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Name of the Case: The Lotus Case (France vs Turkey); Year of the decision:

1927; and Court: PCIJ.

Overview: A collision occurred on the high seas between a French vessel and a
Turkish vessel. Victims were Turkish nationals and the alleged offender was
French. Could Turkey exercise its jurisdiction over the French national under
international law?
Facts of the Case:
A collision occurred on the high seas between a French vessel Lotus and a
Turkish vessel Boz-Kourt. The Boz-Kourt sank and killed eight Turkish nationals
on board the Turkish vessel. The 10 survivors of the Boz-Kourt (including its
captain) were taken to Turkey on board the Lotus. In Turkey, the officer on
watch of the Lotus (Demons), and the captain of the Turkish ship were
charged with manslaughter. Demons, a French national, was sentenced to 80
days of imprisonment and a fine. The French government protested, demanding
the release of Demons or the transfer of his case to the French Courts. Turkey
and France agreed to refer this dispute on the jurisdiction to the Permanent
Court of International Justice (PCIJ).
Questions before the Court:
Did Turkey violate international law when Turkish courts exercised jurisdiction
over a crime committed by a French national, outside Turkey? If yes, should
Turkey pay compensation to France?
The Courts Decision:
Turkey, by instituting criminal proceedings against Demons, did not violate
international law.
Relevant Findings of the Court:
Establishing Jurisdiction: Does Turkey need to support its assertion of
jurisdiction using an existing rule of international law or is the mere absence of
a prohibition preventing the exercise of jurisdiction enough?
The first principle of the Lotus case said that jurisdiction is territorial: A State
cannot exercise its jurisdiction outside its territory unless an international treaty
or customary law permits it to do so. This is what we called the first Lotus

Now the first and foremost restriction imposed by international law upon a
State is that failing the existence of a permissive rule to the contrary it may
not exercise its power in any form in the territory of another State. In this sense
jurisdiction is certainly territorial; it cannot be exercised by a State outside its
territory except by virtue of a permissive rule derived from international custom
or from a convention. (para 45)
The second principle of the Lotus case: Within its territory, a State may exercise
its jurisdiction, on any matter, even if there is no specific rule of international
law permitting it to do so. In these instances, States have a wide measure of
discretion, which is only limited by the prohibitive rules of international law.
It does not, however, follow that international law prohibits a State from
exercising jurisdiction in its own territory, in respect of any case which relates to
acts which have taken place abroad, and in which it cannot rely on some
permissive rule of international law. Such a view would only be tenable if
international law contained a general prohibition to States to extend the
application of their laws and the jurisdiction of their courts to persons, property
and acts outside their territory, and if, as an exception to this general
prohibition, it allowed States to do so in certain specific cases. But this is
certainly not the case under international law as it stands at present. Far from
laying down a general prohibition to the effect that States may not extend the
application of their laws and the jurisdiction of their courts to persons, property
and acts outside their territory, it leaves them in this respect a wide measure of
discretion, which is only limited in certain cases by prohibitive rules; as regards
other cases, every State remains free to adopt the principles which it regards as
best and most suitable. This discretion left to States by international law explains
the great variety of rules which they have been able to adopt without objections
or complaints on the part of other States In these circumstances all that can
be required of a State is that it should not overstep the limits which international
law places upon its jurisdiction; within these limits, its title to exercise
jurisdiction rests in its sovereignty. (paras 46 and 47)
This applied to civil and criminal cases. If the existence of a specific rule was a
pre-requisite to exercise jurisdiction, PCIJ argued, then it wouldin many cases
result in paralysing the action of the courts, owing to the impossibility of citing
a universally accepted rule on which to support the exercise of their [States]
jurisdiction (para 48).
The PCIJ based this finding on the sovereign will of States.

International law governs relations between independent States. The rules of

law binding upon States therefor emanate from their own free will as expressed
in conventions or by usages generally accepted as expressing principles of law
and established in order to regulate the relations between these co-existing
independent communities or with a view to the achievement of common aims.
Restrictions upon the independence of States cannot therefore be presumed
[NB: This was one of the more debated aspects of the judgement. Some argued
that the Court placed too much emphasis on sovereignty and consent of States
(i.e. took a strong positivist view)].
Criminal Jurisdiction: Territorial Jurisdiction
France alleged that the flag State of a vessel would have exclusive jurisdiction
over offences committed on board the ship in high seas. The PCIJ disagreed. It
held that France, as the flag State, did not enjoy exclusive territorial jurisdiction
in the high seas in respect of a collision with a vessel carrying the flag of another
State (paras 71 84). The Court held that Turkey and France both have
jurisdiction in respect of the whole incident: i.e. there is concurrent jurisdiction.
The PCIJ held that a ship in the high seas is assimilated to the territory of the flag
State. This State may exercise its jurisdiction over the ship, in the same way as it
exercises its jurisdiction over its land, to the exclusion of all other States. In this
case, the Court equated the Turkish vessel to Turkish territory. In this case, the
PCIJ held that the offence produced its effects on the Turkish vessel and
consequently in a place assimilated to Turkish territory in which the application
of Turkish criminal law cannot be challenged, even in regard to offences
committed there by foreigners. Turkey had jurisdiction over this case.
If, therefore, a guilty act committed on the high seas produces its effects on a
vessel flying another flag or in foreign territory, the same principles must
be applied as if the territories of two different States were concerned, and the
conclusion must therefore be drawn that there is no rule of international law
prohibiting the State to which the ship on which the effects of the offence have
taken place belongs, from regarding the offence as having been committed in
its territory and prosecuting, accordingly, the delinquent.
The Lotus Case was also significant in that the PCIJ said that a State would have
territorial jurisdiction, even if the crime was committed outside its territory, so
long as a constitutive element of the crime was committed in that State. Today,
we call this subjective territorial jurisdiction. In order for subjective territorial

jurisdiction to be established, one must prove that the element of the crime and
the actual crime are entirely inseparable; i.e., if the constituent element was
absent the crime would not have happened.
The offence for which Lieutenant Demons appears to have been
prosecuted was an act of negligence or imprudence having its origin on
board the Lotus, whilst its effects made themselves felt on board the Boz-Kourt.
These two elements are, legally, entirely inseparable, so much so that their
separation renders the offence non-existent It is only natural that each should
be able to exercise jurisdiction and to do so in respect of the incident as a whole.
It is therefore a case of concurrent jurisdiction.
Customary International Law
The Lotus case gives an important dictum on creating customary international
law. France alleged that jurisdictional questions on collision cases are rarely
heard in criminal cases because States tend to prosecute only before the flag
State. France argued that this absence of prosecutions points to a positive rule
in customary law on collisions.The Court held that this would merely show
that States had often, in practice, abstained from instituting criminal
proceedings, and not that they recognized themselves as being obliged to do so;
for only if such abstention were based on their being conscious of having a duty
to abstain would it be possible to speak of an international custom. The alleged
fact does not allow one to infer that States have been conscious of having such
a duty; on the other hand, as will presently be seen, there are other
circumstances calculated to show that the contrary is true. In other words,
opinio juris is reflected in acts of States (Nicaragua Case) or in omissions (Lotus
case) in so far as those acts or omissions are done following a belief that the said
State is obligated by law to act or refrain from acting in a particular way.
(For more on opinio juris click here)
Subsequent ICJ Decisions and Separate Opinions That Referred to Principles of
the Lotus Case
1. Advisory Opinion on the Unilateral Declaration of Kosovo (2010)
In the Kosovo Advisory Opinion the Court had to decide if the unilateral
declaration of Kosovo of February 2008 was in accordance with international
law. The Court inquired and concluded that the applicable international law did
not prohibit an unilateral declaration of independence. Based on this finding,

the Court decided that the adoption of the declaration of independence did
not violate any applicable rule of international law.
Judge Simma disagrees, inter alia, with Courts methodology in arriving at this
conclusion. He imputes the method to the principle established in the Lotus
case: that which is not prohibited is permitted under international law.
He criticises the Lotus dictum as an out dated, 19th century positivist
approach that is excessively differential towards State consent. He says that the
Court should have considered the possibility that international law can be
deliberately neutral or silent on the international lawfulness of certain acts.
Instead of concluding that an the absence of prohibition ipso facto meant that a
unilateral declaration of independence is permitted under international law,
the court should have inquired whether under certain conditions international
law permits or tolerates unilateral declarations of independence. Read more
at https://ruwanthikagunaratne.wordpress.com, 2008 present. Unauthorized
use and/or duplication of this material without express and written permission
from this blogs author and/or owner is strictly prohibited. Excerpts and links
may be used, provided that full and clear credit is given to Ruwanthika
Gunaratne and Public International Law with appropriate and specific direction
to the original content.


Judgment of 6 April 1955
The Nottebohm case had been brought to the Court by an Application by the
Principality of Liechtenstein against the Republic of Guatemala.
Liechtenstein claimed restitution and compensation on the ground that the
Government of Guatemala had acted towards Mr. Friedrich Nottebohm, a
citizen of Liechtenstein, in a manner contrary to international law. Guatemala,
for its part, contended that the claim was inadmissible on a number of grounds,
one of which related to the nationality of Nottebohm, for whose protection
Liechtenstein had seised the Court.

In its Judgment the Court accepted this latter plea in bar and in consequence
held Liechtenstein's claim to be inadmissible.
The Judgment was given by eleven votes to three. Judges Klaestad and Read,
and M. Guggenheim, Judge ad hoc, appended to the Judgment statements of
their dissenting opinions.
In its Judgment the Court affirmed the fundamental importance of the plea in
bar referred to above. In putting forward this plea, Guatemala referred to the
well-established principle that it is the bond of nationality between the State
and the individual which alone confers upon the State the right of diplomatic
protection. Liechtenstein considered itself to be acting in conformity with this
principle and contended that Nottebohm was, in fact, its national by virtue of
the naturalization conferred upon him.
The Court then considered the facts. Nottebohm, born at Hamburg, was still a
German national when, in October 1939, he applied for naturalization in
Liechtenstein. In 1905 he went to Guatemala, which he made the centre of his
business activities, which increased and prospered. He sometimes went to
Germany on business and to other countries for holidays, and also paid a few
visits to Liechtenstein, where one of his brothers had lived since 1931; but he
continued to have his fixed abode in Guatemala until 1943, that is to say, until
the events which constituted the basis of the present dispute. In 1939 he left
Guatemala at approximately the end of March; he seems to have gone to
Hamburg and to have paid a few brief visits to Liechtenstein, where he was at
the beginning of October 1939. It was then, on 9th October, 1939, a little more
than a month after the opening of the Second World War, marked by Germany's
attack on Poland, that he applied for naturalization in Liechtenstein.
The necessary conditions for the naturalization of foreigners in Liechtenstein are
laid down by the Liechtenstein Law of 4th January, 1934. This Law requires
among other things: that the applicant for naturalization must prove that
acceptance into the Home Corporation (Heimat verband) of a Liechtenstein
commune has been promised to him in case of acquisition of the nationality of
the State; that, subject to waiver of this requirement under stated conditions,
he must prove that he will lose his former nationality as the result of
naturalization; that he has been resident in the Principality for at least three

years, although this requirement can be dispensed with in circumstances

deserving special consideration and by way of exception; that he has concluded
an agreement concerning liability to taxation with the competent authorities
and has paid a naturalization fee. The Law reveals concern that naturalization
should only be granted with full knowledge of all the pertinent facts and adds
that the grant of nationality is barred where circumstances are such as to cause
apprehension that prejudice may enure to the State of Liechtenstein. As regards
the procedure to be followed, the Government examines the application,
obtains information concerning the applicant, submits the application to the
Diet, and, if this application is approved, submits a request to the Reigning Prince
who alone is entitled to confer nationality.
In his application for naturalization Nottebohm also applied for the previous
conferment of citizenship of Mauren, a commune of Liechtenstein. He sought
dispensation from the condition of three years' prior residence, without
indicating the special circumstances warranting such a waiver. He undertook to
pay (in Swiss francs) 25,000 francs to the Commune and 12,500 francs to the
State, the costs of the proceedings, and an annual naturalization tax of 1,000
francs - subject to the proviso that the payment of these taxes was to be set off
against ordinary taxes which would fall due if the applicant took up residence in
Liechtenstein - and to deposit as security the sum of 30,000 Swiss francs. A
Document dated 15th October, 1939 certifies that on that date the citizenship
of Mauren had been conferred upon him. A Certificate of 17th October, 1939
evidences the payment of the taxes required to be paid. On 20th October
Nottebohm took the oath of allegiance and on 23rd October an arrangement
concerning liability to taxation was concluded. A Certificate of Nationality was
also produced to the effect that Nottebohm had been naturalized by a Supreme
Resolution of the Prince of 13th October, 1939. Nottebohm then obtained a
Liechtenstein passport and had it visa-ed by the Consul General of Guatemala in
Zurich on 1st December, 1939, and returned to Guatemala at the beginning of
1940, where he resumed his former business activities.
These being the facts, the Court considered whether the naturalization thus
granted could be validly invoked against Guatemala, whether it bestowed upon
Liechtenstein a sufficient title to exercise protection in respect of Nottebohm as
against Guatemala and therefore entitled it to seise the Court of a claim relating
to him. The Court did not propose to go beyond the limited scope of this

In order to establish that the Application must be held admissible, Liechtenstein

argued that Guatemala had formerly recognized the naturalization which it now
challenged. Examining Guatemala's attitude towards Nottebohm since his
naturalization, the Court considered that Guatemala had not recognized
Liechtenstein's title to exercise protection in respect to Nottebohm. It then
considered whether the granting of nationality by Liechtenstein directly entailed
an obligation on the part of Guatemala to recognize its effect, in other words,
whether that unilateral act by Liechtenstein was one which could be relied upon
against Guatemala in regard to the exercise of protection. The Court dealt with
this question without considering that of the validity of Nottebohm's
naturalization according to the Law of Liechtenstein.
Nationality is within the domestic jurisdiction of the State, which settles, by its
own legislation, the rules relating to the acquisition of its nationality. But the
issue which the Court must decide is not one which pertains to the legal system
of Liechtenstein; to exercise protection is to place oneself on the plane of
international law. International practice provides many examples of acts
performed by States in the exercise of their domestic jurisdiction which do not
necessarily or automatically have international effect. When two States have
conferred their nationality upon the same individual and this situation is no
longer confined within the limits of the domestic jurisdiction of one of these
States but extends to the international field, international arbitrators or the
Courts of third States which are called upon to deal with this situation would
allow the contradiction to subsist if they confined themselves to the view that
nationality is exclusively within the domestic jurisdiction of the State. In order
to resolve the conflict they have, on the contrary, sought to ascertain whether
nationality has been conferred in circumstances such as to give rise to an
obligation on the part of the respondent State to recognize the effect of that
nationality. In order to decide this question, they have evolved certain criteria.
They have given their preference to the real and effective nationality, that which
accorded with the facts, that based on stronger factual ties between the person
concerned and one of these States whose nationality is involved. Different
factors are taken into consideration, and their importance will vary from one
case to the next: there is the habitual residence of the individual concerned but
also the centre of his interests, his family ties, his participation in public life,
attachment shown by him for a given country and inculcated in his children, etc.
The same tendency prevails among writers. Moreover, the practice of certain
States, which refrain from exercising protection in favour of a naturalized person

when the latter has in fact severed his links with what is no longer for him
anything but his nominal country, manifests the view that, in order to be invoked
against another State, nationality must correspond with a factual situation.
The character thus recognized on the international level as pertaining to
nationality is in no way inconsistent with the fact that international law leaves it
to each State to lay down the rules governing the grant of its own nationality.
This is so failing any general agreement on the rules relating to nationality. It has
been considered that the best way of making such rules accord with the varying
demographic conditions in different countries is to leave the fixing of such rules
to the competence of each State. But, on the other hand, a State cannot claim
that the rules it has laid down are entitled to recognition by another State unless
it has acted in conformity with this general aim of making the nationality granted
accord with an effective link between the State and the individual.
According to the practice of States, nationality constitutes the juridical
expression of the fact that an individual is more closely connected with the
population of a particular State. Conferred by a State, it only entitles that State
to exercise protection if it constitutes a translation into juridical terms of the
individual's connection with that State. Is this the case as regards Mr.
Nottebohm? At the time of his naturalization, does Nottebohm appear to have
been more closely attached by his tradition, his establishment, his interests, his
activities, his family ties, his intentions for the near future, to Liechtenstein than
to any other State?
In this connection the Court stated the essential facts of the case and pointed
out that Nottebohm always retained his family and business connections with
Germany and that there is nothing to indicate that his application for
naturalization in Liechtenstein was motivated by any desire to dissociate himself
from the Government of his country. On the other hand, he had been settled for
34 years in Guatemala, which was the centre of his interests and his business
activities. He stayed there until his removal as a result of war measures in 1943,
and complains of Guatemala's refusal to readmit him. Members of Nottebohm's
family had, moreover, asserted his desire to spend his old age in Guatemala. In
contrast, his actual connections with Liechtenstein were extremely tenuous. If
Nottebohm went to chat country in 1946, this was because of the refusal of
Guatemala to admit him. There is thus the absence of any bond of attachment
with Liechtenstein, but there is a long-standing and close connection between
him and Guatemala, a link which his naturalization in no way weakened. That

naturalization was not based on any real prior connection with Liechtenstein,
nor did it in any way alter the manner of life of the person upon whom it was
conferred in exceptional circumstances of speed and accommodation. In both
respects, it was lacking in the genuineness requisite to an act of such
importance, if it is to be enticed to be respected by a State in the position of
Guatemala. It was granted without regard to the concept of nationality adopted
in international relations. Naturalization was asked for not so much for the
purpose of obtaining a legal recognition of Nottebohm's membership in fact in
the population of Liechtenstein, as it was to enable him to substitute for his
status as a national of a belligerent State that of the subject of a neutral State,
with the sole aim of thus coming within the protection of Liechtenstein but not
of becoming wedded to its traditions, its interests, its way of life or of assuming
the obligations - other than fiscal obligations - and exercising the rights
pertaining to the status thus acquired.
For these reasons the Court held the claim of Liechtenstein to be inadmissible.

F1 On 11 July 1985, Fawaz Yunis hijacked Royal Jordanian Airlines Flight 402
from Beirut, Lebanon, with the intent to fly it to Tunis, where a conference of
the League of Arab States was underway. Yunis and his partners sought a
meeting with Arab leaders, and stated that their ultimate goal was for all
Palestinians to leave Lebanon. After a number of refuelling stops and attempts
to enter Tunis, the hijackers released their passengersincluding two United
States citizens in Beirutconvened a press conference where they reiterated
their goal, detonated the plane, and fled from the airport in Beirut.
F2 A United States investigation led by the Federal Bureau of Investigations
(FBI) found that Yunis was the probable leader of the hijackers. FBI agents then
lured Yunis onto a yacht in the Mediterranean Sea, transported him to
international waters, and subsequently arrested him. Yunis was interrogated by
the United States Navy and brought to Washington, DC. During his transport,
the Navy collected evidence of statements made during these interrogations.
Upon arrival in Washington, DC, Yunis was arraigned on charges of conspiracy,
hostage taking, and several counts of aircraft damage and air piracy.

F3 Yunis was convicted by the United States District Court for the District of
Columbia of conspiracy, hostage taking, and air piracy, but acquitted of violence
against people on board an aircraft, aircraft damage, and placing a destructive
device aboard an aircraft. Yunis appealed his conviction and sought to dismiss
the indictment.
F4 On appeal, Yunis argued that the United States government had seized him
in violation of the governments jurisdictional rights under international law. He
argued that the federal hostage taking (Hostage Taking Act, 18 USC 1203, 2006
(United States)) and air piracy (Antihijacking Act, 49 USC 1472(n), 1974 (United
States)) statutes did not authorize assertion of federal jurisdiction over him. He
also suggested that a contrary construction of these statutes would conflict with
established principles of international law, and so should be avoided by this
F5 Yunis also argued that the courts instructions to the jury on how to consider
his affirmative defence of obedience to military orders were prejudicial. Yunis
claimed that the trial court erred when it instructed the jury that he could prevail
only if the organization to which he belonged and which he claimed ordered the
hijacking was a military organization; that is, if the group had a hierarchical
command structure, conducted its operations according to the laws of war, and
if its members wore uniforms and openly carried arms. Yunis specifically
disputed two parts of these instructions. First, he argued that the requirement
of a uniform was not sufficiently supported in international law. Second, he
argued that the requirement that a military organization conduct its operations
in accordance with the laws and customs of war was prejudicial because the
instruction directed the jury to conclude that the defence of obedience to
military orders was unavailable to Yunis because no military organization could
have given instructions to hijack without violating the laws and customs of war.
H1 The exercise of jurisdiction under the Hostage Taking Act was not in
contravention of Article 5(1) of the International Convention Against the Taking
of Hostages, opened for signature 18 December 1979, 34 UN GAOR Supp (No
39), 18 ILM 1456, which authorized any signatory state to exercise jurisdiction
over persons who take its nationals hostage if that state considers it
appropriate. (paragraph 17)
H2 The exercise of jurisdiction was not precluded by norms of customary
international law. The jurisdictional principles of universality and passive
personality supported the United States exercise of jurisdiction over Yunis.

Whatever merit Yunis arguments may have had as a matter of international law,
customary law did not supersede statutes. The task of federal courts was to
enforce the Constitution, laws, and treaties of the United States, not to conform
the law of the land to norms of customary international law. While courts would
not blind themselves to potential violations of international law where
legislative intent was ambiguous (Murray v The Schooner Charming Betsy, 6 US
(2 Cranch) 64, 118 (February Term 1804); ILDC 1682 (US 1804)), the statute in
question reflected an unmistakable congressional intent. (paragraphs 19, 20)
H3 The District Court had correctly found that international law did not prohibit
or restrict the federal governments statutory jurisdiction to try Yunis on charges
of air piracy. The Antihijacking Act was enacted as the domestic law that upheld
the United States responsibilities under Article 4, paragraph 2 of the
Convention for the Suppression of Unlawful Seizure of Aircraft, 22 UST 1643, 16
December 1970. The act was a statutory codification of the treaty; as such, the
use of found in the United States in the statute had no further meaning than
the term present in [a contracting states] territory in the Convention. Despite
Yuniss argument that the Conventions wording mandated a level of
voluntariness for jurisdiction to be lawful, this was not consistent with
Congressional intent. (paragraphs 22, 23)
H4 The District Court instruction to the jury that it could find that the Amal
Militia was a military organization only if its members had a uniform correctly
relied on international agreements: Article 4(A)(2) of the Geneva Convention
Relative to the Treatment of Prisoners of War (12 August 1949) 25 UNTS 135,
entered into force 21 October 1950 and Annex Section I, ch I, article 1 of the
Hague Convention (IV) Respecting the Law and Customs of War on Land and its
annex: Regulations Concerning the Laws and Customs of War on Land (18
October 1907), 36 Stat 2277, 1 Bevans 631; 205 Consol TS 2773; Martens
Nouveau Recueil (3d) 461, entered into force 26 January 1910. (paragraphs
48, 49)
H5 The jury instruction that required that a military organization obey the laws
and customs of war was not prejudicial becausein light of the instructions as
a wholeit was highly improbable that a reasonable juror would have
understood them as Yunis had contended. The court had told the jurors that if
they found Yunis to be a soldier in a military organization under the definition
given, then they must address the issue of whether Yunis knew his orders were
illegal. These instructions contradicted Yunis argument. (paragraphs 50, 51)
Date of Report: 22 March 2011

Supraja Murali
A1 The court cited two major principles of jurisdiction under international law
to support its exercise of jurisdiction over Yunis. The first was the principle of
passive personality, under which states have attempted to protect their
nationals by assuming jurisdiction over crimes committed against them abroad.
The basis for the application of a law under the passive personality principle is
thus the nationality of the victim. See eg Wade Estey, The Five Bases of
Extraterritorial Jurisdiction and the Failure of the Presumption Against
Extraterritoriality 21 Hastings Intl & Comp L Rev 177, 204 (1997).
A2 Historically, the United States has not attempted to utilize the passive
personality principle for fear that United States nationals would then become
subject to foreign laws. In cases where the ability of wrongdoers to travel easily
between jurisdictions or commit wrongs in other jurisdictions could allow the
perpetrators of extra-territorial crimes to escape prosecution, United States
courts have at times authorized the extension of jurisdiction to cover such
offences: see eg United States v Bowman, 260 US 94 (1922). The United States
has recently moderated its opposition to the application of the passive
personality principle by utilising it with respect to terrorist attacks on United
States nationals by reason of their nationality. The present case is consistent
with international law in this regard because it follows the recent evolution of
United States law to accept the passive personality principle. However, many
scholars consider employment of the passive personality principle under United
States law to be an aberration. While use of the passive personality principle is
generally limited in international law, United States courts have accepted it as
available in relation to certain international crimes, such as acts of piracy. See
eg Christopher L Blakesley, Dan E Stigall, The Myopia of US v Martinelli:
Extraterritorial Jurisdiction in the 21st Century, 39 Geo Wash Intl L Rev 1, 25
(2007) (The Myopia of US v Martinelli).
A3 The court also utilized the principle of universality of jurisdiction, which
states that every state has the right to extend its legislative jurisdiction to certain
egregious offences. This is because every state is considered to have a stake in
the criminalization of certain wrongs. A state has universal prescriptive
jurisdiction even without a territorial or a citizenship based connection to the
criminal actor or the victim in certain situations, including piracy: see The
Myopia of US v Martinelli. In the present case, the charge of piracy against Yunis
allowed for the employment of the universality principle. Such universal

jurisdiction is provided for in theRestatement Third of Foreign Relations Law,

402 04, a set of guidelines prepared by scholars which act as a reference to the
general consensus on the status of foreign relations and international law as
applied in the United States.



Laws: Extradition Treaty between the Philippines and the United States, PD 1069, Bill of Rights

In accordance to "Extradition Treaty Between the Government of the Republic of the Philippines
and the Government of the United States of America" (RP-US Extradition Treaty), the Department
of Justice received from the Department of Foreign Affairs U.S. Note Verbale No. 0522 containing
a request for the extradition of Mark Jimenez to the United States attached with the Grand Jury
Indictment, the warrant of arrest issued by the U.S. District Court, Southern District of Florida, and
other supporting documents on June 18, 1999. Mr. Jimenez was charged with the following:
i. 18 USC 371 (Conspiracy to commit offense or to defraud the United States; 2 counts; Maximum
ii. 26 USC 7201 (Attempt to evade or defeat tax;4 counts; Maximum Penalty:5 years/count)
iii. 18 USC 1343 (Fraud by wire, radio, or television; 2 counts; Maximum Penalty: 5 years/count)
iv. 18 USC 1001 (False statement or entries; 6 counts; Maximum Penalty: 5 years/count)
v. 2 USC 441f (Election contributions in name of another; 33 counts; Maximum Penalty: less than
The Department of Justice denied Mr. Jimenez request for extradition documents based
i. Article 7 of the Extradition Treaty between the Philippines and the United States enumerates
the documentary requirements and establishes the procedures under which the documents
submitted shall be received and admitted as evidence. Evidentiary requirements are under
Section 4 of P.D. No. 1069. Evaluation by the Department of the documents is not a preliminary
investigation nor akin to preliminary investigation of criminal cases. Thus, the constitutionally
guaranteed rights of the accused in all criminal prosecutions are not available. It merely
determines the compliance of the Requesting Government with the procedures and requirements
under the relevant law and treaty. After the filing of the petition for extradition, the person sought
to be extradited will be furnished by the court with copies of the petition.

ii. The Department of Justice under P.D. No. 1069 is the counsel of the foreign governments in
all extradition requests. Furthermore, Article 7 of the RP-US Extradition Treaty provides that the
Philippine Government must represent the interests of the United States in any proceedings arising
out of a request for extradition. Thus, it must comply with the request of the United States
iii. Article 26 of the Vienna Convention on the Law of Treaties provides that "Every treaty in force
is binding upon the parties to it and must be performed by them in good faith". Extradition is a tool
of criminal law enforcement and to be effective, requests for extradition or surrender of accused or
Mr. Jimenez filed with filed with the Regional Trial Court of the National Capital Judicial Region a
petition presided over by the Honorable Ralph C. Lantion against the Secretary of Justice, the
Secretary of Foreign Affairs, and the Director of the National Bureau of Investigation:
mandamus to compel the Department to furnish the extradition documents
ii. certiorari to set aside Departments letter dated July 13, 1999 denying his request
iii. prohibition to restrain the Department from considering the extradition request and from filing
iv. enjoin the Secretary of Foreign Affairs and the Director of the NBI from performing any act
v. application for the issuance of a temporary restraining order and a writ of preliminary injunction
Honorable Ralph C. Lantion ordered the Secretary of Justice, the Secretary of Foreign
Affairs and the Director of the National Bureau of Investigation to maintain the status quo by
refraining from committing the acts complained of, from conducting further proceedings in
connection with the request of the United States Government, from filing the corresponding Petition
with a Regional Trial court and from performing any act directed to the extradition for a period of
Hon. Hilario G. Davide, Jr., Chief Justice of the Supreme Court of the Philippines ordered Hon.
Lantion to cease and desist from enforcing the order. Due to transcendental importance, the Court
brushed aside peripheral procedural matters which concern the proceedings in Civil Case No. 9994684
i. Whether or NOT the evaluation procedure is not a preliminary investigation nor akin to
ii. Whether or NOT the twin basic due process rights granted by Sec. 3, Rule 112 of the Rules of
Court on the right to be furnished a copy of the complaint, the affidavits, and other supporting
documents and the right to submit counter-affidavits and other supporting documents within 10
iii. Whether or NOT the right of the people to information on matters of public concern granted
HELD: DISMISSED for lack of merit. Petitioner is ordered to furnish private respondent copies of
the extradition request and its supporting papers, and to grant him a reasonable period within



The Extradition Request (Sec. 4. PD 1069) is made by the Foreign Diplomat of the
Requesting State, addressed to the Secretary of Foreign Affairs. The Secretary of Foreign Affairs
has the executive authority to conduct the evaluation process which, just like the extradition
proceedings proper, belongs to a class by itself or is sui generis. It is not a criminal investigation
but it is also erroneous to say that it is purely an exercise of ministerial functions. At such stage,
1) to make a technical assessment of the completeness and sufficiency of the extradition papers
2) to outrightly deny the request if on its face and on the face of the supporting documents the
3) to make a determination whether or not the request is politically motivated, or that the offense
is a military one which is not punishable under non-military penal legislation.
The process may be characterized as an investigative or inquisitorial process (NOT an exercise of
an administrative body's quasi-judicial power) (Sec. 5. PD 1069 and Pars. 2 and 3, Art. 7 of the
RP-US Extradition Treaty) that is indispensable to prosecution. The power of investigation
consists in gathering, organizing and analyzing evidence, which is a useful aid or tool in an
administrative agency's performance of its rule-making or quasi-judicial functions.
In Ruperto v. Torres, the Court laid down the test of determining whether an administrative body
is exercising judicial functions or merely investigatory functions applies to an administrative body
authorized to evaluate extradition documents. If the only purpose for investigation is to evaluate
evidence submitted before it based on the facts and circumstances presented to it, and if the
agency is not authorized to make a final pronouncement affecting the parties, then there is an
absence of judicial discretion and judgment. Thus, the role of the administrative body is limited to
an initial finding of whether or not the extradition petition can be filed in court. The court has the
power to determine whether or not the extradition should be effected. The evaluation procedure
(in contrast to ordinary investigations) may result in the deprivation of liberty of the prospective
1) provisional arrest of the prospective extraditee pending the submission of the request
This is because the Treaty provides that in case of urgency, a contracting party may request the
provisional arrest of the person sought pending presentation of the request (Par. 1, Art. 9 of the
RP-US Extradition Treaty) to prevent flight but he shall be automatically discharged after 60 days
(Par. 4 of the RP-US Extradition Treaty) or 20 days (Sec. 20[d] PD 1069) if no request is
submitted. Otherwise, he can be continuously detained, or if not, subsequently rearrested (Par. 5,
2) temporary arrest of the prospective extraditee during the pendency of the extradition petition
The peculiarity and deviant characteristic of the evaluation procedure is that:
2) it results in an administrative if adverse to the person involved, may cause his immediate
The evaluation process partakes of the nature of a criminal investigation. Similar to the evaluation
stage of extradition proceedings, a preliminary investigation, which may result in the filing of an

information against the respondent, can possibly lead to his arrest, and to the deprivation of his
liberty. The characterization of a treaty in Wright was in reference to the applicability of the
prohibition against an ex post facto law. It had nothing to do with the denial of the right to notice,
In this case, the extradition request was delivered to the Department of Foreign Affairs on June
17, 1999 (the following day the Department of Justice received the request). Thus, the Department
of Foreign Affairs failed to discharge its duty of evaluating the same and its accompanying
After delivery of the Extradition Request by the Secretary of Foreign Affairs to the Secretary of
Justice, the latter shall designate and authorize an attorney in his office to take charge of the case
(Par. 1, Sec. 5, PD 1069). The attorney shall file a written Extradition Petition with the proper
regional trial court, with a prayer that the court take the extradition request under consideration
(Par. 2, Sec. 5, PD 1069). The presiding judge shall issue an order summoning the prospective
extraditee to appear and to answer the petition. The judge may issue a warrant of arrest if it
appears that the immediate arrest and temporary detention of the accused will best serve the ends
The provisions of the Rules of Court, insofar as practicable and not inconsistent with the
summary nature of the proceedings, shall apply during the Extradition Hearing (Par. 1, Sec. 9, PD
1069) The attorney may represent the Requesting state. (Sec. 8, PD 1069). The Courts decision
on whether the petition is extraditable based on the application of the dual criminality rule and other
conditions mentioned in Article 2 of the RP-US Extradition Treaty or whether or not the offense for
which extradition is requested is a political one (Par. 3, Article 7 of the RP-US Extradition Treaty)
shall be final and immediately executory (Sec. 12, PD 1069) and appealable with the Court of
Appeals where the provisions of the Rules of Court governing appeal in criminal cases in the Court
of Appeals shall apply except for the required 15-day period to file brief (Sec. 13, PD 1069).


Neither the Treaty nor the Extradition Law precludes the twin rights of notice and hearing from a
prospective extradite. In the absence of a law or principle of law, we must apply the rules of fair
play. Petitioner contends that United States requested the Philippine Government to prevent
unauthorized disclosure of confidential information. Such argument, however has been overturned
by petitioner's revelation that everything it refuses to make available at this stage would be
obtainable during trial. If the information is truly confidential, the veil of secrecy cannot be lifted at
any stage of the extradition proceedings. The constitutional issue in the case at bar does not even
call for "justice outside legality," since private respondent's due process rights, although not
guaranteed by statute or by treaty, are protected by constitutional guarantees.
However in this case, with the meticulous nature of the evaluation, which cannot just be completed
in an abbreviated period of time due to its intricacies and certain problems in the extradition papers
(such as those that are in Spanish and without the official English translation, and those that are
not properly authenticated) it cannot to be said to be urgent. Therefore, notice and hearing

requirements of administrative due process cannot be dispensed with and shelved aside.
During the evaluation procedure, no official governmental action of our own government has as
yet been done; hence the invocation of the right is premature. Later, and in contrast, records of
the extradition hearing would already fall under matters of public concern, because our government
by then shall have already made an official decision to grant the extradition request.











Petition is a sequel to the case Sec. of Justice v. Hon. Lantion. The Secretary was ordered to
furnish Mr. Jimenez copies of the extradition request and its supporting papers and to grant the
latter a reasonable period within which to file a comment and supporting evidence. But, on motion
for reconsideration by the Sec. of Justice, it reversed its decision but held that the Mr. Jimenez
was bereft of the right to notice and hearing during the evaluation stage of the extradition
process. On May 18, 2001, the Government of the USA, represented by the Philippine Department
of Justice, filed with the RTC, the Petition for Extradition praying for the issuance of an order for
his immediate arrest pursuant to Sec. 6 of PD 1069 in order to prevent the flight of
Jimenez. Before the RTC could act on the petition, Mr. Jimenez filed before it an Urgent
Manifestation/Ex-Parte Motion praying for his application for an arrest warrant be set for
hearing. After the hearing, as required by the court, Mr. Jimenez submitted his
Memorandum. Therein seeking an alternative prayer that in case a warrant should issue, he be
allowed to post bail in the amount of P100,000. The court ordered the issuance of a warrant for
his arrest and fixing bail for his temporary liberty at P1M in cash. After he had surrendered his
passport and posted the required cash bond, Jimenez was granted provisional liberty.
Government of the USA filed a petition for Certiorari under Rule 65 of the Rules of Court to set
aside the order for the issuance of a warrant for his arrest and fixing bail for his temporary liberty
at P1M in cash which the court deems best to take cognizance as there is still no local
i. Whether or NOT Hon. Purganan acted without or in excess of jurisdiction or with grave abuse
of discretion amounting to lack or excess of jurisdiction in adopting a procedure of first hearing a
potential extraditee before issuing an arrest warrant under Section 6 of PD No. 1069
ii. Whether or NOT Hon. Purganan acted without or in excess of jurisdiction or with grave abuse
of discretion amounting to lack or excess of jurisdiction in granting the prayer for bail
HELD: Petition is GRANTED. Bail bond posted is CANCELLED. Regional Trial Court of











By using the phrase if it appears, the law further conveys that accuracy is not as
important as speed at such early stage. From the knowledge and the material then available to it,
the court is expected merely to get a good first impression or a prima facie finding sufficient to
make a speedy initial determination as regards the arrest and detention of the accused. The prima
facie existence of probable cause for hearing the petition and, a priori, for issuing an arrest warrant
was already evident from the Petition itself and its supporting documents. Hence, after having
already determined therefrom that a prima facie finding did exist, respondent judge gravely abused
his discretion when he set the matter for hearing upon motion of Jimenez. The silence of the Law
and the Treaty leans to the more reasonable interpretation that there is no intention to punctuate
with a hearing every little step in the entire proceedings. It also bears emphasizing at this point
that extradition proceedings are summary in nature. Sending to persons sought to be extradited
a notice of the request for their arrest and setting it for hearing at some future date would give them
ample opportunity to prepare and execute an escape which neither the Treaty nor the Law could
Even Section 2 of Article III of our Constitution, which is invoked by Jimenez, does not require
a notice or a hearing before the issuance of a warrant of arrest. To determine probable cause for
the issuance of arrest warrants, the Constitution itself requires only the examination under oath or
The Proper Procedure to Best Serve The Ends Of Justice In Extradition Cases
Upon receipt of a petition for extradition and its supporting documents, the judge must study
them and make, as soon as possible, a prima facie finding whether
At his discretion, the judge may require the submission of further documentation or may personally
examine the affiants and witnesses of the petitioner. If, in spite of this study and examination, no
prima facie finding is possible, the petition may be dismissed at the discretion of the judge. On the
other hand, if the presence of a prima facie case is determined, then the magistrate must
immediately issue a warrant for the arrest of the extraditee, who is at the same time summoned to
answer the petition and to appear at scheduled summary hearings. Prior to the issuance of the
warrant, the judge must not inform or notify the potential extraditee of the pendency of the petition,
lest the latter be given the opportunity to escape and frustrate the proceedings.


The constitutional provision on bail on Article III, Section 13 of the Constitution, 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. Moreover, 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. In extradition, the presumption of innocence
is not at issue. The provision in the Constitution stating that the right to bail shall not be impaired
even when the privilege of the writ of habeas corpus is suspended finds application only to
persons judicially charged for rebellion or offenses inherent in or directly connected with
That the offenses for which Jimenez is sought to be extradited are bailable in the United States
is not an argument to grant him one in the present case. Extradition proceedings are separate and
distinct from the trial for the offenses for which he is charged. He should apply for bail before the
courts trying the criminal cases against him, not before the extradition court.
Bail is not a matter of right in extradition cases. It is subject to judicial discretion in the context
of the peculiar facts of each case. Bail may be applied for and granted as an exception, only upon
1) that, once granted bail, the applicant will not be a flight risk or a danger to the community; and
2) that there exist special, humanitarian and compelling circumstances including, as a matter of
reciprocity, those cited by the highest court in the requesting state when it grants provisional liberty
Since this exception has no express or specific statutory basis, and since it is derived essentially
from general principles of justice and fairness, the applicant bears the burden of proving the above
It must be noted that even before private respondent ran for and won a congressional seat in
Manila, it was already of public knowledge that the United States was requesting his
extradition. Therefore, his constituents were or should have been prepared for the consequences
of the extradition case. Thus, the court ruled against his claim that his election to public office is
Giving premium to delay by considering it as a special circumstance for the grant of bail would
be tantamount to giving him the power to grant bail to himself. It would also encourage him to
stretch out and unreasonably delay the extradition proceedings even more. Extradition
proceedings should be conducted with all deliberate speed to determine compliance with the
Extradition Treaty and Law; and, while safeguarding basic individual rights, to avoid the legalistic
That he has not yet fled from the Philippines cannot be taken to mean that he will stand his
ground and still be within reach of our government if and when it matters; that is, upon the


Potential extraditees are entitled to the rights to due process and to fundamental fairness. The
doctrine of right to due process and fundamental fairness does not always call for a prior
opportunity to be heard. A subsequent opportunity to be heard is enough. He will be given full

opportunity to be heard subsequently, when the extradition court hears the Petition for
Extradition. Indeed, available during the hearings on the petition and the answer is the full chance
to be heard and to enjoy fundamental fairness that is compatible with the summary nature of
It is also worth noting that before the US government requested the extradition of respondent,
proceedings had already been conducted in that country. He already had that opportunity in the










In this era of globalization, easier and faster international travel, and an expanding ring of
international crimes and criminals, we cannot afford to be an isolationist state. We need to
cooperate with other states in order to improve our chances of suppressing crime in our own











By entering into an extradition treaty, the Philippines is deemed to have reposed its trust
in the reliability or soundness of the legal and judicial system of its treaty partner, as well as in the
ability and the willingness of the latter to grant basic rights to the accused in the pending criminal






a) It is not a criminal proceeding which will call into operation all the rights of an accused as
guaranteed by the Bill of Rights. It does not involve the determination of the guilt or innocence of
an accused. His guilt or innocence will be adjudged in the court of the state where he will be
b) An extradition proceeding is summary in nature while criminal proceedings involve a full-blown
c) In terms of the quantum of evidence to be satisfied, a criminal case requires proof beyond
reasonable doubt for conviction while a fugitive may be ordered extradited upon showing of the
d) Unlike in a criminal case where judgment becomes executory upon being rendered final, in
an extradition proceeding, our courts may adjudge an individual extraditable but the President has
Extradition is merely a measure of international judicial assistance through which a person charged
with or convicted of a crime is restored to a jurisdiction with the best claim to try that person. The
ultimate purpose of extradition proceedings in court is only to determine whether the extradition
request complies with the Extradition Treaty, and whether the person sought is extraditable.








We are bound by pacta sunt servanda to comply in good faith with our obligations
under the Treaty. Accordingly, the Philippines must be ready and in a position to deliver the








Indeed, extradition hearings would not even begin, if only the accused were
willing to submit to trial in the requesting country. Prior acts of herein respondent:
a) leaving the requesting state right before the conclusion of his indictment proceedings there;
b) remaining in the requested state despite learning that the requesting state is seeking his return
Extradition is essentially an executive, not a judicial, responsibility arising out of the presidential
power to conduct foreign relations and to implement treaties. Thus, the Executive Department of
government has broad discretion in its duty and power of implementation.


Respondent Muoz was charged of 3 counts of offences of accepting an advantage as agent, and 7
counts of conspiracy to defraud, punishable by the common law of Hongkong. The Hongkong
Depoartment of Justice requested DOJ for the provisional arrest of respondent Muoz; the DOJ
forward the request to the NBI then to RTC. On the same day, NBI agents arrested him.
Respondent filed with the CA a petition for certiorari, prohibition and mandamus with application
for preliminary mandatory injunction and writ of habeas corpus questioning the validity of the order
of arrest.
The CA declared the arrest void. Hence this petition by the Hongkong Department of Justice thru
DOJ filed a petition for certiorari in this Court and sustained the validity of the arrest.
Hongkong Administrative Region then filed in the RTC petition for extradition and arrest of
respondent. Meanwhile, respondent filed a petition for bail, which was opposed by the petitioner,
initially the RTC denied the petition holding that there is no Philippine Law granting bail in extradition
cases and that private responded is a flight risk.

Motion for reconsideration was filed by the respondent, which was granted. Hence this petition.
Whether or not right to bail can be avail in extradition cases.
In Purganan case, the right to bail was not included in the extradition cases, since it is available only
in criminal proceedings.
However the Supreme Court, recognised the following trends in International Law.
1. The growing importance of the individual person in publican international law who, in the 20th
century attained global recognition.
2. The higher value now being given in human rights in international sphere
3. The corresponding duty of countries to observe these human rights in fulfilling their treaty obligations
4. The of duty of this court to balance the rights of the individual under our fundamental law, on one
hand, and the law on extradition on the other.

The modern trend in the public international law is the primacy placed on the sanctity of human
Enshrined the Constitution The state values the dignity of every human person and guarantees
full respect for human rights. The Philippines therefore, has the responsibility of protecting
and promoting the right of every person to liberty and due process, ensuring that those
detained or arrested can participate in the proceeding before the a court, to enable it to decide
without delay on the legality of the detention and order their release if justified.
Examination of this Court in the doctrines provided for in the US Vs Purganan provide the following.
1. The exercise of the States police power to deprive a person of his liberty is not limited to criminal
2. To limit the right to bail in the criminal proceeding would be to close our eyes to jurisprudential
history. Philippines has not limited the exercise of the right to bail to criminal proceedings only. This
Court has admitted to bail persons who are not involved in criminal proceedings. In fact, bail has
been involved in this jurisdiction to persons in detention during the tendency of administrative
proceedings, taking into cognisance the obligation of the Philippines under international conventions
to uphold human rights.
EXTRADITION, is defined as the removal of an accused from the Philippines with the object of placing
him at the disposal of foreign authorities to enable the requesting state or government to hold him
in connection with criminal investigation directed against him or execution of a penalty imposed on
him under the penal and criminal law of the requesting state or government. Thus characterized as
the right of the a foreign power, created by treaty to demand the surrender of one accused or
convicted of a crimes within its territorial jurisdiction, and the correlative obligation of the other
state to surrender him to the demanding state.
The extradited may be subject to detention as may be necessary step in the process of extradition,
but the length of time in the detention should be reasonable.

In the case at bar, the record show that the respondent, Muoz has been detained for 2 years without
being convicted in Hongkong.
The Philippines has the obligation of ensuring the individual his right to liberty and due process and
should not therefor deprive the extraditee of his right to bail PROVIDED that certain standards for
the grant is satisfactorily met. In other words there should be CLEAR AND CONVINCING EVIDENCE.
However in the case at bar, the respondent was not able to show and clear and convincing evidence
that he be entitled to bail. Thus the case is remanded in the court for the determination and
otherwise, should order the cancellation of his bond and his immediate detention.


Brief Fact Summary. When Ruizs sentence was vacated because she refused to
waive her rights to impeachment evidence, the government brought appeal on the
grounds that its plea bargaining process was not unconstitutional.
Synopsis of Rule of Law. While the Fifth and Sixth Amendments require that a
defendant receive exculpatory evidence at trial, a defendant may waive their right to
this information in a plea agreement.
Facts. Federal prosecutors offered respondent, Angela Ruiz, a fast track plea bargain,
after 30kg of marijuana was found in her luggage by immigration agents. Per the terms
of the bargain, the respondent would have gotten a reduced sentence
recommendation, in exchange for waiving the right to receive impeachment
information relating to any informants or other witnesses, as well as to information
supporting any affirmative defense she may raise if she were to go to trial. Ruiz
rejected the waiver of her rights, the offer was withdrawn and she was indicted for
unlawful drug possession. At sentencing, Ruiz asked the judge to grant her the
sentence she would have gotten, had she taken the plea bargain, on the grounds that
it was in violation of her Fifth and Sixth Amendment rights to a fair trial. The Court of
Appeals ruled for the respondent, and vacated the sentence, and the government
Issue. Whether, before entering into a plea agreement, the Fifth and Sixth
Amendments require federal prosecutors to disclose impeachment information
relating to informants or other witnesses.
Held. Justice Breyer, for the Court, held that although the Fifth and Sixth Amendments
do provide that a defendant be given exculpatory impeachment evidence from
prosecutors, a guilty plea under a plea agreement, with a waiver of rights, can be
Concurrence. Justice Thomas concurs, noting that the purpose of requiring
exculpatory evidence is so there be no unfair trial to the accused, which does not
apply at the plea bargaining stage

The traditional role of the state immunity excempts a state from being sued in the courts of another
state without its consent or waiver. This rule is necessary consequence of the principle of
indepemndence and equality of states. Howecer, the rules of international law are not petrified; they
are continually and evolving and because the activities of states have multiplied. It has been necessary
to distinguish them between sovereign and governmental acts and private, commercial and proprietory
acts. the result is that state immunity now extends only to sovereign and governmental acts.
The restrictive application of state immunity is proper only when the proceedings arise out of
commercial transactions of the foreign sovereign. Its commercial activities of economic affairs. A state
may be descended to the level of an individual and can thus be deemed to have tacitly given its consent
to be sued. Only when it enters into business contracts. It does not apply where the conracts relates
the exercise of its sovereign function. In this case, the project are integral part of the naval base which
is devoted to the defense of both US and phils., indisputably, a function of the government of highest
order, they are not utilized for , nor dedicated to commercial or business purposes.

Republic of Indonesia vs. Vinzon

Petitioner, Republic of Indonesia entered into a Maintenance Agreement in August 1995
with respondent James Vinzon, sole proprietor of Vinzon Trade and Services. The
Maintenance Agreement stated that respondent shall, for a consideration, maintain
specified equipment at the Embassy Main Building, Embassy Annex Building and the Wisma
Duta, the official residence of petitioner Ambassador Soeratmin. The equipments covered
by the Maintenance Agreement are air conditioning units, generator sets, electrical
facilities, water heaters, and water motor pumps. It is likewise stated therein that the
agreement shall be effective for a period of four years and will renew itself automatically
unless cancelled by either party by giving thirty days prior written notice from the date of
Petitioners claim that sometime prior to the date of expiration of the said agreement, or
before August 1999, they informed respondent that the renewal of the agreement shall be
at the discretion of the incoming Chief of Administration, Minister Counsellor Azhari
Kasim, who was expected to arrive in February 2000. When Minister Counsellor Kasim
assumed the position of Chief of Administration in March 2000, he allegedly found
respondents work and services unsatisfactory and not in compliance with the standards set
in the Maintenance Agreement. Hence, the Indonesian Embassy terminated the agreement
in a letter dated August 31, 2000. Petitioners claim, moreover, that they had earlier
verbally informed respondent of their decision to terminate the agreement. On the other
hand, respondent claims that the aforesaid termination was arbitrary and unlawful.
Respondent filed a complaint against petitioners (RTC) of Makati, petitioners filed a
Motion to Dismiss, alleging that the Republic of Indonesia, as a foreign sovereign State,

has sovereign immunity from suit and cannot be sued as a party-defendant in the
Philippines. The said motion further alleged that Ambassador Soeratmin and Minister
Counsellor Kasim are diplomatic agents as defined under the Vienna Convention on
Diplomatic Relations and therefore enjoy diplomatic immunity. In turn, respondent filed
on March 20, 2001, an Opposition to the said motion alleging that the Republic of
Indonesia has expressly waived its immunity from suit. He based this claim upon the
following provision in the Maintenance Agreement.
Whether or not the Republic of Indonesia can be sued.
The Supreme Court on the matter ruled that the republic of Indonesia cannot be deemed
to have waived its immunity to suit. The existence alone of a paragraph in a contract
stating that any legal action arising out of the agreement shall be settled according to the
laws of the Philippines and by a specified court of the Philippines is not necessarily a
waiver of sovereign immunity from suit. The aforesaid provision contains language not
necessarily inconsistent with sovereign immunity. On the other hand, such provision may
also be meant to apply where the sovereign party elects to sue in the local courts, or
otherwise waives its immunity by any subsequent act. The applicability of Philippine laws
must be deemed to include Philippine laws in its totality, including the principle
recognizing sovereign immunity. Hence, the proper court may have no proper action, by
way of settling the case, except to dismiss it.
The Court stated that the upkeep of its furnishings and equipment is still part sovereign
function of the State. A sovereign State does not merely establish a diplomatic mission and
leave it at that; the establishment of a diplomatic mission encompasses its maintenance
and upkeep. Hence, the State may enter into contracts with private entities to maintain
the premises, furnishings and equipment of the embassy and the living quarters of its
agents and officials. It is therefore clear that petitioner Republic of Indonesia was acting
in pursuit of a sovereign activity when it entered into a contract with respondent for the
upkeep or maintenance of the air conditioning units, generator sets, electrical facilities,
water heaters, and water motor pumps of the Indonesian Embassy and the official
residence of the Indonesian ambassador. The Supreme Court grants the petition and
reversed the decision of the Court of Appeals.
` u a public official charged with some administrative or technical office who can
be held to the proper responsibility in the manner laid down by the law of civil responsibility.
Consequently, the trial court in not so deciding and in sentencing the said entity to the
payment of damages, caused by an official of the second class referred to, has by erroneous
interpretation infringed the provisions of Articles 1902 and 1903 of the Civil Code.
It is, therefore, evidence that the State (GPI) is only liable, according to the above quoted
decisions of the Supreme Court of Spain, for the acts of its agents, officers and employees

when they act as special agents within the meaning of paragraph 5 of Article 1903, supra,
and that the chauffeur of the ambulance of the General Hospital was not such an agent.
For the foregoing reasons, the judgment appealed from must be reversed, without costs in
this instance. Whether the Government intends to make itself legally liable for the amount
of damages above set forth, which the plaintiff has sustained by reason of the negligent
acts of one of its employees, be legislative enactment and by appropriating sufficient
funds therefore, we are not called upon to determine. This matter rests solely with the
Legislature and not with the courts.

US vs. Guinto

US vs. Guinto (Consti1)

En Banc

Cruz, February 26,1990

Topic: Sovereignty - Suits not against the state - Failure to raise immunity as defense

In the 4 consolidated suits, the USA moves to dismiss the cases on the ground that
they are in effect suits against it which it has not consented
On the first suit:

On February 24, 1986, the Western Pacific Contracting Office, Okinawa Area
Exchange, US Air Force, solicited bids for barber services contracts through its contracting
officer James F. Shaw

Among those who submitted their bids were private respondents Roberto T.
Valencia, Emerenciana C. Tanglao, and Pablo C. del Pilar

Bidding was won by Ramon Dizon over the objection of the private respondents
who claimed that he had made a bid for 4 facilities, including the Civil Engineering Area
which was not included in the invitation to bid

The Philippine Area Exchange (PHAX), through its representatives petitioners

Yvonne Reeves and Frederic M. Smouse, upon the private respondents' complaint,
explained that the Civil Engineering concession had not been awarded to Dizon

But Dizon was alreayd operating this concession, then known as the NCO club

On June 30, 1986, the private respondents filed a complaint in the court below to
compel PHAX and the individual petitioners to cancel the award to Dizon, to conduct a
rebidding for the barbershop concessions and to allow the private respondents by a writ of
preliminary injunction to continue operating the concessions pending litigation

Respondent court directed the individual petitioners to maintain the status quo

On July 22, 1986, the petitioners filed a motion to dismiss and opposition to the
petition for preliminary injunction on the ground that the action was in effect a suit
against USA which had not waived its non-suability

On July 22, 1986, trial court denied the application for a writ of preliminary

On Oct. 10, 1988, trial court denied the petitioners' motion to dismiss
On the second suit:

Fabian Genove filed a complaint for damages against petitioners Anthony

Lamachia, Wilfredo Belsa, Rose Cartalla and Peter Orascion for his dismissal as cook in the
US Air Force Recreation Center at the John Hay Air Station in Baguio City

It had been ascertained that Genove had poured urine into the soup stock used in
cooking the vegetables served to the club customers

His dismissal was effected on March 5, 1986 by Col. David C. Kimball, Commander
of the 3rd Combat Support Group, PACAF Clark Air Force Base

Genove filed a complaint in the RTC of Baguio

The defendants, joined by the United States of America, moved to dismiss the
complaint, alleging that Lamachia (the manager) as an officer of the US Air Force was
immune from suit for the acts done by him in his official capacity; they argued that the
suit was in effect against USA, which had not given its consent to be sued

Motion was denied by respondent judge: although acting intially in their official
capacities, the defendants went beyond what their functions called for; this brought them
out of the protective mantle of whatever immunities they may have had in the beginning

On the third suit:

Luis Bautisa, who was employed as a barracks boy in Camp O'Donnell, an extension
of Clark Air Base, was arrested following a buy-bust operation conducted by the individual
petitioners Tomi J. King, Darrel D. Dye and Stephen F. Bostick, officers of the US Air Force
and special agents of the Air Force of Special Investigators (AFOSI)

Bautista was dismissed from his employment as a result of the filing of the charge

He then filed a complaint for damages against the individual petitioners, claiming
that it was because of their acts that he was removed

Defendants alleged that they had only done their duty in the enforcement of laws
of the Philippines inside the American bases, pursuant to the RP-US Military Bases

The counsel for the defense invoked that the defendants were acting in their
official capacity; that the complaint was in effect a suit against the US without its consent

Motion was denied by respondent judge: immunity under the Military Bases
Agreement covered only criminal and not civil cases; moreover, the defendants had come
under the jurisdiction of the court when they submitted their answer
On the fourth suit:

Complaint for damages was filed by private respondents against the petitioners
(except USA)

According to the plaintiffs, the defendants beat them up, handcuffed the, and
unleashed dogs on them

Defendants deny this and claim that the plaintiffs were arrested for theft and were
bitten by dogs because they were struggling and resisting arrest

USA and the defendants argued that the suit was in effect a suit against the United
States which had not given its consent to be sued; that they were also immune from suit
under the RP-US Bases Treaty for acts done by them in the performance of their official

Motion to dismiss was denied by the trial court: the acts cannot be considered Acts
of State, if they were ever admitted by the defendants

Whether or not the suits above are in effect suits against United States of America
without its consent

In relation, whether or not the defendants are also immune from suit for acting
within their official functions.
Holding and Ratio:

1st suit: No. The barbershops concessions are commercial enterprises operated by
private persons. They are not agencies of the US Armed forces. Petitioners cannot plead
immunity. Case should be remanded to the lower court.

2nd suit: No. The petitioners cannot invoke the doctrine of state immunity. The
restaurants are commercial enterprises. By entering into the employment contract with
Genove, it impliedly divested itself of its sovereign immunity from suit. (However, the
petitioners are only suable, not liable.)

3rd suit: Yes. It is clear that the petitioners were acting in the exercise of their
official functions. For discharging their duties as agents of the US, they cannot be directly
impleaded for acts attributable to their principal, which has not given its consent to be

4th suit: The contradictory factual allegations deserve a closer study. Inquiry must
first be made by the lower court. Only after can it be known in what capacity the
petitioners were acting at the time of the incident