Besides being irreconcilable with the Constitution, the MOA-AD is also inconsistent with prevailing statutory law,
among which are R.A. No. 9054156 or the Organic Act of the ARMM, and the IPRA.157
Article X, Section 3 of the Organic Act of the ARMM is a bar to the adoption of the definition of "Bangsamoro
people" used in the MOA-AD. Paragraph 1 on Concepts and Principles states:
1. It is the birthright of all Moros and all Indigenous peoples of Mindanao to identify themselves and be accepted as
"Bangsamoros". The Bangsamoro people refers to those who are natives or original inhabitants of Mindanao and its
adjacent islands including Palawan and the Sulu archipelago at the time of conquest or colonization of its
descendants whether mixed or of full blood. Spouses and their descendants are classified as Bangsamoro. The
freedom of choice of the Indigenous people shall be respected. (Emphasis and underscoring supplied)
This use of the term Bangsamoro sharply contrasts with that found in the Article X, Section 3 of the Organic Act,
which, rather than lumping together the identities of the Bangsamoro and other indigenous peoples living in
Mindanao, clearly distinguishes between Bangsamoro people and Tribal peoples, as follows:
"As used in this Organic Act, the phrase "indigenous cultural community" refers to Filipino citizens residing in the
autonomous region who are:
(a) Tribal peoples. These are citizens whose social, cultural and economic conditions distinguish them from other
sectors of the national community; and
(b) Bangsa Moro people. These are citizens who are believers in Islam and who have retained some or all of their
own social, economic, cultural, and political institutions."
Respecting the IPRA, it lays down the prevailing procedure for the delineation and recognition of ancestral domains.
The MOA-AD's manner of delineating the ancestral domain of the Bangsamoro people is a clear departure from that
procedure. By paragraph 1 of Territory, the Parties simply agree that, subject to the delimitations in the agreed
Schedules, "[t]he Bangsamoro homeland and historic territory refer to the land mass as well as the maritime,
terrestrial, fluvial and alluvial domains, and the aerial domain, the atmospheric space above it, embracing the
Mindanao-Sulu-Palawan geographic region."
Chapter VIII of the IPRA, on the other hand, lays down a detailed procedure, as illustrated in the following
provisions thereof:
SECTION 52. Delineation Process. - The identification and delineation of ancestral domains shall be done in
accordance with the following procedures:
xxxx
b) Petition for Delineation. - The process of delineating a specific perimeter may be initiated by the NCIP with the
consent of the ICC/IP concerned, or through a Petition for Delineation filed with the NCIP, by a majority of the
members of the ICCs/IPs;
c) Delineation Proper. - The official delineation of ancestral domain boundaries including census of all community
members therein, shall be immediately undertaken by the Ancestral Domains Office upon filing of the application by
the ICCs/IPs concerned. Delineation will be done in coordination with the community concerned and shall at all
times include genuine involvement and participation by the members of the communities concerned;
d) Proof Required. - Proof of Ancestral Domain Claims shall include the testimony of elders or community under
oath, and other documents directly or indirectly attesting to the possession or occupation of the area since time
immemorial by such ICCs/IPs in the concept of owners which shall be any one (1) of the following authentic
documents:
1) Written accounts of the ICCs/IPs customs and traditions;
2) Written accounts of the ICCs/IPs political structure and institution;
3) Pictures showing long term occupation such as those of old improvements, burial grounds, sacred places and old
villages;
4) Historical accounts, including pacts and agreements concerning boundaries entered into by the ICCs/IPs
concerned with other ICCs/IPs;
5) Survey plans and sketch maps;
6) Anthropological data;
7) Genealogical surveys;
8) Pictures and descriptive histories of traditional communal forests and hunting grounds;
9) Pictures and descriptive histories of traditional landmarks such as mountains, rivers, creeks, ridges, hills, terraces
and the like; and
10) Write-ups of names and places derived from the native dialect of the community.
e) Preparation of Maps. - On the basis of such investigation and the findings of fact based thereon, the Ancestral
Domains Office of the NCIP shall prepare a perimeter map, complete with technical descriptions, and a description
of the natural features and landmarks embraced therein;
f) Report of Investigation and Other Documents. - A complete copy of the preliminary census and a report of
investigation, shall be prepared by the Ancestral Domains Office of the NCIP;
g) Notice and Publication. - A copy of each document, including a translation in the native language of the ICCs/IPs
concerned shall be posted in a prominent place therein for at least fifteen (15) days. A copy of the document shall
also be posted at the local, provincial and regional offices of the NCIP, and shall be published in a newspaper of
general circulation once a week for two (2) consecutive weeks to allow other claimants to file opposition thereto
within fifteen (15) days from date of such publication: Provided, That in areas where no such newspaper exists,
broadcasting in a radio station will be a valid substitute: Provided, further, That mere posting shall be deemed
sufficient if both newspaper and radio station are not available;
h) Endorsement to NCIP. - Within fifteen (15) days from publication, and of the inspection process, the Ancestral
Domains Office shall prepare a report to the NCIP endorsing a favorable action upon a claim that is deemed to have
sufficient proof. However, if the proof is deemed insufficient, the Ancestral Domains Office shall require the
submission of additional evidence: Provided, That the Ancestral Domains Office shall reject any claim that is
deemed patently false or fraudulent after inspection and verification: Provided, further, That in case of rejection, the
Ancestral Domains Office shall give the applicant due notice, copy furnished all concerned, containing the grounds
for denial. The denial shall be appealable to the NCIP: Provided, furthermore, That in cases where there are
conflicting claims among ICCs/IPs on the boundaries of ancestral domain claims, the Ancestral Domains Office shall
cause the contending parties to meet and assist them in coming up with a preliminary resolution of the conflict,
without prejudice to its full adjudication according to the section below.
xxxx
To remove all doubts about the irreconcilability of the MOA-AD with the present legal system, a discussion of not
only the Constitution and domestic statutes, but also of international law is in order, for
Article II, Section 2 of the Constitution states that the Philippines "adopts the generally accepted principles of
international law as part of the law of the land."
Applying this provision of the Constitution, the Court, in Mejoff v. Director of Prisons,158 held that the Universal
Declaration of Human Rights is part of the law of the land on account of which it ordered the release on bail of a
detained alien of Russian descent whose deportation order had not been executed even after two years. Similarly, the
Court in Agustin v. Edu159 applied the aforesaid constitutional provision to the 1968 Vienna Convention on Road
Signs and Signals.
International law has long recognized the right to self-determination of "peoples," understood not merely as the
entire population of a State but also a portion thereof. In considering the question of whether the people of Quebec
had a right to unilaterally secede from Canada, the Canadian Supreme Court in REFERENCE RE SECESSION OF
QUEBEC160 had occasion to acknowledge that "the right of a people to self-determination is now so widely
recognized in international conventions that the principle has acquired a status beyond convention' and is considered
a general principle of international law."
Among the conventions referred to are the International Covenant on Civil and Political Rights161 and the
International Covenant on Economic, Social and Cultural Rights162 which state, in Article 1 of both covenants, that
all peoples, by virtue of the right of self-determination, "freely determine their political status and freely pursue their
economic, social, and cultural development."
The people's right to self-determination should not, however, be understood as extending to a unilateral right of
secession. A distinction should be made between the right of internal and external self-determination. REFERENCE
RE SECESSION OF QUEBEC is again instructive:
"(ii) Scope of the Right to Self-determination
126. The recognized sources of international law establish that the right to self-determination of a people is normally
fulfilled through internal self-determination - a people's pursuit of its political, economic, social and cultural
development within the framework of an existing state. A right to external self-determination (which in this case
potentially takes the form of the assertion of a right to unilateral secession) arises in only the most extreme of cases
and, even then, under carefully defined circumstances. x x x
External self-determination can be defined as in the following statement from the Declaration on Friendly Relations,
supra, as
The establishment of a sovereign and independent State, the free association or integration with an independent State
or the emergence into any other political status freely determined by a people constitute modes of implementing the
right of self-determination by that people. (Emphasis added)
127. The international law principle of self-determination has evolved within a framework of respect for the
territorial integrity of existing states. The various international documents that support the existence of a people's
right to self-determination also contain parallel statements supportive of the conclusion that the exercise of such a
right must be sufficiently limited to prevent threats to an existing state's territorial integrity or the stability of
relations between sovereign states.
x x x x (Emphasis, italics and underscoring supplied)
The Canadian Court went on to discuss the exceptional cases in which the right to external self-determination can
arise, namely, where a people is under colonial rule, is subject to foreign domination or exploitation outside a
colonial context, and - less definitely but asserted by a number of commentators - is blocked from the meaningful
exercise of its right to internal self-determination. The Court ultimately held that the population of Quebec had no
right to secession, as the same is not under colonial rule or foreign domination, nor is it being deprived of the
freedom to make political choices and pursue economic, social and cultural development, citing that Quebec is
equitably represented in legislative, executive and judicial institutions within Canada, even occupying prominent
positions therein.
The exceptional nature of the right of secession is further exemplified in the REPORT OF THE INTERNATIONAL
COMMITTEE OF JURISTS ON THE LEGAL ASPECTS OF THE AALAND ISLANDS QUESTION.163 There,
Sweden presented to the Council of the League of Nations the question of whether the inhabitants of the Aaland
Islands should be authorized to determine by plebiscite if the archipelago should remain under Finnish sovereignty or
be incorporated in the kingdom of Sweden. The Council, before resolving the question, appointed an International
Committee composed of three jurists to submit an opinion on the preliminary issue of whether the dispute should,
based on international law, be entirely left to the domestic jurisdiction of Finland. The Committee stated the rule as
follows:
x x x [I]n the absence of express provisions in international treaties, the right of disposing of national territory is
essentially an attribute of the sovereignty of every State. Positive International Law does not recognize the right of
national groups, as such, to separate themselves from the State of which they form part by the simple expression of a
wish, any more than it recognizes the right of other States to claim such a separation. Generally speaking, the grant
or refusal of the right to a portion of its population of determining its own political fate by plebiscite or by some
other method, is, exclusively, an attribute of the sovereignty of every State which is definitively constituted. A
dispute between two States concerning such a question, under normal conditions therefore, bears upon a question
which International Law leaves entirely to the domestic jurisdiction of one of the States concerned. Any other
solution would amount to an infringement of sovereign rights of a State and would involve the risk of creating
difficulties and a lack of stability which would not only be contrary to the very idea embodied in term "State," but
would also endanger the interests of the international community. If this right is not possessed by a large or small
section of a nation, neither can it be held by the State to which the national group wishes to be attached, nor by any
other State. (Emphasis and underscoring supplied)
The Committee held that the dispute concerning the Aaland Islands did not refer to a question which is left by
international law to the domestic jurisdiction of Finland, thereby applying the exception rather than the rule
elucidated above. Its ground for departing from the general rule, however, was a very narrow one, namely, the
Aaland Islands agitation originated at a time when Finland was undergoing drastic political transformation. The
internal situation of Finland was, according to the Committee, so abnormal that, for a considerable time, the
conditions required for the formation of a sovereign State did not exist. In the midst of revolution, anarchy, and civil
war, the legitimacy of the Finnish national government was disputed by a large section of the people, and it had, in
fact, been chased from the capital and forcibly prevented from carrying out its duties. The armed camps and the
police were divided into two opposing forces. In light of these circumstances, Finland was not, during the relevant
time period, a "definitively constituted" sovereign state. The Committee, therefore, found that Finland did not
possess the right to withhold from a portion of its population the option to separate itself - a right which sovereign
nations generally have with respect to their own populations.
Turning now to the more specific category of indigenous peoples, this term has been used, in scholarship as well as
international, regional, and state practices, to refer to groups with distinct cultures, histories, and connections to land
(spiritual and otherwise) that have been forcibly incorporated into a larger governing society. These groups are
regarded as "indigenous" since they are the living descendants of pre-invasion inhabitants of lands now dominated
by others. Otherwise stated, indigenous peoples, nations, or communities are culturally distinctive groups that find
themselves engulfed by settler societies born of the forces of empire and conquest.164 Examples of groups who have
been regarded as indigenous peoples are the Maori of New Zealand and the aboriginal peoples of Canada.
As with the broader category of "peoples," indigenous peoples situated within states do not have a general right to
independence or secession from those states under international law,165 but they do have rights amounting to what
was discussed above as the right to internal self-determination.
In a historic development last September 13, 2007, the UN General Assembly adopted the United Nations
Declaration on the Rights of Indigenous Peoples (UN DRIP) through General Assembly Resolution 61/295. The vote
was 143 to 4, the Philippines being included among those in favor, and the four voting against being Australia,
Canada, New Zealand, and the U.S. The Declaration clearly recognized the right of indigenous peoples to self-
determination, encompassing the right to autonomy or self-government, to wit:
Article 3
Indigenous peoples have the right to self-determination. By virtue of that right they freely determine their political
status and freely pursue their economic, social and cultural development.
Article 4
Indigenous peoples, in exercising their right to self-determination, have the right to autonomy or self-government in
matters relating to their internal and local affairs, as well as ways and means for financing their autonomous
functions.
Article 5
Indigenous peoples have the right to maintain and strengthen their distinct political, legal, economic, social and
cultural institutions, while retaining their right to participate fully, if they so choose, in the political, economic, social
and cultural life of the State.
Self-government, as used in international legal discourse pertaining to indigenous peoples, has been understood as
equivalent to "internal self-determination."166 The extent of self-determination provided for in the UN DRIP is more
particularly defined in its subsequent articles, some of which are quoted hereunder:
Article 8
1. Indigenous peoples and individuals have the right not to be subjected to forced assimilation or destruction of their
culture.
2. States shall provide effective mechanisms for prevention of, and redress for:
(a) Any action which has the aim or effect of depriving them of their integrity as distinct peoples, or of their cultural
values or ethnic identities;
(b) Any action which has the aim or effect of dispossessing them of their lands, territories or resources;
(c) Any form of forced population transfer which has the aim or effect of violating or undermining any of their
rights;
(d) Any form of forced assimilation or integration;
(e) Any form of propaganda designed to promote or incite racial or ethnic discrimination directed against them.
Article 21
1. Indigenous peoples have the right, without discrimination, to the improvement of their economic and social
conditions, including, inter alia, in the areas of education, employment, vocational training and retraining, housing,
sanitation, health and social security.
2. States shall take effective measures and, where appropriate, special measures to ensure continuing improvement of
their economic and social conditions. Particular attention shall be paid to the rights and special needs of indigenous
elders, women, youth, children and persons with disabilities.
Article 26
1. Indigenous peoples have the right to the lands, territories and resources which they have traditionally owned,
occupied or otherwise used or acquired.
2. Indigenous peoples have the right to own, use, develop and control the lands, territories and resources that they
possess by reason of traditional ownership or other traditional occupation or use, as well as those which they have
otherwise acquired.
3. States shall give legal recognition and protection to these lands, territories and resources. Such recognition shall be
conducted with due respect to the customs, traditions and land tenure systems of the indigenous peoples concerned.
Article 30
1. Military activities shall not take place in the lands or territories of indigenous peoples, unless justified by a
relevant public interest or otherwise freely agreed with or requested by the indigenous peoples concerned.
2. States shall undertake effective consultations with the indigenous peoples concerned, through appropriate
procedures and in particular through their representative institutions, prior to using their lands or territories for
military activities.
Article 32
1. Indigenous peoples have the right to determine and develop priorities and strategies for the development or use of
their lands or territories and other resources.
2. States shall consult and cooperate in good faith with the indigenous peoples concerned through their own
representative institutions in order to obtain their free and informed consent prior to the approval of any project
affecting their lands or territories and other resources, particularly in connection with the development, utilization or
exploitation of mineral, water or other resources.
3. States shall provide effective mechanisms for just and fair redress for any such activities, and appropriate
measures shall be taken to mitigate adverse environmental, economic, social, cultural or spiritual impact.
Article 37
1. Indigenous peoples have the right to the recognition, observance and enforcement of treaties, agreements and
other constructive arrangements concluded with States or their successors and to have States honour and respect such
treaties, agreements and other constructive arrangements.
2. Nothing in this Declaration may be interpreted as diminishing or eliminating the rights of indigenous peoples
contained in treaties, agreements and other constructive arrangements.
Article 38
States in consultation and cooperation with indigenous peoples, shall take the appropriate measures, including
legislative measures, to achieve the ends of this Declaration.
Assuming that the UN DRIP, like the Universal Declaration on Human Rights, must now be regarded as embodying
customary international law - a question which the Court need not definitively resolve here - the obligations
enumerated therein do not strictly require the Republic to grant the Bangsamoro people, through the instrumentality
of the BJE, the particular rights and powers provided for in the MOA-AD. Even the more specific provisions of the
UN DRIP are general in scope, allowing for flexibility in its application by the different States.
There is, for instance, no requirement in the UN DRIP that States now guarantee indigenous peoples their own police
and internal security force. Indeed, Article 8 presupposes that it is the State which will provide protection for
indigenous peoples against acts like the forced dispossession of their lands - a function that is normally performed by
police officers. If the protection of a right so essential to indigenous people's identity is acknowledged to be the
responsibility of the State, then surely the protection of rights less significant to them as such peoples would also be
the duty of States. Nor is there in the UN DRIP an acknowledgement of the right of indigenous peoples to the aerial
domain and atmospheric space. What it upholds, in Article 26 thereof, is the right of indigenous peoples to the lands,
territories and resources which they have traditionally owned, occupied or otherwise used or acquired.
Moreover, the UN DRIP, while upholding the right of indigenous peoples to autonomy, does not obligate States to
grant indigenous peoples the near-independent status of an associated state. All the rights recognized in that
document are qualified in Article 46 as follows:
1. Nothing in this Declaration may be interpreted as implying for any State, people, group or person any right to
engage in any activity or to perform any act contrary to the Charter of the United Nations or construed as authorizing
or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political
unity of sovereign and independent States.
Even if the UN DRIP were considered as part of the law of the land pursuant to Article II, Section 2 of the
Constitution, it would not suffice to uphold the validity of the MOA-AD so as to render its compliance with other
laws unnecessary.
It is, therefore, clear that the MOA-AD contains numerous provisions that cannot be reconciled with the Constitution
and the laws as presently worded. Respondents proffer, however, that the signing of the MOA-AD alone would not
have entailed any violation of law or grave abuse of discretion on their part, precisely because it stipulates that the
provisions thereof inconsistent with the laws shall not take effect until these laws are amended. They cite paragraph 7
of the MOA-AD strand on GOVERNANCE quoted earlier, but which is reproduced below for convenience:
7. The Parties agree that the mechanisms and modalities for the actual implementation of this MOA-AD shall be
spelt out in the Comprehensive Compact to mutually take such steps to enable it to occur effectively.
Any provisions of the MOA-AD requiring amendments to the existing legal framework shall come into force upon
signing of a Comprehensive Compact and upon effecting the necessary changes to the legal framework with due
regard to non derogation of prior agreements and within the stipulated timeframe to be contained in the
Comprehensive Compact.
Indeed, the foregoing stipulation keeps many controversial provisions of the MOA-AD from coming into force until
the necessary changes to the legal framework are effected. While the word "Constitution" is not mentioned in the
provision now under consideration or anywhere else in the MOA-AD, the term "legal framework" is certainly broad
enough to include the Constitution.
Notwithstanding the suspensive clause, however, respondents, by their mere act of incorporating in the MOA-AD the
provisions thereof regarding the associative relationship between the BJE and the Central Government, have already
violated the Memorandum of Instructions From The President dated March 1, 2001, which states that the
"negotiations shall be conducted in accordance with x x x the principles of the sovereignty and territorial integrity of
the Republic of the Philippines." (Emphasis supplied) Establishing an associative relationship between the BJE and
the Central Government is, for the reasons already discussed, a preparation for independence, or worse, an implicit
acknowledgment of an independent status already prevailing.
Even apart from the above-mentioned Memorandum, however, the MOA-AD is defective because the suspensive
clause is invalid, as discussed below.
The authority of the GRP Peace Negotiating Panel to negotiate with the MILF is founded on E.O. No. 3, Section
5(c), which states that there shall be established Government Peace Negotiating Panels for negotiations with different
rebel groups to be "appointed by the President as her official emissaries to conduct negotiations, dialogues, and face-
to-face discussions with rebel groups." These negotiating panels are to report to the President, through the PAPP on
the conduct and progress of the negotiations.
It bears noting that the GRP Peace Panel, in exploring lasting solutions to the Moro Problem through its negotiations
with the MILF, was not restricted by E.O. No. 3 only to those options available under the laws as they presently
stand. One of the components of a comprehensive peace process, which E.O. No. 3 collectively refers to as the
"Paths to Peace," is the pursuit of social, economic, and political reforms which may require new legislation or even
constitutional amendments. Sec. 4(a) of E.O. No. 3, which reiterates Section 3(a), of E.O. No. 125,167 states:

SECTION 4. The Six Paths to Peace. - The components of the comprehensive peace process comprise the processes
known as the "Paths to Peace". These component processes are interrelated and not mutually exclusive, and must
therefore be pursued simultaneously in a coordinated and integrated fashion. They shall include, but may not be
limited to, the following:
a. PURSUIT OF SOCIAL, ECONOMIC AND POLITICAL REFORMS. This component involves the vigorous
implementation of various policies, reforms, programs and projects aimed at addressing the root causes of internal
armed conflicts and social unrest. This may require administrative action, new legislation or even constitutional
amendments.
x x x x (Emphasis supplied)
The MOA-AD, therefore, may reasonably be perceived as an attempt of respondents to address, pursuant to this
provision of E.O. No. 3, the root causes of the armed conflict in Mindanao. The E.O. authorized them to "think
outside the box," so to speak. Hence, they negotiated and were set on signing the MOA-AD that included various
social, economic, and political reforms which cannot, however, all be accommodated within the present legal
framework, and which thus would require new legislation and constitutional amendments.
The inquiry on the legality of the "suspensive clause," however, cannot stop here, because it must be asked whether
the President herself may exercise the power delegated to the GRP Peace Panel under E.O. No. 3, Sec. 4(a).
The President cannot delegate a power that she herself does not possess. May the President, in the course of peace
negotiations, agree to pursue reforms that would require new legislation and constitutional amendments, or should
the reforms be restricted only to those solutions which the present laws allow? The answer to this question requires a
discussion of the extent of the President's power to conduct peace negotiations.
That the authority of the President to conduct peace negotiations with rebel groups is not explicitly mentioned in the
Constitution does not mean that she has no such authority. In Sanlakas v. Executive Secretary,168 in issue was the
authority of the President to declare a state of rebellion - an authority which is not expressly provided for in the
Constitution. The Court held thus:
"In her ponencia in Marcos v. Manglapus, Justice Cortes put her thesis into jurisprudence. There, the Court, by a slim
8-7 margin, upheld the President's power to forbid the return of her exiled predecessor. The rationale for the
majority's ruling rested on the President's
. . . unstated residual powers which are implied from the grant of executive power and which are necessary for her to
comply with her duties under the Constitution. The powers of the President are not limited to what are expressly
enumerated in the article on the Executive Department and in scattered provisions of the Constitution. This is so,
notwithstanding the avowed intent of the members of the Constitutional Commission of 1986 to limit the powers of
the President as a reaction to the abuses under the regime of Mr. Marcos, for the result was a limitation of specific
powers of the President, particularly those relating to the commander-in-chief clause, but not a diminution of the
general grant of executive power.
Thus, the President's authority to declare a state of rebellion springs in the main from her powers as chief executive
and, at the same time, draws strength from her Commander-in-Chief powers. x x x (Emphasis and underscoring
supplied)
Similarly, the President's power to conduct peace negotiations is implicitly included in her powers as Chief
Executive and Commander-in-Chief. As Chief Executive, the President has the general responsibility to promote
public peace, and as Commander-in-Chief, she has the more specific duty to prevent and suppress rebellion and
lawless violence.169
As the experience of nations which have similarly gone through internal armed conflict will show, however, peace is
rarely attained by simply pursuing a military solution. Oftentimes, changes as far-reaching as a fundamental
reconfiguration of the nation's constitutional structure is required. The observations of Dr. Kirsti Samuels are
enlightening, to wit:
x x x [T]he fact remains that a successful political and governance transition must form the core of any post-conflict
peace-building mission. As we have observed in Liberia and Haiti over the last ten years, conflict cessation without
modification of the political environment, even where state-building is undertaken through technical electoral
assistance and institution- or capacity-building, is unlikely to succeed. On average, more than 50 percent of states
emerging from conflict return to conflict. Moreover, a substantial proportion of transitions have resulted in weak or
limited democracies.
The design of a constitution and its constitution-making process can play an important role in the political and
governance transition. Constitution-making after conflict is an opportunity to create a common vision of the future of
a state and a road map on how to get there. The constitution can be partly a peace agreement and partly a framework
setting up the rules by which the new democracy will operate.170
In the same vein, Professor Christine Bell, in her article on the nature and legal status of peace agreements, observed
that the typical way that peace agreements establish or confirm mechanisms for demilitarization and demobilization
is by linking them to new constitutional structures addressing governance, elections, and legal and human rights
institutions.171
In the Philippine experience, the link between peace agreements and constitution-making has been recognized by no
less than the framers of the Constitution. Behind the provisions of the Constitution on autonomous regions172 is the
framers' intention to implement a particular peace agreement, namely, the Tripoli Agreement of 1976 between the
GRP and the MNLF, signed by then Undersecretary of National Defense Carmelo Z. Barbero and then MNLF
Chairman Nur Misuari.
MR. ROMULO. There are other speakers; so, although I have some more questions, I will reserve my right to ask
them if they are not covered by the other speakers. I have only two questions.
I heard one of the Commissioners say that local autonomy already exists in the Muslim region; it is working very
well; it has, in fact, diminished a great deal of the problems. So, my question is: since that already exists, why do we
have to go into something new?
MR. OPLE. May I answer that on behalf of Chairman Nolledo. Commissioner Yusup Abubakar is right that certain
definite steps have been taken to implement the provisions of the Tripoli Agreement with respect to an autonomous
region in Mindanao. This is a good first step, but there is no question that this is merely a partial response to the
Tripoli Agreement itself and to the fuller standard of regional autonomy contemplated in that agreement, and now by
state policy.173(Emphasis supplied)
The constitutional provisions on autonomy and the statutes enacted pursuant to them have, to the credit of their
drafters, been partly successful. Nonetheless, the Filipino people are still faced with the reality of an on-going
conflict between the Government and the MILF. If the President is to be expected to find means for bringing this
conflict to an end and to achieve lasting peace in Mindanao, then she must be given the leeway to explore, in the
course of peace negotiations, solutions that may require changes to the Constitution for their implementation. Being
uniquely vested with the power to conduct peace negotiations with rebel groups, the President is in a singular
position to know the precise nature of their grievances which, if resolved, may bring an end to hostilities.
The President may not, of course, unilaterally implement the solutions that she considers viable, but she may not be
prevented from submitting them as recommendations to Congress, which could then, if it is minded, act upon them
pursuant to the legal procedures for constitutional amendment and revision. In particular, Congress would have the
option, pursuant to Article XVII, Sections 1 and 3 of the Constitution, to propose the recommended amendments or
revision to the people, call a constitutional convention, or submit to the electorate the question of calling such a
convention.
While the President does not possess constituent powers - as those powers may be exercised only by Congress, a
Constitutional Convention, or the people through initiative and referendum - she may submit proposals for
constitutional change to Congress in a manner that does not involve the arrogation of constituent powers.
In Sanidad v. COMELEC,174 in issue was the legality of then President Marcos' act of directly submitting proposals
for constitutional amendments to a referendum, bypassing the interim National Assembly which was the body vested
by the 1973 Constitution with the power to propose such amendments. President Marcos, it will be recalled, never
convened the interim National Assembly. The majority upheld the President's act, holding that "the urges of absolute
necessity" compelled the President as the agent of the people to act as he did, there being no interim National
Assembly to propose constitutional amendments. Against this ruling, Justices Teehankee and Muoz Palma
vigorously dissented. The Court's concern at present, however, is not with regard to the point on which it was then
divided in that controversial case, but on that which was not disputed by either side.
Justice Teehankee's dissent,175 in particular, bears noting. While he disagreed that the President may directly submit
proposed constitutional amendments to a referendum, implicit in his opinion is a recognition that he would have
upheld the President's action along with the majority had the President convened the interim National Assembly and
coursed his proposals through it. Thus Justice Teehankee opined:
"Since the Constitution provides for the organization of the essential departments of government, defines and
delimits the powers of each and prescribes the manner of the exercise of such powers, and the constituent power has
not been granted to but has been withheld from the President or Prime Minister, it follows that the President's
questioned decrees proposing and submitting constitutional amendments directly to the people (without the
intervention of the interim National Assembly in whom the power is expressly vested) are devoid of constitutional
and legal basis."176 (Emphasis supplied)
From the foregoing discussion, the principle may be inferred that the President - in the course of conducting peace
negotiations - may validly consider implementing even those policies that require changes to the Constitution, but
she may not unilaterally implement them without the intervention of Congress, or act in any way as if the assent of
that body were assumed as a certainty.
Since, under the present Constitution, the people also have the power to directly propose amendments through
initiative and referendum, the President may also submit her recommendations to the people, not as a formal
proposal to be voted on in a plebiscite similar to what President Marcos did in Sanidad, but for their independent
consideration of whether these recommendations merit being formally proposed through initiative.
These recommendations, however, may amount to nothing more than the President's suggestions to the people, for
any further involvement in the process of initiative by the Chief Executive may vitiate its character as a genuine
"people's initiative." The only initiative recognized by the Constitution is that which truly proceeds from the people.
As the Court stated in Lambino v. COMELEC:177
"The Lambino Group claims that their initiative is the people's voice.' However, the Lambino Group unabashedly
states in ULAP Resolution No. 2006-02, in the verification of their petition with the COMELEC, that ULAP
maintains its unqualified support to the agenda of Her Excellency President Gloria Macapagal-Arroyo for
constitutional reforms.' The Lambino Group thus admits that their people's' initiative is an unqualified support to
the agenda' of the incumbent President to change the Constitution. This forewarns the Court to be wary of
incantations of people's voice' or sovereign will' in the present initiative."
It will be observed that the President has authority, as stated in her oath of office,178 only to preserve and defend the
Constitution. Such presidential power does not, however, extend to allowing her to change the Constitution, but
simply to recommend proposed amendments or revision. As long as she limits herself to recommending these
changes and submits to the proper procedure for constitutional amendments and revision, her mere recommendation
need not be construed as an unconstitutional act.
The foregoing discussion focused on the President's authority to propose constitutional amendments, since her
authority to propose new legislation is not in controversy. It has been an accepted practice for Presidents in this
jurisdiction to propose new legislation. One of the more prominent instances the practice is usually done is in the
yearly State of the Nation Address of the President to Congress. Moreover, the annual general appropriations bill has
always been based on the budget prepared by the President, which - for all intents and purposes - is a proposal for
new legislation coming from the President.179
The "suspensive clause" in the MOA-AD viewed in light of the above-discussed standards
Given the limited nature of the President's authority to propose constitutional amendments, she cannot guarantee to
any third party that the required amendments will eventually be put in place, nor even be submitted to a plebiscite.
The most she could do is submit these proposals as recommendations either to Congress or the people, in whom
constituent powers are vested.
Paragraph 7 on Governance of the MOA-AD states, however, that all provisions thereof which cannot be reconciled
with the present Constitution and laws "shall come into force upon signing of a Comprehensive Compact and upon
effecting the necessary changes to the legal framework." This stipulation does not bear the marks of a suspensive
condition - defined in civil law as a future and uncertain event - but of a term. It is not a question of whether the
necessary changes to the legal framework will be effected, but when. That there is no uncertainty being contemplated
is plain from what follows, for the paragraph goes on to state that the contemplated changes shall be "with due regard
to non derogation of prior agreements and within the stipulated timeframe to be contained in the Comprehensive
Compact."
Pursuant to this stipulation, therefore, it is mandatory for the GRP to effect the changes to the legal framework
contemplated in the MOA-AD - which changes would include constitutional amendments, as discussed earlier. It
bears noting that,
By the time these changes are put in place, the MOA-AD itself would be counted among the "prior agreements" from
which there could be no derogation.
What remains for discussion in the Comprehensive Compact would merely be the implementing details for these
"consensus points" and, notably, the deadline for effecting the contemplated changes to the legal framework.
Plainly, stipulation-paragraph 7 on GOVERNANCE is inconsistent with the limits of the President's authority to
propose constitutional amendments, it being a virtual guarantee that the Constitution and the laws of the Republic of
the Philippines will certainly be adjusted to conform to all the "consensus points" found in the MOA-AD. Hence, it
must be struck down as unconstitutional.
A comparison between the "suspensive clause" of the MOA-AD with a similar provision appearing in the 1996 final
peace agreement between the MNLF and the GRP is most instructive.
As a backdrop, the parties to the 1996 Agreement stipulated that it would be implemented in two phases. Phase I
covered a three-year transitional period involving the putting up of new administrative structures through Executive
Order, such as the Special Zone of Peace and Development (SZOPAD) and the Southern Philippines Council for
Peace and Development (SPCPD), while Phase II covered the establishment of the new regional autonomous
government through amendment or repeal of R.A. No. 6734, which was then the Organic Act of the ARMM.
The stipulations on Phase II consisted of specific agreements on the structure of the expanded autonomous region
envisioned by the parties. To that extent, they are similar to the provisions of the MOA-AD. There is, however, a
crucial difference between the two agreements. While the MOA-AD virtually guarantees that the "necessary changes
to the legal framework" will be put in place, the GRP-MNLF final peace agreement states thus: "Accordingly, these
provisions [on Phase II] shall be recommended by the GRP to Congress for incorporation in the amendatory or
repealing law."
Concerns have been raised that the MOA-AD would have given rise to a binding international law obligation on the
part of the Philippines to change its Constitution in conformity thereto, on the ground that it may be considered either
as a binding agreement under international law, or a unilateral declaration of the Philippine government to the
international community that it would grant to the Bangsamoro people all the concessions therein stated. Neither
ground finds sufficient support in international law, however.
The MOA-AD, as earlier mentioned in the overview thereof, would have included foreign dignitaries as signatories.
In addition, representatives of other nations were invited to witness its signing in Kuala Lumpur. These
circumstances readily lead one to surmise that the MOA-AD would have had the status of a binding international
agreement had it been signed. An examination of the prevailing principles in international law, however, leads to the
contrary conclusion.
The Decision on Challenge to Jurisdiction: Lom Accord Amnesty180 (the Lom Accord case) of the Special Court
of Sierra Leone is enlightening. The Lom Accord was a peace agreement signed on July 7, 1999 between the
Government of Sierra Leone and the Revolutionary United Front (RUF), a rebel group with which the Sierra Leone
Government had been in armed conflict for around eight years at the time of signing. There were non-contracting
signatories to the agreement, among which were the Government of the Togolese Republic, the Economic
Community of West African States, and the UN.
On January 16, 2002, after a successful negotiation between the UN Secretary-General and the Sierra Leone
Government, another agreement was entered into by the UN and that Government whereby the Special Court of
Sierra Leone was established. The sole purpose of the Special Court, an international court, was to try persons who
bore the greatest responsibility for serious violations of international humanitarian law and Sierra Leonean law
committed in the territory of Sierra Leone since November 30, 1996.
Among the stipulations of the Lom Accord was a provision for the full pardon of the members of the RUF with
respect to anything done by them in pursuit of their objectives as members of that organization since the conflict
began.
In the Lom Accord case, the Defence argued that the Accord created an internationally binding obligation not to
prosecute the beneficiaries of the amnesty provided therein, citing, among other things, the participation of foreign
dignitaries and international organizations in the finalization of that agreement. The Special Court, however, rejected
this argument, ruling that the Lome Accord is not a treaty and that it can only create binding obligations and rights
between the parties in municipal law, not in international law. Hence, the Special Court held, it is ineffective in
depriving an international court like it of jurisdiction.
"37. In regard to the nature of a negotiated settlement of an internal armed conflict it is easy to assume and to argue
with some degree of plausibility, as Defence counsel for the defendants seem to have done, that the mere fact that in
addition to the parties to the conflict, the document formalizing the settlement is signed by foreign heads of state or
their representatives and representatives of international organizations, means the agreement of the parties is
internationalized so as to create obligations in international law.
xxxx
40. Almost every conflict resolution will involve the parties to the conflict and the mediator or facilitator of the
settlement, or persons or bodies under whose auspices the settlement took place but who are not at all parties to the
conflict, are not contracting parties and who do not claim any obligation from the contracting parties or incur any
obligation from the settlement.
41. In this case, the parties to the conflict are the lawful authority of the State and the RUF which has no status of
statehood and is to all intents and purposes a faction within the state. The non-contracting signatories of the Lom
Agreement were moral guarantors of the principle that, in the terms of Article XXXIV of the Agreement, "this peace
agreement is implemented with integrity and in good faith by both parties". The moral guarantors assumed no legal
obligation. It is recalled that the UN by its representative appended, presumably for avoidance of doubt, an
understanding of the extent of the agreement to be implemented as not including certain international crimes.
42. An international agreement in the nature of a treaty must create rights and obligations regulated by international
law so that a breach of its terms will be a breach determined under international law which will also provide
principle means of enforcement. The Lom Agreement created neither rights nor obligations capable of being
regulated by international law. An agreement such as the Lom Agreement which brings to an end an internal armed
conflict no doubt creates a factual situation of restoration of peace that the international community acting through
the Security Council may take note of. That, however, will not convert it to an international agreement which creates
an obligation enforceable in international, as distinguished from municipal, law. A breach of the terms of such a
peace agreement resulting in resumption of internal armed conflict or creating a threat to peace in the determination
of the Security Council may indicate a reversal of the factual situation of peace to be visited with possible legal
consequences arising from the new situation of conflict created. Such consequences such as action by the Security
Council pursuant to Chapter VII arise from the situation and not from the agreement, nor from the obligation
imposed by it. Such action cannot be regarded as a remedy for the breach. A peace agreement which settles an
internal armed conflict cannot be ascribed the same status as one which settles an international armed conflict which,
essentially, must be between two or more warring States. The Lom Agreement cannot be characterised as an
international instrument. x x x" (Emphasis, italics and underscoring supplied)
Similarly, that the MOA-AD would have been signed by representatives of States and international organizations not
parties to the Agreement would not have sufficed to vest in it a binding character under international law.
In another vein, concern has been raised that the MOA-AD would amount to a unilateral declaration of the
Philippine State, binding under international law, that it would comply with all the stipulations stated therein, with
the result that it would have to amend its Constitution accordingly regardless of the true will of the people. Cited as
authority for this view is Australia v. France,181 also known as the Nuclear Tests Case, decided by the International
Court of Justice (ICJ).
In the Nuclear Tests Case, Australia challenged before the ICJ the legality of France's nuclear tests in the South
Pacific. France refused to appear in the case, but public statements from its President, and similar statements from
other French officials including its Minister of Defence, that its 1974 series of atmospheric tests would be its last,
persuaded the ICJ to dismiss the case.182 Those statements, the ICJ held, amounted to a legal undertaking addressed
to the international community, which required no acceptance from other States for it to become effective.
Essential to the ICJ ruling is its finding that the French government intended to be bound to the international
community in issuing its public statements, viz:
43. It is well recognized that declarations made by way of unilateral acts, concerning legal or factual situations, may
have the effect of creating legal obligations. Declarations of this kind may be, and often are, very specific. When it is
the intention of the State making the declaration that it should become bound according to its terms, that intention
confers on the declaration the character of a legal undertaking, the State being thenceforth legally required to follow
a course of conduct consistent with the declaration. An undertaking of this kind, if given publicly, and with an intent
to be bound, even though not made within the context of international negotiations, is binding. In these
circumstances, nothing in the nature of a quid pro quo nor any subsequent acceptance of the declaration, nor even
any reply or reaction from other States, is required for the declaration to take effect, since such a requirement would
be inconsistent with the strictly unilateral nature of the juridical act by which the pronouncement by the State was
made.
44. Of course, not all unilateral acts imply obligation; but a State may choose to take up a certain position in relation
to a particular matter with the intention of being bound-the intention is to be ascertained by interpretation of the act.
When States make statements by which their freedom of action is to be limited, a restrictive interpretation is called
for.
xxxx
51. In announcing that the 1974 series of atmospheric tests would be the last, the French Government conveyed to
the world at large, including the Applicant, its intention effectively to terminate these tests. It was bound to assume
that other States might take note of these statements and rely on their being effective. The validity of these
statements and their legal consequences must be considered within the general framework of the security of
international intercourse, and the confidence and trust which are so essential in the relations among States. It is from
the actual substance of these statements, and from the circumstances attending their making, that the legal
implications of the unilateral act must be deduced. The objects of these statements are clear and they were addressed
to the international community as a whole, and the Court holds that they constitute an undertaking possessing legal
effect. The Court considers *270 that the President of the Republic, in deciding upon the effective cessation of
atmospheric tests, gave an undertaking to the international community to which his words were addressed. x x x
(Emphasis and underscoring supplied)
As gathered from the above-quoted ruling of the ICJ, public statements of a state representative may be construed as
a unilateral declaration only when the following conditions are present: the statements were clearly addressed to the
international community, the state intended to be bound to that community by its statements, and that not to give
legal effect to those statements would be detrimental to the security of international intercourse. Plainly, unilateral
declarations arise only in peculiar circumstances.
The limited applicability of the Nuclear Tests Case ruling was recognized in a later case decided by the ICJ entitled
Burkina Faso v. Mali,183 also known as the Case Concerning the Frontier Dispute. The public declaration subject of
that case was a statement made by the President of Mali, in an interview by a foreign press agency, that Mali would
abide by the decision to be issued by a commission of the Organization of African Unity on a frontier dispute then
pending between Mali and Burkina Faso.
Unlike in the Nuclear Tests Case, the ICJ held that the statement of Mali's President was not a unilateral act with
legal implications. It clarified that its ruling in the Nuclear Tests case rested on the peculiar circumstances
surrounding the French declaration subject thereof, to wit:
40. In order to assess the intentions of the author of a unilateral act, account must be taken of all the factual
circumstances in which the act occurred. For example, in the Nuclear Tests cases, the Court took the view that since
the applicant States were not the only ones concerned at the possible continuance of atmospheric testing by the
French Government, that Government's unilateral declarations had conveyed to the world at large, including the
Applicant, its intention effectively to terminate these tests (I.C.J. Reports 1974, p. 269, para. 51; p. 474, para. 53). In
the particular circumstances of those cases, the French Government could not express an intention to be bound
otherwise than by unilateral declarations. It is difficult to see how it could have accepted the terms of a negotiated
solution with each of the applicants without thereby jeopardizing its contention that its conduct was lawful. The
circumstances of the present case are radically different. Here, there was nothing to hinder the Parties from
manifesting an intention to accept the binding character of the conclusions of the Organization of African Unity
Mediation Commission by the normal method: a formal agreement on the basis of reciprocity. Since no agreement of
this kind was concluded between the Parties, the Chamber finds that there are no grounds to interpret the declaration
made by Mali's head of State on 11 April 1975 as a unilateral act with legal implications in regard to the present case.
(Emphasis and underscoring supplied)
Assessing the MOA-AD in light of the above criteria, it would not have amounted to a unilateral declaration on the
part of the Philippine State to the international community. The Philippine panel did not draft the same with the clear
intention of being bound thereby to the international community as a whole or to any State, but only to the MILF.
While there were States and international organizations involved, one way or another, in the negotiation and
projected signing of the MOA-AD, they participated merely as witnesses or, in the case of Malaysia, as facilitator. As
held in the Lom Accord case, the mere fact that in addition to the parties to the conflict, the peace settlement is
signed by representatives of states and international organizations does not mean that the agreement is
internationalized so as to create obligations in international law.
Since the commitments in the MOA-AD were not addressed to States, not to give legal effect to such commitments
would not be detrimental to the security of international intercourse - to the trust and confidence essential in the
relations among States.
In one important respect, the circumstances surrounding the MOA-AD are closer to that of Burkina Faso wherein, as
already discussed, the Mali President's statement was not held to be a binding unilateral declaration by the ICJ. As in
that case, there was also nothing to hinder the Philippine panel, had it really been its intention to be bound to other
States, to manifest that intention by formal agreement. Here, that formal agreement would have come about by the
inclusion in the MOA-AD of a clear commitment to be legally bound to the international community, not just the
MILF, and by an equally clear indication that the signatures of the participating states-representatives would
constitute an acceptance of that commitment. Entering into such a formal agreement would not have resulted in a
loss of face for the Philippine government before the international community, which was one of the difficulties that
prevented the French Government from entering into a formal agreement with other countries. That the Philippine
panel did not enter into such a formal agreement suggests that it had no intention to be bound to the international
community. On that ground, the MOA-AD may not be considered a unilateral declaration under international law.
The MOA-AD not being a document that can bind the Philippines under international law notwithstanding,
respondents' almost consummated act of guaranteeing amendments to the legal framework is, by itself, sufficient to
constitute grave abuse of discretion. The grave abuse lies not in the fact that they considered, as a solution to the
Moro Problem, the creation of a state within a state, but in their brazen willingness to guarantee that Congress and
the sovereign Filipino people would give their imprimatur to their solution. Upholding such an act would amount to
authorizing a usurpation of the constituent powers vested only in Congress, a Constitutional Convention, or the
people themselves through the process of initiative, for the only way that the Executive can ensure the outcome of
the amendment process is through an undue influence or interference with that process.
The sovereign people may, if it so desired, go to the extent of giving up a portion of its own territory to the Moros for
the sake of peace, for it can change the Constitution in any it wants, so long as the change is not inconsistent with
what, in international law, is known as Jus Cogens.184 Respondents, however, may not preempt it in that decision.
SUMMARY
The petitions are ripe for adjudication. The failure of respondents to consult the local government units or
communities affected constitutes a departure by respondents from their mandate under E.O. No. 3. Moreover,
respondents exceeded their authority by the mere act of guaranteeing amendments to the Constitution. Any alleged
violation of the Constitution by any branch of government is a proper matter for judicial review.
As the petitions involve constitutional issues which are of paramount public interest or of transcendental importance,
the Court grants the petitioners, petitioners-in-intervention and intervening respondents the requisite locus standi in
keeping with the liberal stance adopted in David v. Macapagal-Arroyo.
Contrary to the assertion of respondents that the non-signing of the MOA-AD and the eventual dissolution of the
GRP Peace Panel mooted the present petitions, the Court finds that the present petitions provide an exception to the
"moot and academic" principle in view of (a) the grave violation of the Constitution involved; (b) the exceptional
character of the situation and paramount public interest; (c) the need to formulate controlling principles to guide the
bench, the bar, and the public; and (d) the fact that the case is capable of repetition yet evading review.
The MOA-AD is a significant part of a series of agreements necessary to carry out the GRP-MILF Tripoli Agreement
on Peace signed by the government and the MILF back in June 2001. Hence, the present MOA-AD can be
renegotiated or another one drawn up that could contain similar or significantly dissimilar provisions compared to
the original.
The Court, however, finds that the prayers for mandamus have been rendered moot in view of the respondents' action
in providing the Court and the petitioners with the official copy of the final draft of the MOA-AD and its annexes.
The people's right to information on matters of public concern under Sec. 7, Article III of the Constitution is in
splendid symmetry with the state policy of full public disclosure of all its transactions involving public interest under
Sec. 28, Article II of the Constitution. The right to information guarantees the right of the people to demand
information, while Section 28 recognizes the duty of officialdom to give information even if nobody demands. The
complete and effective exercise of the right to information necessitates that its complementary provision on public
disclosure derive the same self-executory nature, subject only to reasonable safeguards or limitations as may be
provided by law.
The contents of the MOA-AD is a matter of paramount public concern involving public interest in the highest order.
In declaring that the right to information contemplates steps and negotiations leading to the consummation of the
contract, jurisprudence finds no distinction as to the executory nature or commercial character of the agreement.
An essential element of these twin freedoms is to keep a continuing dialogue or process of communication between
the government and the people. Corollary to these twin rights is the design for feedback mechanisms. The right to
public consultation was envisioned to be a species of these public rights.
At least three pertinent laws animate these constitutional imperatives and justify the exercise of the people's right to
be consulted on relevant matters relating to the peace agenda.
One, E.O. No. 3 itself is replete with mechanics for continuing consultations on both national and local levels and for
a principal forum for consensus-building. In fact, it is the duty of the Presidential Adviser on the Peace Process to
conduct regular dialogues to seek relevant information, comments, advice, and recommendations from peace
partners and concerned sectors of society.
Two, Republic Act No. 7160 or the Local Government Code of 1991 requires all national offices to conduct
consultations before any project or program critical to the environment and human ecology including those that may
call for the eviction of a particular group of people residing in such locality, is implemented therein. The MOA-AD is
one peculiar program that unequivocally and unilaterally vests ownership of a vast territory to the Bangsamoro
people, which could pervasively and drastically result to the diaspora or displacement of a great number of
inhabitants from their total environment.
Three, Republic Act No. 8371 or the Indigenous Peoples Rights Act of 1997 provides for clear-cut procedure for the
recognition and delineation of ancestral domain, which entails, among other things, the observance of the free and
prior informed consent of the Indigenous Cultural Communities/Indigenous Peoples. Notably, the statute does not
grant the Executive Department or any government agency the power to delineate and recognize an ancestral domain
claim by mere agreement or compromise.
The invocation of the doctrine of executive privilege as a defense to the general right to information or the specific
right to consultation is untenable. The various explicit legal provisions fly in the face of executive secrecy. In any
event, respondents effectively waived such defense after it unconditionally disclosed the official copies of the final
draft of the MOA-AD, for judicial compliance and public scrutiny.
In sum, the Presidential Adviser on the Peace Process committed grave abuse of discretion when he failed to carry
out the pertinent consultation process, as mandated by E.O. No. 3, Republic Act No. 7160, and Republic Act No.
8371. The furtive process by which the MOA-AD was designed and crafted runs contrary to and in excess of the
legal authority, and amounts to a whimsical, capricious, oppressive, arbitrary and despotic exercise thereof. It
illustrates a gross evasion of positive duty and a virtual refusal to perform the duty enjoined.
The MOA-AD cannot be reconciled with the present Constitution and laws. Not only its specific provisions but the
very concept underlying them, namely, the associative relationship envisioned between the GRP and the BJE, are
unconstitutional, for the concept presupposes that the associated entity is a state and implies that the same is on its
way to independence.
While there is a clause in the MOA-AD stating that the provisions thereof inconsistent with the present legal
framework will not be effective until that framework is amended, the same does not cure its defect. The inclusion of
provisions in the MOA-AD establishing an associative relationship between the BJE and the Central Government is,
itself, a violation of the Memorandum of Instructions From The President dated March 1, 2001, addressed to the
government peace panel. Moreover, as the clause is worded, it virtually guarantees that the necessary amendments to
the Constitution and the laws will eventually be put in place. Neither the GRP Peace Panel nor the President herself
is authorized to make such a guarantee. Upholding such an act would amount to authorizing a usurpation of the
constituent powers vested only in Congress, a Constitutional Convention, or the people themselves through the
process of initiative, for the only way that the Executive can ensure the outcome of the amendment process is
through an undue influence or interference with that process.
While the MOA-AD would not amount to an international agreement or unilateral declaration binding on the
Philippines under international law, respondents' act of guaranteeing amendments is, by itself, already a
constitutional violation that renders the MOA-AD fatally defective.
WHEREFORE, respondents' motion to dismiss is DENIED. The main and intervening petitions are GIVEN DUE
COURSE and hereby GRANTED.
The Memorandum of Agreement on the Ancestral Domain Aspect of the GRP-MILF Tripoli Agreement on Peace of
2001 is declared contrary to law and the Constitution.
SO ORDERED.