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CASES

La Grand Brothers vs. US

Nottebohm case (on nationality) (Bernas pp. 142-151)

Qatar vs. Bahrain (bernas pp. 23-25)

Gabcikovo-Nogymaros Project (Hungary vs. Slovakia) (re: rebus sic stantibus) (bernas pp. 52-53)

Vinuya vs. Executive Secretary regarding comfort women

Holy See vs. Eriberto Rosario, Jr.

Goldwater vs. Carter (1979) termination of treaty

Hilao vs. Estate of Ferdinand Marcos

Congo vs. Belgium (on sovereign immunities)

Doe vs. UNOCAL (on sovereign immunity)

Israel vs. Fichmann (on protective principle and universality principle) (bernas pp. 162-164)

US vs. Purganan (on extradition. not a flight risk)

US vs. Iran re: US Diplomatic and Consular staff (bernas, pp. 216-219)

Bolivar Railway Company Claim (Great Britain vs. Venezuela) on state responsibility

Neer Claim (US vs. Mexico) on state responsibility (bernas, p. 226)

Bayan Muna vs. Executive Secretary on ratification

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LaGrand Case (Germany v. United States)

Citation. I.C.J. 2001 I.C.J. 466.

Brief Fact Summary. A suit against the United States (D) was filed by Germany (P) in the International Court of
Justice, claiming the U.S. law enforcement agent failed to advice aliens upon their arrests of their rights under the
Vienna Convention.

Synopsis of Rule of Law. A state that breaches its obligations to another under the Vienna Convention on Consular
Relations by failing to inform an arrested alien of the right to consular notification and to provide judicial review of
the alien’s conviction and sentence also violate individual rights held by the alien under international law.

Facts. The Vienna Convention on Consular Relations, Article 36(1)(b), provides that a state trying an alien in a death
sentence case must inform the alien of his rights to have his consular authorities informed of the arrest. A suit which
claimed the United States law enforcement personnel f ailed to advice aliens upon their arrest of their rights was filed
by Paraguay (P), Germany (P) and Mexico (P) at the international Court of Justice. The plaintiffs also claimed that as
a remedy for violation of the Vienna Convention, state courts should review and reconsider the death sentences to
determine if the lack of consular access prejudiced the aliens. The German’s (P) case involved LaGrand and his
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brother who were executed before the matter came to the I.C.J. the Court found that the U.S. (D) had breached its
obligations to Germany (P) under the Vienna Convention by not giving notice about LaGrand and his brother of right
to consular notification, and by failing to provide judicial review of the conviction and sentence.

Issue. Does a state which breaches its obligations to another under the Vienna Convention on Consular Relations by
failing to inform an arrested alien of the right to consular notification and to provide judicial review of the alien’s
conviction and sentence also violate individual rights held by the alien under international law?

Held. Yes. A state that breaches its obligations to another under the Vienna Convention on Consular Relations by
failing to inform an arrested alien of the right to consular notification and to provide judicial review of the alien’s
conviction and sentence also violate individual rights held by the alien under international law. The meaning adduced
to the phrase “authorities shall inform the person concerned without delay of his rights under this subparagraph”� of
Article 36 suggests that the rights to be informed of their rights under the Convention is an individual right of every
national of a state that is party to the Convention.

Discussion. The Arizona Governor Jane Dee Hull insisted that the executions of the LeGrand brothers would be
carried out despite the diplomatic efforts made by the German Ambassador and German Members of Parliament and
the recommendation of the Arizona’s clemency board. On February 24, 1999, Karl LaGrand was executed by lethal
injection and Walter LaGrand was executed March 3, 1999 by gas chamber. Compare this case to a ruling by the
I.C.J. involving Mexican nationals, Avena and other Mexican Nationals (Mexico v. United States), 2004 I.C.J. 12 and
the U.S. Supreme Court’s refusal to give effect to the I.C.J.’s Avena decision in Medelin v. Texas 128 S. Ct. 1346
(2008)

__________

G.R. No. 162230, April 28, 2010

FACTS:

This is an original Petition for Certiorari under Rule 65 of the Rules of Court with an application for the issuance of a
writ of preliminary mandatory injunction against the Office of the Executive Secretary, the Secretary of the DFA, the
Secretary of the DOJ, and the OSG.

Petitioners are all members of the MALAYA LOLAS, a non-stock, non-profit organization registered with the SEC,
established for the purpose of providing aid to the victims of rape by Japanese military forces in the Philippines
during the Second World War.

Petitioners claim that since 1998, they have approached the Executive Department through the DOJ, DFA, and OSG,
requesting assistance in filing a claim against the Japanese officials and military officers who ordered the
establishment of the “comfort women” stations in the Philippines. But officials of the Executive Department declined
to assist the petitioners, and took the position that the individual claims of the comfort women for compensation had
already been fully satisfied by Japan’s compliance with the Peace Treaty between the Philippines and Japan.

Hence, this petition where petitioners pray for this court to (a) declare that respondents committed grave abuse of
discretion amounting to lack or excess of discretion in refusing to espouse their claims for the crimes against
humanity and war crimes committed against them; and (b) compel the respondents to espouse their claims for official
apology and other forms of reparations against Japan before the International Court of Justice (ICJ) and other
international tribunals.

Respondents maintain that all claims of the Philippines and its nationals relative to the war were dealt with in the San
Francisco Peace Treaty of 1951 and the bilateral Reparations Agreement of 1956.

On January 15, 1997, the Asian Women’s Fund and the Philippine government signed a Memorandum of
Understanding for medical and welfare support programs for former comfort women. Over the next five years, these
were implemented by the Department of Social Welfare and Development.
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ISSUE:

WON the Executive Department committed grave abuse of discretion in not espousing petitioners’ claims for official
apology and other forms of reparations against Japan.

RULING:

Petition lacks merit. From a Domestic Law Perspective, the Executive Department has the exclusive prerogative to
determine whether to espouse petitioners’ claims against Japan.

Political questions refer “to those questions which, under the Constitution, are to be decided by the people in their
sovereign capacity, or in regard to which full discretionary authority has been delegated to the legislative or executive
branch of the government. It is concerned with issues dependent upon the wisdom, not legality of a particular
measure.”

One type of case of political questions involves questions of foreign relations. It is well-established that “the conduct
of the foreign relations of our government is committed by the Constitution to the executive and legislative–‘the
political’–departments of the government, and the propriety of what may be done in the exercise of this political
power is not subject to judicial inquiry or decision.” are delicate, complex, and involve large elements of prophecy.
They are and should be undertaken only by those directly responsible to the people whose welfare they advance or
imperil.

But not all cases implicating foreign relations present political questions, and courts certainly possess the authority to
construe or invalidate treaties and executive agreements. However, the question whether the Philippine government
should espouse claims of its nationals against a foreign government is a foreign relations matter, the authority for
which is demonstrably committed by our Constitution not to the courts but to the political branches. In this case, the
Executive Department has already decided that it is to the best interest of the country to waive all claims of its
nationals for reparations against Japan in the Treaty of Peace of 1951. The wisdom of such decision is not for the
courts to question.

The President, not Congress, has the better opportunity of knowing the conditions which prevail in foreign countries,
and especially is this true in time of war. He has his confidential sources of information. He has his agents in the form
of diplomatic, consular and other officials.

The Executive Department has determined that taking up petitioners’ cause would be inimical to our country’s foreign
policy interests, and could disrupt our relations with Japan, thereby creating serious implications for stability in this
region. For the to overturn the Executive Department’s determination would mean an assessment of the foreign policy
judgments by a coordinate political branch to which authority to make that judgment has been constitutionally
committed.

From a municipal law perspective, certiorari will not lie. As a general principle, where such an extraordinary length of
time has lapsed between the treaty’s conclusion and our consideration – the Executive must be given ample discretion
to assess the foreign policy considerations of espousing a claim against Japan, from the standpoint of both the
interests of the petitioners and those of the Republic, and decide on that basis if apologies are sufficient, and whether
further steps are appropriate or necessary.

In the international sphere, traditionally, the only means available for individuals to bring a claim within the
international legal system has been when the individual is able to persuade a government to bring a claim on the
individual’s behalf. By taking up the case of one of its subjects and by resorting to diplomatic action or international
judicial proceedings on his behalf, a State is in reality asserting its own right to ensure, in the person of its subjects,
respect for the rules of international law.

Within the limits prescribed by international law, a State may exercise diplomatic protection by whatever means and
to whatever extent it thinks fit, for it is its own right that the State is asserting. Should the natural or legal person on
whose behalf it is acting consider that their rights are not adequately protected, they have no remedy in international
law. All they can do is resort to national law, if means are available, with a view to furthering their cause or obtaining
redress. All these questions remain within the province of municipal law and do not affect the position internationally.

Even the invocation of jus cogens norms and erga omnes obligations will not alter this analysis. Petitioners have not
shown that the crimes committed by the Japanese army violated jus cogens prohibitions at the time the Treaty of
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Peace was signed, or that the duty to prosecute perpetrators of international crimes is an erga omnes obligation or has
attained the status of jus cogens.

The term erga omnes (Latin: in relation to everyone) in international law has been used as a legal term describing
obligations owed by States towards the community of states as a whole. Essential distinction should be drawn
between the obligations of a State towards the international community as a whole, and those arising vis-à-vis another
State in the field of diplomatic protection. By their very nature, the former are the concern of all States. In view of the
importance of the rights involved, all States can be held to have a legal interest in their protection; they are obligations
erga omnes.

The term “jus cogens” (literally, “compelling law”) refers to norms that command peremptory authority, superseding
conflicting treaties and custom. Jus cogens norms are considered peremptory in the sense that they are mandatory, do
not admit derogation, and can be modified only by general international norms of equivalent authority

WHEREFORE, the Petition is hereby DISMISSED.

______

VINUYA VS. EXECUTIVE SECRETARY (G.R. No. 162230, 28 April 2010)

FACTS: Petitioners narrate that during the Second World War, the Japanese army attacked villages and
systematically raped the women as part of the destruction of the village. As a result of the actions of their Japanese
tormentors, the petitioners have spent their lives in misery, having endured physical injuries, pain and disability, and
mental emotional suffering. Petitioners claim that since 1998, they have approached the Executive Department
through the DOJ, DFA and OSG, requesting assistance in filing a claim against the Japanese officials and military
officers who ordered the establishment of the “comfort women stations in the Philippines. However, said officials
declined to assist the petitioners, and took the position that the individual claims for compensation have already been
fully satisfied by Japan’s compliance with the Peace Treaty between the Philippines and Japan. Petitioners also
argued that the comfort women system constituted a crime against humanity, sexual slavery, and torture. They alleged
that the prohibition against these international crimes is jus cogens norms from which no derogation is possible, as
such, the Philippine government is in breach of its legal obligation not to afford impunity for crimes against humanity.

ISSUE: Whether the Executive Department committed grave abuse of discretion in not espousing petitioner’s claims
for official apology and other forms of reparations against Japan.

RULING: No. The question whether the government should espouse claims of its nationals against a foreign
government is a foreign relations matter, the authority for which is demonstrably committed by our Constitution not
to the courts but to the political branches. In this case, the Executive Department has determined that taking up
petitioners’ cause would be inimical to our country’s foreign policy interests, and could disrupt our relations with
Japan, thereby creating serious implications for stability in this region. For the Court to overturn the Executive
Departments determination would mean an assessment of the foreign policy judgments by a coordinate political branch to which
authority to make that judgment has been constitutionally committed. In the international sphere, traditionally, the only
means available for individuals to bring a claim within the international legal system has been when the individual is
able to persuade a government to bring a claim on the individuals behalf. Even then, it is not the individuals rights
that are being asserted, but rather, the states own rights. The State, therefore, is the sole judge to decide whether its
protection will be granted, to what extent it is granted, and when will it cease.

The Court fully agree that rape, sexual slavery, torture, and sexual violence are morally reprehensible as well as legally
prohibited under contemporary international law. However, it does not automatically imply that the Philippines is under a
non-derogable obligation to prosecute international crimes. Absent the consent of the states, an applicable treaty
regime, or a directive by the Security Council, there is no non-derogable duty to institute proceedings against
Japan. Even the invocation of jus cogens norms and erga omnes obligations will not alter this analysis. Even if we sidestep the
question of whether jus cogens norms existed in 1951, petitioners have not deigned to show that the crimes committed by the
Japanese army violated jus cogens prohibitions at the time the Treaty of Peace was signed, or that the duty to prosecute
perpetrators of international crimes is an erga omnes obligation or has attained the status of jus cogens.

____________
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In the Holy See v. Eriberto Rosario, Jr., where it was claimed that the Holy See had waived its sovereign immunity
by entering into a contract for the sale of a piece of land, the Court said:

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.

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.

______

The rules of International Law, however, are neither unyielding nor impervious to change. The increasing need of
sovereign States to enter into purely commercial activities remotely connected with the discharge of their
governmental functions brought about a new concept of sovereign immunity. This concept, the restrictive theory,
holds that the immunity of the sovereign is recognized only with regard to public acts or acts jure imperii, but not
with regard to private acts or acts jure gestionis. [The Holy See v. Rosario, et al., 238 SCRA 524 (1994)].

__________

Holy See vs Rosario (G.R. No. 101949, 238 SCRA 524, December 1, 1994)

Petitioner: The Holy See

Respondent: Hon. Elidberto Rosario, Jr., in his capacity as Presiding Judge of RTC Makati, Branch 61 and Starbright
Sales Enterprises, Inc.

FACTS: Petition arose from a controversy over a parcel of land. Lot 5-A, registered under the name Holy See, was
contiguous to Lot 5-B and 5-D under the name of Philippine Realty Corporation (PRC). The land was donated by the
Archdiocese of Manila to the Papal Nuncio, which represents the Holy See, who exercises sovereignty over the
Vatican City, Rome, Italy, for his residence.

Said lots were sold through an agent to Ramon Licup who assigned his rights to respondents Starbright Sales
Enterprises, Inc.

When the squatters refuse to vacate the lots, a dispute arose between the two parties because both were unsure
whose responsibility was it to evict the squatters from said lots. Respondent Starbright Sales Enterprises Inc. insists
that Holy See should clear the property while Holy See says that respondent corporation should do it or the earnest
money will be returned. With this, Msgr. Cirilios, the agent, subsequently returned the P100,000 earnest money.

The same lots were then sold to Tropicana Properties and Development Corporation.

Starbright Sales Enterprises, Inc. filed a suit for annulment of the sale, specific performance and damages
against Msgr. Cirilios, PRC as well as Tropicana Properties and Development Corporation. The Holy See and Msgr.
Cirilos moved to dismiss the petition for lack of jurisdiction based on sovereign immunity from suit. RTC denied the
motion on ground that petitioner already "shed off" its sovereign immunity by entering into a business contract. The
subsequent Motion for Reconsideration was also denied hence this special civil action for certiorari was forwarded to
the Supreme Court.

ISSUE: Whether or not Holy See can invoke sovereign immunity.

HELD: The Court held that Holy See may properly invoke sovereign immunity for its non-suability. As expressed in
Sec. 2 Art II of the 1987 Constitution, generally accepted principles of International Law are adopted by our Courts
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and thus shall form part of the laws of the land as a condition and consequence of our admission in the society of
nations.

It was noted in Article 31(A) of the 1961 Vienna Convention on Diplomatic Relations that diplomatic envoy
shall be granted immunity from civil and administrative jurisdiction of the receiving state over any real action relating
to private immovable property. The Department of Foreign Affairs (DFA) certified that the Embassy of the Holy See
is a duly accredited diplomatic missionary to the Republic of the Philippines and is thus exempted from local
jurisdiction and is entitled to the immunity rights of a diplomatic mission or embassy in this Court.

Furthermore, it shall be understood that in the case at bar, the petitioner has bought and sold lands in the
ordinary course of 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 the lot were made for profit but
claimed that it acquired said property for the site of its mission or the Apostolic Nunciature in the Philippines.

The Holy See is immune from suit because the act of selling the lot of concern is non-propriety in nature.
The lot was acquired through a donation from the Archdiocese of Manila, not for a commercial purpose, but for the
use of petitioner to construct the official place of residence of the Papal Nuncio thereof. The transfer of the property
and its subsequent disposal are likewise clothed with a governmental (non-proprietal) character as petitioner sold the
lot not for profit or gain rather because it merely cannot evict the squatters living in said property.

In view of the foregoing, the petition is hereby GRANTED and the complaints were dismissed accordingly.

________________

Goldwater v. Carter

Citation. 22 Ill.444 U.S. 996, 100 S. Ct. 533, 62 L. Ed. 2d 428 (1979)

Brief Fact Summary. President Carter terminated a treaty with Taiwan without congressional approval.

Synopsis of Rule of Law. This is a political question and not justiciable.

Facts. President Carter terminated a treaty with Taiwan, and a few Congressional members felt that this deprived
them of their Constitutional function. However, no Congressional action was ever taken. The Senate considered a
resolution that would require the President to get Senate approval before any mutual defense treaty could be
terminated, but there was no final vote on the resolution.

Issue. Is this issue of whether a President can terminate a treaty without Congressional approval a non-justiciable
political question?

Held. Yes. Whether or not a President can terminate a treaty closely involves his foreing relations authority and
therefore is not reviewable by the Supreme Court.

Dissent. Even though the Court cannot review political questions, the court has the power to review whether or not a
particular branch of government has exclusive decision-making power over an issue.
Concurrence. This issue was not ripe because the Senate never tried to invoke a resolution against it. Were it ripe,
however, the issue would be justiciable because it would require an interpretation of the Constitution. Even though
the Supreme Court cannot hear purely political questions, it can review cases to determine if the interpretation of the
Constitution is correct.

Discussion. In the arena of foreign affairs, the Court has held issues to be political questions even though many
Justices believe these issues relate to the interpretation of the Constitution, and are therefore reviewable. The Court
places a great emphasis on establishing a single, unified voice for the nation on foreign affairs is

_____________
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Authority to Terminate

While the Vienna Convention enumerates those who have the capacity to enter into treaties, it does not say who may
terminate a treaty. Logically, however, the authority to terminate should also belong to the one who has the authority
to enter into the treaty. In the Philippines, however, as in the United States, the authority to conclude treaties is shared
between the Senate and the President. Can the President unilaterally terminate a treaty? Goldwater v. Carter,6
discussed this question relative to President Carter’s termination of the defense treaty with Taiwan. No decision was
reached except to say that the matter was not yet ripe for judicial review: “The Judicial Branch should not decide
issues affecting the allocation of power between the President and Congress until the political branches reach a
constitutional impasse. Otherwise, we would encourage small groups or even individual

__________

Hilao v. Estate of Marcos,103 F.3d 767, 776 to 778 (9th Cir. 1996)

The district court instructed the jury that it could find the Estate liable if it found either that (1) Marcos directed,
ordered, conspired with, or aided the military in torture, summary execution, and "disappearance" or (2) if Marcos
knew of such conduct by the military and failed to use his power to prevent it. The Estate challenges the latter basis
for liability, arguing that liability is not imposed under such conditions in analogous U.S. law claims, that "no
international law decision ... has ever imposed liability upon a foreign official" on those grounds, and that the district
court essentially made the Estate liable on a respondeat superior theory that is inapplicable in intentional torts.

The principle of "command responsibility" that holds a superior responsible for the actions of subordinates appears to
be well accepted in U.S. and international law in connection with acts committed in wartime, as the Supreme Court's
opinion in In Re Yamashita indicates:

[T]he gist of the charge is an unlawful breach of duty by petitioner as an army commander to control the operations of
the members of his command by 'permitting them to commit' the extensive and widespread atrocities specified....
[T]he law of war presupposes that its violation is to be avoided through the control of the operations of war by
commanders who are to some extent responsible for their subordinates.... [P]rovisions [of international law] plainly
imposed on petitioner, who at the time specified was military governor of the Philippines, as well as commander of
the Japanese forces, an affirmative duty to take such measures as were within his power and appropriate in the
circumstances to protect prisoners of war and the civilian population. This duty of a commanding officer has
heretofore been recognized, and its breach penalized[,] by our own military tribunals.

In re Yamashita, 327 U.S. 1, 14-16, 66 S.Ct. 340, 347-48, 90 L.Ed. 499 (1946). See also Art. 86(2), Protocol to the
Geneva Conventions of August 12, 1949, opened for signature December 12, 1977, reprinted in 16 I.L.M. 1391, 1429
(1977) ("The fact that a breach of the Conventions or of this Protocol was committed by a subordinate does not
absolve his superiors from penal [or] disciplinary responsibility ... if they knew, or had information which should
have enabled them to conclude in the circumstances at the time, that he was committing or was going to commit such
a breach and if they did not take all feasible measures within their power to prevent or repress the breach."); Art. 7(3),
Statute of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International
Humanitarian Law Committed in the Territory of the Former Yugoslavia, 32 I.L.M. 1159, 1192-94 (1993) ( "The fact
that any [act of genocide, crime against humanity, or violation of the Geneva Conventions or of the laws or customs
of war] was committed by a subordinate does not relieve his superior of criminal responsibility if he knew or had
reason to know that the subordinate was about to commit such acts or had done so and the superior failed to take the
necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof."); see generally Lt.
Cmdr. Weston D. Burnett, Command Responsibility and a Case Study of the Criminal Responsibility of Israeli
Military Commanders for the Pogrom at Shatila and Sabra, 107 Mil.L.J. 71 (1985).

The United States has moved toward recognizing similar "command responsibility" for torture that occurs in
peacetime, perhaps because the goal of international law regarding the treatment of noncombatants in wartime--"to
protect civilian populations and prisoners ... from brutality", Yamashita, 327 U.S. at 15, 66 S.Ct. at 347-48--is similar
to the goal of international human-rights law. This move is evidenced in the legislative history of the TVPA:

[A] higher official need not have personally performed or ordered the abuses in order to be held liable. Under
international law, responsibility for torture, summary execution, or disappearances extends beyond the person or
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persons who actually committed those acts--anyone with higher authority who authorized, tolerated or knowingly
ignored those acts is liable for them.

S.Rep. No. 249, 102d Cong., 1st Sess. at 9 (1991) (footnote omitted) (citing Forti and In re Yamashita ). At least one
district court has recognized such liability. Xuncax, 886 F.Supp. at 171-73, 174-75 ("Gramajo was aware of and
supported widespread acts of brutality committed by personnel under his command resulting in thousands of civilian
deaths.... Gramajo refused to act to prevent such atrocities." "... Gramajo may be held liable for the acts of members
of the military forces under his command."). See also Paul v. Avril, 901 F.Supp. 330, 335 (S.D.Fla.1994) ("Defendant
Avril [former military ruler of Haiti] bears personal responsibility for a systematic pattern of egregious human rights
abuses in Haiti during his military rule ... He also bears personal responsibility for the interrogation and torture of
each of the plaintiffs ... All of the soldiers and officers in the Haitian military responsible for the arbitrary detention
and torture of plaintiffs were employees, representatives, or agents of defendant Avril, acting under his instructions,
authority, and control and acting within the scope of authority granted by him."). The conduct at issue in this case
involved violations by members of military or paramilitary forces of a jus cogens norm of international law parallel to
the types of war crimes for which international law imposes command responsibility. Siderman de Blake v. Republic
of Argentina, 965 F.2d 699, 714-717 (9th Cir.1992) (prohibition against torture has attained status of jus cogens norm
from which no derogation is permitted). In these circumstances, the district court's instruction on the second category
of liability was proper under international law.

____________

BELGIAN ARREST WARRANT CASE (SUMMARY)

© Ruwanthika Gunaratne/ Public International Law at https://ruwanthikagunaratne.wordpress.com.

Name of the Case: Arrest Warrant of 11 April 2000 (Democratic Republic of Congo vs Belgium); Year of the
decision: 2002; and Court: ICJ.

Overview: Belgium issued and circulated internationally, an arrest warrant against the incumbent Foreign Minister
of Congo, based on universal jurisdiction. Congo asked the ICJ to decide that Belgium violated international law
because it did not respect the inviolability and immunities of the foreign minister from criminal process before
Belgian courts.

Facts of the Case:

On 11 April 2000, a Belgian Magistrate issued an international arrest warrant against Mr. Yerodia. At the time,
Yerodia was the Foreign Minister of the Congo. The Court issued the warrant based on universal jurisdiction. It
accused Yerodia of inciting racial hatred. These speeches, allegedly, incited the population to attack Tutsi residents in
Rwanda, which resulted in many deaths. The warrant alleged that Yerodia committed grave breaches of the Geneva
Conventions of 1949 and its Additional Protocols and crimes against humanity. Belgium sent the arrest warrant to
Interpol and circulated it to all States, including to the Congo. The warrant asked States to arrest, detain, and extradite
Yerodia to Belgium. After Belgium issued the warrant, in November 2000, Yerodia became the Education Minister.
At the time of the ICJ’s judgement, he did not hold a Ministerial post in Congo.

Questions before the Court:

Did Belgium violate principles of customary international law concerning the absolute inviolability and immunity
from criminal process of an incumbent Foreign Minister, when it issued and internationally circulated the arrest
warrant? If yes, did it violate the principle of sovereign equality amongst States; does this alleged unlawfulness
preclude States who received the warrant from exercising it; should the Court order reparations; and should Belgium
recall and cancel its arrest warrant?

[NB: The Congo placed two separate legal questions before the Court at the time of its application to the ICJ. It
contested Belgium‘s basis of jurisdiction – universal jurisdiction – stating that it violated the principle of sovereign
equality (see para 17 of the judgement). Both the Congo and the Court did not discuss this in its final submissions and
judgement (see paras 41 – 43, 45, 46). Several judges in their separate opinions discussed the issue (see below).]
PIL / cases for midterm / page 9

Belgium‘s Objections:

Belgium raised four objections to the jurisdiction of the Court. One argument was that there was no longer a legal
dispute because Yerodia was no longer the Foreign Minister. The Court rejected all four objections (see paras 23 – 40,
44).

The Court’s Decision:

The issuance and circulation of the arrest warrant violated Belgium’s international obligations towards the Congo.
Belgium failed to respect, and infringed, Yerodia’s immunity and the inviolability enjoyed by him under international
law.

Relevant Findings of the Court:

1. It is an established principle of international law that Heads of States and Governments, Foreign Ministers and
Diplomatic and Consular agents enjoys immunities from civil and criminal jurisdictions of other States.

2. In the absence of treaty law, customary international law determines the immunities of Ministers of Foreign
Affairs. These immunities “…are not given for their personal benefit; but to ensure the effective performance of their
functions of behalf of their…States”. The functions of the Foreign Minister require frequent travel to other countries.
International law recognizes him as a representative of the State solely by virtue of his office. The functions of a
Foreign Minister are such that – during his tenure – he enjoys absolute immunity from criminal jurisdiction and
inviolability when he is abroad.

3. As the incumbent Foreign Minister, Yerodia enjoys immunity (during his tenure) for acts performed, both, in an
official capacity and in a private capacity. The immunity applies regardless of whether the Minister is on foreign
territory in an official or private visit. This immunity extends not only to his actions during his tenure; but, also to his
actions before he became Foreign Minister.

“Thus, if a Minister for Foreign Affairs is arrested in another State on a criminal charge, he or she is thereby
prevented from exercising the functions of his or her office. The consequences of such impediment to the exercise of
those official functions are equally serious…. Furthermore, even the mere risk that, by travelling to or transiting
another State a Minister for Foreign Affairs might be exposing himself or herself to legal proceedings could deter the
Minister from travelling internationally when required to do so for the purposes of the performance of his or her
official functions.”

4. The Court rejected Belgium’s argument that the Minister does not enjoy immunity because he is accused of having
committed war crimes or crimes against humanity. (Belgium relied on the Pinochet Case (decided by the House of
Lords, UK), the Qaddafi Case (decided by the French Court of Cassation) and Statutes of International Criminal
Court and Tribunals.) The Court held that there was no exception in customary international law to the absolute
immunity of an incumbent Foreign Minister.

” It (the Court) has been unable to deduce from this practice that there exists under customary international law any
form of exception to the rule according immunity from criminal jurisdiction and inviolability to incumbent Ministers
of Foreign Affairs, when they are suspected of having committed war crimes or crimes against humanity…The Court
has also examined the rules concerning the immunity or criminal responsibility of persons having an official capacity
contained in the legal instruments creating international criminal tribunals, and which are specifically applicable … It
finds that these rules likewise do not enable it to conclude that any such an exception exists in customary international
law in regard to national courts.”

5. International Conventions give jurisdiction to national Courts over various crimes and, at times, requires them to
exercise this jurisdiction [for example, the Torture Convention]. This requirement does not affect the immunities
given to Foreign Ministers under international law. Despite international conventions establishing domestic
jurisdiction, Foreign Ministers are immune before foreign courts.

6. Immunity does not mean impunity. The person continues to be individually responsible for the crime he committed.

“While jurisdictional immunity is procedural in nature, criminal responsibility is a question of substantive law.
Jurisdictional immunity may well bar prosecution for a certain period or for certain offences; it cannot exonerate the
person to whom it applies from all criminal responsibility….”
PIL / cases for midterm / page 10

7. The Court set out four situations where an incumbent or former Foreign Minister could be prosecuted:

a. Prosecution in his own country according to the domestic law (the international law of immunity is not recognized
before a person’s national courts);

b. If his country waives his immunity, then prosecution before a foreign court;

c. Once he ceases to be the Foreign Minister, he no longer enjoys immunity before foreign courts for private acts
committed during his tenure as Foreign Minister; and for all acts committed before or after his tenure in office; and

d. Prosecution before an international criminal body, with the necessary jurisdiction (for example the ICC).

8. The ICJ concluded that the issuance and circulation of the arrest warrant violated Belgium’s obligations towards
Congo, “in that it failed to respect the immunity of that Minister and, more particularly infringed the immunity
from criminal jurisdiction and the inviolability enjoyed by him under international law.” It did not matter that Yerodia
was never arrested.

“Since Mr. Yerodia was called upon in that capacity to undertake travel in the performance of his duties, the mere
international circulation of the warrant… could have resulted, in particular, in his arrest while abroad. The Court
observes… Mr. Yerodia, “on applying for a visa to go to two countries, [apparently] learned that he ran the risk of
being arrested as a result of the arrest warrant issued against him by Belgium”… the arrest warrant ‘sometimes forced
Minister Yerodia to travel by roundabout routes”‘.

9. Congo asked the Court to rule that the unlawfulness of the arrest warrant precludes States who received the warrant
from exercising it. The Court refused to indicate what the judgment’s implications might be for third States. Its
determination is limited to Congo and Belgium. [NB: the Statute of the ICJ requires that its rulings should not create
binding obligations on States who are not parties to the dispute.]

10. On reparation, the Court held that the issuance and circulation of the arrest warrant engaged Belgium’s
international responsibility. “The Court… considers that Belgium must, by means of its own choosing, cancel the
warrant in question and so inform the authorities to whom it was circulated.” The Court did not order any other
reparations.

____________

John Doe I, et al., v. UNOCAL Corp., et al., 395 F.3d 932 (9 Cir. 2002)

Complaint alleged that Myanmar's military subjected villagers to forced labor, rape, torture and murder with the
knowledge and support of Unocal, a U.S. oil and gas corporation, which created liability under the Alien Tort Claims
Act (ACTA)(link is external)[1]; Whether to be liable under ATCA a non-state actor must engage in state action;
Whether Unocal was liable for aiding and abetting the Myanmar military in subjecting villagers to forced labor, rape,
murder and torture; Scope of the legal liability of transnational corporations for violations of human rights under
ATCA.

(link is external)[1] The Alien Tort Claims Act (ATCA) provides non-citizens of the United States the opportunity to
bring a civil suit in US courts for a tort (injury) committed in violation of the law of nations (international law).

Forum:

US Court of Appeals - Ninth Circuit

Type of Forum:

Domestic

Summary: During Unocal's construction of an oil pipeline in Myanmar, it hired Myanmar's military for security
while the pipeline was built. The villagers in the area where the pipeline was being constructed alleged the military
forcefully evicted them, forced them to work on the project and raped, murdered and tortured them. They
subsequently brought two cases in the District Court in California, both of which were decided in favor of Unocal
through summary judgment.(link is external)[1] The claimants appealed the decision and in 2002, the United States
Court of Appeals for the Ninth Circuit reversed the District Court's decision by dismissing the summary judgment
PIL / cases for midterm / page 11

orders and determined the lawsuit against Unocal should go forward to trial. As the basis for this decision, the Court
of Appeals held that liability under ATCA does not require the rights violation to have been committed through state
action (by the state or as an extension of state authority) if the violation was committed in furtherance of crimes which
themselves do not require state action to establish liability, such as war crimes, genocide and slavery. The Court
determined that forced labor is a modern form of slavery, therefore individuals, including corporations, such as
Unocal, could be found liable under ATCA. Consequently, the tribunal determined that Unocal could be held liable
under ACTA for aiding and abetting (or providing willing support) to the Myanmar Military in establishing a system
of forced labor, murder and rape because it could be reasonably shown that Unocal knew the military was carrying
out the violations and provided support. Evidence in the record did not support the same liability for acts of torture.
Based on these findings the Court found enough evidence for the case to move forward to trial.

Keywords: John Doe I, et al., v. UNOCAL Corp., et al., 395 F.3d 932 (9 Cir. 2002), Land, Right, Natural, Resources

(link is external)[1] Summary judgments are court decisions made on the merits of the entire case or of particular
legal issues without a full trial.

Enforcement of the Decision and Outcomes:

In 2005, before the jury trial began, the parties agreed to a settlement and the case was dismissed with the requirement
that it cannot be brought to court again in the future (Doe I v. Unocal, 403 F.3d 708 [9 Cir. 2005]). Unocal agreed to
compensate the 14 surviving plaintiffs for an undisclosed amount and EarthRights International, who was involved in
the case, has confirmed that this compensation has taken place and that community programs to improve living
conditions, health care and education and protect the rights of people in the pipeline region are in development.

Significance of the Case:

The most important legal precedent set during the Unocal litigation is that US corporations, like individuals, can be
liable under ATCA for complicity in egregious human rights violations. However, because the parties settled, the
appropriate standard for determining third party liability was never conclusively determined. There have been several
other cases involving corporate complicity in human rights violations that have gone forward, such as Wiwa v. Royal
Dutch Shell, 226 F.3d 88 (2000)(link is external) which extended corporate liability under ATCA to foreign
corporations if they maintained "continuous and systematic ties to the US." In 2009, Shell settled with the claimants
in the Wiwa case for $15.5 million. In 2004, during the Supreme Court hearing of Sosa v. Alvarez-Machain(link is
external) 542 U.S. 692 (2004), 331 F.3d 604 [reversed], the Bush Administration submitted numerous amicus
curiae arguing against ATCA's application to corporations. While the Supreme Court's decision in Sosa affirmed that
corporate liability exists under ATCA, they limited its application to violations of laws of nations, which are "specific,
universal, and obligatory" - without further elaboration or example - therefore providing little guidance for lower
courts moving forward. An important case is approaching which may provide additional opportunities for elaboration
of corporate liability under ATCA: Khulumani v. Barclays, et al(link is external), which is still awaiting trial date in
the Court of Appeals for the Second Circuit in New York.

____________

GOVERNMENT OF THE USA VS PURGANAN

G.R. No. 148571. September 24, 2002

GOVERNMENT OF THE UNITED STATES OF AMERICA, represented by the Philippine Department of


Justice, petitioner,

Hon. GUILLERMO G. PURGANAN, Morales, and Presiding Judge, Regional Trial Court of Manila, Branch 42; and
MARK B. JIMENEZ a.k.a. MARIO BATACAN CRESPO, respondents.

Facts:

The petition at bar seeking to void and set aside the Orders issued by the Regional Trial Court (RTC) of Manila,
Branch 42. The first assailed Order set for hearing petitioner’s application for the issuance of a warrant for the arrest
of Respondent Mark B. Jimenez.
PIL / cases for midterm / page 12

Pursuant to the existing RP-US Extradition Treaty, the US Government requested the extradition of Mark Jimenez. A
hearing was held to determine whether a warrant of arrest should be issued. Afterwards, such warrant was issued but
the trial court allowed Jimenez to post bail for his provisional liberty.

Issue/s: Whether or not the right to bail is available in extradition proceedings

Discussions:

The constitutional right to bail “flows from the presumption of innocence in favor of every accused who should not be
subjected to the loss of freedom as thereafter he would be entitled to acquittal, unless his guilt be proved beyond
reasonable doubt.” It follows that the constitutional provision on bail will not apply to a case like extradition, where
the presumption of innocence is not at issue.

Ruling/s:

No. The court agree with petitioner. As suggested by the use of the word “conviction,” the constitutional provision on
bail quoted above, as well as Section 4 of Rule 114 of the Rules of Court, applies only when a person has been
arrested and detained for violation of Philippine criminal laws. It does not apply to extradition proceedings, because
extradition courts do not render judgments of conviction or acquittal.

It is also worth noting that before the US government requested the extradition of respondent, proceedings had
already been conducted in that country. But because he left the jurisdiction of the requesting state before those
proceedings could be completed, it was hindered from continuing with the due processes prescribed under its laws.
His invocation of due process now has thus become hollow. He already had that opportunity in the requesting state;
yet, instead of taking it, he ran away.

___________

Neer claim (US vs. Mexico) on state responsibility

The “minimum standard” is obviously abstract and it is not easy to determine what its contents are. An elaboration of
this abstract standard may be seen in a quotation from the resolution of the Neer Claim? Mr. Neer was a US national
working in Mexico. He was stopped by armed men and shot to death. It was claimed that the Mexican government
had been negligent in their investigation of the murder. This was rejected by the Joint Claims Commission saying:

. . . [w]ithout attempting to announce a precise formula, it is in the opinion of the Commission possible to hold (first)
that the propriety of the government acts should be put to the tests of international standards, and (second) that the
treatment of an alien, in order to constitute an international delinquency should amount to an outrage, to bad faith, to
willful neglect of duty, or to an insufficiency of governmental action so far short of international standards that every
reasonable and impartial man would readily recognize its insufficiency. Whether the insufficiency proceeds from
deficient execution of an intelligent law or from the fact that the laws of the country do not empower the authorities to
measure up to international standards is immaterial.

_____________

NEER CLAIM

Facts: In 1924, Paul Neer, an American citizen, was killed in Mexico by a group of armed men. This claim was
presented to the U.S.–Mexico General Claims Commission alleging that the Mexican authorities had shown culpable
lack of diligence in prosecuting the culprits. Held: The claim must be disallowed, since there was no evidence of such
lack of diligence as to constitute an international delinquency: the propriety of governmental acts was decided
according to international minimum standards, and the treatment of an alien, ‘in order to constitute an international
delinquency, should amount to an outrage, to bad faith, to willful neglect of duty, or to an insufficiency of
governmental action so far short of international standards that every reasonable and impartial man would readily
recognize its insufficiency’, it being immaterial whether ‘the insufficiency proceeds from deficient execution of an
intelligent law or from the fact the laws of the country do not empower the authorities to measure up to international
standards.’2

CASE EXCERPTS
This claim is presented by the United States against the United Mexican States in behalf of L. Fay H. Neer, widow,
and Pauline E. Neer, daughter, of Paul Neer, who, at the time of his death, was employed as superintendent of a mine
PIL / cases for midterm / page 13

in the vicinity of Guanacevi, State of Durango, Mexico. On November 16, 1924, about eight o'clock in the evening,
when he and his wife were proceeding on horseback from the village of Guanacevi to their home in the neighborhood,
they were stopped by a number of armed men who engaged Neer in a conversation, which Mrs. Neer did not
understand, in the midst of which bullets seem to have been exchanged and Neer was killed. It is alleged that, on
account of this killing, his wife and daughter,

L.F.H. Neer and Pauline Neer (U.S.A.) v. United Mexican States, 15 October 1926, Reports of International Arbitral
Awards, Vol. IV, p. 60-66. (1946) [hereinafter “Neer Claim”]. 2 Neer Claim, 4 R.I.A.A. 61-62.

In 1910 John Bassett Moore observed that he did "not consider it to be practicable to lay down in advance precise and
unyielding formulas by which the question of a denial of justice may in every instance be determined" (American
Journal of International Law. . on the other hand. p. it would seem that in the early morning after the tragedy these
authorities might have acted in a more vigorous and effective way than they did… The Commission is mindful that
the task of the local Mexican authorities was hampered by the fact that the only eyewitness of the murder was unable
to furnish them any helpful information.T. and holding that this record presents such lack of diligence and of
intelligent investigation as constitutes an international delinquency. MAGALANG American citizens. There might
have been reason for the higher authorities of the State to intervene in the matter. after the killing of Paul Neer had
been brought to their notice.4 The Commission recognizes the difficulty of devising a general formula for
determining the boundary between an international delinquency of this type and an unsatisfactory use of power
included in national sovereignty. It is immaterial whether the expression "denial of justice" be taken in that broad
sense in which it applies to acts of executive and legislative authorities as well as to acts of the courts. for in the latter
case a reasoning. on the one hand. But in the view of the Commission there is a long way between holding that a more
active and more efficient course of procedure might have been pursued. will apply—be it under a different name—to
unwarranted acts of executive and legislative 3 4 Id. 787). Id. 1923. II.NEER CLAIM SANDRA M. ¶ 3 at 61. that the
Mexican authorities showed an unwarrantable lack of diligence or an unwarrantable lack of intelligent investigation in
prosecuting the culprits. as they apparently did. 1910. identical to that which—under the name of "denial of justice"—
applies to acts of the judiciary.000.3 As to lack of diligence. or whether it be used in a narrow sense which confines it
to acts of judicial authorities only. on the part of the Mexican authorities. and in 1923 De Lapradelle and Politis stated
that the evasive and complex character (le caractère fuyant et complexe) of a denial of justice seems to defy any
definition (Recueil des Aibitrages Internationaux. and that therefore the Mexican Government ought to pay to the
claimants the said amount. or lack of intelligent investigation.00. 280). p. ¶ 1 at 60-61. sustained damages in the sum
of $100.

or in a pronounced degree of improper action. though the Commission feels bound to state once more that in its
opinion better methods might have been used. and (second) that the treatment of an alien.T. that investigations were
continued for several days. ¶ 4 at 61-62. to bad faith. and that they were subsequently released for want of evidence.
or (2) that Mexican law rendered it impossible for them properly to fulfil their task. The American Agency in rebuttal
offers nothing but affidavits stating individual impressions or suppositions. went to the spot where the killing took
place and examined the corpse. No attempt is made to establish the second point. the grounds of liability limit its
inquiry to whether there is convincing evidence either (1) that the authorities administering the Mexican law acted in
an outrageous way. in order to constitute an international delinquency. it is in the opinion of the Commission possible
to go a little further than the authors quoted. and to hold (first) that the propriecy of governmental acts should be put
to the test of international standards. on the very night of the tragedy. November 16. The first point is negatived by the
full record of police and judicial authorities produced by the Mexican Agent. . to wilful neglect of duty. From this
record it appears that the local authorities. or to an insufficiency of governmental action so far short of international
standards that every reasonable and impartial man would readily recognize its insufficiency. should amount to an
outrage. Without attempting to announce a precise formula. that arrests were made of persons suspected. in bad faith.
MAGALANG authorities. among them Mrs.NEER CLAIM SANDRA M. 5 (emphasis supplied) It is not for an
international tribunal such as this Commission to decide. whether another course of procedure taken by the local
authorities at Guanacevi might have been more effective. Whether the insufficiency proceeds from deficient execution
of an intelligent law or from the fact that the laws of the country do not empower the authorities to measure up to
international standards is immaterial. In the light of the entire record in this case the Commission is not prepared to
hold that the Mexican authorities have shown such lack of diligence or such lack of intelligent investigation in
apprehending and punishing the culprits as would render Mexico liable before this 5 Id. On the contrary. Neer. in
wilful neglect of their duties. that on November 17 the Judge proceeded to the examination of some witnesses.

and grant them his protection. to take cognizance of the crimes committed. Vattel." Law of Nations. or rules and
forms openly violated. as the administration of justice necessarily requires that every definitive sentence. The prince.
or. or palpable and evident injustice done. ¶ 5 at 62. or the country that belongs to her. to the prejudice of his subjects.
finally. to exercise justice in all the places under her jurisdiction. or of foreigners in general. It is her province. Id.
PIL / cases for midterm / page 14

Nielsen (p.6 The Commission accordingly decides that the claim of the United States is disallowed. pp. excepting in
cases where justice is refused. in asserting a general principle in relation to these rights. the sovereign of the
defendants. or that of her sovereign. And.7 Separate opinion of Commissioner Fred K. 1869. be esteemed just. and
executed as such—when once a cause in which foreigners are interested has been decided in form. (Chitty's edit.
therefore. adds some observations as to the respect that should be accorded to the measures employed by nations in
the exercise of such rights. "Other nations ought to respect this right. and the differences that arise in the country.) 6 7
Id. .NEER CLAIM SANDRA M. MAGALANG Commission.T. He says: "The sovereignty united to the domain
establishes the jurisdiction of the nation in her territories. regularly pronounced. can not hear their complaints. ought
not to interfere in the causes of his subjects in foreign countries. an odius distinction made. 62-66) The sovereign
rights of a nation with regard to the enactment and execution of laws of this character within its jurisdiction is of
course well understood. ¶ 6 at 62. To undertake to examine the justice of a definitive sentence is an attack on the
jurisdiction of him who has passed it. 165-166. Book II.

8 It may perhaps be said with a reasonable degree of precision that the propriety of governmental acts should be
determined according to ordinary standards of civilization. even though standards differ considerably among members
of the family of nations. "Only a formal denial of justice. (see opinion of Phillimore in 8 Id. or a clear outrage. Hence
a strict conformity by authorities of a government with its domestic law is not necessarily conclusive evidence of the
observance of legal duties imposed by international law. And it seems to be possible to indicate with still further
precision the broad. general ground upon which a demand for redress based on a denial of justice may be made by one
nation upon another. besides an equality oj treatment with the natives according to the conventional law established
by treaties.NEER CLAIM SANDRA M. although it may be important evidence on that point. must confine itself to
secure for them free access to the local tribunals. 'the case of torture.T. equal under the law. it is also clear that the
domestic law and the measures employed to execute it must conform to the requirements of the supreme law of
members of the family of nations which is international law. the consequence is that in the protection of its subjects
residing abroad a government. or fraud. or gross injustice. . and as such an international delinquency. The thought is
expressed to some extent in an opinion given by Commissioner Bertinatti in the Medina case under the Convention of
July 2. I860. the denial of the means of defense at the trial. at 64. in re minime dubia'. in all matters depending upon
the judiciary power. It has been said that such a demand is justified when the treatment of an alien reveals an obvious
error in the administration of justice. between Costa Rica and the United States in which it was said: "It being against
the independence as well as the dignity of a nation that a foreign government may interfere either with its legislation
or the appointment of magistrates for the administration of justice. MAGALANG Although there is this clear
recognition in international law of the scope of sovereign rights relating to matters that are subject of domestic
regulation. and that any failure to meet those requirements is a failure to perform a legal duty. the dishonesty or
prevaricatio of a judge legally proved.

2317. at 66. p. that detectives might have been employed to apprehend the offenders. 3." Moore. Id. and that the
action taken by them may well be adversely criticized. International Arbitrations. at 65.9 It was argued in behalf of
the United States that there was an unwarranted delay in steps taken to apprehend the persons who killed Neer.T. But
in the light of the entire record in the case before us I am not prepared to decide that a charge of a denial of justice can
be maintained against the Government of Mexico conformably to the principles which according to my views as
above expressed should govern the action of the Commission. I accordingly concur in the decision that the claim of
the United States is disallowed. I am of the opinion that better methods might have been used by the Mexican
authorities.NEER CLAIM SANDRA M. . that the proceedings of investigation were of such a public character as to
put persons implicated in the crime on guard and to enable them to escape. There may of course be honest differences
of opinion with respect to the character of governmental acts.10 9 10 Id. but it seems to be clear that an international
tribunal is guided by a reasonably certain and useful standard if it adheres to the position that in any given case
involving an allegation of a denial of justice it can award damages only on the basis of convincing evidence of a
pronounced degree of improper governmental administration. Vol. MAGALANG the controversy between the
governments of Great Britain and Paraguay) may justify a government in extending further its protection.

____________
PIL / cases for midterm / page 15

BAYAN MUNA VS. ROMULO

Bayan Muna vs Romulo


G. R. No. 159618, February 01, 2011

Facts:

Petitioner Bayan Muna is a duly registered party-list group established to represent the marginalized sectors of
society. Respondent Blas F. Ople, now deceased, was the Secretary of Foreign Affairs during the period material to
this case. Respondent Alberto Romulo was impleaded in his capacity as then Executive Secretary.

Rome Statute of the International Criminal Court

Having a key determinative bearing on this case is the Rome Statute establishing the International Criminal Court
(ICC) with “the power to exercise its jurisdiction over persons for the most serious crimes of international concern x x
x and shall be complementary to the national criminal jurisdictions.” The serious crimes adverted to cover those
considered grave under international law, such as genocide, crimes against humanity, war crimes, and crimes of
aggression.

On December 28, 2000, the RP, through Charge d’Affaires Enrique A. Manalo, signed the Rome Statute which, by its
terms, is “subject to ratification, acceptance or approval” by the signatory states. As of the filing of the instant
petition, only 92 out of the 139 signatory countries appear to have completed the ratification, approval and
concurrence process. The Philippines is not among the 92.
RP-US Non-Surrender Agreement

On May 9, 2003, then Ambassador Francis J. Ricciardone sent US Embassy Note No. 0470 to the Department of
Foreign Affairs (DFA) proposing the terms of the non-surrender bilateral agreement (Agreement, hereinafter)
between the USA and the RP.

Via Exchange of Notes No. BFO-028-037 dated May 13, 2003 (E/N BFO-028-03, hereinafter), the RP, represented
by then DFA Secretary Ople, agreed with and accepted the US proposals embodied under the US Embassy Note
adverted to and put in effect the Agreement with the US government. In esse, the Agreement aims to protect what it
refers to and defines as “persons” of the RP and US from frivolous and harassment suits that might be brought against
them in international tribunals.8 It is reflective of the increasing pace of the strategic security and defense partnership
between the two countries. As of May 2, 2003, similar bilateral agreements have been effected by and between the US
and 33 other countries.

The Agreement pertinently provides as follows:

1. For purposes of this Agreement, “persons” are current or former Government officials, employees (including
contractors), or military personnel or nationals of one Party.

2. Persons of one Party present in the territory of the other shall not, absent the express consent of the first Party,

(a) be surrendered or transferred by any means to any international tribunal for any purpose, unless such tribunal has
been established by the UN Security Council, or

(b) be surrendered or transferred by any means to any other entity or third country, or expelled to a third country, for
the purpose of surrender to or transfer to any international tribunal, unless such tribunal has been established by the
UN Security Council.

3. When the [US] extradites, surrenders, or otherwise transfers a person of the Philippines to a third country, the [US]
will not agree to the surrender or transfer of that person by the third country to any international tribunal, unless such
PIL / cases for midterm / page 16

tribunal has been established by the UN Security Council, absent the express consent of the Government of the
Republic of the Philippines [GRP].

4. When the [GRP] extradites, surrenders, or otherwise transfers a person of the [USA] to a third country, the [GRP]
will not agree to the surrender or transfer of that person by the third country to any international tribunal, unless such
tribunal has been established by the UN Security Council, absent the express consent of the Government of the [US].

5. This Agreement shall remain in force until one year after the date on which one party notifies the other of its intent
to terminate the Agreement. The provisions of this Agreement shall continue to apply with respect to any act
occurring, or any allegation arising, before the effective date of termination.

In response to a query of then Solicitor General Alfredo L. Benipayo on the status of the non-surrender agreement,
Ambassador Ricciardone replied in his letter of October 28, 2003 that the exchange of diplomatic notes constituted a
legally binding agreement under international law; and that, under US law, the said agreement did not require the
advice and consent of the US Senate.

In this proceeding, petitioner imputes grave abuse of discretion to respondents in concluding and ratifying the
Agreement and prays that it be struck down as unconstitutional, or at least declared as without force and effect.

Issue: Whether or not the RP-US NON SURRENDER AGREEMENT is void ab initio for contracting obligations
that are either immoral or otherwise at variance with universally recognized principles of international law.

Ruling: The petition is bereft of merit.

Validity of the RP-US Non-Surrender Agreement

Petitioner’s initial challenge against the Agreement relates to form, its threshold posture being that E/N BFO-028-03
cannot be a valid medium for concluding the Agreement.

Petitioners’ contention––perhaps taken unaware of certain well-recognized international doctrines, practices, and
jargons––is untenable. One of these is the doctrine of incorporation, as expressed in Section 2, Article II of the
Constitution, wherein the Philippines adopts the generally accepted principles of international law and international
jurisprudence as part of the law of the land and adheres to the policy of peace, cooperation, and amity with all nations.
An exchange of notes falls “into the category of inter-governmental agreements,” which is an internationally accepted
form of international agreement. The United Nations Treaty Collections (Treaty Reference Guide) defines the term as
follows:

An “exchange of notes” is a record of a routine agreement, that has many similarities with the private law contract.
The agreement consists of the exchange of two documents, each of the parties being in the possession of the one
signed by the representative of the other. Under the usual procedure, the accepting State repeats the text of the
offering State to record its assent. The signatories of the letters may be government Ministers, diplomats or
departmental heads. The technique of exchange of notes is frequently resorted to, either because of its speedy
procedure, or, sometimes, to avoid the process of legislative approval.

In another perspective, the terms “exchange of notes” and “executive agreements” have been used interchangeably,
exchange of notes being considered a form of executive agreement that becomes binding through executive action. On
the other hand, executive agreements concluded by the President “sometimes take the form of exchange of notes and
at other times that of more formal documents denominated ‘agreements’ or ‘protocols.’” As former US High
Commissioner to the Philippines Francis B. Sayre observed in his work, The Constitutionality of Trade Agreement
Acts:

The point where ordinary correspondence between this and other governments ends and agreements – whether
denominated executive agreements or exchange of notes or otherwise – begin, may sometimes be difficult of ready
ascertainment. x x x

It is fairly clear from the foregoing disquisition that E/N BFO-028-03––be it viewed as the Non-Surrender Agreement
itself, or as an integral instrument of acceptance thereof or as consent to be bound––is a recognized mode of
concluding a legally binding international written contract among nations.
PIL / cases for midterm / page 17

Agreement Not Immoral/Not at Variance


with Principles of International Law

Petitioner urges that the Agreement be struck down as void ab initio for imposing immoral obligations and/or being at
variance with allegedly universally recognized principles of international law. The immoral aspect proceeds from the
fact that the Agreement, as petitioner would put it, “leaves criminals immune from responsibility for unimaginable
atrocities that deeply shock the conscience of humanity; x x x it precludes our country from delivering an American
criminal to the [ICC] x x x.”63

The above argument is a kind of recycling of petitioner’s earlier position, which, as already discussed, contends that
the RP, by entering into the Agreement, virtually abdicated its sovereignty and in the process undermined its treaty
obligations under the Rome Statute, contrary to international law principles.

The Court is not persuaded. Suffice it to state in this regard that the non-surrender agreement, as aptly described by
the Solicitor General, “is an assertion by the Philippines of its desire to try and punish crimes under its national law. x
x x The agreement is a recognition of the primacy and competence of the country’s judiciary to try offenses under its
national criminal laws and dispense justice fairly and judiciously.”

Petitioner, we believe, labors under the erroneous impression that the Agreement would allow Filipinos and
Americans committing high crimes of international concern to escape criminal trial and punishment. This is
manifestly incorrect. Persons who may have committed acts penalized under the Rome Statute can be prosecuted and
punished in the Philippines or in the US; or with the consent of the RP or the US, before the ICC, assuming, for the
nonce, that all the formalities necessary to bind both countries to the Rome Statute have been met. For perspective,
what the Agreement contextually prohibits is the surrender by either party of individuals to international tribunals,
like the ICC, without the consent of the other party, which may desire to prosecute the crime under its existing laws.
With the view we take of things, there is nothing immoral or violative of international law concepts in the act of the
Philippines of assuming criminal jurisdiction pursuant to the non-surrender agreement over an offense considered
criminal by both Philippine laws and the Rome Statute.

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