PEOPLE VS WONG CHENG

It has been a long standing conflict on whether a country should take cognizance
of crimes committed within its territorial jurisdiction. Each circumstance should be taken
into account on whether such country applies the French rule or the English rule.

The accused in this case was illegally smoking opium in the merchant vessel of
Changsa, he was of English nationality. These instances occurred while the vessel was
in Manila Bay 2.5 miles from the shores of the city. The court of first instance, now the
regional trial court dismissed the case on the ground of lack of jurisdiction. The attorney
general however, countered that the Regional Trial court was within jurisdiction to try
said cases. The attorney general further invoked the fact that since the crime committed
was aboard a merchant vessel and within our waters, such factual circumstances
support his argument. There are two rules in relation to public international law that
should be taken into account regarding the issues involved: The French rule and the
English rule. The French rule is when there are crimes committed in a foreign merchant
vessel should not be prosecuted in the courts of the country within which such crime is
committed even if it is within its territorial jurisdiction. The rule mentioned in the former is
only the general rule, like every general rule an exception is also in order: However,
such crimes can be prosecuted if such acts affects the order and security of the
territory.

On the other hand, the English rule which is the rule followed by the united states
and based on the territorial principle that crimes committed within the territorial
jurisdiction of a country are generally triable in the courts of the country in which they
are committed and this is the rule that is followed in the Philippines.

In line with the English rule being followed by the courts of this jurisdiction the
fate of the accused in this case as rendered by the court is that such crime committed is
within the powers and jurisdiction of the Regional Trial court to prosecute. However,
during this time the mere possession of opium was not punishable in this jurisdiction but
in the given case, the accused was smoking opium which, is then considered a breach
of public order because it causes the drug to produce its harmful effects within the
territory of the Philippines and it is an open defiance against the local authorities.

Therefore, the case was then remanded to the Regional Trial Court for
determination of the guilty of the accused.
 JEFFREY LIANG (HUE FENG) v. PEOPLE

It has been a long standing rule that the rule on immunity from suit is not absolute, and
like every general rule there is an exception. The petitioner in this case is a Chinese
national who was employed as an Economist by the Asian Development Bank (ADB).
Petitioner allegedly uttered defamatory words to Joyce V. Cabal, a member of the
clerical staff of ADB. As a result, a case of grave oral defamation was filed against him
in the Metropolitan Trial Court. The Metropolitan Trial Court, however, dismissed the
case due to DFA’s advice that petitioner enjoyed immunity from legal processes.

This was not agreed upon by the Solicitor general. Hence, it then filed a petition for
certiorari and mandamus and the Regional Trial Court, on appeal reversed the MTC.
Thus, petitioner brought a petition for review with this Court.

The arguments of the petitioner are anchored on the fact that a determination of
a person's diplomatic immunity by the Department of Foreign Affairs is a political
question. It is further contended that the immunity conferred under the ADB Charter and
the Headquarters Agreement is absolute. Petitioner likewise urges that the international
organization's immunity from local jurisdiction empowers the ADB alone to determine
what constitutes "official acts" and the same cannot be subject to different
interpretations by the member states.

The main question in this petition is whether the petitioner, being an employee of the
ADB immune from suit, even outside his official capacity as in the case at bar.

The court ruled in the negative.

Petitioner has no immunity from suit. The immunity granted to officers and staff of the
ADB is not absolute; it is limited to acts performed in an official capacity. Furthermore,
the immunity cannot cover the commission of a crime such as slander or oral
defamation in the name of official duty.

The slander of a person, by any stretch, cannot be considered as falling within

the purview of the immunity granted to ADB officers and personnel. Slander, in general,
cannot be considered as an act performed in an official capacity.
 ASYLUM CASE

Peru issued an arrest warrant against Victor Raul Haya de la Torre “in respect of
the crime of military rebellion” which took place on October 3, 1949, in Peru. 3 months
after the rebellion, Torre fled to the Colombian Embassy in Lima, Peru. The Colombian
Ambassador confirmed that Victor de la Torre was granted diplomatic asylum in
accordance with Article 2(2) of the Havana Convention on Asylum of 1928 and
requested safe passage for Torre to leave Peru. He claimed that Columbia had a right
to do this both under agreements between the states and in a local custom in the Latin
American states. Subsequently, the Ambassador also stated Colombia had qualified
Torre as a political refugee in accordance with Article 2 Montevideo Convention on
Political Asylum of 1933. Peru refused to accept the unilateral qualification and refused
to grant safe passage.
The questions pointed into this case is a) was colombia competent to unilaterally
qualify the offense for the purpose of asylum b) should peru as the territorial state
guarantee safe passage? c) and does the colombian government have the power to
grant asylum under local custom
Anent the first question, the court stated that in the normal course of granting
diplomatic asylum a diplomatic representative has the competence to make a
provisional qualification of the offense and the territorial State has the right to give
consent to this qualification. In the Torre’s case, Colombia has asserted, as the State
granting asylum, that it is competent to qualify the nature of the offense in a unilateral
and definitive manner that is binding on Peru. The court had to decide if such a decision
was binding on Peru either because of treaty law or other principles of international law
or by way of regional or local custom.
The court held that there was no expressed or implied right of unilateral and
definitive qualification of the State that grants asylum under the Havana Convention or
relevant principles . The Montevideo Convention of 1933, which accepts the right of
unilateral qualification, and on which Colombia relied to justify its unilateral qualification,
was not ratified by Peru. The Convention, per se, was not binding on Peru and
considering the low numbers of ratifications the provisions of the latter Convention
cannot be said to reflect customary international law.

In line with the second question in this petition, the court held that there was no
legal obligation on Peru to grant safe passage either because of the Havana
Convention or customary law. In the case of the Havana Convention, a plain reading of
Article 2 results in an obligation on the territorial state (Peru) to grant safe passage only
after it requests the asylum granting State (Columbia) to send the person granted
asylum outside its national territory (Peru). In this case the Peruvian government had
not asked that Torre leave Peru. On the contrary, it contested the legality of asylum
granted to him and refused to grant safe conduct

Lastly, to resolve the final question in the petition, the Court held that the party
which relies on a custom of this kind has the burden of establishing that the custom
exists in such a way that it has become binding on the other party, through constant and
uniform usage of the states.
The court held that Columbia did not establish the existence of a regional custom
because it failed to prove consistent and uniform usage of the alleged custom by
relevant States. The court also reiterated that the fact that a particular State practice
was followed because of political expediency and not because of a belief that the said
practice is binding on the State by way of a legal obligation is detrimental to the
formation of a customary law.

The court held that even if Colombia could prove that such a regional custom existed, it
would not be binding on Peru, because Peru did not ratify the Montevideo Convention.
 LOTUS CASE

A collision occurred shortly before midnight on the 2nd of August 1926 between
the French mail steamer Lotus and the Turkish collier Boz-Kourt. The French mail
steamer was captained by a French citizen by the name Demons while the Turkish
collier Boz-Kourt was captained by Hassan Bey. The Turks lost eight men after their
ship cut into two and sank as a result of the collision.

Although the Lotus did all it could do within its power to help the ship wrecked
persons, it continued on its course to Constantinople, where it arrived on August 3. On
the 5th of August, Lieutenant Demons was asked by the Turkish authorities to go
ashore to give evidence. After Demons was examined, he was placed under arrested
without informing the French Consul-General, then convicted by the Turkish courts for
negligence conduct in allowing the accident to occur.

This basis was contended by Demons on the ground of lack of jurisdiction over
him which led to both countries agreeing to submit to the matter to the Permanent Court
of International Justice.

In the realm of the ICJ, the court went on to determine if the rule on international
law which prohibits a state from exercising criminal jurisdiction over a foreign national
who commits acts outside of the state’s national jurisdiction exists.

The court unanimously held that the rule of international law, which prohibits a
state from exercising criminal jurisdiction over a foreign national who commits acts
outside of the state’s national jurisdiction, does not exist. The Court 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. The Court 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. Hence, both states here may exercise concurrent
jurisdiction over this matter because there is no rule of international law in regards to
collision cases to the effect that criminal proceedings are exclusively within the
jurisdiction of the state whose flag is flown.
 TRAIL SMELTER ARBITRATION (UNITED STATES V. CANADA)

The Trail Smelter dispute was a trans-boundary pollution case involving the
federal governments of both Canada and the United States, which eventually
contributed to establishing the Harm principle in the environmental law of transboundary
pollution.
The smelter in Trail, British Columbia was historically operated by the
Consolidated Mining and Smelting Company (COMINCO) until COMINCO merged with
Teck in 2001, and has processed lead and zinc since 1896. Smoke from the smelter
caused damage to forests and crops in the surrounding area and also across
the Canada–US border in Washington. The smoke from the smelter distressed
residents, resulting in complaints to COMINCO and demands for compensation. The
dispute between the smelter operators and affected landowners could not be resolved,
resulting in the case being sent to an arbitration tribunal. Negotiation and
resulting litigation and arbitration was settled in 1941.
The damages that the Trail Smelter caused and the issues that it had created were
brought before the international court of justice. The Tail Smelter located in British
Columbia since 1906, was owned and operated by a Canadian corporation. The
resultant effect of from the sulfur dioxide from Trail Smelter resulted in the damage of
the state of Washington between 1925 and 1937. This led to the United States suit
against the Canada with an injunction against further air pollution by Trail Smelter.
Further, after the injunction had been conducted and further proceedings were
held, the case at bar was settled by the ICJ explaining that it is the responsibility of the
State to protect other states against harmful act by individuals from within its jurisdiction
at all times. No state has the right to use or permit the use of the territory in a manner as
to cause injury by fumes in or to the territory of another or the properties or persons
therein as stipulated under the United States laws and the principles of international
law.

By looking at the facts contained in this case, the arbitration held that Canada is
responsible in international law for the conduct of the Trail Smelter Company. Hence,
the onus lies on the Canadian government to see to it that Trail Smelter’s conduct
should be in line with the obligations of Canada as it has been confirmed by
International law. The Trail Smelter Company will therefore be required from causing
any damage through fumes as long as the present conditions of air pollution exist in
Washington.

So, in pursuant of the Article III of the convention existing between the two
nations, the indemnity for damages should be determined by both governments. Finally,
a regime or measure of control shall be applied to the operations of the smelter since it
is probable in the opinion of the tribunal that damage may occur in the future from the
operations of the smelter unless they are curtailed.