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“I am a submarine!”

public international law

UPLAW 2009 B

This digest compilation wouldn’t have been possible without the help of Vani, PJ, Cathe, Marco, Ben and Mike.

III. Actors in International Law

A.

States

3. Jurisdiction and Immunities

Brownlie Chapter XIV: Sovereignty and Equality of States

I. In General

1. SOVEREIGNTY AND EQUALITY: THE BASIC CONSTITUTIONAL DOCTRINE OF THE LAW OF NATIONS which governs a community consisting primarily of states having uniform legal personality. Because of the existence of international law and of the equality and legal personality of states, the dynamics of state sovereignty can be expressed in terms of law; and sovereignty is, in a major aspect, a relation to other states (and to organizations of states) defined by law.

2. PRINCIPAL CORROLARIES OF STATES’ SOVEREIGNTY AND EQUALITY:

a. JURISDICTION (prima facie exclusive) over a territory and the permanent population there

b. DUTY OF NON-INTERVENTION of another state’s area of exclusive jurisdiction

c. DEPENDENCE OF OBLIGATION FROM CUSTOMARY LAW. Special

Applications of this can be seen in the ff:

(i)

jurisdiction of international tribunals depends on the consent of parties

(ii)

membership in international organizations not obligatory

(iii)

powers of organs of such organizations (to determine their own competence, to decide by majority votes, to enforce decisions) depend upon the consent of member-States

3.

SOVEREIGNTY AS DISCRETIONARY POWER WITHIN AREAS DELIMITED BY LAW. States alone can confer nationality for purposes of municipal law, delimit the territorial sea, and decide on the necessary action ins

II.

Sovereignty and the Application of Rules

A.

VALIDITY OF OBLIGATIONS ARISING FROM TREATIES.

In the Wimbledon, the Permanent Court rejected the argument that a treaty provision could not deprive a state of the sovereign right to apply the law of neutrality to vessels passing through the Kiel Canal. A treaty by which a State undertakes to perform or refrain from performing a certain act is not an abandonment of sovereignty. The right of entering into international engagements is an attribute of State sovereignty.

B.

INTERPRETATION OF TREATIES.

On some occasions, the International Court has referred to sovereign rights as a basis for restrictive interpretation of treaty obligations. But

everything depends on the context, the intention of the parties and the relevance of countervailing principles (like effectiveness).

C.

PRESUMPTIONS AND BURDENS.

Many areas of international law are uncertain or contain principles that do not admit of easy application to concrete issues.

ISSUE: In case of doubt as to the mode of application of rules or in case of absence of rules the presumption is that states have legal competence (or is one of incompetence)?

In the Lotus case, the court resolved the issue of jurisdiction on the basis that restrictions upon the independence of States cannot be presumed.

However, there is no general rule. It is possible that a general presumption of either kind would lead to inconvenience or abuse. And in judicial practice, issues are approached empirically. The context of a problem will determine the incidence of particular burdens of proof.

BURDENS OF PROOF – the duty to establish a restriction on sovereignty on the part of the proponent of the duty.

The jurisdictional ‘geography’ of the problem may provide useful indications. In the Asylum case, the Court stressed the fact that diplomatic asylum involves a derogation from sovereignty (represented by the normally exclusive jurisdiction of the territorial state). Compare this with the Fisheries case which had as a dominant factor the international impact of the delimitation of frontiers (in this case the maritime frontier)

D.

THE REGULATION OF RIGHTS

III.

Sovereignty and Competence

1. SOVEREIGNTY IN GENERAL characterizes the powers and privileges resting on customary law and independent of the particular consent of another State.

2. SOVEREIGNTY IS USED TO:

Describe the legal competence which states have in general,

Refer to a particular function of this competence, or

Provide a rationale for a particular aspect of the competence

3. The jurisdiction (including legislative competence over national territory) may be referred to in terms of ‘sovereignty’ or ‘sovereign rights’. Sovereignty may refer to the power to acquire title to territory and the rights accruing from the exercise of that power. It also pertains to the correlative duty of respect for territorial sovereignty, and the privileges in respect of territorial jurisdiction (sovereign state immunities).

IV. Membership of Organizations

1. The institutional aspects of organizations of states result in actual (as opposed to

formal) qualification of sovereign equality. ACTUAL. Without the express consent of member states, organizations may adopt majority voting and also have a system of weighted voting; and organs may be permitted to take decisions, and even binding rules.

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FORMAL. It can be said that on joining he organization, each member consented in advance to the institutional aspects so in a formal way, the principle that obligations can only arise from consent of states and the principle of sovereign equality are satisfied.

2. EUROPEAN COMMUNITIES’ PRACTICE. While permitting integration (which radically affects jurisdiction for special purposes) they have been careful not to jar the delicate treaty structures by too ready assumption of implied powers.

3. INTERPRETATION OF UN CHARTER by the organs (with approval of Court) has been in accordance with principles of effectiveness and implied powers. If an organization encroaches on domestic jurisdiction of members to a substantial degree this may amount to federation. The area of competence of members as well as their very personality will be at issue.

4. CRITERIA OF EXTINCTION OF PERSONALITY:

a.

obligatory nature of membership

b.

majority decision-making

c.

determination of jurisdiction by the organization itself

d.

binding quality of decisions of the organization apart from consent of member States

V.

The Reserved Domain of Domestic Jurisdiction

1. DUTY OF NON-INTERVENTION IN AFFAIRS OF OTHER STATES: CORROLARY OF INDEPENDENCE AND EQUALITY; A MASTER PRINCIPLE. Matters within the competence of states under general international law are within the reserved domain (domestic jurisdiction) of states. 1

2. PROBLEM OF DOMESTIC JURSIDCITION.

The general position: RESERVED DOMAIN – the domain of state activities where the jurisdiction of the state is not bound by international law. The extent of this domain depends on international law and varies according to development. It is widely accepted that no subject is irrevocably fixed within the reserved domain, but some jurists assume that there are topics presently recognized as within the reserved domain such as nationality and immigration. This approach is very misleading because everything depends on the precise facts and legal issues arising. When a state delimits a fishing zone or territorial sea, the manner and origin of the exercise of this state power is a matter for the state. But when it comes to enforcing the limit vis-à-vis other states, the issue is placed on the international plane. Similarly, conferment or withdrawal of nationality may lead to disputes between states when it comes to the exercise of diplomatic protection.

3. DISTINCTION BETWEEN INTERNATIONAL COMPETENCE (that is, no outside authority can annul or prevent internally valid acts of state power) AND INTERNATIONAL RESPONSIBILITY FOR ULTRA VIRES ACTS.

4. DISTINCTION HAS WIDE APPLICATION BUT NOT ABSOLUTE. In particular contexts, international law may place restrictions on internal territorial competence of states because of treaty obligations (example: forbidding legislation which discriminates certain groups) or because of territorial privileges created by custom.

1 Browlie considers this as a tautology (needless, meaningless repetition)+

5. RELATIVITY OF CONCEPT OF RESERVED DOMIAN: ILLUSTRATION: There is a rule that a state cannot plead provisions of its own law or deficiencies in their own law as answer to answer a claim against it for breach of international law obligations. It can also be illustrated by the fact that an international obligation may refer to national law as a means of describing the status to be created or protected.

6. If a matter (because of its nature and because of the issue of the case) is prima facie within the reserved domain, then presumptions against any restriction on that domain may be created. (Illustration: the imposition of customs tariffs is prima facie unrestricted by international law while the introduction of forces into another state does not enjoy such presumption.

VI. ART.2, PAR. 7 of the UN Charter

1. ADVENT OF INTERNATIONAL ORGANIZATIONS WITH POWERS TO SETTLE DISPUTES ON A POLITICAL BASIS has caused states to favor reserved domain. In the League of Nations Covenant, Art. 15, par. 8 in relation to disputes submitted to the Council and not to arbitration or judicial settlement: If one of the parties claim (and the Council finds) that the dispute between them arise out of a matter which, by international law, is solely within the domestic jurisdiction of that party, the Council shall report so. The Council shall make no recommendation as to its settlement.

2. IF COUNCIL MAKES POLITICAL SETTLEMENT, IT TOUCHES ON RESERVED

DOMAIN (since this frequently causes disputes). And so the need to write the legal limit of action was apparent. This issue arose at the drafting of the UN Charter. The result is ART. 2, PAR. 7:

“Nothing contained in this present Charter shall authorize the UN to intervene in matters which are essentially within the domestic jurisdiction of any State or shall require the Members to submit such matters to settlement under the present Charter; but this principle shall not prejudice the application of enforcement measures under Chapter VII.”

3. CONTRASTS BETWEEN THE COVENANT (#1) AND THE CHARTER (#2) PROVISIONS: In the Charter, there is no reference to international law, the reference is to matters ‘essentially’ within the domestic jurisdiction, and there is no designation of the authority which will have the power to qualify matters.

4. CHARTER PROVISION INTENDED TO BE FLEXIBLE AND NON-TECHNICAL:

The restriction was meant to be thoroughgoing because of the wide implications of the economic and social provisions of Chapter IX of the Charter (hence the formula ‘essentially within’).

5. INTENTIONS (of flexibility and the assumption that it does not override other provisions), IN PRACTICE WORKED AGAINST EACH OTHER. This has resulted in the erosion of the reservation of domestic jurisdiction even though drafters have intended its reinforcement.

6. “INTERVENE”: This term has been approached empirically. Discussions, recommendations in general terms and even resolutions have not been inhibited by Art. 2, Par.7. The term should not be conceived only as a dictatorial intervention.

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Member states have proceeded empirically with an eye to general opinion. And they have a clear knowledge that precedents created in one connection may have a boomerang effect.

7. UN ORGANS HAVE TAKEN ACTION ON A WIDE RANGE OF TOPICS DEALING WITH RELATIONS BETWEEN GOVT. AND ITS OWN PEOPLE (on the basis of Chapters IX and X of charter and human rights provisions in Arts. 55 and 56) Resolutions on breaches of human rights, right of self determination and colonialism, and non-self governing territories (qualified by the GA) has been adopted regularly. If the organ felt that the acts complained of were contrary to the purposes and principles of the Charter and that it endangers international peace and security, then a resolution is passed. The Security Council adopted a resolution concerning apartheid only partly on the basis that the situation constitutes a potential threat to international peace and security.

8. RELATION OF ART. 2, PAR. 7 TO GENERAL INTERNATIONAL LAW does not have

a clear answer. On its face, the provision is a matter of constitutional competence

for the UN organs and lacks reference to international law. In practice, political organs have avoided express determination of technical points arising from the provision. THUS, in principle, it has no necessary and direct impact on general law.

9. DOMAIN

RESERVED

CORRESPONDS

TO

NON-INTERVENTION

IN

THE

CHARTER.

10. What has happened is that a new content has been given to the obligations and legal competence of states through the medium of the Charter.

VII. International Tribunals and the Plea of Domestic Jurisdiction

1. LACK OF SPECIFIC RELEVANCE has characterized the concept of domestic

jurisdiction in relation to practice of tribunals.

2. In National Decrees in Tunis Morocco this concept was prominent because of the

special circumstances in which the League Council had requested an advisory opinion. The dispute between Great Britain and France was brought before the League Council by Britain because France had rejected the request for judicial settlement. France pleaded Art. 15, par. 8 of League Covenant (see #1 of VI). The parties agreed that the League Council should request the Permanent Court to give an advisory opinion. ISSUE: WON the Council’s jurisdiction was barred by the provision cited by France. The Court said that it was not interested in the actual legal rights of the parties but with the general character of the legal issues to establish the competence of the Council. COURT REACHED A PROVISIONAL CONCLUSION on the international character of the issues.

3. This Provisional Conclusion above cited may not be justifiable in a case where there

is a preliminary objection to jurisdiction in a contentious case (where the question of

domestic jurisdiction is raised in relation to the precise issues before the Court).

4. JURISDICTION = MERITS. In practice, the International Court has joined the plea of domestic jurisdiction to the merits (even if the plea is in a form of preliminary objection) because it has an intimate connection with substantial issues.

5. APPLICATION OF ART. 2, PAR. 7 TO THE COURT’S JURISDICTION. The object of arguing for its application is to benefit from the extensive formula ‘essentially within’.

6. The plea of domestic jurisdiction is available by operation of law. Its success depends on the particular legal relations of the parties.

7. IN ADVISORY JURISDICTION, IT IS DIFFERENT when the basis is that the political organ was incompetent to request for an opinion because of Art. 2, par. 7. The relevance of the Charter reservation is indisputable.

8. Peace Treaties case: The Court considered objections to its competence based upon:

(a)

incompetence of the requesting organ

(b)

application of Art.2, par.7 to the Court itself.

The objections involved the argument that a matter may be ‘essentially within’ the domestic jurisdiction of a state even though it is governed by a treaty. As to competence of requesting organ, the Court said:

The object is directed solely to obtaining from the Court certain clarifications (of a legal nature) regarding the applicability of the procedure for settlement of disputes (in peace treaties with Bulgaria, Hungary and Romania). The interpretation of the terms of a treaty for this purpose could not be considered as a question essentially within the domestic jurisdiction of a State. It is a question of international law which, by its very nature, lies within the competence of the Court. The Court then said that these considerations sufficed to dispose of the objection based on Art. 2, par. 7.

9. Although this is not an unequivocal evidence that Art.2, par. 7 applies to advisory

jurisdiction, it is an indication that the Court will not in any case give any specific, more restrictive, content to the ‘essentially within’ formula as compared with the normal version of the principle of domestic jurisdiction: matter regulated by treaty does not remain ‘essentially within’ the domestic jurisdiction of a state.

Brownlie. Ch. XV: Jurisdictional Competence

1. In General.

Jurisdiction - particular aspects of the general legal competence of states (“sovereignty’).

Refers to judicial, legislative and administrative competence. Distinct from the power to make decisions or rules (prescriptive or legislative jurisdiction) is the power to take executive action in pursuance of or consequent on the making of decisions or rules (enforcement or prerogative jurisdiction). Presumption: jurisdiction is territorial. 2 principles in the territorial theory:

1. While the best foundation for the law, it fails to provide ready-made solutions for some

modern jurisdictional conflicts.

2. A principle of substantial and genuine connection between the subject-matter of

jurisdiction, and the territorial base and reasonable interests of the jurisdiction sought to be exercised, should be observed. The sufficiency of grounds for jurisdiction is an issue normally considered relative to the rights of other states and not as a question of basic competence.

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2. Civil Jurisdiction.

IL standards WRT treatment of aliens a state must normally maintain a system of courts empowered to decide civil cases and prepared to apply private IL where appropriate in cases containing a foreign element. Municipal courts are reluctant to assume jurisdiction in cases concerning a foreign element and adhere to the territorial principle conditioned by the situs of the facts in issue and supplemented by criteria relating to the concepts of allegiance or domicile and doctrines of prior express submission to the jurisdiction and of tacit submission, for example on the basis of the ownership of property in the state of the forum. Excessive and abusive assertion of civil jurisdiction could lead to int’l responsibility or protests at ultra vires acts.

As civil jurisdiction is ultimately reinforced by procedures of enforcement involving criminal sanctions, in principle no great difference between problems created by assertion of civil and criminal jurisdiction over aliens. In either case, the prescriptive jurisdiction is involved, in any case, anti-trust legislation involves a process which, though formally ‘civil’, is in substance coercive and penal.

3. Criminal Jurisdiction.

The IL issue in only acute when aliens, or other persons under the diplomatic protection

of another state are involved. This achieved prominence after about 1870, and the appearance of clear principles has been retarded by the prominence in the sources of the subject of municipal decisions, which exhibit empiricism and adherence to national policies and by the variety of the subject-matter.

1. Territorial principle (TP) – courts of the place where the crime is committed may

exercise jurisdiction has received universal recognition, an application of the essential territoriality of the state’s sovereignty (sum of legal competences). Practical advantages: 1) convenience of the forum; and 2) presumed involvement of the interests of the state where the crime is committed. English and American decisions seem to suggest that TP is exclusive, but state practice has not adopted this view and UK legislature has conferred jurisdiction over nationals, inter alia, as to treason, bigamy, murder and breaches of the official Secrets Acts, wherever committed. Where states have adopted TP, this has been given extensive application. Subjective application – creates jurisdiction over crimes commenced within the state but completed or consummated abroad. Objective territorial principle (OTP) – jurisdiction is founded when any essential constituent element of a crime is consummated on state territory. Ex. Firing of gun across a frontier causing a homicide on the territory of the forum but the principle can be used to found jurisdiction in cases of conspiracy, violation of anti-trust and immigration laws by activity abroad & in other fields of policy. This has general support & a controversial application to collisions on the high seas in the Lotus case.

Lotus ((1961): high seas collision between a French steamer and a Turkish collier where the latter sank and its crew and passengers died. The steamer came into port in Turkey, its officers on watch at time of collision were tried and convicted of involuntary manslaughter. PCIJ’s issue: whether Turkey had acted in conflict with IL by instituting proceedings (exercise of criminal jurisdiction), and what reparation, if any, was due. France said: flag state of the vessel had jurisdiction over acts performed on board on high seas. Turkey denied: vessels on the high seas form part of the territory of the nation whose flag they fly. The President broke the tie (7-6); PCIJ said that Turkey did not act in conflict with IL principles. Majority of the 6 avoided dealing with the question of

compatibility of a Turkish penal code provision (punishment of acts abroad by foreigners against Turkish nationals; involved the protective principle of jurisdiction) with IL; Moore concurred with the result but rejected the principle. Basis of majority view: principle of objective territorial jurisdiction—had to assimilate the Turkish vessel to Turkish national territory—thus, the collision affected Turkish territory. Judgment is too vague & general to be helpful. As to criminal jurisdiction, it said: “though it is true that in all systems of law the territorial character of criminal law is fundamental, it is equally true that all or nearly all those systems extend their jurisdiction to offences outside the territory of the State which adopts them, in ways which vary form State to State. The territoriality of criminal law is not an absolute principle of IL and by no means coincides with territorial sovereignty. As to jurisdiction in general: “…it leaves them wide measure of discretion which is only limited in certain cases by prohibitive rules; as to others, every State remains free to adopt the principles which it regards as best and most suitable.” This has been criticized and its emphasis on state discretion is contradicted by the ICJ in Fisheries and Nottlebohm, which concerned the comparable competences of states to delimit the territorial sea and to confer nationality on individuals. In the Woodpulp Cases, the Report for the Hearing in the European Court of Justice said that: “the only two legal bases of jurisdiction in IL are the principles of nationality and territoriality…)

b. Nationality principle (NP) – nationality, as a mark of allegiance & an aspect of

sovereignty, is generally recognized as a basis for jurisdiction over extra-territorial acts. NP’s application may be extended by reliance on residence & other connections as

evidence of allegiance owed by aliens & by ignoring changes of nationality. Since TP & NP & the incidence of dual nationality create parallel jurisdiction and possible double jeopardy, many states place limitations on NP, often confining it to serious offences. Nationality is a necessary criterion in cases such as commission of criminal acts in locations like Antartica, where the ‘territorial’ criterion is inappropriate.

c. Passive Personality Principle (PPP) – aliens may be punished for acts abroad harmful to nationals of the forum. This is the least justifiable as a general principle and its application falls under the principles of protection and universality considered below. In the Cutting case, a Mexican court exercised jurisdiction as to the publication of defamatory matter against a Mexican by an American in a Texas newspaper. Court applied the PPP among others, causing diplomatic protests from US, although outcome was inconclusive.

d. Protective or security principle (P/SP) – nearly all states assume jurisdiction over

aliens for acts done which affect the security of the state, usually but not necessarily, in political offenses (currency, immigration, economic offences). UK and US allow significant exceptions to the doctrine of territoriality though without express reliance upon this principle. UK: punished aliens for abetment of acts on high seas of illegal immigrants; Joyce v. D.P.P. – alien who left the country in possession of a British passport owed allegiance and was guilty of treason when he later broadcast propaganda for an enemy in wartime). The application varies widely.

e. Universality principle (UP) – some states have adopted, usually with limitations, a

principle allowing jurisdiction over acts of non-nationals where the circumstances, including the nature of the crime, justify the repression of some types of crime as a matter of int’l public policy (common crimes, where the state where crime occurred has refused extradition and unwilling to try the case; stateless persons in areas not subject to the jurisdiction of any state: res nullius or res communis). Anglo-American opinion is

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hostile to this and Harvard Research regards it only as basis for auxiliary competence, except in piracy. Hijacking (unlawful seizure of aircraft) and offences in traffic of narcotics may fall under this principle.

f. Crimes under IL – breaches of laws of war, especially Hague Convention of 1907 and Geneva Convention of 1949, may be punished by any state, which obtains custody of persons suspected of responsibility. This may be seen as acceptance of UP but is not, since what is punished is the breach of IL and is not punishment under national law of acts in respect of which IL gives a liberty to all states to punish but does not itself declare as criminal (piracy). Universality in war crimes is in the Geneva Convention. In Eichmann, Israeli courts faced charges of crimes against humanity arising from events before Israel appeared as a state. In Barbie (1983 and 1984), French Court of Cassation held that crimes against humanity were defined in French law by reference to int’l agreements and not subject to statutory limitation.

4. Relations of the Separate Principle.

‘Principles’ are generalizations of a mass of national provisions, which do not directly reflect categories of jurisdiction in the same way that, for example, the more recent

legislation on jurisdiction over the continental shelf involves reference to a definite quantity of interest recognized by IL. Each individual principle may only be evidence of the reasonableness of the exercise of jurisdiction. Principles interweave in practice. These has led some jurists to formulate a broad principle resting on some genuine or effective link between the crime and the state of the forum—significance of which is evidenced by the European Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters (1968) and the European Convention on State Immunity (1972). This solves issues of concurrence of jurisdiction (state of nationality and locus delicti. UP may require a separate regime, with qualifications on competence arising from general principles of law, including the rule neb is in idem

(where the doctrine of substantial connection-equivalent of a proper law as in private IL-

is not applied, as in UP, a choice of law problem is left open and there is a tendency to

solve it indistinctly by reference to GPIL). Where there are connections with several law districts the forum which is not the locus delicti may allow the accused to plead the lex loci delicti.

5. Extra-territorial Enforcement Measures.

A state cannot take measures on another’s territory by way of enforcement of national

laws without the latter’s consent. No arrests, no service of summons, no investigations, no orders for production may be executed on another state’s territory, except under the treaty’s terms or other consent given. In economic regulation & anti-trust legislation, controversy has arisen. States would probably acquiesce to an exercise of enforcement jurisdiction in matters governed by the OTP of jurisdiction. US courts, in Alcoa (1945) & Watchmakers of Switzerland (1955), said that whenever activity abroad has consequences or effects within the US which are contrary to local legislation, US courts may make orders requiring the disposition of patent rights & other property of foreign corporations, reorganizations of industry in another country, production of documents, etc. This doctrine seems to be unrestricted to agreements abroad intended to have effects within the US & actually having effects. The orders may be enforced by action

within the US against the individuals or property present within the territorial jurisdiction,

& the policy adopted goes beyond the normal application of the OTP. Recently, US

courts have adopted a principle of the balancing of the various national interests involved, which, though unhelpfully vague could result in some mitigation of the cruder aspects of the “effects doctrine”.

US policies have provoked a strong reaction from many foreign governments, in particular, by the Bonner Amendment to the Shipping Act, under which US Federal Marine Commission was given regulatory powers concerning the terms upon which non- American ship-owners carry goods to and from the US. UK and other states enacted legislation to provide defensive measures against US policy. Similar cases: US Export Administration Act in the face of US measures directed against non-American corporations involved in contracts relating to the construction of the West Siberian pipeline. The European Community and UK protested as to the illegality of actions by US authorities, intended to prevent the re-export of machinery of US origin and the supply of products derived from US data. Anti-cartel legislation in several European States is based on principles similar to those adopted by US. Court of Justice of the European Communities has applied a principle similar to the US “effects doctrine” in respect of company subsidiaries and the Advocate General espoused this view in his Opinion in the Woodpulp Cases.

There is an assumption that there are certain limits to enforcement jurisdiction but no consensus on what those are. UK: a state “acts in excess of its own jurisdiction when its measures purport to regulate acts which are done outside its territorial jurisdiction by persons who are not its own nationals and which have no, or no substantial, effect within

its territorial jurisdiction”. Judge Jennings: the principle “that extraterritorial jurisdiction may not be exercised in such a way as to contradict the local law at the place where the alleged offence was committed”. As to corporations with complex structures and foreign- based subsidiaries, a principle of substantial or effective connection could be applied as a basis for jurisdiction. This approach would accord with the highly relevant notion of the “proper law” of a transaction. Present situation: a state has enforcement jurisdiction abroad only to the extent necessary to enforce its legislative jurisdiction—the latter rests upon existing principles of jurisdiction and these are close to the principle of substantial

connection.

6. A General View of the Law. Essential and logical points:

a. Substantive or legislative jurisdiction (power to make decisions or rules enforceable within state territory) – no major distinction between the types of jurisdiction. The types used in presenting materials (civil, criminal, fiscal, monetary jurisdiction) are not the basis of significant distinctions in principles limiting extra-territorial jurisdiction. Exercise of civil jurisdiction as to aliens presents the same problems as the exercise of criminal jurisdiction over them.

b. No essential distinction between the legal bases for and limits upon substantive (or legislative) jurisdiction and enforcement (or personal or prerogative) jurisdiction. One is a function of the other. If substantive jurisdiction is beyond lawful limits, then any consequent enforcement jurisdiction is unlawful.

c. 2 generally recognized bases for jurisdiction of all types are TP & NP, but application

of such is subject to the operation of other principles (par. d.)

d. Extra-territorial acts can only lawfully be the object of jurisdiction if certain general principles are observed:

i. there should be a substantial and bona fide connection between the subject-matter and the source of the jurisdiction;

ii. the principle of non-intervention in the domestic or territorial jurisdiction of other states should be observed;

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iii.

a principle based on elements of accommodation, mutuality and

Issue: relation between the territorial sovereign and the flag state as to jurisdiction over

 

proportionality should be applied. Thus nationals resident abroad should not be constrained to violate the law of the place of residence.

private vessels in ports or internal waters. Special character of the internal economy of ships is still recognized, the rule being that the law of the flag depends on the nationality

e.

Customary law and general principles of law relating to jurisdiction are emanations of the concept of domestic jurisdiction and its concomitant, the principle of non- intervention in the internal affairs of other states. These do not apply or do not apply helpfully to i) certain cases of concurrent jurisdiction; ii) crimes against IL. Special rules have evolved. These also apply to the high seas, continental shelf, the EEZ, outer space and Antartica.

of the ship and the flag state has responsibility for and jurisdiction over the ship. But, when a foreign ship enters a port, except perhaps as a consequence of distress, a temporary allegiance is owed to the territorial sovereign and a case of concurrent jurisdiction arises, since both the flag state and the local sovereign may exercise jurisdiction in respect of activities associated with the ship for breaches of their respective laws. As to criminal jurisdiction, debate is on limits of local jurisdiction. In

f.

Principle of territorial jurisdiction is to be placed in proper relation to other principles. It is not completely exclusive in its application to aliens within national territory. Ramifications of qualification: i) jurisdiction of the alien’s state of origin is not excluded; b) territorial jurisdiction may be excluded in absence of substantial links between alien or foreign corporation and the state asserting jurisdiction.

principle, there are no limits provided action is taken WRT only to breaches of local law and not to breaches of rules set by the law of the flag state. But, it has been customary to contrast the Anglo-American position with the French jurisprudence (followed by some other states).

g.

Jurisdiction is not based upon a principle of exclusiveness: the same acts may be

Cognate Questions, Including Extradition.

UK’s opinion during the preparatory work of the Hague Codification Conference of 1930:

7.

within the lawful ambit of one or more jurisdictions. But, an area of exclusiveness may be established by treaty (offenses committed on board aircraft).

derogation from the exercise of local criminal jurisdiction is a matter of comity and discretion. In Wildenhaus (1887): a murder by a crew member of another, both Belgian nationals, committed on board a Belgian ship in dock in Jersey City, ipso facto disturbed the public peace on shore. This is contrasted to French practice based upon the opinion

What are the legal consequences of a wrongful exercise of jurisdiction? In principle, excess of jurisdiction gives rise to state responsibility even in absence of intent to harm another state. The accused’s state of origin has locus standi as to proceedings which by object or mode involve a breach of existing standards protecting human rights. A change of sovereignty does not give the effect of an amnesty for criminals.

of the Conseil d’Etat in the cases of Sally and Newton in 1806: maintained the principle of local jurisdiction in matters affecting state interests, of police, for offences by crew members against even strangers on board. The French practice is more liberal vis-à-vis the flag state, more explicit in renunciation of jurisdiction. But such contrasts are minimal and actual practice is fairly uniform.

Apart from the unsatisfactory procedure of trial in absentia, states have to depend on cooperation of other states to obtain the surrender of fleeing suspects or criminals. Extradition is a form of int’l judicial assistance through a procedure of request and consent, regulated by general principles. But executive discretion to expel aliens may be used ad hoc for similar ends. Except for alleged crimes under IL, in absence of treaty, surrender of an alleged criminal cannot be demanded as a right. But surrender is not forbidden; it is lawful unless it constitutes complicity in conduct harmful to human rights or in crimes under IL (genocide). Extradition issues center on questions of internal and constitutional law and effect of treaties on municipal rules. But some courts, in giving extradition in absence of treaty, have abstracted from treaties and municipal provisions certain “general principles of IL”. 2 leading principles are: double criminality (act charged must be criminal under the laws of both the state of refuge and the requesting state) and specialty (person surrendered shall be tried and punished exclusively for offences for which extradition was requested and granted). Extradition may be refused if the requesting state is not expected to observe reasonable procedural standards and if the offence is political. Granting of political asylum – power limited in law in respect of int’l crimes (including genocide), in conventions for the suppression of terrorist acts, and in practice by security measures between members of political and military alliances. Generally, states refuse to extradite nationals, but some do so without assuming the responsibility for trying the suspect in an obvious abuse of power. While int’l responsibility may arise as a consequence if illegal seizure of offenders, violation of the law does not affect validity of subsequent exercise of jurisdiction (similar with defective extradition procedures and mistaken surrender of fugitive criminals).

8. Special Cases of Concurrent Jurisdiction.

Incres Steamship Co. Ltd. V. Int’l Maritime Workers Uniion (1963): problematic since the NY CA said that a federal statute was applied to labor disputes between foreign nationals operating ships under foreign flags, thus the National Labour Relations Board had jurisdiction. UK as an intervening amicus curiae said in a brief that to hold that jurisdiction existed if the foreign flag vessel called at a US port ‘regularly’ opposed the ’traditional internal economy doctrine long applied by all nations to foreign flag vessels temporarily in their ports’ and gave ‘an unwarranted extraterritorial effect to domestic law’. UK seems to regard the exception as to matters involving the tranquility of port as a matter of law, not of comity. National policy is involved and legislation employs penal sanctions as a longstop. A doctrine of effective connection may be usable in both criminal and civil jurisdiction. US SC said in Incres and McCulloch v. Sociedad NacionalI (1963) that the National Labor Relations Act had no application to the operation of foreign-flag states employing alien crews, according to the well-established rule of IL.

As to aircrafts, UK law says that extra-territorial commission of common law offences is punishable & many provisions have no application to crimes on aircraft abroad or over high seas. State practice on relation between national law of the aircraft & law of any foreign territory overflown is not coherent & general practice on criminal jurisdiction is helpful. But work sponsored by Int’l Civil Aviaiton Organization has produced a Convention on Offences & Certain Other Acts Committed on Board Aircraft: Art. 3. 1) State of registration of the aircraft is competent to exercise jurisdiction over offences and acts committed on board; 3) Convention does not exclude any criminal jurisdiction exercised in accordance with national law. Art. 4: A Contracting State which is not the State of registration may not interfere with an aircraft in flight in order to exercise its criminal jurisdiction over an offence committed on board except in these cases:

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a) offence has effect on the territory of such state;

b) offence committed by or against a national or permanent resident of such state;

c) offence against the security if such state;

d) offence consists of a breach of any rules or regulations relating to flight or maneuver of aircraft in force in such state;

e) exercise of jurisdiction is necessary to ensure the observance of any obligation of

such state under a multilateral int’l agreement. Hijacking of aircraft has prompted the promotion of multilateral conventions creating duties for states to punish the seizure of aircraft in flight and to exercise jurisdiction in specified conditions, for example, when the offence is committed on board an aircraft registered in the contracting state.

Higgins Chapter 4 please refer to the previous digest compilation

Higgins. Ch. 5: Exceptions to Jurisdictional Competence: Immunities from Suit and Enforcement

In Ch. 4, we saw that IL provides norms for the allocation of competences among states:

doctrine of jurisdiction. The most basic ground for exercise of jurisdiction: territoriality (state expects its laws to apply to all within the territory—nationals, foreigners, residents, visitors). Some elements of self-restraint do enter the picture, where common sense prevails. 2 major categories of jurisdiction: for others they are jurisdiction to legislate and jurisdiction to enforce. Higgins calls them: jurisdiction to prescribe and jurisdiction to apply. Are there exceptions to the authorization to apply law within one’s own territory? In classical IL, 2 beneficiaries of an exception to the normal application of law on the basis of territoriality: foreign states & foreign diplomats. We add: int’l organizations.

STATE IMMUNITY. States, including their governments, were granted immunity from territorial jurisdiction of other states. Interrelated policy reasons have been suggested:

1. Doctrine of sovereign equality: pari parem non habet imperiium. No state can be expected to submit to the laws of another.

2. It would offend the dignity of a state to submit to the jurisdiction of another. Parlement Belge (1880), Brett LJ spoke of the duty of ‘every state to respect the independence and dignity of every other sovereign state’.

Doctrine of absolute immunity of states – prevailed until end of the last century (1800s) & began to be questioned as states engaged in functions not wholly reserved to the state (why, if one had identical contracts with a private person and the government, could one only sue on the first and not on the second?). More acute problems arose with widespread contracting for trade by socialist & non-socialist governments, & notions of stability, fairness & equity in the market place. Absolute immunity has been based on status. Potential defendant only had to show that it was a state or a government, & that it was being impleaded directly or indirectly (through claims relating to property over which it claimed title), for it to be accorded immunity.

From 1950s onwards, more states moved towards the restrictive or qualified doctrine of immunity (early ones: Italy, Belguim). As states trade, it was unsatisfactory that if they broke their contracts, they were protected by an absolute immunity from the exercise of

local jurisdiction. Federal Republic of Germany (FRG) & the US indicated that they would no longer emphasize the status of the defendant, rather, the activity or transaction in which it had been engaging. Under the restrictive doctrine of immunity, a distinction was to be made between:

1. Acta jure imperii—acts in public authority in respect of which there would still be immunity.

2. Acta jure gestionis—commercial or private acts, in respect of which no immunity now lies.

Status was important only to put a defendant within the category of persons who potentially could claim immunity; but actual entitlement so to claim depends upon the activity or transactions in question. In the 1970s and 1980s, several common-law countries (US & UK) adopted statutes based essentially on this distinction & to tidy up anomalies as law develops (Foreign Sovereign Immunity Act 1976 of the US; State Immunity 1978 of UK).

IL requires that a state limit exercise of its jurisdiction in respect of a foreign state or government—but to what extent and scope? As with other normative requirement of IL, we look at treaties, state practice as evidence of custom, judicial decisions and legal writings (source materials on IL of state immunity).

a. There is no treaty of universal application. The formulation of articles by the IL Commission (ILC) has been completed, geared towards providing the text for such treaty. After much debate, the Draft Articles affirm the restrictive approach, in terms of implied consent (entering into such a contract the foreign state deemed to have consented to the exercise of jurisdiction). European Convention on State Immunity of 1972, an example of regional treaty, is directed towards reciprocal enforcement of judgments but based on the restrictive principle. Council of Europe states are parties to the Convention.

b. State practice is not uniform. Most of the industrialized world has moved to limiting immunity—making it unavailable for commercial acts or transaction—but not the Soviet Union or industrialized Eastern Europe, which while under Marxism insisted upon absolute immunity. Latin America and much of the new Commonwealth are still opposed to restrictive immunity.

c. Judicial decisions. It is before domestic courts that issues of immunity from local

jurisdiction arise, where a private individual and a foreign state. Local courts recognize that they must provide answers in accordance with IL. Where there is a statute law, they must follow that legislative enactment, which is based on what local legislature has understood to be required and permitted by IL. Conclusion: IL today does not require the courts of one state to afford absolute immunity from jurisdiction to a foreign state or government, which will be entitled to invoke a limited immunity, in the courts of another, for its acta jure imperii.

Problems:

1. How to distinguish an actus jure imperii from an actus jure gestionis? A contract for sale and purchase is generally regarded as a commercial transaction, an actus jure gestionis. What about a contract to buy missiles? Is that an exercise of sovereign authority? What about contracts for the employment of a diplomat?

2. Is everything done within an embassy to be regarded as actus jure imperii? What about non-diplomatic employment—no immunity? In Sengupta v. India, English court found that all matters concerning an embassy were acta jure imperii and

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immune from local jurisdiction. But in another English case, Alcom v. Columbia, CA said that an embassy bank account was designated for commercial purposes, as it is used to make purchases and pay bills. House of Lords reversed: not for lower courts to require to know the nature of all expenditure under the account. While rejection of absolute immunity removes the preoccupation with status alone of the defending state, it cannot provide a mechanistic answer: courts to appraise whether the subject transaction was commercial or in sovereign capacity.

Old method of determination: purpose of contract. Look at a contract to purchase missiles, note that the object of the contract is a high state matter—a matter of sovereign authority. There has been general rejection of reliance on ‘purpose’ as being incompatible with the requirement to focus on the nature of the transaction. Trendtex Trading v. Central Bank of Nigeria (1977): purpose is irrelevant to its designation as attracting absolute or qualified immunity. Claims against the Empire of Iran (1963): “as a means of determining the distinction…refer to the nature of the state transaction or the resulting legal relationships, not to the motive or purpose. US Foreign Sovereign Immunities Act of 1976: character of an activity shall be determined by its nature, not its purpose. UK Act is silent but subsequent case law affirms that the nature is controlling.

Another test—whether an act is one that may be performed by anyone, or only by a sovereign?—signaled by Empire of Iran, has been applied in 1° Congreso del Partido. It has even been seen as replacing the test as unsatisfactory. Sir Fitzmaurice, criticizing the imperii/gestionis distinction, said: ‘a sovereign state does not cease to be a sovereign state because it performs acts which a private citizen might perform.’ Lauterpacht: ‘in engaging in economic activities ostensibly removed from the normal field of its political and administrative activities, the state nevertheless acts as a public person for the general purposes of the community as a whole. Sir Robert Jennings: see if an act is one done in the exercise of sovereign activity, which excludes the doing of something which an ordinary private person might also do. Higgins: useful test but application on facts is still a matter for the courts.

1° Congreso: contracts of affreigment between Cuba & a private Chilean firm of importers. Chilean President Allende’s government was overthrown and masters of the vessels were ordered by Cuban officials not to discharge cargo at the Chilean Valparaiso port. So there was a commercial contract and an order, taken for political reasons, to breach the contract. CFI, and House of Lords, through Goff J.: actus jure imperi is: act which ‘is of its own character a governmental act, as opposed to an act which any private citizen can perform. Immunity found to lie for the acts of ordering the non-discharge. Lord Wilberforce used the same test but in denying the cargo to its buyers, said Cuba ‘had not exercised and had no right to exercise, sovereign powers. It acted, as any owner of the ship would act, through Mambisa, the managing operations. It invoked no governmental authority.’ Thus, application of the same test to the same facts by different courts need not necessarily lead to the same result. Per Wilderforce’s view, nothing would be left protected by immunity acta jure imperii—perhaps declaration of war, conclusion of treaty and nationalization of property. Kuwait Airways Corp. v. Iraqi Airways Co. and Another (1992): passing by Iraqi government officials of Kuwait Airways aircraft to Iraqi Airways, after the invasion of Kuwait, was not an actus jure imperii, even if the motive was commercial, since facts showed that the circumstances called for its characterization as gestionis. This has been reversed and is pending appeal.

Even in the market place, government may need to act as such, not a trader. But why grant immunity? Let it pay if its action caused damage—there is no specific performance in IL, government still free to take whatever action it feels it needs to for the public good. In the distribution of benefits & burdens in the int’l legal system, why should private traders pay for freedom to pursue states’ political & foreign-policy objectives.

Questions: Should an agreement to arbitrate be regarded as a waiver of any claim to immunity in any action arising in a domestic court in connection with that arbitration? Should general rules on immunity apply to torts and to contracts? Should state enterprises be treated as states for purposes of immunity? States applying restrictive immunity, the answer is yes. But these have been put in doubt in the ILC—either by the rapporteur’s draft or by the comments of members showing their dissatisfaction with the draft. The final draft adopted favors qualified immunity.

Other issues: should central banks have immunity? Also, the distinction between immunity form suit and immunity from execution. In the former, no question of immunity from execution arises. But if legal action is permitted and judgment is given, may it be executed against its property? Extent of immunity from execution as consequence of immunity from action is largely a matter for national determination. In the Netherlands and some others, they are closely related. In the UK and US, there are distinct legal requirements for each phase. Some allow execution, following the same immunity criteria as applied to jurisdiction—the property must be ‘commercial’ not ‘public’. Sec. 13(5) of UK Act allows Ambassador of a foreign state to certify that property is in use or destined for use, for public purposes—hence, immune from execution. These are not obligatory requirements of IL. If the ILC’s works results in a treaty, some of these issues are clarified by the int’l treaty for the parties. In formulation of norms still in the making, the object is to identify and sustain the interest of the int’l community as a whole and fashion legal prescriptions thus.

DIPLOMATIC IMMUNITY Permanent diplomatic missions are only one institutional means with which a state can conduct diplomacy with another; includes visits by heads of government or officials, special missions, official representation at ad hoc or regular conferences. These may be established at headquarters of int’l organizations (IOs): law relating to their status is still developing. Privileges and immunities of member representatives to IOs was codified in the Vienna Convention on the Representatives of States in their Nations with IOs of a Universal Charter of 1975, but this has not been sufficiently ratified to enter into force. By contrast, diplomatic law, which applies to the permanent missions that states have established within each others’ territories since the fifteenth century, is well developed. Until the end of the 1950s, sources of diplomatic law were largely customary IL (CIL), although there were bilateral treaties on the topic. Attempts at codification in 1815 (Congress of Vienna) ad in the 1920s (League of Nations). But it was the1961 Vienna Convention on Diplomatic Relations that did so, confirming existing CIL and the great majority of states parties to it.

Diplomatic immunity, like state immunity, is an exemption to the general IL provided for territorial jurisdiction. Purpose: allow diplomats to carry out functions within the framework of necessary security and confidentiality. They are not usually exempt from local jurisdiction to prescribe laws (except certain tax laws not applied or even prescribed against diplomats or diplomatic premises). They must comply with local law but will be immune from local jurisdiction to apply and enforce such laws.

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Person of the diplomatic agent is inviolable. He is respected, protected against attack, can’t be detained or arrested, immune from criminal jurisdiction of the recessing state. The mission’s premises, archives & documents (on or off the premises) are inviolable. Diplomatic communications are protected; diplomatic bag is not to be opened or detained.

Substantive content of law of diplomatic immunity is clear but uncertainty remains:

varying national policies on marriage & different understandings of the concept of ‘family’, scope of Art. 37, Vienna Convention is open to debate, namely, immunities for ‘members of the family of a diplomatic agent forming part of his household’. Receiving states interpret this variously. UK: includes ‘spouse & minor (child under 18) children’. Also, does the prohibition on opening or detaining the diplomatic bag include X-ray (maybe) or external search for explosives or drugs by ‘sniffer dogs’.

The principle of inviolability of the archives is enshrined in Rose King (1947). But Art. 24

of the 1961 Vienna Convention on Diplomatic Relations provides for inviolability for

‘archives and documents of the mission,’ seeming to say that they are separate things, even if the intention was to provide inviolability for both. The Vienna Convention on Consular Relations of 1963 avoids this by defining consular archives as ‘all the papers, document s, correspondence, books, films, tapes, registers of the consular post, together with the ciphers and codes, the land indexes and any of the articles of furniture intended for their protection and safekeeping.’ Litigation arose after the collapse of the ITC, under the Headquarters Agreement (1972) with UK, guaranteed that its archives receive the same immunities as those of the diplomatic mission under Art. 24 of the Convention. Creditors of the ITC (tin company) said the immunity did not extend to documents more generally. CA said: ‘archives’ referred to records intended as a formal record, not to incidental papers. House of Lords: broader meaning in the Consular Convention used. Art. 24: ‘wherever they may be’—wherever stored, taken or left. Even abroad? English courts are not likely to be in the position to enforce the inviolability of a document from authorities of another country where the document is located, but this is not to say that its being outside the jurisdiction, the court can treat is as non-archival and without protection.

Policy issue: if such immunities and inviolability are given to allow performance of the diplomatic function, should this continue even if abused? UK example: diplomat commits indecent assault upon a child—also protected? How about the diplomat’s expired lease?

If a policewoman is shot from the embassy’s window, can the local police enter the premises and make an arrest? Despite protests, immunity should continue to be

available. 1) One cannot assume criminal guilt before trial, to argue that there should be

n immunity from trial; 2) It’s easy to cry abuse by the diplomat & shake off the

immunities, leading to harassment & pressure against diplomats. Besides, the reprehensible behavior of a particular diplomat should not destroy the integrity of the Vienna Convention. But the receiving state has the right to notify the sending state, without an explanation or allegation, that the member of the diplomatic staff is persona non grata. The receiving state may also limit the size of the mission, suspend or terminate diplomatic relations. Except in the case of espionage—not always then—states

are often reluctant to invoke the last 2 powers. It is not in the community interest that states fail to use available remedies against abuse & undercut the immunities, intended

to protect bona fide work & would become unavailable if so withdrawn upon the receiving

state’s unilateral determination of an ‘abusive’ act.

INTERNATIONAL ORGANIZATIONS (IOs).

IOs, though not ‘accredited to’ a particular country, are located in a particular country. They require certain privileges and immunities, necessary for its purposes, from the jurisdiction of that state and from all its member states should there be the potential of its acts or staff or property coming under their jurisdiction also.

UN was immune ‘from every form of legal process’. Art. 103, UN Charter: need for the protection. Convention on Privileges and Immunities of the UN: inviolability of premises and archives, diplomatic immunity of most senior officials and immunity of senior officials from jurisdiction and execution on a functional basis. There is also a Convention for Specialized Agencies. These multilateral provisions are often supplemented by a bilateral headquarters agreement between the organization and the host state. This is similar to IOs which are not UN specialized agencies but there are no general convention on immunities (ILC is examining relations between IOs and host states, may result in a treaty). The need for immunities is also in the Headquarters Agreement.

Are these immunities dependent on inclusion in governing instruments or are they enjoyed as a matter of CIL? The Third Restatement of the Law (1987) says that it is the latter. Reporters’ Notes says this relates to universal IOs. Do organizations of limited membership receive immunities from the jurisdiction of the host state as a matter of CIL? Standard Chartered Bank v. Int’l Tin Co. (1987): ‘never recognized at common law as entitled to sovereign status…entitled to no sovereign or diplomatic immunity except where granted by legislative instrument, and only to such extent.’

Real issue: whether IL requires a different type of int’l person, an IO, be accorded functional immunities? Higgins says yes: basis is good faith and functionalism (give what is necessary for performance of functions), not in deference to sovereignty or representation through diplomacy. She also says that there is no difference between IOs with universal and limited membership. The issue is that members—and a fortiori the headquarters state—may not at one and the same time establish an organization and fail to provide it with those immunities that ensure its role as distinct from that of the host state (Mazilu case [1989]).

Fifth Report of the Special Rapporteur on Relations between States and Internalional Organizations is not clear; it provides treaties on inviolability of archives but concludes that ‘doctrine and state practice’ fully supports the principle of the inviolability of archives. This is deduced from customary law relating to diplomatic missions, simply asserting that ‘it is equally valid in the case of IOs’. The matter is still treated by assimilation to diplomatic missions.

Importance of determination whether immunities of IOs are customary or treaty-based: 1) There may exist no relevant headquarters agreement; 2) it may be necessary to see if the terms of the headquarters agreement are exhaustive of immunities claimed or is text deficient such that other immunities refer to CIL; 3) courts may not give effect to the terms of the treaty incorporated in domestic law—if no law is enacted or if terms do not match those of the treaty, the issue may be: is there still an obligation incumbent on courts under CIL? (remember Harry’s long discussion on non-reliance on the Incorporation Clause to make customary norms binding on the RP) Int’l Tin Council v. Amalgamet (1988): no obligation on non-host states to give immunities to IOs in absence of treaty commitment by the US. For most IOs, domestic courts regard IL as prohibiting assertion of jurisdiction over employment claims. Also, it is not always necessary for an IO to have full immunity from suit and enforcement for it to fulfill its purposes (many organizations in the banking field allow suits by bondholders and related creditors).

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Does the imprerii/gestionis distinction apply to IOs? This question arises only if one accepts that immunities are not necessarily determined only by legislative provisions. The matter is unsettled. But how can an organization act in ‘sovereign authority’? This will assimilate them to states, which is incorrect. Their basis for immunity is different. Relevant test under general IL: whether immunity from jurisdiction to prescribe is necessary for fulfillment of purpose.

Amalgamet case also highlights a problem as to what documents constitute archives— immune. Papers for meetings prepared by IOs, sent to state members for study, before deliberation—Higgins says: states members do not receive as ‘third parties’ (papers are no longer the organization’s, not inviolate). Working papers are received by states parties in their capacity as organs of IOs, remaining as documents of IOs, still protected under Art. 24. Otherwise, Secretariat (an organ) shares with members (an organ) confidential documents, without protection from disclosure by the host state. But this is the position of the House of Lords in Shearson Lehman Bros. Inc. v. Maclaine Waterson & Co. (1988). The Fifth Report by the ILC does not address the range of problems, merely referring to Art. 24 and insisting that IOs are subject to IL and thus enjoy inviolability of their archives.

Conclusions:

1. Immunities from suit of states to fulfill its governmental functions are very limited.

2. There is a case for allowing greater possibilities of execution of judgments against

defaulting states.

3. Diplomatic immunities in the 1961 Convention represent the minimum required for diplomats to fulfill their functions without interference from the receiving state. If abused, they should be required to leave, but the immunity must not be narrowed for they protect proper, law-compliant acts.

4. Local courts must be encouraged to appreciate that their required immunities are based on their own functional needs, not on artificial assimilation to states and diplomatic missions. Immunities serve an important purpose but appropriate limits come from a full understanding of the social purposes which this exception to territoriality based jurisdiction based.

CASES on Jurisdiction

BROWNELL v. SUNLIFE (June 22, 1954) Petitioner: Herbert Brownell, Jr., as Attorney-General of the US Respondent: Sun Life Assurance Company of Canada Ponente: Labrador, J.

PETITION TO RECOVER HALF OF THE PROCEEDS OF AN ENDOWMENT POLICY UNDER THE PHIL. PROPERTY ACT OF THE US. This is a petition instituted in the CFI of Manila enforcing the provisions of the Philippine Property Act of the US against the Sun Life Assurance to compel it to comply with the demand of the to pay the Alien Property Custodian of the U.S. the sum of P310.10, which represents one-half of the proceeds of an endowment policy which already matured and is payable to one Naogiro Aihara, a Japanese national. Under the policy Aihara and his wife, Filomena Gayapan, were insured jointly for the sum of P1,000, and upon its maturity the proceeds thereof were payable to said insured, share and share alike, or P310.10 each.

DEFENSES OF SUN LIFE. (1) that the immunities provided in section 5 (b) (2) of the

Trading With the Enemy Act of the United States are of doubtful application in the Philippines, and have never been adopted by any law of the Philippines as applicable here or obligatory on the local courts; (2) that the defendant is a trustee of the funds and is under a legal obligation to see it to that it is paid to the person or persons entitled thereto, and unless the petitioner executes a suitable discharge and an adequate guarantee to indemnify and keep it free and harmless from any further liability under the policy, it may not be compelled to make the payment demanded.

JUDGMENT IN FAVOR OF US. The CFI ruled in favor of the US. Sun Life has appealed to this Court, contending that the court erred in holding that the Trading With the Enemy Act of the United States is binding upon the inhabitants of this country, notwithstanding the attainment of complete independence on July 4, 1946, and in ordering the payment prayed for.

ISSUE 1: WON PHILIPPINE PROPERTY ACT OF 1946 OF THE US IS BINDING UPON THE PHILIPPINES. HELD: YES. The ratification of or concurrence of the RP to the agreement for the extension of the Philippine Property Act of 1946 is clearly implied from the acts of the President of the RP and of the Secretary of Foreign Affairs, as well as by the enactment of Republic Acts Nos. 7, 8, and 477.

The operation of the Philippine Property Act of 1946 in the Philippines is not derived from the unilateral act of the US Congress, which made it expressly applicable to the RP, or from the saving provision contained in the proclamation of independence of the RP from the US. It is well-settled in the United States that its laws have no extraterritorial effect. The application of said law in the Philippines is based concurrently on said act (Philippine Property Act of 1946) and on the tacit consent thereto and the conduct of the Philippine Government itself in receiving the benefits of its provisions.

PHIL. PROPERTY ACT PROVIDES FOR THE APPLICATION OF THE TRADING WITH THE ENEMY ACT EVEN AFTER RP’s PROCLAMATION OF INDEPENDENCE. The US Congress passed the Philippine Property Act of 1946. Section 3 thereof provides that

"The Trading with the Enemy Act of October 6, 1917, as amended, shall continue in force

in the Philippines after July 4, 1946,

" To implement the provisions of the act, the US

President on July 3, 1946, promulgated EO No. 9747, "continuing the functions of the

Alien Property Custodian and the Department of the Treasury in the Philippines."

AGREEMENT BET. ROXAS & MC NUTT. Prior to and preparatory to the approval of said Philippine Property Act of 1946, an agreement was entered into between President Manuel Roxas of the Commonwealth and U. S. Commissioner Paul V. McNutt whereby title to enemy agricultural lands and other properties was to be conveyed by the US to the Philippines in order to help the rehabilitation of the latter, but that in order to avoid complex legal problems in relation to said enemy properties, the Alien Property Custodian of the US was to continue operations in the Philippines even after the latter's independence, that he may settle all claims that may exist or arise against the above- mentioned enemy properties, in accordance with the Trading With the Enemy Act of the US. This purpose of conveying enemy properties to the Philippines after all claims against them shall have been settled is expressly embodied in the Philippine Property Act of 1946.

RESERVATIONS OF THE US IN RP’s PROCLAMATION OF INDEPENDENCE. And when the proclamation of the independence of the Philippines by President Truman was

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made, said independence was granted "in accordance with the subject to the reservations provided in the applicable statutes of the Unites States." The enforcement of the Trading With the Enemy Act of the United States was contemplated to be made applicable after independence, within the meaning of the reservations.

ACTS OF PHIL. OFFICIALS ACKNOWLEDGING APPLICATION OF PHIL. PROPERTY ACT.

1. Conformity to the enactment of the Philippine Property Act of 1946 of the United

States was announced by President Manuel Roxas in a joint statement signed by him

and by Commissioner Mcnutt.

2. Ambassador Romulo also formally expressed the conformity of the Philippines

Government to the approval of said act to the American Senate prior to its approval.

3. And after the grant of independence, the RP Congress approved RA No. 8, entitled:

AN ACT TO AUTHORIZE THE PRESIDENT OF THE PHLIPPINES TO ENTER INTO SUCH CONTRACT OR UNDERTAKINGS AS MAY BE NECESSARY TO EFFECTUATE THE TRANSFER TO THE REPUBLIC OF THE PHILIPPINES UNDER THE PHILIPPINES PROPERTY ACT OF NINETEEN HUNDRED AND FORTY-SIX OF ANY PROPERTY OR PROPERTY RIGHTS OR THE PROCEEDS THEREOF AUTHORIZED TO BE TRANSFERRED UNDER SAID ACT; PROVIDING FOR THE ADMINISTRATION AND DISPOSITION OF SUCH PROPERTIES ONCE RECEIVED; AND APPROPRIATING THE NECESSARY FUND THEREFOR.

4. The RP Congress also approved RA No. 7, which established a Foreign Funds Control Office.

5. After the approval of the Philippine Property Act of 1946 of the US, the RP

Government also formally expressed, through the Sec. of Foreign Affairs, conformity

thereto through letters of the Secretary.

6. The RP Congress has also approved RA No. 477, which provides for the

administration and disposition of properties which have been or may hereafter be transferred to the RP in accordance with the Philippines Property Act of 1946 of the US.

CONSENT TO BE BOUND BY THE PHIL. PROPERTY ACT IS MANIFESTED BY BOTH RP EXEC & LEG. It is evident that the consent of the RP Government to the application of the Philippine Property Act of 1946 to the Phil. after independence was given, not only by the Exec. Department of the Phil. Government, but also by the Congress, which enacted the laws that would implement or carry out the benefits accruing from the operation of the US law.

SUN LIFE’S CONTENTIONS: NO EXPRESS PROVISION. Sun Life, however, contends that the operation of the law after independence could not have actually taken, or may not take place, because both RA No. 8 and 477 do not contain any specific provision whereby the Philippine Property Act of 1946 or its provisions is made applicable to the Philippines. It is also contended that in the absence of such express provision in any of the laws passed by the Philippine Congress, said Philippine Property Act of 1946 does not form part of our laws and is not binding upon the courts and inhabitants of the country.

FOREIGN LAW: OPERATES THROUGH CONSENT. There is no question that a foreign law may have extraterritorial effect in a country other than the country of origin, provided the latter, in which it is sought to be made operative, gives its consent thereto. This principle is supported by the unquestioned authority.

The jurisdiction of the nation within its territory is necessarily exclusive and absolute. It is susceptible of no limitation not imposed by itself. Any restriction upon it, deriving validity from an external source, would imply a diminution of its sovereignty to the extent of the restriction, and an investment of that sovereignty to the same extent in that power in which would impose such restriction. All exceptions, therefore, to the full and complete power of a nation within its own territories, must be traced up to the consent of the nation itself. They can flow from no other legitimate source. This consent may be either express or implied. (Philippine Political Law by Sinco, pp. 27-28, citing Chief Justice Marshall's statement in the Exchange, 7 Cranch 116)

In the course of his dissenting opinion in the case of S. S. Lotus, decided by the Permanent Court of International Justice, John Bassett Moore said:

1. It is an admitted principle of International Law that a nation possesses and exercises within its own territory an absolute and exclusive jurisdiction, and that any exception to this right must be traced to the consent of the nation, either express or implied.

CONSENT NEED NOT BE EXPRESS. The consent of a Senate to the operation of a foreign law within its territory does not need to be express; it is enough that said consent be implied from its conduct or from that of its authorized officers.

515. No rule of International Law exists which prescribe a necessary form of ratification. — Ratification can, therefore, be given tacitly as well as expressly. Tacit ratification takes place when a State begins the execution of a treaty without expressly ratifying it. It is usual for ratification to take the form of a document duly signed by the Heads of the States concerned and their Secretaries for Foreign Affairs. It is usual to draft as many documents as there are parties to the Convention, and to exchange these documents between the parties. Occasionally the whole of the treaty is recited verbatim in the ratifying documents, but sometimes only the title, preamble, and date of the treaty, and the names of the signatory representatives are cited. As ratification is only the confirmation of an already existing treaty, the essential requirements in a ratifying document is merely that it should refer clearly and unmistakably to the treaty to be ratified. The citation of title, preamble, date, and names of the representatives is, therefore quite sufficient to satisfy that requirements. (Oppenheim, pp. 818-819; emphasis ours.)

International Law does not require that agreements between nations must be concluded in any particular form or style. The law of nations is much more interested in the faithful performance of international obligations than in prescribing procedural requirements. (Treaties and Executive Agreements, by Myers S. McDougal and Asher Lands, Yale Law Journal, Vol. 54, pp. 318-319)

ISSUE 2: WON A DEED OF DISCHARGE AND INDEMNITY FOR ITS PROTECTION BE FIRST ISSUED BEFORE SUN LIFE PAYS FOR THE AMOUNT?

HELD: NO

which was extended to the Philippines by mutual agreement of the two Governments, contains an express provision to the effect that delivery of property or interest therein made to or for the account of the US in pursuance of the provision of the law, shall be

The Trading With the Enemy Act of the United States, the application of

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considered as a full acquittance and discharge for purposes of the obligation of the person making the delivery or payment. (Section 5(b) (2), Trading With the Enemy Act.) This express provision of the United States law saves the respondent-appellant from any further liability for the amount ordered to be paid to the petitioner, and fully protects it from any further claim with respect thereto. The request of the respondent-appellant that

a security be granted it for the payment to be made under the law is, therefore,

unnecessary, because the judgment rendered in this case is sufficient to prove such acquittance and discharge.

PEOPLE v. LOL-LO and SARAW (1922 February 27) Ponente, Malcolm, J.

1. THE JOURNEY. Two boats left Matuta, a Dutch possession, for Peta, another Dutch

possession. In one of the boats was one individual, a Dutch subject, and in the other boat eleven men, women, and children, likewise subjects of Holland. After a number of days of navigation, at about 7 o'clock in the evening, the second boat arrived between the Islands of Buang and Bukid in the Dutch East Indies.

2. THE ATTACK OF THE PIRATES 2 . Upon arrival, the second boat was surrounded by

six vintas manned by twenty-four Moros all armed. The Moros first asked for food, but once on the Dutch boat, took for themselves all of the cargo, attacked some of the men, and brutally violated two of the women “by methods too horrible to described”.

3. THE ESCAPE. All of the persons on the Dutch boat, with the exception of the two

young women, were again placed on it and holes were made in it, with the idea that it would submerge. However, these people, after eleven days of hardship and privation, were rescued. Taking the two women with them, and repeatedly violating them, the Moros finally arrived at Maruro, a Dutch possession. Two of the Moro marauders were Lol-lo, who also raped one of the women, and Saraw. At Maruro the two women were able to escape.

4. THE ARREST. Lol-lo and Saraw later returned to their home in South Ubian, Tawi-

Tawi, Sulu, Philippine Islands. There they were arrested and were charged in the Court

of First Instance of Sulu with the crime of piracy. A demurrer was interposed by counsel

de officio for the Moros, based on the grounds that the offense charged was not within

the jurisdiction of the Court of First Instance, nor of any court of the Philippine Islands, and that the facts did not constitute a public offense, under the laws in force in the Philippine Islands. After the demurrer was overruled by the trial judge, a trial was had, and a judgment was rendered finding the two defendants guilty and sentencing each of them to life imprisonment, to return together with Kinawalang and Maulanis, defendants

in another case, to the offended parties, the thirty-nine sacks of copra which had been

robbed, or to indemnify them in the amount of 942 rupees, and to pay a one-half part of the costs.

FIRST ISSUE: Does the Court of First Instance have jurisdiction over the crime committed? YES.

FIRST RATIO:

2 Of the Caribbean…hehehe ang corny. Vintage ceejay

1. DEFINITION OF PIRACY. All of the elements of the crime of piracy are present. Piracy

is robbery or forcible depredation on the high seas, without lawful authority and done animo furandi, and in the spirit and intention of universal hostility.

2. PIRACY AS A CRIME AGAINST MANKIND. It cannot be contended with any degree

of force as was done in the lower court and as is gain done in this court, that the Court of First Instance was without jurisdiction of the case. Pirates are in law hostes humani generis. Piracy is a crime not against any particular state but against all mankind. It may be punished in the competent tribunal of any country where the offender may be found or into which he may be carried. The jurisdiction of piracy unlike all other crimes has no territorial limits. As it is against all so may it be punished by all. Nor does it matter that the crime was committed within the jurisdictional 3-mile limit of a foreign state, "for those limits, though neutral to war, are not neutral to crimes." (U. S. vs. Furlong)

SECOND ISSUE: Are the Penal Code Provisions on piracy 3 still in effect? YES.

SECOND RATIO:

3 ART. 153. The crime of piracy committed against Spaniards, or the subjects of another nation not at war with Spain, shall be punished with a penalty ranging from cadena temporal to cadena perpetua.

"If the crime be committed against nonbelligerent subjects of another nation at war with Spain, it shall be punished with the penalty or presidio mayor.

"ART. 154. Those who commit the crimes referred to in the first paragraph of the next preceding article shall suffer the penalty of cadena perpetua or death, and those who commit the crimes referred to in the second paragraph of the same article, from cadena temporal to cadena perpetua:

"1. Whenever they have seized some vessel by boarding or

firing upon the same.

"2. Whenever the crime is accompanied by murder, homicide, or by any of the physical injuries specified in articles four hundred and fourteen and four hundred and fifteen and in paragraphs one and two of article four hundred and sixteen.

"3. Whenever it is accompanied by any of the offenses against chastity specified in Chapter II, Title IX, of the book.

"4. Whenever the pirates have abandoned any persons without means of saving themselves.

"5. In every case, the captain or skipper of the pirates.

"ART. 155. With respect to the provisions of this title as well as all others of this code, when Spain is mentioned it shall be understood as including any part of the national territory.

"ART. 156. For the purpose of applying the provisions of this code, every person, who, according to the Constitution of the Monarchy, has the status of a Spaniard shall be considered as such

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1. MUNICIPAL LAWS DESIGNED TO SECURE PEACE AND ORDER CONTINUE TO

BE EFFECTIVE DESPITE A TRANSFER OF TERRITORY TO ANOTHER SOVEREIGNTY. The general rules of public law recognized and acted on by the United States relating to the effect of a transfer of territory from another State to the United States are well-known. The political law of the former sovereignty is necessarily changed. The municipal law in so far as it is consistent with the Constitution, the laws of the United States or the characteristics and institutions of the government, remains in force. As a corollary to the main rules, laws subsisting at the time of transfer, designed to secure good order and peace in the community, which are strictly of a municipal character, continue until by direct action of the new government they are altered or repealed. (Chicago, Rock Island, etc., R. Co. vs. McGlinn)

2. MCKINLEY’S INSTRUCTIONS. These principles of the public law were given specific

application to the Philippines by the Instructions of President McKinley of May 19,1889,

to General Wesley Merritt, the Commanding General of the Army of Occupation in the Philippines, when he said:

"Though the powers of the military occupant are absolute and supreme, and immediately operate upon the political condition of the inhabitants, the municipal laws of the conquered territory, such as affect private rights of person and property, and provide for the punishment of crime, are considered as continuing in force, so far as they are compatible with the new order of things, until they are suspended or superseded by the occupying belligerent; and in practice they are not usually abrogated, but are allowed to remain in force, and to be administered by the ordinary tribunals, substantially as they before the occupation. This enlightened practice is, so far as possible, to be adhered to on the present occasion."

It cannot admit of doubt that the articles of the Spanish Penal Code dealing with piracy were meant to include the Philippine Islands. Article 156 of the Penal Code of the Penal Code in relation to article 1 of the Constitution of the Spanish Monarchy, would also make the provisions of the Code applicable not only to Spaniards but to Filipinos.

3. PIRACY ACCORDING TO GROTIUS. The opinion of Grotius was that piracy by the

law of nations is the same thing as piracy by the civil law, and he has never been disputed. The specific provisions of the Penal Code are similar in tenor to statutory provisions elsewhere and to the concepts of the public law. This must necessarily be so, considering that the Penal Code finds its inspiration in this respect in the Novelas, the Partidas, and the Novisima Recopilacion.

4. BASIS FOR THE PIRACY LAW’S CONTINUED EFFECTIVITY. The Constitution of

the United States declares that the Congress shall have the power to define and punish piracies and felonies committed on the high seas, and offenses against the law of nations. The Congress, in putting on the statute books the necessary ancillary legislation, provided that whoever, on the high seas, commits the crime of piracy as defined by the law of nations, and is afterwards brought into or found in the United States, shall be imprisoned for life. The framers of the Constitution and the members of Congress were content to let a definition of piracy rest on its universal conception under the law of nations. It is evident that the provisions of the Penal Code now in force in the Philippines

relating to piracy are not inconsistent with the corresponding provisions in force in the United States.

5. CONSEQUENT AND CORRESPONDING AMENDMENTS TO THE LAW. By the Treaty of Paris, Spain ceded the Philippine Islands to the United States. A logical construction of articles of the Penal Code, like the articles dealing with the crime of piracy, would be that wherever "Spain" is mentioned, it should be substituted by the words "United States" and wherever "Spaniards" are mentioned, the word should be substituted by the expression "citizens of the United States and citizens of the Philippine Islands." Somewhat similar reasoning led this court in the case of United States vs. Smith to give to the word "authority" as found in the Penal Code a limited meaning, which would no longer comprehend all religious, military, and civil officers, but only public officers in the Government of the Philippine Islands. Under the construction above indicated, article 153 of the Penal Code would read as follows:

"The crime of piracy committed against citizens of the United States and citizens of the Philippine Islands, or the subjects of another nation not at war with the United States, shall be punished with a penalty ranging from cadena temporal to cadena perpetua.

"If the crime be committed against nonbelligerent subjects of another nation at war with the United States, it shall be punished with the penalty of presidio mayor."

The crime falls under the first paragraph of article 153 of the Penal Code in relation to article 154. There are present at least two of the circumstances named in the last cited article as authorizing either cadena perpetua or death. The crime of piracy was accompanied by (1) an offense against chastity and (2) the abandonment of persons without apparent means of saving themselves. It is, therefore, only necessary for us to determine as to whether the penalty of cadena perpetua or death should be imposed. In this connection, the trial court, finding present the one aggravating circumstance of nocturnity, and compensating the same by the one mitigating circumstance of lack of instruction provided by article 11, as amended, of the Penal Code, sentenced the accused to life imprisonment. At least three aggravating circumstances, that the wrong done in the commission of the crime was deliberately augmented by causing other wrongs not necessary for its commission, that advantage was taken of superior strength, and that means were employed which added ignominy to the natural effects of the act, must also be taken into consideration in fixing the penalty. Considering, therefore, the number and importance of the qualifying and aggravating circumstances here present, which cannot be offset by the sole mitigating circumstance of lack of instruction, and the horrible nature of the crime committed, it becomes our duty to impose capital punishment.

DISPOSITION:

The vote upon the sentence is unanimous with regard to the propriety of the imposition of the death penalty upon the defendant and appellant Lol-lo (the accused who raped one of the women) but is not unanimous with regard to the defendant and appellant Saraw, since one member of the court, Mr. Justice Romualdez, registers his nonconformity. In accordance with the provisions of Act No. 2726, it results, therefore, that the judgment of the trial court as to the defendant and appellant Saraw is affirmed, and is reversed as to the defendant and appellant Lol-lo, who is found guilty of the crime

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of piracy and is sentenced therefor to be hung until dead, at such time and place as shall be fixed by the judge of first instance of the Twenty-sixth Judicial District. The two appellants together with Kinawalang and Maulanis, defendants in another case, shall indemnify jointly and severally the offended parties in the equivalent of 924 rupees, and shall pay a one-half part of the cost of both instances. So ordered.

George L. Tubb & Wesley Tedrow (petitioners) v. Thomas E. Griess (respondent) GR No. L-1325. Apr. 7, 1047 Nature: Petition for habeas corpus Ponente: Moran, C.J.

1. ARREST & CHARGES. Petitioners, US citizens who are residing in the RP under written contract of employment with the US Army, Manila Engineer Department (MED) as civilian employees, allege that sometime between Jan. 4 & Jan. 13, 1947, as appearing in the “charge sheet” submitted by respondent, the petitioners were apprehended by the authorities of the US Army & have since been held in custody. On Jan. 28, 1947, they were formally charged with violations of Articles of War regarding misappropriation of US Government property destined for military use, said acts having been committed within premises occupied by the US Army under lease contracts.

2. PETITION alleges that petitioners are being unlawfully deprived of their liberty & that Philippine courts have exclusive jurisdiction over their arrest, confinement & imprisonment because (1) they are not persons subject to military laws, & (2) martial law is no longer enforced.

ISSUE: Do Philippine courts have jurisdiction over the petitioners? NO.

RATIO

1. PETITIONERS ARE MILITARY PERSONNEL. In the contract of employment entered into by petitioners with the US Army, it is shown that they voluntarily submitted themselves to US military law while serving said contract, thereby submitting themselves to the full extent of the authority of the US Army in this area. This, coupled with the fact that petitioners are American citizens, makes their position during the subsistence of said contract no different from that of enlisted men, enlistment after all being nothing more than a contract of voluntary service in the armed forces of one’s country. Petitioners then, in relation to the US Army in the Philippines & during the subsistence of their employment contract, can be deemed to possess the status of military personnel.

2. EXEMPTION FROM STATE JURISDICTION. It is a settled principle of International Law (IL) that a foreign army allowed to march through a friendly country or to be stationed in it, by permission of its government or sovereign, is exempt from the civil & criminal jurisdiction of the place. In Raquiza v. Bradford, SC held that “if a foreign army permitted to be stationed in a friendly country, ‘by permission of its government or sovereign,’ is exempt from the civil & criminal jurisdiction of the place, with much more reason should the US Army which is not only permitted by the Commonwealth Government to be stationed here but has come to the islands & stayed in them for the express purpose of liberating them, & further prosecuting the war to a successful conclusion, be exempt from the civil & criminal jurisdiction of this place, at least for the time covered by said agreement of the 2 Governments. By analogy, an attempt of our civil courts to exercise jurisdiction over the US Army before such

period expires, would be considered as a violation of this country’s faith, which the SC should not be the last to keep & uphold. By exercising it, the purpose for which the stationing of the army in the islands was requested or agreed upon may be hampered or prejudiced, & a portion of said military force would be withdrawn from the control of the sovereign to whom they belong. And, again, by analogy, the agreement for the stationing of the US Army or a part of its forces in the Philippines implies a waiver of all jurisdiction over their troops during the time covered by such agreement, & permits the allied general or commander-in-chief to retain that exclusive control & discipline which the government of his army may require.”

3. BASIS is the leading case of The Schooner Exchange vs. McFadden, in which the US SC through CJ Marshall, held that “a third case in which a sovereign is understood to cede a portion of his territorial jurisdiction is, where he allows the troops of a foreign prince to pass through his dominions. In such case, without any express declaration waiving jurisdiction over the army to which this right of passage has been granted, the sovereign who should attempt to exercise it would certainly be considered as violating his faith. By exercising it, the purpose for which the free passage was granted would be defeated, & a portion of the military force of a foreign independent nation would be diverted from those national objects & duties to which it was applicable, & would be withdrawn from the control of the sovereign whose power & whose safety might greatly depend on retaining the exclusive command & disposition of this force. The grant of a free passage therefore implies a waiver of all jurisdiction over the troops during their passage, & permits the foreign general to use that discipline, & to inflict those punishments which the government of his army may require.”

4. TREATIES. Since then, this principle has been consistently embodied in treaties of military character among friendly nations & has been accepted by all the countries of the world. The most authoritative writers on IL concur in this rule:

Wheaton: “A foreign army or fleet, marching through, sailing over, or stationed in the territory of another State, with whom the foreign sovereign to whom they belong is in amity, are also, in like manner, exempt from the civil & criminal jurisdiction of the place.” [Westlake affirms this view] Hall: “Military forces enter the territory of a state in amity with that to which they belong, either when crossing to & fro between the main part of their country & an isolated piece of it, or as allies passing through for the purposes of a campaign, or furnishing garrisons for protection. In cases of the former kind, the passage of soldiers being frequent, it is usual to conclude conventions, specifying the line of road to be followed by them, & regulating their transit so as to make it as little onerous as possible to the population among whom they are. Under such conventions offenses committed by soldiers against the inhabitants are dealt with by the military authorities of the state to which the former belong; & as their general object in other respects is simply regulatory of details, it is not necessary to look upon them as intended in any respect to modify the rights of jurisdiction possessed by the parties to them respectively. There can be no question that the concession of jurisdiction over passing troops to the local authorities would be extremely inconvenient; & it is believed that the commanders, not only of forces in transit through a friendly country with which no convention exists, but also of forces stationed there, assert exclusive jurisdiction in principle in respect of offenses committed by persons under their command, though they may be willing as a matter of concession to hand over culprits to the civil power when they have confidence in the courts, and when their stay is likely to be long enough to allow of the case being watched. The existence of a double jurisdiction in a foreign country being scarcely compatible with the discipline of

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an army, it is evident that there would be some difficulty in carrying out any other arrangement.” Lawrence: ”The universally recognized rule of modern times is that a state must obtain express permission before its troops can pass through the territory of another

may be given as a permanent privilege by treaty for such a purpose

as sending relief to garrisons, or it may be granted as a special favor for the special occasion on which it is asked. The agreement for passage generally contains provisions for the maintenance of order in the force by its own officers, & makes them, & the state in whose service they are, responsible for the good behavior of the soldiers towards the inhabitants. In the absence of special agreement the troops would not be amenable to the local law, but would be under the jurisdiction & control of their own commanders, as long as they remained within their own lines or were away on duty, but not otherwise.” Oppenhein: “Whenever armed forces are on foreign territory in the service of their home State, they are considered exterritorial & remain, therefore, under its jurisdiction. A crime committed on foreign territory by a member of these forces cannot be punished by the local civil or military authorities, but only by the commanding officer of the forces or by other authorities of their home State. This rule, however, applies only in case the crime is committed, either within the place where the force is stationed, or in some place where the criminal was on duty; it does not apply, if, for example, soldiers belonging to a foreign garrison of a fortress leave the rayon of the fortress not on duty but for recreational & pleasure, & then and there commit a crime. The local authorities are in that case competent to punish them.” Hyde: “Strong grounds of convenience & necessity prevent the exercise of jurisdiction over a foreign organized military force which, with the consent of the territorial sovereign, enters its domain. Members of the force who there commit offenses are dealt with by the military or other authorities of the State to whose service they belong, unless the offenders are voluntarily given up.” McNair & Lauterpacht: “It is a principle of IL that the armed forces of one State, when crossing the territory of another friendly country, with the acquiescence of the latter, is not subject to the jurisdiction of the territorial sovereign, but to that of the officers & superior authorities of its own command.” Vattel: “…the grant of passage includes that of every particular thing connected with the passage of troops, & of things without which it would not be practicable; such as the liberty of carrying whatever may be necessary to an army; that of exercising military discipline on the officers & soldiers…”

state

Permission

4. RATIO FOR DISMISSING PETITION. Without applying the recent treaty on military bases concluded between the governments of the Philippines & the US, it having reference to base sites not involved in this case, & considering that a part of the US Army is stationed in the Philippines with permission of our government, & that petitioners who belong to the military personnel of that army are charged with violations of Articles of War for offenses committed in areas under the control of the US Army, thereby giving said army jurisdiction over their person & the offenses charged, petition is dismissed, without costs.

Paras concurs. Perfecto dissents:

FACTS: PETITIONERS. Civilian employees of the US Army MED depot at the North Harbor, Manila were arrested on Jan. 4, 1947, by individuals posing as agents of the CID (Criminal Investigation Division). They claim that: 1) detention for over 1 month with no formal complaint for any specific violation of law filed against them, nor any judicial order

for their commitment issued; 2) they did not commit any offense for which they may be arrested or detained without formal charges or judicial warrant; 4) according to the information, they are detained by the US Army authorities at the North Harbor, at the alleged order of Cap. Griess, Security Officer of the MED; 5) their detention was based on the suspicion of having stolen & disposed of construction materials, explosives, & miscellaneous items belonging to the US Army; 6) they are not persons subject to military laws & only a competent court having jurisdiction in the RP can order their arrest, detention, & imprisonment; & 7) no martial law in the RP, war having been officially terminated as of Dec. 31, 1946, & the RP Constitution being in full force & operation, their detention & confinement are utterly illegal. GRIESS averred that: 1) he, as a US Army officer, per orders issued by his superiors & in his official capacity, has in custody the petitioners against each of whom charges have been filed, which charges are to be tried & heard by a general court martial; 2) petitioners are civilian employees of the US Army in the RP, Tubb under a written contract of employment dated Jan. 30, 1946, clause 26 of which, reads: “The Employee understands he or she is subject to the US Military Law while serving under this agreement,” & Tedrow under a written contract of employment dated July 29, 1946, clause 9 of which, reads: “You are subject to military law wherever it is established by competent authorities”; 3) part of the US Army is stationed in the RP by virtue of US laws, including Joint Resolution No. 93, which provides for the mutual protection of the US & the RP &, petitioners were engaged as civilian employees of said army; 4) all persons serving with the US Army without the territorial jurisdiction of the US are subject to the articles of war of said country; 5) on Jan. 28, 1947, formal charges for violation of the 94 th Article of War were filed against Tubb, & for violation of the 96 th Article of War against Tedrow, & by virtue of such, Griess has custody of petitioners; 6) the place at the North Harbor, where petitioners are in custody is under the US jurisdiction by virtue of duly executed leases dated June 14 & Nov. 14, 1945; 7) petitioners are not confined in any prison or jail but are confined under surveillance of Griess in their living quarters which are situated on the leased premises. During a HEARING on Mar. 7, 1947, Griess’ counsel, accompanied by Griess & 2-star generals of the US Army in uniform, said that the case has been communicated to Washington & that the US Government is interested in its result. Petitioners’ counsel protested against the uncalled-for statement & a Justice stated that the SC shall not allow any outsider to influence it in deciding. This wasn’t mentioned in the decision, despite its clear attempt to jeopardize the authority of the SC. This should not be allowed to pass without a rebuke or more drastic action. The SC, if it is to uphold its dignity & prestige & keep the people’s faith & respect, should not be slow in repressing, correcting, or punishing bullying tactics by a litigant or attorney in a case.

HELD: The petitioners are illegally deprived of their personal freedom &, therefore, are entitled to be immediately released.

RATIO: The commitment in their contracts of employment that they are subject to military law may not repeal the mandates in the Constitution’s Bill of Rights. Fundamental rights are not goods of commerce. They are not proper subjects of contracts. Besides, the commitment can never be construed as a renunciation of their constitutional rights. Military law is not superior nor equal to the supreme law. Constitutional guarantees are intended to protect, not only Filipino citizens, but all human beings within the territory of our Republic, including US citizens &, if need be, even against their own government & army. The fundamental law does not use the word citizens in the Bill of Rights. It invariably uses the word person. Due process of law by which a person may be deprived of his liberty contemplates judicial process. The Bill contemplates judicial process, &

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such can only be had with the intervention of tribunals. Under Art. VIII, judicial power shall be vested in one SC & in such inferior courts as may be established by law. There is no question that petitioners’ fundamental rights, as guaranteed by the RP Constitution, have been flagrantly violated & SC will be recreant in not granting them the expected relief to which they are entitled under the law. SC ERRS. This is 1 more case in which, by majority vote, this SC abdicates its powers, denying the victims of the redress to which they are entitled. Here, the abdication is aggravated by a surrender of the sovereignty of the Filipino people. Without the benefit of ambassadorial negotiations, of senatorial ratifications, or even of a scrap of treaty or convention, the majority accepts & recognizes extra-territoriality, only to wash hands in this case. WRONG BASIS. Since IL has been indiscriminatingly & confusingly misapplied in support of the glaringly erroneous majority opinion in Co Kim Chain v. Valdez Tan Keh & Dizon, many have been misled into imitating the example to the extent of creating a portentous judicial vogue. It seems that one is liable to lose his self-respect if he can not invoke IL once in a while, although to do it he has to hurriedly scratch the surface of the science & oftenly misread his authors, an unavoidable risk in litigations where there is no legal issue between nations. The risk is shown by the hard time endured by supporters of the majority in the Co Kim Chain case to explain their IL pronouncements, which shred petitioner’s counsel in Laurel v. Misa, had invoked as authority in support of the theory of “suspended allegiance.” Inconsistencies are hard to explain. It is even harder if the only reasonable explanation that can be given would exact an honest admission of error. CASE ABOUT PERSONS, NOT STATES. The legal issues revolve on the question of personal freedom of 2 individuals, small civilian employees in the service of the US Army, & who are under the territorial jurisdiction of the RP & under the pale of our Constitution. The case does not raise any question involving any nation or group of nations. That petitioners are US citizens is indifferent. Liberty, as a fundamental human right, is a constitutional issue, & not international. Despite this fact, the real & only issue, the constitutional one, is side-stepped by the majority. IL is used as a bludgeon to blast petitioners’ faith in the inviolability of their constitutional rights. LEGAL FAD. Cheap IL has become a fashion in judicial & legal circles. Under the spell of IL, the sense of legal values has suffered & is enduring a moral disturbance, blurring judicial vision. Swayed by the transient infatuation of the new legal fad, the majority let themselves to be blindfolded by the fulgour of the newly found juridical shibboleth to ignore petitioners’ clamors for the vindication of their constitutional rights, condemning their earnest prayers for relief to the futility of “vox clamantis in diserto.” Such is the glamour of the resounding IL that it was able to drown & obliterate completely humanitarian & lofty tenets stereotyped in the Constitution by the will of the sovereign people. Misunderstood, misinterpreted, misapplied, IL has become a sort of juridical panacea, a universal thesaurus, always at hand for any solution that can be desired in any ticklish litigation, even recognized as endowed with aseity.

ROOT of this awry judicial attitude lies in a glaring misconception of Sec. 3, Art. VIII: “The Philippines renounces war as an instrument of national policy, and adopts the generally accepted principles of international law as part of the law of the Nation.” GUIDELINES. There is the mistaken idea that IL had become part of the Constitution & even superior to the primary principles & fundamental guarantees expressly enunciated therein. To correct such a mistake, remember these basic ideas, that:

1. the declaration that the Philippines “adopts the generally accepted principles of IL as

part of the law of the Nation” is an enunciation of a general national policy but never intended to lay down specific principles, provisions, or rules superior or even equal to the specific mandates & guarantees in the fundamental law.

2. “the generally accepted principles of IL” made part of our statute books are not

placed in a higher legal hierarchy than any other law that Congress may enact.

3. said ‘generally accepted principles of IL” are not fixed and unchangeable but, on the

contrary, may undergo development & amplification, amendment & repeal, that is, the

same biological rules that govern all laws, including the fundamental one.

4. the general statement in the Constitution implies that the principles of IL which

should be considered as part of the law of the nation are subject to determination by the agencies of our government, including courts of justice, & once determined they may be

amended, enlarged or repealed, exactly as any act of Congress.

5. those principles are to be gathered from many sources-treaties & conventions, court

decisions, laws enacted by legislatures, treatises, magazine articles, historical facts & others-& the majority of them must be sifted from conflicting opinions coming from said sources.

6. the provisions of the Constitution should always be held supreme & must always

prevail over any contrary law without exempting principles of IL, no matter how generally or universally they may be accepted. CONSTITUTIONAL RIGHTS. Under the Constitution’s express provisions, petitioners appear to be unconstitutionally deprived of their personal liberty &, so are entitled to be set free. To deny the petition, the majority invoke IL. The hypothesis is wrong because it is expressly based on pronouncements made in Raquiza v. Bradford, which are completely mistaken. Said mistaken pronouncements relied on the opinion of Marshall in The Schooner Exchange case, which, although rendered by one considered to be the greatest US SC luminary, was written long ago, which, from the cultural point of view, despite the inverse difference of years, appears to be millennia behind from our Atomic Age than the Stone Age was from Marshall’s time. But even accepting the validity of Marshall’s opinion, there is nothing in them to support herein majority position, because, while Marshall recognized the jurisdiction of a foreign army passing through another country over their “troops during their passage,” herein majority fails to differentiate petitioners from said “troops,” both parties agreeing that petitioners are civilians, & no one can pretend that Marshall would commit the lexicographical error of including “civilians” among the “troops” of an army. QUOTED WRITINGS INAPPLICABLE. As to:

Wheaton & Westlake, nothing in the case intimates that the SC is asked or is trying to exercise any jurisdiction over the US Army stationed in Manila. Petitioners are neither an army nor a fleet, but mere American civilians. Hall, there is no convention that the majority may invoke, & to accept a conjecture as an authority to set a legal rule is below the level of judicial dignity. Lawrence, petitioners are civilians & cannot be classified as “troops.” Oppenheim, has any one in this case pretended that petitioners are soldiers? Hyde, the words “member” of an “organized military force” can never be understood to include civilians. McNair & Lauterpacht, they deal exclusively with the jurisdiction on “the armed forces” of a foreign country. Civilians are not a part of armed forces. Vattel, petitioners must change to cease being civilians &, through magic, become overnight “officers” or “soldiers,” so the facts can be made to conform to the legal theory intended to be applied by the majority. WRONG INVOCATION. This analysis shows that the pretended principles of IL invoked by the majority happened to be conclusively missing in all of the quotations inserted in their opinion. Only the force of an overpowering autosuggestion can permit reading in those quotations what is not written therein. Proneness to read in the writings of authorities of IL or even in judicial decisions any ruling, principle, or doctrine that may justify the trampling down of the fundamental, Constitutional human rights invoked by

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petitioners, must have been corrected once & for all since June 25, 1945, when the UN Charter was adopted in San Francisco. Since then, principles or rules of IL incompatible or deviating from the principles & ideals enunciated in the Charter must be considered obsolete. UN CHARTER: “to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind, to reaffirm faith in fundamental human rights, in the dignity & worth of the human person, in the equal rights of men & women & of nations large & small, to establish conditions under which justice & respect for the obligations arising from treaties & other sources of IL can be maintained & “to promote social progress & better standards of life in larger freedom.” STATES’ DUTIES. “Fundamental human rights” & “dignity and worth of the human person” form part of the supreme concern of the UN. Neither RP nor US can honorably ignore solemn commitments they entered into as UN members. All government agencies, tribunals & armies, are duty bound to respect, obey & make effective those commitments. The Preamble provides “that armed forces shall not be used, save in common interest,” the latter comprehending the basic purposes of the UN organization, such as “promoting & encouraging respect for human rights & for fundamental freedoms for all without distinction as to race, sex, language, or religion.” NO FEAR. There is absolutely no reason why we should be afraid, reluctant, or hesitant in performing our duty to grant petitioners the legal relief to their illegal & unconstitutional deprivation of personal liberty, because our action may displease the US army or government, or because the US army stationed in Manila may disregard our decision. Justice is one of the paramount concerns & ideals of humanity. We cannot believe that any part of the stationed US army would dare to challenge a final decision of the SC or of any RP court, that any responsible officer or soldier of that great army will ever commit an act that may tarnish the record of brilliant & glorious achievements it accomplished in the battle of the Philippines. That army fought to help us reconquer our freedom from Japanese slavery & to obtain justice against the criminal invasion of our soil, & we cannot believe it will ever do anything to obstruct the efficient functioning of our machinery of justice. DESPITE U.S. INTEREST. But whether the case has been communicated to Washington, or the US Government is interested in its outcome, or the US army may ignore any decision in favor of petitioners, or whatever adverse action may be taken by the all-powerful US, these are considerations that should not stop us from doing our duty in the administration of justice. Only by failing to do so may we merit the sneers of shame, wrath of our people, curse of the present & future generations. MARTIN CASE. On Feb. 10, 1947, the petition in Martin v. Ramos, was summarily dismissed, & a unanimous SC said that the CFI of Ilocos Norte has jurisdiction to try Felipe Martin, a guard in the service of the US Army in Laoag, for killing Pantaleon Tabac while Martin was in the performance of his official duties as a guard. The petition of Lt. Walter T. Bartlett to have Martin delivered to the US Army was denied. MARTIN REVERSED. What is the reason of this change of judicial criterion in 2 month’s time? There is no valid, legal reason. Tribunals enunciate “falsus in unus, falsus in omnibus.” By its inconsistency, is not this SC being placed in the quandary of seeing the logic of that maxim hanging upon it as a sword of Damocles? WHY ABDICATE? We refuse to believe that the fact that respondent, a US Army officer, is vigorously opposing the petition, & that his atty hurled a menacing statement, which has not been met by appropriate action from the SC, has anything to do with the reversal. But apparently stronger reasons than the inapplicable quotations on IL must be adduced to allay all suspicion that judicial supremacy is being abdicated in favor of military omnipotence.

JUDICIAL DUTY. The petition, besides invoking Constitutional guarantees, is an appeal to “broadest human sympathies & understanding.” If, according to President Roxas, judges should respect & apply the law “under all circumstances & never to sacrifice the same for the sake of expediency,” then there is absolutely no reason why petitioners should be denied the protection of the law “par excellence,” the supreme law, the Constitution. Neither the President nor any authority, except the people from whose sovereignty our powers are derived, may take any hand on how this SC is to administer justice, but the standard set in the presidential statement is so basically sound that we do not see any reason why it should not be included in our goals. HUMAN RIGHTS. The effectiveness of legal & constitutional guarantees of human rights is in issue. The majority decided to set at naught that effectiveness. If the law can not afford effective protection to individual rights, where shall we look for that protection? Since its more primitive stages, human society has been able to exist thanks to law as its strongest foundation. The binding force of law unified the members of a family under its head, patriarch or matriarch; grouped families into clans & tribes; created towns & cities; consolidated nations & federations of states. That binding force is the sovereign talisman that will weld all humanity into the unity essential for the attainment of the ideal of One World. NOW HE INVOKES IL!!! Gloomy premonitions, alarms, fears, & despair shall be dispelled once we think than eventually all the countries, nations & peoples of the world will adhere to, abide by, & enforce the principle of singleness of the law as the only means of ensuring world peace. The UN Charter & the Statute of the ICJ are the first steps in the right direction. They are laws intended for the majority of the nations of the earth. We hope that in no distant future will the whole mankind be ruled by the laws enacted by a single world authority, representing the world’s collective conscience. But to attain this ideal we must strengthen faith in the law, in its effectiveness, in its vitalizing social function, in its guarantees of human rights. That faith can not be strengthened by making of the safeguards of the Constitution a mummery. The petition must be granted & so we vote.

HAW PIA v. THE CHINA BANKING CORPORATION (April 9, 1948) Ponente: Feria, J.

QUICK SUMMARY OF THE CASE. Haw Pia mortgaged property to China Banking Corporation (hereinafter CBC) because she was indebted to it through overdraft. Later, Japan sequestered CBC and appointed Bank of Taiwan (hereinafter BOT) as liquidator. She paid BOT and went to court to compel CBC to cancel her mortgage. ISSUE: WON the liquidation was valid. WON BOT was authorized to accept payment. HELD: YES. YES. Confiscation is not allowed under the Hague Regulations. There was no confiscation here but a mere sequestration. Sequestration, along with freezing, blocking and placing under custody are allowable measures used by the occupying power. Thus, there was valid tender of payment to BOT which discharged Haw Pia’s obligation. CBC is ordered to cancel the mortgage and return Haw Pia’s TCT.

IMPORTANT PROVISION IN THIS CASE. Hague Regulations, Section III, on Military Authority over Hostile Territory is a part of the Hague Convention respecting the laws and customs of war on land, and is intended to serve as a general rule of conduct for the belligerents in their relations with each other and with the inhabitants.

IMPORTANT DOCTRINE IN THIS CASE:

[1] belligerent occupant has a right:

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[a]

over both public and private property of enemy

do not amount to a straight confiscation, as [1] freezing, [2] blocking, [3] placing under

[b]

to issue currency

custody, and [4] sequestrating the enemy private property.

[2] definition of the word “enemy.” [3] occupant may sequester/liquidate enemy banks

[4] liquidation is not confiscation

FACTS. On Sep ’39, Haw Pia secured an overdraft account from CBC up to P8k. As guaranty, she mortgaged property under TCT. On Jan ’42, BOT was appointed by the Japanese as liquidator of the “enemy bank” CBC by virtue of Administrative Ordinance No. 11 (AO 11).

Haw Pia made payments to BOT in Japanese military notes. On Sep ’45, she sued CBC and BOT to return her title and cancel the mortgage. Her arguments can be summarized as follows:

[1] the act of liquidation is a confiscation/appropriation of private property which is violative to Article 46, Section III, Hague Regulations of 1907. [2] the payment in Japanese war-notes were valid because they were issued as legal tender at par with the Philippine peso, and guaranteed by Japanese Government which takes full responsibility for their usage having the correct amount to back them up

CBC filed a cross complaint because it did not recognize the payments made by her to BOT.

CFI declared the payments void and ordering her to pay CBC, or else, the property mortgaged will be sold at public auction.

TWO ISSUES. First, WON the Japanese Military Administration had authority to liquidate CBC through BOT. Second, WON payments made to BOTin Japanese military notes discharged Haw Pia from her obligation to CBC.

JAPANESE HAD POWER TO ORDER LIQUIDATION. Because under international law, the occupying power can effect a liquidation that is in the form of a mere sequestration (vs. a confiscation/appropriation). Since it was not possible to cover all circumstances during war, the pertinent provision in Section III, Military Authority over Hostile Territory, Hague Regulations provides that the principle of international law shall result from the “… usages established among civilized peoples, from the laws of humanity, and the dictates of public conscience.” The usage before the Hague Convention in fact allowed confiscation or appropriation.

QUALIFICATIONS ON THE PERMISSIBILITY OF CONFISCATION / APPROPRIATION. First, under Article 46, confiscation of private property by order of the military authorities is prohibited. Second, under Article 47, pillage or stealing and thievery of private property by individuals is prohibited. Third, under Article 53, cash funds, and property liable to requisition and all other movable property belonging to the State susceptible of military use or operation, may be confiscated or taken possession of as a booty and utilized for the benefit of the invader's government

RATIO FOR THE RULE: PREVENTION. In the effort of occupying powers to control enemy property within their jurisdiction in order to avoid their use in aid of the enemy and to increase their own resources, they had to resort to such measures of prevention which

MEASURES OF PREVENTION ARE NOT REPUGNANT TO HAGUE REGULATIONS. This is based on [1] writings of well-known writers on International Law, [2] express authorization granted under the Army and Navy Manual of Military Government and Civil Affairs of US and of other civilized countries, and [3] Trading with the Enemy Acts of the US and other civilized countries.

WELL-KNOWN WRITERS ALLOW MEASURES OF PREVENTION WITHOUT VIOLATING THE HAGUE REGULATIONS. The following writers were considered:

Hyde in his International Law says that a belligerent occupant “may fairly endeavor to prevent enemy property of any kind within its territory (or elsewhere within its reach) from being so employed as to afford direct military aid to its foe. Measures of prevention may, in a particular case, assume a confiscatory aspect. In such a situation the question may arise whether those measures are, nevertheless, excusable. It is believed that they may be, and that they are not invariably unlawful despite the absence of efforts to compensate the owners.”

Oppenheim in his International Law agrees.

Feildchenfeld in his "The International Economic Law of Belligerent Occupation (1942)"

supports the conclusion of Hyde, when he says that "according to Article 46 of the Hague Regulations, private property must be respected and cannot be confiscated. This rule affords protection against the loss of property, through outright confiscation, but not

and

expropriation"

against

losses

under

lawful

requisition,

contribution,

seizure,

fines,

taxes,

Martin Domke in his Trading with the Enemy in World War II, says, “freezing Control is but one phase of the present war effort; it is but one weapon on the total war which is now being waged on both economic and military fronts.

MANUALS ALLOW MEASURES OF PREVENTION WITHOUT VIOLATING THE HAGUE REGULATIONS. The United States Army and Navy Manual of Military Government and Civil Affairs provides that “ in the occupation of such territories for a considerable period of time, the civil affairs officers will in most cases be concerned with the following and other activities: … Closing, if necessary and guarding of banks, bank funds, safe deposit boxes, securities and records; providing interim banking and credit needs; liquidation; reorganization, and reopening of banks at appropriate times…”

TRADING WITH THE ENEMY ACTS ALLOW MEASURES OF PREVENTION WITHOUT VIOLATING THE HAGUE REGULATIONS. Almost all principal nations since WW1 confirms that the assets of enemy corporations, specially banks incorporated under the laws of the country at war with the occupant and doing business in the occupied territory, may be legally sequestrated, and the business thereof wound up or liquidated. Such sequestration of properties is merely a conservation (vs. a confiscation).

Section 12 of the US Trading with the Enemy Act provides that "after the end of the war any claim of enemy or ally of an enemy to any money or other property received and held by the Alien Custodian or deposited in the United States Treasury, shall be settled as Congress shall direct.”

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DEFINITION OF “ENEMY” UNDER TRADING WITH ENEMY ACTS. The following acts by countries provide the definition for an “enemy.” The control-test is used.

[1] Section 2 (1) of the Trading with the Enemy Act of Great Britain – "any body of persons (whether corporate or incorporate) carrying on business in any place, if and so long as the body is controlled by a person who, under this section, is an enemy."

[2] Italian Act regards as enemies "legal persons when enemy subject have any prevalent interests whatever in them."

[3] Section 2-a, Trading with the Enemy Act of the United States – “enemy shall be deemed to mean any corporation incorporated within such territory of any nation with which the United States is at war."

[4] French Act regards as enemies, corporations incorporated in conformity with the laws of an enemy state.

[5] Decree of the Dutch Government-in-exile on June 7, 1940, considers as enemies legal persons "organized or existing according to or governed by the law of an enemy state."

[6] The German Act of January 15, 1940, I section 3 (1) 3, deems enemies all corporations, "the original legal personality of which is based on the laws of an enemy state."

[7] The Italian Act of 1938, section 5, regards corporations as enemies if they are enemy of nationality under the law of the enemy state.

[8] Japanese Act, Chapter 1, No. 25, deems enemies "all corporations belonging to enemy countries."

CBC IS AN ENEMY OF JAPAN. CBC, comes within the meaning of the word "enemy" as used in the Trading with the Enemy Acts of civilized countries, because [1] it was controlled by Japan's enemies, [2] incorporated under the laws of a country with which Japan was at war.

PURPOSE OF SEQUESTRATION. According to the Annual Report of the Office of the Alien Custodian, “in the absence of effective measures of control, enemy-owned property can be used to further the interest of the enemy and to impede [the enemy’s] own war effort. All enemy-controlled assets can be used to finance propaganda, espionage, and sabotage in this country or in countries friendly to [the enemy’s] cause. They can be used to acquire stocks of strategic materials and supplies…”

PRESUMPTIONS IN FAVOR OF JAPAN. It should be presumed that Japan, in sequestrating and liquidating CBC, must have acted in accordance with:

[1] its own Manual of the Army and Navy and Civil Affairs

[2] its own Trading with the Enemy Act; [3] and even if not, it had the right to sequester and liquidate by virtue of the international law principle that "what is permitted to one belligerent is also

Japan is permitted by the

allowed to the other, especially considering that

Allied Nations, specially the US and England, to sequestrate, impound, and

block enemy properties found within their own domain or in enemy territories occupied during the war by their armed forces.

LIQUIDATING WAS NECESSARY. Because with regard to the funds of commercial banks (vs. private personal properties), it was impossible or impracticable to attain the purpose for which the freezing, blocking and impounding are intended, without liquidating the said banks and collecting the loans given by them.

PAYMENT IN JAPANESE MILITARY NOTES DISCHARGED HAW PIA FROM HER OBLIGATION. Because Japan had power to appoint BOT as liquidator with authority to make collection under the general power of Japan to sequester and impound the assets of enemy banks.

Also, payment to BOT was valid because it was authorized to receive payment under Article 1162, of the Civil code.

JAPAN CAN VALIDLY ISSUE MILITARY CURRENCY. This is evidenced by, first, Article 43 of the Hague Regulations recognizing the occupant's general power to maintain law and order

Second, the military necessity as shown by the history of the use of money or currency in wars.As early as the year 1122, during the siege of Tyre, Doge Micheli paid his troops in leather money which he promised to redeem when he returned to Venice. Moving on to WW2, the Germans had been using a variety of occupation currencies as legal tenders on a large scale, the currency initially used in most occupied areas being the Reichskroditkassa mark.

Third, according to the US case Thorington vs. Smith, it is a necessary consequence from the actual supremacy of the insurgent government, as a belligerent, within the territory where it circulated, and from the necessity of civil obedience on the part of all who remained in it, that this currency must be considered

Fourth, Feilchenfeld in his book "The International Economic Law of Belligerent Occupation," says that the occupant in exercising his powers in regard to money and currency, may adopt 3 methods; 1 of which is where the regional currency has become inadequate and it is deemed inadvisable by the occupant to expose his own currency to further strain, new types of money may be created by the occupant.

To be noted is the fact that the coverage of the Philippine Treasury Certificate had become inadequate, for most if not all the said coverage have been taken to the US and many millions of silver pesos were buried or thrown into the sea near Corregidor, and Japan did not want to use her national currency, and expose it to additional strains.

CASES on Sovereign Immunities

REGINA v. BARTLE AND THE COMMISSIONER OF POLICE FOR THE METROPOLIS AND OTHERS EX PARTE PINOCHET REGINA v. EVANS AND ANOTHER AND THE COMMISSIONER OF POLICE FOR THE METROPOLIS AND OTHERS EX PARTE PINOCHET (On Appeal from a Divisional Court of the Queen's Bench Division) (24 March 1999)

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Origin of Case: When the Government of Spain attempted to extradite Senator Augusto Pinochet Duarte from UK to stand trial in Spain for crimes committed (primarily in Chile) during his term as head of state of Chile. 2 Major Issues: 1. whether the Spanish charges constituted "extradition crimes" within the meaning of the Extradition Act of 1989; and 2. whether Pinochet, as a former head of state, was entitled to immunity from arrest and prosecution in the UK for crimes committed while he was Chile’s head of state.

LORD BROWNE-WILKINSON Summary of his judgment: First, he made an account of the legal principles applicable to the case. Then he relayed the facts. The 1 st issue pertained to the relevant date, to determine which of the charges were extraditable and which are not. From a reading of the Extradition Acts of 1870 and 1989, and its travaux preparatoires, he concluded that the relevant date is the conduct date. From there, he determined which of the charges are extraditable and which are not. This was narrowed down to 2 categories: torture and murder. The 2 nd issue was WON Pinochet enjoyed state immunity with respect to these charges. Lord Wilkinson then discussed the evolution of torture from an element of war crimes or hostilities, to an international crime on its own. The Torture Convention then was analysed, and the kind of immunity afforded to a head of state. It was concluded that Pinochet as a former head of state enjoys immunity ratione materiae, but torture as defined under the Torture convention cannot be a public function, hence he does not enjoy immunity with regard to these acts committed after Sept. 29, 1988. He then concluded with a judgment of allowing the appeal so as to permit the extradition proceedings only with respect to certain charges of torture, but declared that, since no one advanced any reason why the ordinary rules of immunity should not apply to murder and conspiracy to murder charges, Pinochet is entitled to such immunity.

Remember:

Torture became a crime in UK on Sept. 29, 1988 under the Criminal Justice Act of 1988, Sec. 134.

Principle of double criminality requires the act to be a crime both under the laws of UK and Spain.

THE FACTS COUP ON 11 September 1973- a right-wing coup evicted the left-wing regime of President Allende. The coup was led by a military junta, of whom then General Pinochet was the leader. At some stage he became head of state.

THE PINOCHET REGIME -September 11, 1973-March 11, 1990 5 NO DISPUTE ON ACTS OF BARBARISM DURING PINOCHET’S REGIME: -committed in Chile and elsewhere in the world: torture, murder and the unexplained disappearance of individuals, all on a large scale. Although it is not alleged that Pinochet himself committed any of those acts, it is alleged that they were done in pursuance of a conspiracy to which he was a party, at his instigation and with his knowledge. He denies these allegations. None of the conduct alleged was committed by or against citizens of the UK or in the UK PINOCHET GOES TO UK IN 1998 for medical treatment. The judicial authorities in Spain sought to extradite him in order to stand trial in Spain on a large number of charges. Some of those charges had links with Spain. But most of the charges had no connection with Spain. Senator Pinochet is seen as an arch-devil by those of left-wing

political convictions and a saviour of Chile by those of right-wing political convictions. TASK OF THE HOUSE: to decide on 2 questions of law:

1. are there any extradition crimes; and,

2. if so, is Pinochet immune from trial for committing those crimes.

OUTLINE OF THE LAW In general, a state only exercises criminal jurisdiction over offences which occur within its geographical boundaries. If a person who is alleged to have committed a crime in Spain is found in the UK, Spain can apply to the UK to extradite him to Spain. The power to extradite from the UK for an "extradition crime" is now contained in the Extradition Act 1989. 4

THE DOUBLE CRIMINALITY RULE -most important requirement in this case, whereby the conduct complained of must constitute a crime under the law both of Spain and of the UK. Since the Nazi atrocities and the Nuremberg trials, IL has recognised a number of offences as being international crimes. Individual states have taken jurisdiction to try some international crimes even in cases where such crimes were not committed within the geographical boundaries of such states. The most important of such international crimes for present purposes is torture which is regulated by the International Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, 1984. The obligations placed on the UK by that Convention (and on the other 110 or more signatory states who have adopted the Convention) were incorporated into the law of the UK on Sept. 29, 1988. As required by the Torture Convention "all" torture wherever committed world-wide was made criminal under UK law and triable in the UK.

4 defines what constitutes an “extradition crime", and which will be referred to as the “extradition act” or “ the Act” or “Act of 1989”

If there are no extradition crimes, then there is no legal right to extradite Pinochet to Spain, or stand in his way to return to Chile. If there are extradition crimes in relation to which Senator Pinochet is not entitled to state immunity then it will be open to the Home Secretary to extradite him.

Sequence of events from the 1 st warrant to the appeal to this House:

16 October 1998 -an international warrant for the arrest of Pinochet was issued in

Spain. -a magistrate in London issued a provisional warrant ("the 1 st warrant") under Sec. 8 of the Extradition Act 1989.

17

October 1998 -He was arrested in a London hospital on.

18

October 1998 -the Spanish authorities issued a 2 nd international warrant.

22

October 1998 -A further provisional warrant ("the second warrant") was issued by the

magistrate at Bow Street Magistrates Court, accusing Senator Pinochet of:

"(1) Between 1 January 1988 and December 1992 being a public official intentionally inflicted severe pain or suffering on another in the performance or purported performance of his official duties;

5 When Pinochet resigned

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(2) Between the 1 January 1988 and 31 December 1992 being a public official, conspired with persons unknown to intentionally inflict severe pain or suffering on another in the performance or purported performance of his official duties; (3) Between the 1 January 1982 and 31 January 1992 he detained other persons (the hostages) and in order to compel such persons to do or to abstain from doing any act threatened to kill, injure or continue to detain the hostages; (4) Between the 1 January 1982 and 31 January 1992 conspired with persons unknown to detain other persons (the hostages) and in order to compel such persons to do or to abstain from doing any act, threatened to kill, injure or continue to detain the hostages; (5) Between January 1976 and December 1992 conspired together with persons unknown to commit murder in a Convention country."

PINOCHET’S DEFENSE:

-Filed for habeas corpus and leave to move for judicial review of both warrants. -Arguments:

1. that certain crimes alleged were not “extradition crimes” within the

meaning of the Extradition act because they were not crimes under the UK law when

they were committed.

2. although torture was contrary to IL it was not strictly an international crime

in the highest sense 6 . -Other Arguments: 7

1. that if the Torture Convention sought to remove immunity ratione

materiae for torture, then there would be some discussion on that during the negotiations leading to the treaty.

2. (Chile’s) That though the use of torture by state authorities was prohibited

by IL, with the character of jus cogens or obligation erga omnes, this does not confer universal jurisdiction or affect the immunity of a former head of state ratione materiae

from the jurisdiction of foreign national courts.

3. (Pinochet & Chile) Sec. 20 of the State Immunity Act as amended entitles

Pinochet to immunity in respect of any acts committed in the performance of his functions as head of state anywhere in the world, and that the conduct which forms the subject matter of the extradition proceedings, insofar as it occurred when Senator Pinochet was head of state, consisted of acts committed by him in performance of his functions as head of state.

DIVISIONAL COURT on 28 October 1998 8 quashed both warrants. The 2nd warrant was quashed on the grounds that Pinochet, as former head of state, was entitled to state immunity. The Lord Chief Justice held that, in order to be an extradition crime, it was not necessary that the conduct should be criminal at the date of the conduct relied upon but only at the date of request for extradition. 9

6 suggested by Ms. Montgomery for Senator Pinochet

7 discussed in the other opinions

8 Hereinafter referred to as “DC” -Lord Bingham of Cornhill C.J., Collins and Richards JJ.

9 "I would however add on the retrospectivity point that the conduct alleged against the subject of the request need not in my judgment have been criminal here at the time the alleged crime was committed abroad. There is nothing in section 2 which so provides. What is necessary is that at the time of the extradition request the offence should be a criminal offence here and that it should then be punishable with 12 months

SPAIN FORMALLY REQUESTS FOR EXTRADITION- 4 November 1998-This formal request greatly expanded the list of crimes alleged in the 2 nd provisional warrant so as to allege a widespread conspiracy to take over the Government of Chile by a coup and thereafter to reduce the country to submission by committing genocide, murder, torture and the taking of hostages, such conduct taking place primarily in Chile but also elsewhere. SPAIN APPEALS: The Crown Prosecution Service (CPS), on behalf of the Government of Spain appealed to this House. Though the 1 st warrant’s quashal was not appealed. DC CERTIFIES THE POINT OF LAW OF GENERAL IMPORTANCE: “The proper interpretation and scope of the immunity enjoyed by a former head of state from arrest and extradition proceedings in the United Kingdom in respect of acts committed while he was head of state." 1 ST HEARING OF THE APPEAL IN THE HOUSE-between November 4 and 12, 1998- The Committee heard submissions by counsel for the CPS as appellants (on behalf of Spain), Senator Pinochet, Amnesty International as interveners and an independent amicus curiae. Written submissions were also entertained from Human Rights Watch. That Committee entertained argument based on the extended scope of the case as put forward in the Request for Extradition. It was conceded that all matters charged against Senator Pinochet were extradition crimes. APPEAL WAS ALLOWED IN THE JUDGMENT-25 November 1998 appeal was allowed by a majority 10 on the grounds that Senator Pinochet was not entitled to immunity in relation to crimes under IL. NOVEMBER JUDGMENT SET ASIDE ON 15 January 1999 on the grounds that the Committee was not properly constituted:

REHEARING OF THE APPEAL ON 18 January 1999 –Positions changed again.

1. the Home Secretary had issued to the magistrate authority to proceed under Sec.

7 of the Extradition Act. In deciding to permit the extradition to Spain to go ahead he relied in part on the decision of this House at the first hearing that Senator Pinochet was

not entitled to immunity. He did not authorise the extradition proceedings to go ahead on the charge of genocide: accordingly no further arguments were addressed to us on the charge of genocide which has dropped out of the case.

2. the Republic of Chile applied to intervene as a party. Up to this point Chile had

been urging that immunity should be afforded to Senator Pinochet, but it now wished to

be joined as a party. Any immunity precluding criminal charges against Senator Pinochet is the immunity not of Senator Pinochet but of the Republic of Chile. Leave to intervene was therefore given to the Republic of Chile. The same amicus, Mr. Lloyd Jones, was heard as at the first hearing as were counsel for Amnesty International. Written representations were again put in on behalf of Human Rights Watch.

3. the ambit of the charges against Pinochet had widened again. Chile had put in

further particulars of the charges which they wished to advance. In order to try to bring

some order to the proceedings, Mr. Alun Jones Q.C., for the CPS, prepared a schedule of the 32 UK criminal charges which correspond to the allegations made against Pinochet under Spanish law, save that the genocide charges are omitted. The charges in that schedule are fully analysed and considered in the speech of my noble and learned friend, Lord Hope of Craighead who summarises the charges as follows:

imprisonment or more. Otherwise section 2(1)(a) would have referred to conduct which would at the relevant time 'have constituted' an offence and section 2(3)(c) would have said 'would have constituted'. I therefore reject this argument." 10 Lord Nicholls of Birkenhead, Lord Steyn and Lord Hoffmann, Lord Slynn of Hadley and Lord Lloyd of Berwick dissenting

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Charge #

Conduct charged

Date of conduct 11 (between or on)

 

1, 2 & 5

conspiracy to torture

Jan.

1, 1972 & Sept. 20,

1973

and

Aug. 1,

1973 & Jan.

1,

1990

3

conspiracy to take hostages

Aug. 1,

1973 & Jan.

1,

1990

4

conspiracy to torture in furtherance of which murder was committed in various countries including Italy, France, Spain and Portugal,

Jan.

1, 1972

& Jan.

1,

1990

6

& 8

torture

Aug. 1,

1973 & Aug.

8

 

1973

and

on Sept. 11, 1973

 

9

& 12

conspiracy to murder in Spain

Jan.

1, 1975

& Dec.

31,

 

1976

conspiracy to commit murder in Italy

on Oct. 6, 1975

 

10 & 11

attempted murder in Italy

on Oct. 6, 1975

 

13-29;

&

torture on various occasions

Sept.

11,

1973

&

May

31-32

1977

30

torture

on June 24, 1989

 

1 st ISSUE: 12 What does the Double Criminality Rule (DCR) require? For the act to be a crime under both laws

1. at the date it was committed (conduct date)? or

2. act to be a crime under both laws at the date of extradition (request date)?

Coz if only at the date of extradition, then the DCR was satisfied even if the acts took place before 1988. The Spanish courts have held that they have jurisdiction over all the crimes alleged. To answer the question, it must be determined whether or not the definition of an "extradition crime" in the Act of 1989 requires the conduct to be criminal under UK law at the date of commission (conduct date) or only at the date of extradition (request date). 13

11 If dates are (for ex.) Jan. 1, 1972 & Jan 1, 1973, read as: “between Jan. 1, 1972 & Jan. 1,

1973”

12 Answer is conduct date

13 Lord Browne-Wilkinson’s view:

1. only a limited number of the charges relied upon to extradite Senator Pinochet constitute extradition crimes since most occurred long before 1988.

2. torture committed outside the UK before 29 September 1988 was not a crime under UK law.

3. Question of state immunity remains a point of crucial importance since, there is certain conduct of Senator Pinochet (albeit a small amount) which does constitute

EXTRADITION CRIMES -From Lord Wilkinson’s understanding (from the 1 st hearing), the CPS did not seek to rely on any conduct of Senator Pinochet occurring before Sept. 11, 1973 (the date on which the coup occurred) or after March 11, 1990 (the date when Pinochet retired as head of state).

-If Pinochet was entitled to state immunity, then such immunity covered the whole period of the alleged crimes.

-at the 2 nd hearing however, the CPS extended the period during which the crimes were said to have been committed. 14 Hence, Pinochet’s counsel revived the argument that certain charges, particularly those relating to torture and conspiracy to torture were not “extradition crimes” because they were not crimes under the UK law at the time they were committed. -This point could no longer be confined to the period before Pinochet became head of state. -If the DCR requires the conduct to be a crime under the law of UK at the time it was committed, then any charge based on torture or conspiracy to torture occurring before September 29, 1988 could not be an "extradition crime" and therefore could not in any event found an extradition order against Pinochet.

Extradition Act of 1989 Sections 1 and 2

Sec. 1(1) says that a person who is accused of an "extradition crime" may be arrested and returned to the state which has requested extradition.

Sec. 2 defines "extradition crime" so far as relevant as follows:

1. In this Act, except in Schedule 1, 'extradition crime' means - (a) conduct in the territory of a foreign state, a designated Commonwealth country or a colony which, if it occurred in the UK, would constitute an offence punishable with imprisonment for a term of 12 months, or any greater punishment, and which, however described in the law of the foreign state, Commonwealth country or colony, is so punishable under that law; (b) an extra-territorial offence against the law of a foreign state, designated Commonwealth country or colony which is punishable under that law with imprisonment for a term of 12 months, or any greater punishment, and which satisfies - i. the condition specified in subsection (2) below; or ii. all the conditions specified in subsection (3) below.

2. The condition mentioned in subsection (1)(b)(i) above is that in corresponding circumstances equivalent conduct would constitute an extra-territorial offence against the law of the UK punishable with imprisonment for a term of 12 months, or any greater punishment.

3. The conditions mentioned in subsection (1)(b)(ii) above are -

an extradition crime and would enable the Home Secretary (if he thought fit) to extradite Senator Pinochet to Spain unless he is entitled to state immunity. 14 for example, see charges 1 and 4 where the conspiracies are said to have started on 1 January 1972, i.e. at a time before Pinochet was head of state and therefore could be entitled to immunity.

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(a) that the foreign state, Commonwealth country or colony bases its jurisdiction on the nationality of the offender; (b) that the conduct constituting the offence occurred outside the UK; and (c) that, if it occurred in the UK, it would constitute an offence under the law of the UK punishable with imprisonment for a term of 12 months, or any greater punishment."

Q is: whether the references to conduct "which, if it occurred in the UK, would constitute an offence" 15 refer to:

1. a hypothetical occurrence which took place at the date of the request for

extradition ("the request date"); or

2. the date of the actual conduct ("the conduct date").

Request date v. Conduct date

DC Lord Chief Justice

Request date

Lord Lloyd 16

Agreed with the DC Lord CJ in the 1 st hearing

 

Lord Browne-

-The words "if it occurred

would constitute"

in Sec.

2 can

be

Wilkinson

interpreted in 2 ways if read in isolation:

 

1. refer to the request date (hypothetical event happening

now); or

2. to the conduct date (a past hypothetical event)

-The right construction is not clear. The word "it" in the phrase "if it

occurred

." is a reference back to the actual conduct of the

individual abroad which, by definition, is a past event. Hence, what is relevant is WON that “past event” constitute an offense under the law of UK at the time the offense was committed.

under the law of UK at the time the offense was committed. - THE RELEVANT DATE

-THE RELEVANT DATE is THE CONDUCT DATE. It is not correct to construe these words in isolation and the submissions strongly indicate the relevant date to be the conduct date.

-The Starting point is the Extradition Act of 1989 which has 3 types of extradition

EXTRADITION ACT OF 1989 3 types of extradition and Lord Browne-Wilkinson’s judgment on it

type of extradition

Lord Browne Wilkinson

1 st type of extradition -extradition to a Commonwealth country, to a colony or to a foreign country which is not a party to the European Convention on Extradition.

This class of case is Regulated by Part III

-these provisions clearly indicate that the

15 In Secs. 2(1)(a) and (3)(c)

indicate that the 1 5 In Secs. 2(1)(a) and (3)(c) of the Act: Sec. 7(2)(b) -requires
indicate that the 1 5 In Secs. 2(1)(a) and (3)(c) of the Act: Sec. 7(2)(b) -requires
indicate that the 1 5 In Secs. 2(1)(a) and (3)(c) of the Act: Sec. 7(2)(b) -requires
indicate that the 1 5 In Secs. 2(1)(a) and (3)(c) of the Act: Sec. 7(2)(b) -requires
indicate that the 1 5 In Secs. 2(1)(a) and (3)(c) of the Act: Sec. 7(2)(b) -requires
indicate that the 1 5 In Secs. 2(1)(a) and (3)(c) of the Act: Sec. 7(2)(b) -requires

of the Act:

Sec. 7(2)(b) -requires the extra-dition request to be accompanied by evidence sufficient to justify arrest

Sec. 7(5) -The Secretary of State then issues his authority to proceed which has to specify the offences under UK law which "would be constituted by equivalent conduct in the UK"

given

power to issue a warrant of arrest if he is supplied with such evidence "as would in his opinion justify the issue of a warrant for the arrest of a person accused"

Sec. 8(3) - the magistrate

is

Sec. 9(8) -The committal court then has to consider, amongst other things, whether "the evidence would be sufficient to warrant his trial if the extradition crime had taken place within jurisdiction of the court"

crime had taken place within jurisdiction of the court" 23 conduct must be criminal under UK

23

had taken place within jurisdiction of the court" 23 conduct must be criminal under UK law

conduct must be criminal under UK law at the conduct date and not only at the request date.

-The whole process of arrest and committal leads to a position where under section 9(8) the magistrate has to be satisfied that, under the UK law, if the conduct "had occurred" the evidence was sufficient to warrant his trial-which is a clear reference to the position of “conduct date”.

-Moreover, it is compelling that the evidence which the magistrate has to consider has to be sufficient "to warrant his trial". Here what is under consideration is not an abstract concept whether a hypothetical case is criminal but of a hard practical matter--would this case in relation to this defendant be properly committed for trial if the conduct in question had happened in the UK? The answer to that question must be "no" unless at that date the conduct was criminal under the law of the UK.

that date the conduct was criminal under the law of the UK. 2 n d type
that date the conduct was criminal under the law of the UK. 2 n d type

2 nd type of extradition -where extradition is sought by a foreign state which, like Spain, is a party to the European Extradition Convention.

Requirements in this type are the same as those in the 1 st type except that the requesting state does not have to present evidence to provide the basis on which the magistrate can make his order to commit. The requesting state merely supplies the information.

-this provides no ground for distinguishing Convention cases from the first class of case.

-The double criminality requirement must be the same in both classes of case.

requirement must be the same in both classes of case. 3 r d type of extradition
requirement must be the same in both classes of case. 3 r d type of extradition
requirement must be the same in both classes of case. 3 r d type of extradition

3 rd type of extradition consists of those cases where there is an Order in Council in force under the Extradition Act 1870

-This type is regulated by Schedule I to the Act, which contains, in effect, the relevant provisions of the Act of 1870, which subject to substantial amendments had been in force down to the passing of the Act of

1989.

-The scheme of the Act of 1870 was to define "extradition crime" as meaning "a crime which, if committed in England

of the Act of 1870 was to define "extradition crime" as meaning "a crime which, if

16 who was the only member of the Committee to express a view on this point at the first hearing: He said: "But I agree with the DC that this argument is bad. It involves a misunderstanding of Sec. 2 of the Extradition Act 1989. Section 2(1)(a) refers to conduct which would constitute an offence in the UK now. It does not refer to conduct which would have constituted an offence then."

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24

would be one of the crimes described in the 1 st schedule to this Act" (sec. 26) -The 1 st schedule to the Act of 1870 contains a list of crimes and is headed:

 

2. 4- conspiracy to torture

3. 30- single act of torture

4. 9-conspiracy to murder in Spain

5. Such conspiracies in Spain to commit murder in Spain

"The following list of crimes is to be

-It is therefore quite clear from the words emphasised that under the Act of 1870 the DCR required the conduct to be criminal under English law at the conduct date, not at the request date.

6. Such conspiracies in Spain prior to Sept. 29, 1988, to commit acts of

construed according to the law existing in

torture in Spain (part of Charge 4) 2 nd ISSUE: WON PINOCHET ENJOYS SOVEREIGN IMMUNITY IN RELATION TO THESE 2 SURVIVING CATEGORIES OF CHARGE: TORTURE AND MURDER MODERN LAW OF TORTURE -Apart from the law of piracy, the concept of personal liability under IL for international crimes is of comparatively modern growth. -The traditional subjects of IL are states, not human beings. -After the war crime trials after the 1939-45 WW, the international community came to recognise that there could be criminal liability under IL for a class of crimes such as war crimes and crimes against humanity. -Doubts as to the legality of the Charter of the Nuremberg Tribunal, in my judgment, were stilled by the Affirmation of the Principles of International Law recognised by the Charter of Nuremberg Tribunal adopted by the United Nations General Assembly on 11 December 1946. That Affirmation affirmed the principles of IL recognised by the Charter of the Nuremberg Tribunal and the judgment of the Tribunal and directed the Committee on the codification of IL to treat as a matter of primary importance plans for the formulation of the principles recognised in the Charter of the Nuremberg Tribunal.

-At least from that date onwards the concept of personal liability for a crime in IL must have been part of IL.

England .

.

.

at the date of the alleged

crime,

whether

by

common

law

or

by

statute made before or after the passing of this Act."

-Act of 1989, Schedule 1, par. 20:

 

"'extradition crime', in relation to any foreign state, is to be construed by reference to the Order in Council under Sec. 2 of the Extradition Act 1870 applying to that state as it had effect immediately before the coming into force of this Act and to any amendments thereafter made to that Order;"

-Hence, in this 3 rd type, regulated by Schedule 1, the same position applies as

formerly did under the Act of 1870, i.e. the conduct date.

it

-It would be extraordinary for one Act to require different dates for different types of extradition

 

-a trawl of the travaux preparatoires relating to the Extradition Convention and the departmental papers leading to the Act of 1989 show that they were silent as to the relevant date and that there was no discussion as to changing the date on which criminality under English law was to be demonstrated.

-It seems impossible that the legislature would have intended to change the relevant date it had applied for over a hundred years (under the Act of 1870) by

-TORTURE FROM BEING LINKED TO WAR OR HOSTILITIES TO AN INTERNATIONAL CRIME ON ITS OWN. –In the early years, state torture was one of the elements of war crime, hence, torture and various other crimes against humanity, were linked to war or at least to hostilities of some kind. -In the course of time, this linkage with war fell away and torture became an international crime on its own 17

a

side wind and without investigation.

THE CHARGES WHICH ALLEGE EXTRADITION CRIMES -Lord Hope’s speech considered the consequences of requiring torture to be a crime under UK law at the conduct date, hence -Charges which are not extraditable:

1. the charges of torture and conspiracy to torture relating to conduct before Sept. 29, 1988 are not extraditable, 2. Charge 3-conspiracy to take hostages, does not disclose any offense under the Taking of Hostages Act of 1982. Sec. 1 of the law consists of taking and detaining a person (the hostage), so as to compel someone who is not the hostage to do or abstain from doing some act. The charge alleges that the hostages was to be forced

to do something by reason of threats to injure non-hostages-which is the exact converse of the offense, hence not an extradition crime. -Charges which are the only extradition crimes:

1. 2- conspiracy to torture

-THE IL PROHIBITING TORTURE HAS THE CHARACTER OF JUS COGENS OR A PEREMPTORY NORM, i.e. one of those rules of IL which have a particular status. This was accepted by the Republic of Chile. "Because of the importance of the values it protects, [the prohibition of torture] has evolved into a peremptory norm or jus cogens, that is, a norm that enjoys a higher rank in the international hierarchy than treaty law and even 'ordinary' customary rules. The most conspicuous consequence of this higher rank is that the principle at issue cannot be derogated from by states through international treaties or local or special customs or even general customary rules

Clearly, the jus cogens nature of

the prohibition against torture articulates the notion that the prohibition has now

not endowed with the same normative

17 see Oppenheim's International Law (Jennings and Watts edition) vol. 1, 996; note 6 to Article 18 of the I.L.C. Draft Code of Crimes Against Peace; Prosecutor v. Furundzija Tribunal for Former Yugoslavia, Case No. 17-95-17/1-T. Ever since 1945, torture on a large scale has featured as one of the crimes against humanity: see, for example, U.N. General Assembly Resolutions 3059, 3452 and 3453 passed in 1973 and 1975; Statutes of the International Criminal Tribunals for former Yugoslavia (Article 5) and Rwanda (Article 3).

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25

 

become one of the most fundamental standards of the international community. Furthermore, this prohibition is designed to produce a deterrent effect, in that it signals to all members of the international community and the individuals over whom they wield authority that the prohibition of torture is an absolute value from which nobody must deviate." 18

-UNIVERSAL JURISDICTION OVER TORTURE IS JUSTIFIED BY ITS JUS COGENS NATURE -IL provides that offences jus cogens may be punished by any state because the offenders are "common enemies of all mankind and all nations have an equal interest in their apprehension and prosecution" 19 -STATE TORTURE WAS AN INTERNATIONAL CRIME IN THE HIGHEST SENSE, long before the Torture Convention of 1984 (in light of the authorities) -But there was no tribunal or court to punish international crimes of torture. Local courts could take jurisdiction 20

Art. 2

(1) Each state party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction.

(2) No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.

(3) outlaws any defence of superior orders

Art. 3

precludes refoulement of persons to another state where there are substantial grounds for believing that he would be in danger of being subjected to torture

Art. 4

requires each state party to ensure that "all" acts of torture are offences under its criminal law

 

Art. 5

(1) each state party has to establish its jurisdiction over torture

 

-But the objective was to ensure a general jurisdiction so that the torturer was not safe wherever he went. For example, in this case it is alleged that during the Pinochet regime torture was an official, although unacknowledged, weapon of government and that, when the regime was about to end, it passed legislation designed to afford an amnesty to those who had engaged in institutionalised torture. If these allegations are true, the fact that the local court had jurisdiction to deal with the international crime of torture was nothing to the point so long as the totalitarian regime remained in power: a totalitarian regime will not permit adjudication by its own courts on its own shortcomings. Hence the demand for some international machinery to repress state torture which is not dependent upon the local courts where the torture was committed.

(jurisdiction)

 

(a)

when committed within territory under its jurisdiction

(b)

when the alleged offender is a national of that state, and

(c)

in certain circumstances, when the victim is a national of that

state.

(2) a state party has to take jurisdiction over any alleged offender who is found within its territory.

Art. 6

contains provisions for a state in whose territory an alleged torturer is found to detain him, inquire into the position and notify the states referred to in Art. 5(1) and to indicate whether it intends to exercise jurisdiction

 

Art. 7

(exercise of

 
 

The Torture Convention of 1984

(1) The state party in territory under whose jurisdiction a person alleged to have committed any offence referred to in Article 4 is found, shall in the cases contemplated in Article 5, if it does not extradite him, submit the case to its competent authorities for the purpose of prosecution.

 

Over 110 states (including Chile, Spain and UK) became state parties to the Torture Convention. But it is far from clear that none of them practised state torture. What was needed therefore was an international system which could punish those who were guilty of torture and which did not permit the evasion of punishment by the torturer moving from one state to another. The Torture Convention was agreed not in order to create an international crime which had not previously existed but to provide an international system under which the international criminal-the torturer -could find no safe haven. 21

jurisdiction)

Art. 8

(1) torture is to be treated as an extraditable offence

 

(4) torture shall, for the purposes of extradition, be treated as having been committed not only in the place where it occurred but also in the state mentioned in Art. 5(1)

 

Universal

 
   

-There was argument on the extent of jurisdiction to prosecute torturers conferred on states other than those mentioned in Art. 5(1), I think it is enough that it is clear that in all circumstances, if the Art. 5(1) states do not choose to seek extradition or to prosecute the offender, other states must do so.

Art. 1

defines torture as the intentional infliction of severe pain and of suffering with a view to achieving a wide range of purposes "when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity."

Jurisdiction

 

-PURPOSE OF THE CONVENTION -to introduce the principle aut dedere aut punire--either you extradite or you punish.

18 The Tribunal in Furundzija at para. 153

19 Demjanjuk v. Petrovsky (1985) 603 F. Supp. 1468; 776 F. 2d. 571.

-NO MORE OBJECTIONS TO THE AUT DEDERE AUT PUNIRE PRINCIPLE. Some states wished to make the exercise of jurisdiction in

Art. 5(2) dependent upon the state assuming jurisdiction having refused

20 :see Demjanjuk (supra); Attorney-General of Israel v. Eichmann (1962) 36 I.L.R.S.

extradition to an Art. 5(1) state.

The objections were withdrawn in the

21

session of 1984: "The inclusion of universal jurisdiction in the draft Convention was no longer opposed by any delegation.” 22 If there is no

Burgers and Danelius (respectively the chairman of the UN Working Group on the 1984 Torture Convention and the draftsmen of its first draft) say, at p. 131, that it was "an essential purpose [of the Convention] to ensure that a torturer does not escape the consequences of his act by going to another country."

22 Working Group on the Draft Convention U.N. Doc. E/CN. 4/1984/72, para. 26

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26

   
 

prosecution by, or extradition to, an Art. 5(1) state, the state where the alleged offender is found (which will have already taken him into custody under Art. 6) must exercise the jurisdiction under Art. 5(2) by prosecuting him under Art. 7(1).

 

2 kinds of immunities:

 

RATIONE PERSONAE

RATIONE MATERIAE 24 Of the Ambassador Under the Vienna Convention

 
 

1. WON the acts of the head of state are done by “a public official or a person acting in an official capacity” within the meaning of Art. 1 (yes) -this is also the question which arises under Sec. 134 of the Criminal Justice Act of 1988

 

Immunity of Head of state:

 

- State immunity probably grew from the historical immunity of the person of the monarch. In any event, such personal immunity of the head of state persists to the present day: the head of state is entitled to the same immunity as the state itself.

 

Views on WON a head of state is a public official or acting in official capacity

Immunity of Ambassadors The Vienna Convention on Diplomatic Relations, 1961 25 covers the immunity of the Ambassador. It provides that:

Republic

of

accepted that the acts alleged against Senator Pinochet, if proved, were acts done by a public official or person acting in an official capacity within the meaning of Art. 1.

Chile

and

the Ambassador shall enjoy his immunity and privileges from the moment he takes up post.

After his post is over, he shall still enjoy these privileges and immunity until he leaves the country or on expiry of a reasonable period in which to do so, but shall subsist until that time, even in case of armed conflict.

He shall continue to enjoy immunity with respect to acts performed in the exercise of his functions (Art. 39(2);limited immunity; ratione materiae).

Senator

Pinochet (during

 

the argument)

 

Lord Slynn, (in his judg-ment in the 1 st hearing)

held that a head of state was neither a public official nor a person acting in an official capacity within the meaning of Art. 1: he pointed out that there are a number of international conventions 23 which refer specifically to heads of state when they intend to render them liable.

Lord Lloyd

 

thought that a head of state who was a torturer could be prosecuted in his own country, a view which could not be correct unless such head of state had conducted himself as a public official or in an official capacity.

 

-Basic Principle Of IL that one sovereign

state (the forum state) does not adjudicate on the conduct of a foreign state.

-the immunities and privileges the Ambassador enjoyed ceases the moment he leaves the country after his post. However in order to preserve the integrity of the activities of the foreign state during the period when he was ambassador, it is necessary to provide that immunity is afforded to his official acts during his tenure in post. If this were not done the sovereign immunity of the state could be evaded by calling in question acts done during the previous ambassador's time.

Lord

Browne-

-Unless a head of state authorising or promoting torture is an official or acting in an official capacity within Art. 1, then he would not be guilty of the international crime of torture even within his own state. -That would run completely contrary to the intention of the Convention if there was anybody who could be exempt from guilt. -Senator Pinochet plainly falls within the definition in Art. 1

Wilkinson

   

IMPORTANT POINTS FROM THE TORTURE CONVENTION:

-The foreign state is entitled to procedural immunity from the processes of the forum

-This

continuing

partial

immunity

is

different

from

that

enjoyed

ratione

1) Torture within the meaning of the Convention can only be committed by "a public official or other person acting in an official capacity", but these words include a head of state. A single act of official torture is "torture" within the Convention; 2) Superior orders provide no defence; 3) If the states with the most obvious jurisdiction (the Art. 5(1) states) do not seek to extradite, the state where the alleged torturer is found must prosecute or, apparently, extradite to another country, i.e. there is universal jurisdiction. 4) There is no express provision dealing with state immunity of heads of state, ambassadors or other officials. 5) Since Chile, Spain and the United Kingdom are all parties to the Convention, they are bound under treaty by its provisions whether or not such provisions would apply in the absence of treaty obligation. Chile ratified the Convention with effect from 30 October 1988 and the United Kingdom with effect from 8 December 1988.

2. The crucial question is WON Pinochet enjoys immunity. (Yes, immunity ratione materiae)

23 for example the Yugoslav War Crimes Statute and the Rwanda War Crimes Statute

24 immunity by reason of the subject-matter; attaches to the official acts of every acting or former State organ 25 Art. 29- immunity from arrest Art. 31- immunity from criminal and civil jurisdiction Art. 39 (1)- the ambassador's privileges shall be enjoyed from the moment he takes up post

(2) “When the functions of a person enjoying privileges and immunities have come to an end, such privileges and immunities shall normally cease at the moment when he leaves the country, or on expiry of a reasonable period in which to do so, but shall subsist until that time, even in case of armed conflict. However, with respect to acts performed by such a person in the exercise of his functions as a member of the mission, immunity shall continue to subsist."

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27

state. -This immunity extends to both criminal and civil liability.

personae while he was still in post.

-PARLIAMENTARY HISTORY DISCLOSES NO CLEAR INDICATION OF WHAT WAS INTENDED. The original section read: “a sovereign or other head of state who is in the UK at the invitation or with the consent of the Government of the UK." –this would have been intelligible but it was amended because the mover (of the amendment) said that the clause as introduced "leaves an unsatisfactory doubt about the position of heads of state who are not in the UK”; that the amendment was to ensure that heads of state would be treated like heads of diplomatic missions "irrespective of presence in the UK."

-The head of state is entitled to the same immunity as the state itself. -The diplomatic representative of the foreign state in the forum state is also afforded the same immunity in recognition of the dignity of the state which he represents.

-Since he no longer represents his state, he merits no particular privileges or immunities as a person.

-But this does not matter since Parliament cannot have intended to give heads of state and former heads of state greater rights than they already enjoyed under IL. Accordingly, "the necessary modifications" which need to be made will produce the

 

result that a former head of state has immunity in relation to acts done as part of his official functions when head of state.

-Immunity is ratione personae, attaching to the person of the head of state or ambassador and is a complete immunity, rendering him immune from all actions or prosecutions whether or not they relate to matters done for the benefit of the state.

-Accordingly under Article 39(2) the ambassador, like any other official of the state, enjoys immunity in relation to his official acts done while he was an official. This limited immunity, ratione materiae, is to be contrasted with the former immunity ratione personae which gave complete immunity to all activities whether public or private.

CONCLUSION: PINOCHET, AS FORMER HEAD OF STATE ENJOYS IMMUNITY RATIONE MATERIAE

3. WON the alleged organisation of state torture by Pinochet (if proved) would constitute an act committed by Pinochet as part of his official functions as head of state.

-COMMON LAW AFFORDS A FORMER HEAD OF STATE THE SAME RATIONE MATERIAE. He too loses immunity ratione personae on ceasing to be head of state. 26

-THE STATE IMMUNITY ACT 1978 27 PART III, SEC: 20(1)(a) POSES A PROBLEM:

1. Subject to the provisions of this section and to any necessary modifications, the Diplomatic Privileges Act 1964 shall apply to- (a) a sovereign or other head of state;

-STATE IMMUNITY OF CONSIDERABLE GENERAL IMPORTANCE INTERNATIONALLY since, if Senator Pinochet is not entitled to immunity in relation to the acts of torture alleged to have occurred after Sept. 29. 1988, it will be the first time so far as counsel have discovered when a local domestic court has refused to afford immunity to a head of state or former head of state on the grounds that there can be no immunity against prosecution for certain international crimes.

(b)

members of his family forming part of his household; and

(c)

his private servants,

as it applies to the head of a diplomatic mission, to members of his family forming

part of his household and to his private servants."

-THE ISSUE is whether IL grants state immunity in relation to the international crime of torture and, if so, whether the Republic of Chile is entitled to claim such immunity even though Chile, Spain and the UK are all parties to the Torture Convention and therefore "contractually" bound to give effect to its provisions from Dec. 8, 1988 at the latest.

-The correct way in which to apply Art. 39(2) of the Vienna Convention to a former head of state is baffling. 28

26 Watts The Legal Position in International Law of Heads of States, Heads of Government and Foreign Ministers p. 88 and the cases there cited. He can be sued on his private obligations: Ex-King Farouk of Egypt v. Christian Dior (1957) 24 I.L.R. 228; Jimenez v. Aristeguieta (1962) 311 F. 2d 547. As ex head of state he cannot be sued in respect of acts performed whilst head of state in his public capacity: Hatch v. Baez [1876] 7 Hun. 596. Thus, at common law, the position of the former ambassador and the former head of state appears to be much the same: both enjoy immunity for acts done in performance of their respective functions whilst in office. 27 This act modifies the traditional complete immunity normally afforded by the common law in claims for damages against foreign states. Such modifications are contained in Part I of the Act, which provides for immunity of foreign states from the jurisdiction of the courts of the UK except as provided by the Act. Section 16(4) however, provides that nothing in Part I is to apply to criminal proceedings. Therefore Part I has no direct application to the present case.

-It is not enough to say that crimes cannot be part of a head of state’s functions because there may be actions, which though criminal under the local law, were done officially as to give rise to immunity ratione materiae. Can it be said that the commission of a crime which is an international crime against humanity and jus cogens, is an act done in an official capacity on behalf of the state?

Sir Arthur Watt’s view and Lord Wilkinson’s opinion on his view:

Sir Arthur Watt

Lord Browne-Wilkinson

Implementation of torture as defined by the torture convention cannot be a state function

-there is strong ground for this view

-generally, IL does not directly impose obligations on individuals, but this is not always appropriate

-It can be objected that Watts was

looking

at

cases

where the

28 What are the functions to be regarded? When do they cease since the former head of state almost certainly never arrives in this country let alone leaves it? Is a former head of state's immunity limited to the exercise of the functions of a member of the mission, or is that again something which is subject to "necessary modification"? It is hard to resist the suspicion that something has gone wrong.

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28

particularly for acts so serious that the not merely constitute international wrongs but rather international crimes which offend against the public order of the international community. -States are artificial legal persons who act through its officials, and to say that conduct which is so serious as to be criminal can be attributable only to the State and not the individuals who ordered or perpetrated it is both unrealistic and offensive to common notions of justice.

-"The idea that individuals who commit international crimes are internationally accountable for them has now become an accepted part of IL. Problems 29 in this area have not affected the general acceptance of the principle of individual responsibility for international criminal conduct."

-"It can no longer be doubted that as a matter of general customary IL, a head of state will personally be liable to be called to account if there is sufficient evidence that he authorised or perpetrated such serious international crimes."

international community has established a new court with no

all defendants being state officials. while the former head, who is the

existing jurisdiction, in which the regulating document expressly makes the head of state subject to the tribunal's jurisdiction 30

-This is different from the jurisdiction being established by the Torture Convention and the Hostages Convention where existing domestic courts of all the countries are being authorised and required to take jurisdiction internationally.

-The question is whether, in this new type of jurisdiction, the only possible view is that those made subject to the jurisdiction of each of the state courts of the world in relation to torture are not entitled to claim immunity.

most responsible, will escape liability because of state immunity, his inferiors who carried out his orders will be liable. I find it impossible to accept that this was the intention.

bizarre results. Immunity ratione materiae applies not only to ex- heads of state and ex-ambassadors but to all state officials who have been involved in carrying out the functions of the state. This is necessary in order to prevent state immunity being circumvented by prosecuting or suing the official who, for example, actually carried out the torture when a claim against the head of state would be precluded by the doctrine of immunity. Application to the case at bar would mean that immunity does not only apply to Pinochet, but to all his inferiors who actually did the torturing.

-Since the Convention says that torture can only be committed by an official or someone in an official capacity, then they would all be entitled to immunity. It would follow that there can be no case outside Chile in which a successful prosecution for torture can be brought unless the State of Chile is prepared to waive its right to its officials immunity. Therefore the whole elaborate structure of universal jurisdiction over torture committed by officials is rendered abortive and one of the main objectives of the Torture Convention--to provide a system under which there is no safe haven for torturers--will have been frustrated. -All these factors together demonstrate that the notion of continued immunity for ex-heads of state is inconsistent with the provisions of the Torture Convention.

 

CONCLUSION:

Lord Browne-Wilkinson’s view/judgment:

-Doubtful that, before the Torture convention, where there was no international tribunal to punish torture and no permission or requirement for the domestic courts to exercise jurisdiction, jus cogens was enough to justify the conclusion that the organisation of state torture could not rank for immunity purposes as performance of an official function -Torture could not be regarded as a fully constituted international crime until the existence of some form of universal jurisdiction. The Torture Convention provided what was missing:

1.a worldwide universal jurisdiction. 2.it required all member states to ban and outlaw torture 3.an essential feature of the international crime of torture is that it must be committed "by or with the acquiesence of a public official or other person acting in an official capacity." -Hence, how can it be for IL purposes an official function to do something which IL itself prohibits and criminalises? -Regarding torture as a public function which would give rise to immunity ratione materiae would result in:

29 such as the non-existence of any standing international tribunal to have jurisdiction over such crimes, and the lack of agreement as to what acts are internationally criminal for this purpose

30 see, for example, the Nuremberg Charter Article 7; the Statute of the International Tribunal for former Yugoslavia; the Statute of the International Tribunal for Rwanda and the Statute of the International Criminal Court.

1. ON TORTURE: If, as alleged, Senator Pinochet organised and authorised torture after Dec. 8, 1988:

-he was not acting in any capacity which gives rise to immunity ratione materiae because such actions were contrary to IL, -Chile had agreed to outlaw such conduct and -Chile had agreed with the other parties to the Torture Convention that all signatory states should have jurisdiction to try official torture (as defined in the Convention) even if such torture were committed in Chile. 2. ON MURDER AND CONSPIRACY TO MURDER: SENATOR PINOCHET IS ENTITLED TO THE ORDINARY RULES OF IMMUNITY since no one has advanced any reason why they should not apply. JUDGMENT: allow the appeal so as to permit the extradition proceedings to proceed on the allegation that torture in pursuance of a conspiracy to commit torture, including the single act of torture which is alleged in charge 30, was being committed by Senator Pinochet after 8 December 1988 when he lost his immunity.

31

LORD GOFF OF CHIEVELEY CENTRAL QUESTION IN THE APPEAL: WON Senator Pinochet is entitled as former head of state to the benefit of state immunity ratione materiae in respect of the charges advanced against him 32 SPAIN’S ARGUMENT: ((Before the DC and the 1 st Appellate Committee) -Senator Pinochet was not entitled to the benefit of state immunity on 2 grounds:

31 Your Lordships’ decision excluding a large number of charges for the extradition proceedings would require the Secretary of State to reconsider his decision under Sec. 7 of the Act of 1989 (coz when he authorized Magistrate Bartle, he proceeded on the basis of a whole range of torture and murder charges)

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1. that the crimes alleged against Senator Pinochet are so horrific that an exception must be made to the IL principle of state immunity; and 2. that the crimes with which he is charged are crimes against IL, in respect of which state immunity is not available.

 

-He then examined the Torture Convention (1984), the Genocide Convention (1948) and the Taking of Hostages Convention (1983) and concluded that none of them had removed the long established immunity of former heads of state.

DC -rejected both arguments

Lord

Lloyd

-dissented

of Berwick

1 ST Appellate Committee majority accepted the 2 nd argument.

Lord

"In my view, Art. 39(2) of the Vienna Convention, as modified and applied to former heads of state by Sec. 20 of the Act of 1978, is apt to confer immunity in respect of functions which IL recognises as functions of a head of state, irrespective of the terms of his domestic constitution. This formulation, and this test for determining what are the functions of a head of state for this purpose, are sound in principle and were not the subject of controversy before your Lordships. IL does not require the grant of any wider immunity. And it hardly needs saying that torture of his own subjects, or of aliens, would not be regarded by IL as a function of a head of state. All states disavow the use of torture as abhorrent, although from time to time some still resort to it. Similarly, the taking of hostages, as much as torture, has been outlawed by the international community as an offence. IL recognises, of course, that the functions of a head of state may include activities which are wrongful, even illegal, by the law of his own state or by the laws of other states. But IL has made plain that certain types of conduct, including torture and hostage-taking, are not acceptable conduct on the part of anyone. This applies as much to heads of state, or even more so, as it does to everyone else; the contrary conclusion would make a mockery of IL."

Nicholls

of

Birken-

head

(leading

opinion)

Lord

Agreed with Lord Nicholls

Hoffmann

Lord Steyn

delivered a concurring opinion to the same effect.

Lord

Slynn

-dissented -considered in detail "the developments in IL relating to international crimes." -he concluded that: "It does not seem to me that it has been shown that there is any state practice or general consensus let alone a widely supported convention that all crimes against IL should be justiciable in national courts on the basis of the universality of jurisdiction. Nor is there any jus cogens in respect of such breaches of IL which requires that a claim of state or head of state immunity, itself a well-established principle of IL, should be overridden." -He considered whether IL now recognizes that crimes against humanity are outwith the protection of head of state immunity: "except in regard to crimes in particular situations before international tribunals these measures did not in general deal with the question as to whether otherwise existing immunities were taken away. Nor did they always specifically recognise the jurisdiction of, or confer jurisdiction on, national courts to try such crimes."

of Hadley

32 as set out in the schedule of charges prepared by Mr. Alun Jones Q.C. on behalf of the Government of Spain.

Lord Goff of Chieveley on the 1 st Appellate Committee:

-Unable to accept the simple approach of the majority of the 1 st Appellate committee and thinks that Lord Slynn’s exercise (in reviewing relevant materials) is necessary to consider the validity of Spain’s argument. -Agrees with the analysis and conclusions of Lord Slynn

However, having regard to (1) the extraordinary impact on this case of the DCR; and (2) the fact that a majority of your Lordships have formed the view that, in respect of the very few charges (of torture or conspiracy to torture) which survive the impact of the DCR, the effect of the Torture Convention is that in any event Senator Pinochet is not entitled to the benefit of state immunity, the present issue has ceased to have any direct bearing on the outcome of the case.

During the course of the hearing, 2 new issues emerged or acquired an importance:

1 ST ISSUE: THE DOUBLE CRIMINALITY RULE (DCR)

Sequence of events: (from the hearing)

1. Spain sought to extend backwards the period during which the crimes charged were

alleged to have been committed, with the effect that some of those crimes could be said

to have taken place before the 1973 coup. The purpose obviously was to avoid the privilege of state immunity

2. Ms. Montgomery, for Pinochet, revived the submission that certain charges were not

extradition crimes because they were not, at the time they were alleged to have been committed, criminal under the law of UK, thus offending against the DCR (Lord Goff agrees with this)

3. Since Spain did not analyse the consequences of this argument, if successful, in order

to identify the charges against Senator Pinochet which would survive the application of the DCR, Lord Hope of Craighead undertook this substantial task.

4. The principal charges which survived are those which relate to acts of torture, or

conspiracies to torture, after Sept. 29, 1988 and some murder charges. These are:

Charge

 

Date of conduct in so far as they relate to the period between Sept. 29, 1988 & Jan. 1, 1990

#

Conduct Charged

2

conspiracy to torture

between Aug. 1, 1973 & Jan. 1, 1990

4

conspiracy to torture

between Jan. 1, 1972 & Jan. 1, 1990

30

single act of torture

on June 24, 1989

9

conspiracy to murder in Spain

Jan. 1, 1975 & Dec. 31, 1976

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30

4

such conspiracies in Spain to commit murder in Spain

between Jan. 1, 1972 & Jan. 1, 1990

receiving state. 34 Once that is realised, there seems to be no reason why the immunity of

a

head of state under the Act should not be construed as far as possible to accord with

STATE IMMUNITY -The principle is expressed in the Latin maxim par in parem non habet imperium, the effect of which is that one sovereign state does not adjudicate on the conduct of another. This principle applies as between states, and the head of a state is entitled to the same immunity as the state itself, as are the diplomatic representatives of the state.

-Immunity of a head of state, whether ratione personae or ratione materiae, applies to both civil and criminal proceedings. why?- coz the immunity applies to any form of legal process.

The State Immunity Act of 1978:

-Principle of par in parem non habet imperium applies in criminal proceedings -on which the principles of state of immunity are based is in a strange form. -There can be no doubt that the Act is intended to provide the sole source of English law on this topic. 33

-Part III Sec. 20(1) is the relevant provision on this point:

"Subject to the provisions of this section and to any necessary modifications, the Diplomatic Privileges Act 1964 shall apply to--(a) a sovereign or other

head of state

as it applies to the head of a diplomatic mission."

The Diplomatic Privileges Act of 1964 -Function is to give effect to the Vienna Convention on Diplomatic Relations in this country -Problem: how to identify the "necessary modifications" when applying the Vienna Convention to heads of state. Art. 39 of the Vienna Convention provides:

"1. Every person entitled to privileges and immunities shall enjoy them from the moment he enters the territory of the receiving state on proceeding to take up his post or, if already in its territory, from the moment when his appointment is notified to the Ministry for Foreign Affairs or such other ministry as may be agreed. "2. When the functions of a person enjoying privileges and immunities have come to an end, such privileges and immunities shall normally cease at the moment when he leaves the country, or on expiry of a reasonable period in which to do so, but shall subsist until that time, even in case of armed conflict. However, with respect to acts performed by such a person in the exercise of his functions as a member of the mission, immunity shall continue to subsist."

-It would seem strange to apply this to a head of state but the legislative history shows that it was originally intended to apply only to a sovereign or other head of state in this country at the invitation or with the consent of the government of this country, but was amended to provide also for the position of a head of state who was not in this country.

-Hence, apply the Vienna Convention to heads of state "with the necessary modifications.” In the case of a head of state tie Art. 39(1) or (2) to the territory of the

33 This is because the long title to the Act provides (inter alia) that the Act is "to make new provision with regard to the immunities and privileges of heads of state."

his immunity at customary IL, which provides the background against which this statute

is set. 35

-The effect is that a head of state will, under the statute as at IL, enjoy state immunity ratione personae so long as he is in office, and after he ceases to hold office will enjoy the concomitant immunity ratione materiae "in respect of acts he performed in the exercise of his functions as head of state." The critical question being WON the acts were in the exercise of his functions as head of state.

THE MERE FACT THAT THE CRIME HERE IS TORTURE DOES NOT EXCLUDE STATE IMMUNITY. Criminal conduct does not itself exclude immunity, even if serious. Hence, Question is WON any limit is placed on the immunity in respect of criminal offences.

Lord Goff of Chieveley on Sir Arthur Watts: 36 2 points on torture:

1. it is evident that Sir Arthur is referring not just to a specific crime as such, but to a crime which offends against the public order of the international community, for which a head of state may be internationally accountable. The instruments cited by him show that he is concerned here with crimes against peace, war crimes and crimes against humanity. Originally these were limited to crimes committed in the context of

armed conflict, as in the case of the Nuremberg and Tokyo Charters, and still in the case

of the Yugoslavia Statute, though there it is provided that the conflict can be international

or internal in character. Subsequently, the context has been widened to include (inter alia) torture "when committed as part of a widespread or systematic attack against a civilian population" on specified grounds. A provision to this effect appeared in several statutes in the 1990s 37 these developments were foreshadowed in the International Law Commission's Draft Code of Crimes of 1954 but was not adopted. A gap of 35 years followed before the developments in the 1990s. It follows that these provisions are not capable of evidencing any settled practice in respect of torture outside the context of

armed conflict until well after 1989 which is the latest date with which we are concerned

in the present case.

34 as was suggested on behalf of the appellants

35 see Alcom Ltd. v. Republic of Colombia [1984] 1 A.C. 580, 597G, per Lord Diplock.

36 Who referred to a number of instruments: including the Charter of the Nuremberg Tribunal (1946), the Charter of the Tokyo Tribunal (1948), the International Law Commission's Draft Code of Crimes Against the Peace and Security of Mankind (provisionally adopted in 1988), and the Statute of the War Crimes Tribunal for former Yugoslavia (1993), all of which expressly provide for the responsibility of heads of state, apart from the Charter of the Tokyo Tribunal which contains a similar provision regarding the official position of the accused.

37 International Law Commission's Draft Code of Crimes of 1996 and also appeared in the Statute of the International Tribunal for Rwanda (1994), and in the Rome Statute of the International Court (adopted in 1998); and see also the view expressed obiter by the U.S.

Court of Appeals in Siderman de Blake v. Republic of Argentina (1992) 965 F. 2d 699 at p.

716.

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2. Instruments mentioned (footnote 32) are all concerned with international responsibility before international tribunals, and not with the exclusion of state immunity in criminal proceedings before national courts. This supports the conclusion of Lord Slynn that "except in regard to crimes in particular situations before international tribunals these measures did not in general deal with the question whether otherwise existing immunities were taken away", with which I agree. It follows that, if state immunity in respect of crimes of torture has been excluded at all in the present case, this can only have been done by the Torture Convention itself. THE TORTURE CONVENTION -concerned with the jurisdiction of national courts, -but its "essential purpose" is to ensure that a torturer does not escape the consequences of his act by going to another country -Lord Goff then enumerates the Articles of the Convention (see above) -Art. 7 (1) reflects the principle aut dedere aut punire, designed to ensure that torturers do not escape by going to another country. -There was some uncertainty on whether a head of state can be considered a public official or at least a person acting in a public capacity. It has been argued that earlier conventions expressly mentioned heads of state. But I am content to proceed on Republic of Chile’s concession that, in the Torture Convention, heads of state must be regarded as falling within the category of "other person acting in a public capacity."

- the crucial question now relates to the availability of state immunity. -The Convention does not mention state immunity. Had it intended to exclude state immunity, it would have been provided for in a separate article or paragraph.

2 ND ISSUE: WON IMMUNITY RATIONE MATERIAE HAS BEEN EXCLUDED UNDER THE TORTURE CONVENTION

The argument: since torture contrary to the Convention can only be committed by a public official or other person acting in an official capacity, and since it is in respect of the acts of these very persons that states can assert state immunity ratione materiae, it would be inconsistent with the obligations of state parties under the Convention for them to be able to invoke state immunity ratione materiae in cases of torture contrary to the Convention.

Lord Goff:

-before the Torture Convention, torture by public officials could be the subject of state immunity. Since therefore exclusion of immunity is said to result from the Torture Convention and there is no express term of the Convention to this effect, the argument has, to be formulated as dependent upon an implied term in the Convention. -the proposed implied term has not been precisely formulated; it has not therefore been exposed to that valuable discipline which is always required in the case of terms alleged to be implied in ordinary contracts. -This is a different argument from that which was advanced to your Lordships, it was not advanced to the DC nor the 1 st Appellate Committee. -it must be rejected as contrary to principle and authority, and indeed contrary to common sense.

Waiver of immunity by treaty must be express -Republic of Chile submitted that a state's waiver of its immunity by treaty must always be express. I agree.

-Lord Goff then goes on to cite passages 38 which indicate the need for an express waiver of the state of its immunity. The consent of the state to the exercise of jurisdiction against it must be express. In general, implied consent is to be regarded only as an added explanation or justification for an otherwise valid and recognised exception, of which the only example given is actual submission to the jurisdiction of the courts of another state -Lord Goff also cited a US Supreme Court Ruling 39 where the plaintiff contended that the defendant had impliedly waived its state immunity the relevant international agreements. The Court tersely rejected this argument.

-the State Immunity Act 1978 is consistent with the above principles. There is no suggestion in the Act that an implied agreement to submit would be sufficient, except in so far as an actual submission to the jurisdiction of a court of this country, may be regarded as an implied waiver of immunity; -but my reading of the Act leads me to understand that such a submission to the jurisdiction is here regarded as an express rather than an implied waiver of immunity or agreement to submit to the jurisdiction. This is consistent with Part III, Sec. 20. -the Vienna Convention on Diplomatic Relations so rendered applicable by section 2 of the Act of 1964 provides for an express waiver. Once again, there is no provision for an implied agreement.

In light of the foregoing it is clear that both in accordance with IL and with the UK law, a state’s waiver of its immunity by treaty must always be express.

Circumvention of the principle by suggesting that Torture is not a governmental function, hence not covered by immunity ratione materiae. -This well established principle (express consent to waiver of state immunity) can be circumvented in this case not by proposing that the state parties agreed to waive their state immunity under the Torture Convention, but that Torture does not form part of the functions of public officials or persons acting in an official capacity, including the head of state. -The principle cannot be circumvented this way. “Functions” as used in this context is well-established: governmental functions as opposed to private acts. The fact that an official act is criminal in nature does not deprive it of its governmental character. This is true whether the crime is light or serious. -If governmental functions are to be limited such as to exclude Torture, this can only be done by means of an implication arising from the Torture Convention itself.

An implication must in any event be rejected. I recognise that a term may be implied into a treaty, if the circumstances are such that "the parties must have intended to contract on the basis of the inclusion in the treaty of a provision whose effect can be stated with reasonable precision." -It would, however, be wrong to assume that a term may be implied into a treaty on the same basis as a term may be implied into an ordinary commercial contract. This is because treaties are different in origin, and serve a different purpose. Treaties are the fruit of long negotiation, the purpose being to produce a draft which is acceptable to a number, often a substantial number, of state parties.

38 Oppenheim’s IL;Article 7 of the Commission's Draft Articles; commentary on Art. 7. 39 Argentine Republic v. Amerada Hess Shipping Corporation (1989) 109 S.Ct. 683

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-In circumstances such as these, it is the text of the treaty itself which provides the only safe guide to its terms, though reference may be made, where appropriate, to the travaux preparatoires. - But implied terms cannot, except in the most obvious cases, be relied on as binding the state parties who ultimately sign the treaty, who will in all probability include those who were not involved in the preliminary negotiations.

-The implied term argued is that the continued availability of state immunity is inconsistent with the obligations of state parties to the Convention, is in my opinion not justified. -The danger of introducing the proposed implied term e is underlined by the fact that there is nothing in the negotiating history of the Torture Convention which throws any light on the proposed implied term. Certainly the travaux preparatoires shown to your Lordships reveal no trace of any consideration being given to waiver of state immunity. -In any event, however, not only is there no mention of state immunity in the Convention, but in my opinion it is not inconsistent with its express provisions that, if steps are taken to extradite him or to submit his case to the authorities for the purpose of prosecution, the appropriate state should be entitled to assert state immunity. In this connection, I comment that it is not suggested that it is inconsistent with the Convention that immunity ratione personae should be asserted; if so, I find it difficult to see why it should be inconsistent to assert immunity ratione materiae.

Hence, the proposed implication must be rejected not only as contrary to principle and authority, but also as contrary to common sense.

I Disagree with Lord Hope’s Conclusion- that in respect of a few charges, state immunity is not available to Pinochet. -In the surrounding circumstances, I find it difficult to see how after 29 September 1988, it could be said that there was any systematic or widespread campaign of torture, constituting an attack on the civilian population, so as to amount to a crime against

humanity, or that a single act could be easily related to a campaign alleged to have been

in existence so long ago.

No settled practice that state immunity is not available for a crime against humanity. I am of the opinion that in 1989 there was no settled practice that state immunity ratione materiae was not available in criminal proceedings before a national

court concerned with an alleged crime against humanity, or indeed as to what constituted

a crime against humanity.

LORD GOFF’S JUDGMENT: For the above reasons, I am of the opinion that by far the greater part of the charges against Senator Pinochet must be excluded as offending against the DRC; and that, in respect of the surviving charges--charges 9, 30, 2 and 4 (insofar as they can be said to survive the DCR)--Senator Pinochet is entitled to the benefit of state immunity ratione materiae as a former head of state. I would therefore dismiss the appeal of the Government of Spain from the decision of the Divisional Court.

LORD HOPE OF CRAIGHEAD

THE OFFENCES ALLEGED AGAINST SENATOR PINOCHET (1) torture between 1 January 1988 and December 1992; (2) conspiracy to torture between 1 January 1988 and 31 December 1992; (3) (a) hostage-taking and

(b) conspiracy to take hostages between Jan. 1, 1982 and Jan. 31, 1992; and (4) conspiracy to commit murder between January 1976 and December 1992.

Comparing these dates with the date of the coup (Sept. 11, 1973) and Pinochet’s resignation (March 11, 1990), it appears:

(a) that he was not being charged with any acts of torture prior to 1 January 1988 [the date of the UK law enacting the UN Torture Convention], (b) that he was not being charged with any acts of hostage-taking or conspiracy to take hostages prior to I January 1982 and (c) that he was not being charged with any conspiracy to commit murder prior

to January 1976.

On the other hand he was being charged with having committed these offences up to December 1992, well after the date when he ceased to be head of state in Chile.

Hostage-taking: There is no allegation that the conspiracy was to threaten to kill, injure or detain those who were being detained in order to compel others to do or to abstain from doing any act. The narrative shows that the alleged conspiracy was to subject persons already detained to threats that others would be taken and that they also would be tortured. -This amount to a conspiracy to take hostages within the meaning of section 1 of the Act of 1982 40 . The purpose of the proposed conduct, as regards the detained persons, was to subject them to what can best be described as a form of mental torture. I would hold therefore that it is not necessary for your Lordships to examine the Hostage Convention in order to see whether its terms were such as to deprive a former head of state of any immunity from a charge that he was guilty of hostage-taking. In my opinion Senator Pinochet is not charged with the offence of hostage-taking within the meaning of section 1 (1) of the Taking of Hostages Act 1982. Conspiracy to murder and attempted murder: The charges of conspiracy to torture include allegations that it was part of the conspiracy that some of those who were abducted and tortured would thereafter be murdered. Charge 4 alleges that in furtherance of that agreement about four thousand persons of many nationalities were murdered in Chile and in various other countries outside Chile. Two other charges, charges 9 and 12, allege conspiracy to murder - in one case of a man in Spain and in the other of two people in Italy. Charge 9 states that Senator Pinochet agreed in Spain with others who were in Spain, Chile and France that the proposed victim would be murdered

in Spain. Charge 12 does not say that anything was done in Spain in furtherance of the

alleged conspiracy to murder in Italy. There is no suggestion in either of these charges that the proposed victims were to be tortured. Two further charges, charges 10 and 11, allege the attempted murder of the two people in Italy who were the subject of the conspiracy to commit murder there. Here again there is no suggestion that they were to be tortured before they were murdered. Charge 9-- that between 1 January 1975 and 31 December 1976 he was a party to

a conspiracy in Spain to murder someone in Spain - is an offence for which he could,

unless protected by immunity, be extradited to Spain under reference to section 4 of the Act of 1861, as it remained in force until the relevant part of it was repealed by the Act of

40 A person, whatever his nationality, who, in the United Kingdom or elsewhere, - (a) detains any other person (‘the hostage’), and (b) in order to compel a State, international governmental organisation or person to do or to abstain from doing any act, threatens to kill, injure or continue to detain the hostage, commits an offence."

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1977. This is because his participation in the conspiracy in Spain was conduct by him in Spain for the purposes of section 2(1)(a) of the Extradition Act 1989.

Charge 4-that he was a party to a conspiracy to murder, in furtherance of which about four thousand people were murdered in Chile and in various countries outside Chile including Spain. It is implied that this conspiracy was in Chile, so I would hold that this is not conduct by him in Spain for the purposes of section 2(1)(a) of Act of 1989. The question then is whether it is an extra-territorial offence within the meaning of section section 2(1)(b) of that Act. Prior to the coming into force of the Suppression of Terrorism Act 1978, a conspiracy which was formed outside this country to commit murder in some country other than England in pursuance of which nothing was done in England to further that conspiracy would not be punishable in England, as it was not the intention that acts done in pursuance of the conspiracy would result in the commission of a criminal offence in this country. The presumption against the extra-territorial application of the criminal law would have precluded such conduct from being prosecuted here. Section 4(1) of the Act of 1978 gives the courts of the UK jurisdiction over a person who does any act in a convention country which, if he had done that act in a part of the UK, would have made him guilty in that part of the UK of an offence mentioned in some, but not all, of the paragraphs of Schedule 1 to that Act. Murder is one of the offences to which that provision applies. But that Act, which was passed to give effect to the European Convention on the Suppression of Terrorism of 27 January 1977, did not come into force until 21 August 1978: S.I. 1978 No. 1063. And Chile is not a convention country for the purposes of that Act, nor is it one of the non-convention countries to which its provisions have been applied by section 5 of the Act of 1978. Only two non-convention countries have been so designated. These are the United States (S.I. 1986 No. 2146) and India (S.I. 1993 No. 2533). Hence, the only conduct alleged against Senator Pinochet as conspiracy to murder in charge 4 for which he could be extradited to Spain is that part of it which alleges that he was a party to a conspiracy in Spain to commit murder in Spain prior to 21 August 1978. Conspiracy in Spain or elsewhere to commit murder in a country which had been designated as a convention country after that date- the extradition request states that acts in furtherance of the conspiracy took place in France in 1975, in Spain in 1975 and 1976 and in the United States and Portugal in 1976. These countries have now been designated as countries to which the Suppression of Terrorism Act 1978 applies. But the acts which are alleged to have taken place there all pre-date the coming into force of that Act. So the extra-territorial jurisdiction cannot be applied to them. Attempted murder in Italy- not, as such, offences for which Senator Pinochet could be extradited to Spain under reference to section 2(1)(a) of the Act of 1989 because the alleged conduct did not take place in Spain and because he is not of Spanish nationality. Grounds to allow extradition under Sec. 2(1)(b):

1. Murder is now an extra-territorial offence under §4(1)(a) of the Suppression of Terrorism Act 1978 as it is an offence mentioned in paragraph 1 of Schedule 1 to that Act, Italy has been designated as a convention country (S.I. 1986 No. 1137) and,

2. That an offence of attempting to commit that offence is an extra-territorial offence under §4(1)(b) of the Act of 1978. The alleged attempted murders in Italy are said to have been committed on 6 October 1975. As the Act of 1978 was not in force on that date, these offences are not capable of being brought within the procedures laid down by that Act.

Torture and conspiracy to torture. Torture is another of those offences, wherever the act takes place, which is deemed by section 22(6) of the Extradition Act 1989 to be an offence committed within the territory of any other state against whose law it is an offence. This provision and Sec. 134 of the Criminal Justice Act 1988 gave effect to the Torture Convention of 10 December 1984. Sec. 134 made it a crime under English law for a public official or a person acting in an official capacity to commit acts of both physical and mental torture. It made such acts of torture an extra-territorial offence wherever they were committed and whatever the nationality of the perpetrator. Read with the Convention’s definition of torture, Sec. 134 would have to include the ancillary offences of counselling, procuring, commanding and aiding or abetting acts of torture and of being an accessory before or after the fact to such acts. All of these offences became extra-territorial offences against the law of the UK within the meaning of section 2(2) of the Extradition Act 1989 as soon as section 134 was brought into force on 29 September 1988.

The Convention, Sec. 134 and the Extradition Act of 1989 do mention the offense of conspiracy to commit torture. So, while the courts of the UK have extra-territorial jurisdiction under section 134 over offences of official torture wherever in the world they were committed, that section does not give them extra-territorial jurisdiction over a conspiracy to commit torture in any other country where the agreement was made outside the UK and no acts in furtherance of the conspiracy took place here. Nor is it conduct which can be deemed to take place in the territory of the requesting country under section 22(6) of the Act of 1989. However, the general statutory offence of conspiracy under section 1 of the Criminal Law Act 1977 extends to a conspiracy to commit any offence which is triable in England and Wales. Among those offences are all the offences over which the courts in England and Wales have extra-territorial jurisdiction, including the offence under section 134 of the Act of 1988. Hence, I consider that the common law rule as to extra- territorial conspiracies laid down in Somchai Liangsiriprasert v. Government of the United States of America [1991] 1 A.C. 225 applies if a conspiracy which was entered into abroad was intended to result in the commission of an offence, wherever it was intended to be committed, which is an extra-territorial offence in this country. Accordingly the courts of this country could try Senator Pinochet for acts of torture in Chile and elsewhere after 29 September 1988, because they are extra-territorial offences under section 134 of the Act of 1988. They could also try him here for conspiring in Chile or elsewhere after that date to commit torture, wherever the torture was to be committed, because torture after that date is an extra-territorial offence and the courts in England have jurisdiction over such a conspiracy at common law.

Torture prior to 29 September 1989: Acts of physical torture were already crimes under the English law even before Sept. 29, 1988. However, if these offences were committed before Sec. 134, they could not be extra-territorial offences against the UK law within the meaning of section 2(2) of the Extradition Act 1989 as there is no basis upon which they could have been tried extra-territorially in this country. Pinochet could only be extradited to Spain for offences which, if it occurred in the UK, would constitute an offence which would be punishable in this country. Section 22(6) of the Act of 1989 is of no assistance, because torture contrary to the Torture Convention had not yet become an offence in this country.

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Hence, none of the charges of conspiracy to torture and none of the various torture charges allege that Senator Pinochet did anything in Spain which might qualify under section 2(1)(a) of the Act of 1989 as conduct in that country. All one can say at this stage is that, if the information presented to the magistrate under section 9(8) of the Act of 1989 in regard to charge 4 were to demonstrate (i) that he did something in Spain prior to 29 September 1988 to commit acts of torture there, or (ii) that he was party to a conspiracy in Spain to commit acts of torture in Spain, that would be conduct in Spain which would meet the requirements of section 2(1)(a) of that Act. Torture after 29 September 1989: The effect of section 134 of the Criminal Justice Act 1988 was to make acts of official torture, wherever they were committed and whatever the nationality of the offender, an extra- territorial offence in the UK. Charge 4 is not confined to conspiracy to torture. The charge included that many people in various countries were murdered after being tortured in furtherance of the conspiracy that they would be tortured and then killed. So this charge includes charges of torture as well as conspiracy to torture. And it is broad enough to include the ancillary offences mentioned. Ill-defined as this charge is, I would regard it as including allegations of torture and of conspiracy to torture after 29 September 1988 for which, if he has no immunity, Senator Pinochet could be extradited to Spain on the ground that, as they were extra- territorial offences against the law of the United Kingdom, they were extradition crimes within the meaning of section 2(1) of the Act of 1989. This means that: the only offences of torture and conspiracy to torture which are punishable in this country as extra- territorial offences against the law of the UK within the meaning of section 2(2) of the Act of 1989 are those offences of torture and conspiracy to torture which he is alleged to have committed on or after 29 September 1988. But almost all the offences of torture and murder, of which there are alleged to have been about four thousand victims, were committed during the period of repression which was at its most intense in 1973 and 1974. The extradition request alleges that during the period from 1977 to 1990 only about 130 such offences were committed. Of that number only three have been identified in the extradition request as having taken place after 29 September 1988.

Charge 30-one act of official torture in Chile on 24 June 1989, and relates exclusively to the period after 29 September 1988. Charge 2- with respect to the charges after 29 September 1988.

Charges which are relevant to the question of immunity: Result of Analysis: The only charges which allege extradition crimes for which Senator Pinochet could be extradited to Spain if he has no immunity are:

(1) those charges of conspiracy to torture in charge 2, of torture and conspiracy to torture in charge 4 and of torture in charge 30 which, irrespective of where the conduct occurred, became extra-territorial offences as from 29 September 1988 under section 134 of the Criminal Justice Act 1988 and under the common law as to extra territorial conspiracies; (2) the conspiracy in Spain to murder in Spain which is alleged in charge 9; (3) such conspiracies in Spain to commit murder in Spain and such conspiracies in Spain prior to 29 September 1988 to commit acts of torture in Spain, as can be shown to form part of the allegations in charge 4. So far as the law of the UK is concerned, the only country where Senator Pinochet could be put on trial for the full range of the offences which have been alleged against him by the Spanish judicial authorities is Chile.

STATE IMMUNITY - well settled in customary IL. -The test is whether they were private acts on the one hand or governmental acts done in the exercise of his authority as head of state on the other. It is whether the act was done to promote the state's interests - whether it was done for his own benefit or gratification or was done for the state. "The critical test would seem to be whether the conduct was engaged in under colour of or in ostensible exercise of the head of state's public authority." 41 -The sovereign or governmental acts of one state are not matters upon which the courts

of other states will adjudicate. The fact that acts done for the state have involved conduct which is criminal does not remove the immunity. Indeed the whole purpose of the

residual immunity

is to protect the former head of state against allegations of such

conduct after he has left office. A head of state needs to be free to promote his own state's interests during the entire period when he is in office without being subjected to the prospect of detention, arrest or embarrassment in the foreign legal system of the receiving state. The conduct does not have to be lawful to attract the immunity.

-The principle of immunity protects all acts which the head of state has performed in the exercise of the functions of government. The purpose for which they were

performed protects these acts from any further analysis. There are only 2 exceptions to this approach which customary IL has recognised.

1. relates to criminal acts which the head of state did under the colour of his

authority as head of state but which were in reality for his own pleasure or benefit. 42

2. relates to acts the prohibition of which has acquired the status under IL of

jus cogens. This compels all states to refrain from such conduct under any circumstances and imposes an obligation erga omnes [ie, all States--as opposed to only one or several] to punish such conduct. As Sir Arthur Watts said in respect of conduct constituting an international crime, such as war crimes, special considerations apply.

THE TORTURE CONVENTION AND THE LOSS OF IMMUNITY - The Torture Convention is an international instrument. As such, it must be construed in accordance with customary international law and against the background of the subsisting residual former head of state immunity. -Waivers to state immunity must always be express. -it is contended that the torture convention, by necessary implication, removed immunity. -The convention is not contrary to any existing immunities in customary IL, nor makes mention of state immunity. The jus cogens character of the immunity enjoyed by serving heads of state ratione personae suggests that, on any view, that immunity was not intended to be affected by the Convention.

-Despite these difficulties, there are sufficient signs that the necessary developments in IL were in place when the Convention entered into force. The careful discussion of the

41 United States v. Noriega (1990) 746 F.Supp. 1506, 1519-1521. Sir Arthur Watts Q.C. in his Hague Lectures, The Legal Position in International Law of Heads of States, Heads of Governments and Foreign Ministers (1994-III) 247 Recueil des cours, p. 56 42 The examples which Lord Steyn gave [1998] 3 W.L.R. 1456, 1506B-C of the head of state who kills his gardener in a fit of rage or who orders victims to be tortured so that he may observe them in agony seem to me plainly to fall into this category and, for this reason, to lie outside the scope of the immunity.

Always will B

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jus cogens [norm from which no State may deviate] and erga omnes [crimes against all nations] rules in regard to allegations of official torture in Siderman de Blake v. Republic of Argentina (1992) 26 F.2d 1166, pp. 714-718, which I regard as persuasive on this point, shows that there was already widespread agreement that the prohibition against official torture had achieved the status of a jus cogens norm. -Having secured a sufficient number of signatories, the convention entered into force on 26 June 1987. -In my opinion, once the machinery which it provides was put in place to enable jurisdiction over such crimes to be exercised in the courts of a foreign state, it was no longer open to any state which was a signatory to the Convention to invoke the immunity, in the event of allegations of systematic or widespread torture committed after that date being made in the courts of that state against its officials or any other person acting in an official capacity.

CONCLUSION It follows that I would hold that, while Senator Pinochet has immunity from prosecution for the conspiracy in Spain to murder in Spain which is alleged in charge 9 and for such conspiracies in Spain to murder in Spain and such conspiracies in Spain prior to 8 December 1988 to commit acts of torture in Spain as could be shown to be part of the allegations in charge 4, he has no immunity from prosecution for the charges of torture and of conspiracy to torture which relate to the period after that date.

LORD HOPE OF CRAIGHEAD’SJUDGMENT: On this basis only I too would allow the appeal, to the extent necessary to permit the extradition to proceed on the charges of torture and conspiracy to torture relating to the period after 8 December 1988.

LORD HUTTON The rehearing of this appeal has raised a number of separate issues which have been fully considered in the speech of my noble and learned friend Lord Browne-Wilkinson which I have had the benefit of reading in draft. I am in agreement with his reasoning and conclusion that the definition of an "extradition crime" in the Extradition Act 1989 requires the conduct to be criminal under UK law at the date of commission. I am also in agreement with the analysis and conclusions of my noble and learned friend Lord Hope of Craighead as to the alleged crimes in respect of which Senator Pinochet could be extradited apart from any issue of immunity. I further agree with the view of Lord Browne- Wilkinson that Senator Pinochet is entitled to immunity in respect of charges of murder and conspiracy to murder, but I wish to make some observations on the issue of immunity claimed by Senator Pinochet in respect of charges of torture and conspiracy to torture.

TORTURE AND IMMUNITY The 1950 Report of the IL Commission to the General Assembly set out the following principle followed by the commentary contained in paragraph 103:

"The fact that a person who committed an act which constitutes a crime under international law acted as head of state or responsible Government official does not relieve him from responsibility under IL.

This principle is based on Art. 7 of the Charter of the Nürnberg Tribunal. According to the Charter and the judgment, the fact that an individual acted as head of state or responsible government official did not relieve him from international responsibility. 'The principle of IL which, under certain circumstances, protects the representatives of a state', said the Tribunal, 'cannot be applied to acts which are condemned as criminal by

IL. The authors of these acts cannot shelter themselves behind their official position in order to be freed from punishment' The same idea was also expressed in the following passage of the findings: 'He who violates the laws of war cannot obtain immunity while acting in pursuance of the authority of the state if the state in authorising action moves outside its competence under IL."

The 1954 ILCommission draft code of offences against the peace and security of mankind provided in Art. III: "The fact that a person acted as head of state or as responsible Government official does not relieve him of responsibility for committing any of the offences defined in the code."

The Statute of the International Tribunal for the former Yugoslavia established by the Security Council of the UN in 1993 for the prosecution of persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1991 provided in Art. 7 par 2: "The official position of any accused person, whether as head of state or Government or as a responsible Government official, shall not relieve such person of criminal responsibility nor mitigate punishment."