pil cases for finals

Aelan Biruar Arumpac3-ArellanoPublic International Law

PIL CASES FOR FINALS

1) HEAD MONEY CASES EDYE V. ROBERTSON

Issue: WON the act is void because of the conflict with the treaty.

Held: A treaty is a compact between independent nations, which depends for its enforcement upon the interest and honor of the governments that are parties to a treaty. Treaties that regulate the mutual rights of citizens and subjects of the contracting nations are in the same category as acts of Congress. When these rights are of such a nature as to be enforced by a court of justice, the court resorts to a treaty as it would to a statute. However, a constitution gives a treaty no superiority over an act on congress. In short, so far as treaty made by the US with any foreign nation can become the subject of judicial cognizance in the courts of this country, it is subject to such acts as Congress may pass for its enforcement, modification or repeal.

2) WHITNEY V. ROBERTSON

Issue: Where a treaty and an act of legislation conflict, will the one last in date control?

HELD: Yes, the one with a later date will control where a treaty and an act of legislation conflict. The act of congress under which the duties were collected was passed after the treaty and therefore is controlling.

3) ISLAND OF PALMAS CASE

Issue: Can an inchoate title prevail over a definite title founded on continuous and peaceful display of sovereignty?

HELD: An inchoate title cannot prevail over a definite title founded on continuous and peaceful display of sovereignty. The continuous and peaceful display of territorial sovereignty is as good as title. Discovery alone, without any subsequent act, cannot suffice to prove sovereignty over the island.

4) YAMASHITA V. STYER

Issue: 1) Should the petitions for habeas corpus and prohibition be granted in this case?

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2) Was the military commission validly constituted by respondent, therefore having jurisdiction over the war crimes?

HELD:

1) No. A petition for habeas corpus is improper when release of petitioner is not sought. It seeks no discharge of petitioner from confinement but merely his restoration to his former status as prisoner of war, to be interned, not confined. The relative difference as to the degree of confinement in such cases is a matter of military measure, disciplinary in character, beyond the jurisdiction of civil courts. Prohibition cannot issue against one not made party respondent.Neither may the petition for prohibition prosper against Lt. Gen. Wilhelm D. Styer.

2) Under the laws of war, a military commander has an implied power to appoint and convene a military commission. This is upon the theory that since the power to create a military commission is an aspect of waging war, military commanders have that power unless expressly withdrawn from them. By the articles of war, and especially Art. 15, the Congress of the US has explicitly provided, so far as it may constitutionally do so, that military tribunals shall have jurisdiction to try offenders or offenses against the laws of war in appropriate cases.

5) TANADA ET. AL V. ANGARA

Issue: Does the 1987 Constitution prohibit our country from participating in worldwide trade liberalization and economic globalization and from integrating into a global economy that is liberalized, deregulated and privatized?

HELD: No, the 1987 Constitution DOES NOT prohibit our country from participating in worldwide trade liberalization and economic globalization and from integrating into a global economy that is liberalized, deregulated, and privatized.

While the Constitution indeed mandates a bias in favor of Filipino goods, services, labor and enterprises, at the same time, it recognizes the need for business exchange with the rest of the world on the bases of equality and reciprocity and limits protection of Filipino enterprises only against foreign corporation and trade practices that are unfair. In other words, the Constitution did not intend to pursue and isolationist policy. It did not shut out foreign investments, goods and services in the development of the Philippine economy.

6) GONZALES v. HECHANOVA

Issue: WON RA 3452 prevails over the 2 executive agreements entered into by Macapagal.

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HELD: Yes. Under the Constitution, the main function of the Executive is to enforce laws enacted by Congress. The former may not interfere in the performance of the legislative powers of the latter, except in the exercise of his veto power. He may not defeat legislative enactments that have acquired the status of laws, by indirectly repealing the same through an executive agreement providing for the performance of the very act prohibited by said laws. In the event of conflict between a treaty and a statute, the one which is latest in point of time shall prevail, is not applicable to the case at bar. Hechanova not only admits, but, also, insists that the contracts adverted to are not treaties. No such justification can be given as regards executive agreements not authorized by previous legislation, without completely upsetting the principle of separation of powers and the system of checks and balances which are fundamental in our constitutional set up.

7) PROVINCE OF NORTH COTABATO V. GRP PEACE PANEL ON ANCESTRAL DOMAIN

Issue: a) WON the signing of the MOA, the Government of the RP would be binding itself

a) to create and recognize the Bangsamoro Judicial Entity (BJE) as a separate state, or a juridical, territorial, or political subdivision not recognized by law;

b) to revise or amend the Constitution and existing laws to conform to the MOA;c) to concede to or recognize the claim of the MILF for ancestral domain in violation of

RA 8371 (The Indigenous Peoples Rights Act of 1997)

HELD:

a) Yes. The provisions of the MOA indicate, among other things, that the Parties aimed to vest in the BJE the status of an associated state or, at any rate, a status closely approximating it.The concept of association is not recognized under the present Constitution.

No province, city, or municipality, not even the ARMM, is recognized under our laws as having an “associative” relationship with the national government. Indeed, the concept implies powers that go beyond anything ever granted by the Constitution to any local or regional government. It also implies the recognition of the associated entity as a state. The Constitution, however, does not contemplate any state in this jurisdiction other than the Philippine State, much less does it provide for a transitory status that aims to prepare any part of Philippine territory for independence.

The BJE is a far more powerful entity than the autonomous region recognized in the Constitution. It is not merely an expanded version of the ARMM, the status of its relationship with the national government being fundamentally different from that of the ARMM. Indeed, BJE is a state in all but name as it meets the criteria of a state laid down in the Montevideo

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Convention, namely, a permanent population, a defined territory, a government, and a capacity to enter into relations with other states.

Even assuming arguendo that the MOA-AD would not necessarily sever any portion of Philippine territory, the spirit animating it – which has betrayed itself by its use of the concept of association – runs counter to the national sovereignty and territorial integrity of the Republic.

The defining concept underlying the relationship between the national government and the BJE being itself contrary to the present Constitution, it is not surprising that many of the specific provisions of the MOA-AD on the formation and powers of the BJE are in conflict with the Constitution and the laws. The BJE is more of a state than an autonomous region. But even assuming that it is covered by the term “autonomous region” in the constitutional provision just quoted, the MOA-AD would still be in conflict with it.

b) The MOA-AD provides that “any provisions of the MOA-AD requiring amendments to the existing legal framework shall come into force upon the signing of a Comprehensive Compact and upon effecting the necessary changes to the legal framework,” implying an amendment of the Constitution to accommodate the MOA-AD. This stipulation, in effect, guaranteed to the MILF the amendment of the Constitution .

It will be observed that the President has authority, as stated in her oath of office, only to preserve and defend the Constitution. Such presidential power does not, however, extend to allowing her to change the Constitution, but simply to recommend proposed amendments or revision. As long as she limits herself to recommending these changes and submits to the proper procedure for constitutional amendments and revision, her mere recommendation need not be construed as an unconstitutional act.

The “suspensive clause” in the MOA-AD viewed in light of the above-discussed standards.

Given the limited nature of the President’s authority to propose constitutional amendments, she cannot guarantee to any third party that the required amendments will eventually be put in place, nor even be submitted to a plebiscite. The most she could do is submit these proposals as recommendations either to Congress or the people, in whom constituent powers are vested.

c) to concede to or recognize the claim of the Moro Islamic Liberation Front for ancestral domain in violation of Republic Act No. 8371 (THE INDIGENOUS PEOPLES RIGHTS ACT OF 1997),particularly Section 3(g) & Chapter VII (DELINEATION,RECOGNITION OF ANCESTRAL DOMAINS)This strand begins with the statement that it is “the birthright of all Moros and all Indigenous peoples of Mindanao to identify themselves and be accepted as ‘Bangsamoros.’” It defines “Bangsamoro people” as the natives or original inhabitants of Mindanao and its adjacent

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islands including Palawan and the Sulu archipelago at the time of conquest or colonization, and their descendants whether mixed or of full blood, including their spouses.

Thus, the concept of “Bangsamoro,” as defined in this strand of the MOA-AD, includes not only “Moros” as traditionally understood even by Muslims, but all indigenous peoples of Mindanao and its adjacent islands. The MOA-AD adds that the freedom of choice of indigenous peoples shall be respected. What this freedom of choice consists in has not been specifically defined. The MOA-AD proceeds to refer to the “Bangsamoro homeland,” the ownership of which is vested exclusively in the Bangsamoro people by virtue of their prior rights of occupation. Both parties to the MOA-AD acknowledge that ancestral domain does not form part of the public domain.

Republic Act No. 8371 or the Indigenous Peoples Rights Act of 1997 provides for clear-cut procedure for the recognition and delineation of ancestral domain, which entails, among other things, the observance of the free and prior informed consent of the Indigenous Cultural Communities/Indigenous Peoples. Notably, the statute does not grant the Executive Department or any government agency the power to delineate and recognize an ancestral domain claim by mere agreement or compromise.

Two, Republic Act No. 7160 or the Local Government Code of 1991 requires all national offices to conduct consultations beforeany project or program critical to the environment and human ecology including those that may call for the eviction of a particular group of people residing in such locality, is implemented therein. The MOA-AD is one peculiar program that unequivocally and unilaterally vests ownership of a vast territory to the Bangsamoro people, which could pervasively and drastically result to the diaspora or displacement of a great number of inhabitants from their total environment.

CONCLUSION: The MOA-AD cannot be reconciled with the present Constitution and laws. Not only its specific provisions but the very concept underlying them, namely, the associative relationship envisioned between the GRP and the BJE, are unconstitutional, for the concept presupposes that the associated entity is a state and implies that the same is on its way to independence

8) THE SAPPHIRE CASE

III was deposed. The case came on to be argued here February 16, 1871. Three questions were raised:1. The right of the Emperor of France to have brought suit in our courts.2. Whether, if rightly brought, the suit had not become abated by the deposition of the Emperor Napoleon III.3. The question of merits; one of fact, and depending upon evidence stated towards the conclusion of the, where the point is considered.

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The first question raised is as to the right of the French Emperor to sue in our courts. On this point, not the slightest difficulty exists. A foreign sovereign, as well as any other foreign person, who has a demand of a civil nature against any person here may prosecute it in our courts. To deny him this privilege would manifest a want of comity and friendly feeling. Such a suit was sustained a want of comity and King of Spain in the Third Circuit by Justice Washington and Judge Peters in 1810. The Constitution expressly extends the judicial power to controversies between a state or citizens thereof and foreign states, citizens, or subjects without reference to the subject matter of the controversy. Our own government has largely availed itself of the like privilege to bring suits in the English courts in cases growing out of our late civil war. Twelve or more of such suits are enumerated in the brief of the appellees, brought within the last five years in the English law, chancery, and admiralty courts. There are numerous cases in the English reports in which suits of foreign sovereigns have been sustained, though it is held that a sovereign cannot be forced into court by suit. The next question is whether the suit has become abated by the recent deposition of the Emperor Napoleon. We think it has not. The reigning sovereign represents the national sovereignty, and that sovereignty is continuous and perpetual, residing in the proper successors of the sovereign for the time being. Napoleon was the owner of the Euryale, not as an individual but as sovereign of France. This is substantially averred in the libel. On his deposition the sovereignty does not change, but merely the person or persons in whom it resides. The foreign state is the true and real owner of its public vessels of war. The reigning Emperor or national assembly or other actual person or party in power is but the agent and representative of the national sovereignty. A change in such representative works no change in the national sovereignty or its rights. The next successor recognized by our government is competent to carry on a suit already commenced and receive the fruits of it. A deed to or treaty with a sovereign as such enures to his successors in the government of the country. If a substitution of names is necessary or proper, it is a formal matter, and can be made by the court under its general power to preserve due symmetry in its forms of proceeding. No allegation has been made that any change in the real and substantial ownership of the Euryale has occurred by the recent devolution of the sovereign power. The vessel has always belonged and still belongs to the French nation.If a special case should arise in which it could be shown that injustice to the other party would ensue from a continuance of the proceedings after the death or deposition of a sovereign, the court, in the exercise of its discretionary power, would take such order as the exigency might require to prevent such a result.The remaining question relates to the merits of the case. And on the merits of the case as presented by the record, we think that the court below erred in imposing the whole damage upon the Sapphire. We think that the Euryale was equally in fault, and that the damage ought to be divided between them. It is not our general practice to scrutinize very carefully the weight of evidence in cases of collision, where the evidence is substantially conflicting and where both district and circuit courts have concurred in a decree upon the merits. Our views upon this subject will be found quite fully expressed by MR. JUSTICE CLIFFORD in the case of The

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Baltimore. But this case depends upon a narrow point, the evidence on which is in our view so decidedly adverse to the sole liability of the Sapphire that it becomes our duty to notice it.The Euryale came to anchor in the harbor on the 14th of December, about six hundred yards from the wharf. She was of four hundred and fifty tons burden, drew thirteen feet of water, and had out fifty-six fathoms of chain, and an anchor weighing 3,500 pounds. TheSapphire, of thirteen hundred tons burden, came to anchor about the 18th of December, about three hundred yards (as alleged both in the libel and answer) to the southeasterly of the Euryale, at a point father up the harbor, and farther from the wharf. She had out about fifty fathoms of chain, and an anchor weighing 3,600 to 3,800 pounds, and she was heavily laden, drawing about twenty-three feet of water. On the night of the 21st of December, it commenced to blow pretty strong from the southeast, by midnight blowing a six-knot breeze, and it kept increasing up to the time of the collision at five o'clock the next morning, when it seems to have been blowing a gale. At half-past three in the morning, the tide changed from ebb to flood, the direction of flood tide being southeasterly, directly contrary to that of the wind. And the captain of the Euryale says (and he is not contradicted) that the wind was twice as strong as the tide. The weight of the evidence is that the Sapphire, under the force of the wind, dragged her anchor and got inside of the Euryale -- that is, between her and the city. At a few minutes past five, the collision occurred.The libellant insists that the Sapphire was in fault in two points: 1st, in anchoring too near the Euryale in the first instance; 2d, in not having out sufficient anchors. We think that the first charge is not sustained. Experienced pilots testified that two hundred and fifty yards distance is a good and sufficient berth in that harbor. And it is to be noted that the master of the Euryale made no complaint of too great proximity, although she and the Sapphire were lying in the same relative position for several days. On the other point, we agree with the district and circuit courts that the Sapphire was in fault. Had a second anchor been put out at an earlier period, the collision in all probability would not have occurred. Indeed, the captain of the Sapphire gave orders to the first officer that if she was likely to start, to put the second anchor down. But it was not done till the collision itself broke the ring-stopper and let it down. A more careful watch would have led to the discovery of the vessel's having started, and would have prevented the catastrophe which ensued.But we are also satisfied that the Euryale was not free from fault. The captain was not on board. The first officer, though on board, was not on deck from eleven o'clock until after the collision. Le Noir, the third officer, was officer of the deck that night. He was called up by the head, or chief, of the watch at three o'clock to observe that the Sapphire was approaching nearer to them than she had been. He attributed it to her letting out more chain, and returned below, and did not come on deck again until five o'clock, a few moments before the collision, when it was too late to avoid it. The instant he came on deck, he ordered done the thing that could have saved them had it been done earlier -- the jib to be hoisted. It would have sheered the vessel off and allowed the Sapphire to pass her. Such is the testimony of the libellant's own witnesses. It is the judgment of the first officer of the ship. Why was not this done before? Why was not the officer, on such a night, in such a gale, at his post? At four o'clock, the man in charge of the watch saw the Sapphire approaching, and says he made a report to that effect. The first officer says that no report was made to him. But the third officer, who was officer of

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the deck, does not say that it was not made to him. If the fact was not communicated to the proper officer, that was in itself a fault. If it was communicated and not attended to, the case of the libellant is not bettered. But the evidence is very strong that the officer received the information. Deveaux, the head of the watch, says that he reported the fact at four o'clock, and Bioux, who had charge of the watch between four and five o'clock, says that between those hours he saw the Sapphire with the wind astern, and heading the current, coming towards the Euryale; that she continued to approach gradually, and that he reported this to Mr. Le Noir between four and five o'clock. Here, then, was a clear neglect of proper precautions for an entire hour immediately preceding the collision.We cannot avoid the conviction that there was a want of proper care and vigilance on the part of the officers of the Euryale, and that this contributed to produce the collision which ensued. Both parties being in fault, the damages ought to be equally divided between them.Decree of the circuit court reversed and the cause remitted to that court with directions to enter a decree in conformity with this opinion.

9) US V. MEXICO

HELD: The Commission decides (1) that the claim must be disallowed with respect to the three money orders issued in the name of the Banco Germdnico de la America del Sur of Mexico City, totaling the amount of 590 pesos ; and (2) that with respect to the three other money orders the Government of the United Mexican States shall pay to the Government of the United States of America on behalf of George W. Hopkins the total amount of the orders, namely, $211.06 (two hundred and eleven dollars and six cents) with interest at the rate of six per centum per annum from June 6, 1914, to the date on which the last award is rendered by the Commission.

10) OETJEN V. CENTRAL LEATHER Co.

'Every sovereign state is bound to respect the independence of every other sovereign state, and the courts of one country will not sit in judgment on the acts of the government of another done within its own territory. Redress of grievances by reason of such acts must be obtained through the means open to be available of by sovereign powers as between themselves.' Underhill v. Hernandez, 168 U.S. 250, 252 , 18 S. Sup. Ct. 83, 84 (42 L. Ed. 456); American Banana Co. v. United Fruit Co., 213 U.S. 347 , 29 Sup. Ct. 511, 16 Ann. Cas. 1047.Applying these principles of law to the case at bar, we have a duly commissioned military commander of what must be accepted as the legitimate government of Mexico, in the progress of a revolution, and when conducting active independent operations, seizing and selling in Mexico, as a military contribu ion, the property in controversy, at the time owned and in the possession of a citizen of Mexico, the assignor of the plaintiff in error. Plainly this was the action, in Mexico, of the legitimate Mexican government when dealing with a Mexican citizen, and, as we have seen, for the soundest reasons, and upon repeated decisions of this court such action is not subject to re-examination and modification by the courts of this country.

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The principle that the conduct of one independent government cannot be successfully questioned in the courts of another is as applicable to a case involving the title to property brought within the custody of a court, such as we have here, as it was held to be to the cases cited, in which claims for damages were based upon acts done in a foreign country, for it rests at last upon the highest [246 U.S. 297, 304] considerations of international comity and expediency. To permit the validity of the acts of one sovereign state to be reexamined and perhaps condemned by the courts of another would very certainly 'imperil the amicable relations between governments and vex the peace of nations.'It is not necessary to consider, as the New Jersey court did, the validity of the levy of the contribution made by the Mexican commanding general, under rules of international law applicable to the situation, since the subject is not open to re-examination by this or any other American court.The remedy of the former owner, or of the purchaser from him, of the property in controversy, if either has any remedy, must be found in the courts of Mexico or through the diplomatic agencies of the political department of our government. The judgments of the Court of Errors and Appeals of New Jersey must be affirmed.

11) UNDERHILL V. HERNANDEZ

HELD: Every sovereign state is bound to respect the independence of every other sovereign state, and the courts of one country will not sit in judgment on the acts of the government of another done within its own territory. Redress of grievances by reason of suct act must be obtained through the means open to be availed of by sovereign powers as between themselves.

12) THE CASE OF SS LOTUS (FRANCE V. TURKEY)

Issue: Does a rule of international law which prohibits a state from exercising criminal jurisdiction over a foreign national who commits acts outside of the state’s national jurisdiction exist?

HELD: The offense for which Lt. Demons appears to have been prosecuted was an act of negligence or imprudence having its origin on board the lotus whilst the effects made themselves felt on board the Boz-Kourt. These elements are legally, entirely inseparable, so much so that their separation renders the offense non-existent. Neither the exclusive jurisdiction of each of the occurrence which took place on the respective ships would appear calculated to satisfy the requirements of justice and effectively to protect the interests of the two (2) states. It is only natural that each should be able to exercise jurisdiction and to do so in respect of the incident as a whole. It is however, a case of concurrent jurisdiction.

13) WORLD HEALTH ORGANIZATION V. AQUINO

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Issue: WON personal effect of WHO Officer DR. Verstuyft can be exempted from search and seizure under the diplomatic immunity

HELD: The executive branch of the Philippines has expressly recognized that Verstuyft is entitled to diplomatic immunity, pursuant to the provisions of the Host Agreement. The DFA formally advised respondent judge of the Philippine Government’s official position. The Solicitor General, as principal law officer of the government, likewise expressly affirmed said petitioner’s right to diplomatic immunity asn asked for the quashal of the search warrant.

14) CLIPPERTON ISLAND CASE

Issue: Is the rule announced in the Island of Palmas cse absolute?

HELD: No. In the Clipperton Island Case, France proclaimed sovereignty over an island in 1858 but until 1887 exercised no positive or apparent act of sovereignty over it. When Mexico later claimed the territory in 1897, the arbitrator, while recognizing that possession and administration are generally required for an effective discovery and occupation held that, if territory, by virtue of the fact that it was completely uninhabited is, from the first moment when the occupying State makes its appearance there, at the absolute and undisputed disposition of that State, from that moment the taking of possession must be considered as accomplished and the occupation is thereby completed.

15) REPUBLIC OF PERU V. DREYFUS BROTHERS

HELD: A general government de facto having completely taken the place of the regularly instituted authorities in the State finds the nation. So far as its international obligations are concerned, it represents the State. It succeeds to the duty of the regular government it has displaced and transmits its own obligations to succeeding titular governments. Its loans and contracts bind the State, and the state is responsible for the government acts of the de facto authorities. In general, its treaties are valid obligations of the State.

16) WULFSOHN V. RUSSIAN SOCIALIST FEDERATION SOVIET REPUBLICS

HELD: The Russian Federated Soviet Republic is the existing de facto government of Russia. This is admitted by the plaintiff. Otherwise there is no proper party defendant before the court. It is claimed by the defendant. The Appellate Division states that it is a matter of common knowledge. It has not been recognized by the government of the United States. The plaintiffs owned a quantity of furs. They were stored in Russia and they were confiscated by the Russian government. Treating this act as a conversion the present action is brought.

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The litigation is not, therefore, with regard to title to property situated within the jurisdiction of our courts, where the result depends upon the effect to be given to the action of some foreign government. Under such circumstances it might be that the theory of the comity of nations would have a place. A different case is presented to us. The government itself is sued for an exercise of sovereignty within its own territories on the theory that such an act, if committed by an individual here, would be a tort under our system of municipal law. It is said that, because of nonrecognition by the United States, such an action may be maintained. There is no relation between the premise and the conclusion.

The result we reach depends upon more basic considerations than recognition or nonrecognition by the United States. Whether or not a government exists, clothed with the power to enforce its authority within its own territory, obeyed by the people over whom it rules, capable of performing the duties and fulfilling the obligations of an independent power, able to enforce its claims by military force is a fact, not a theory. For its recognition does not create the state, although it may be desirable. So only are diplomatic relations permitted. Treaties made with the government which it succeeds may again come into effect. It is a testimony of friendly intentions. Also in the country granting the recognition that act is conclusive as to the existence of the government recognized. Again, recognition may become important where the actual existence of a government created by rebellion or otherwise becomes a political question affecting our neutrality laws, the recognition of the decrees of prize courts, and similar questions. But, except in such instances, the fact of the existence of such a government whenever it becomes material may probably be proved in other ways.

Here, however, we need no proof. The fact is conceded. We have an existing government, sovereign within its own territories.

There necessarily its jurisdiction is exclusive and absolute. It is susceptible of no limitation not imposed by itself. This is the result of its independence. It may be conceded that its actions should accord with natural justice and equity. If they do not, however, our courts are not competent to review them. They may not bring a foreign sovereign before our bar, not because of comity, but because he has not submitted himself to our laws. Without his consent he is not subject to them. Concededly that is so as to a foreign government that has received recognition. But, whether recognized or not, the evil of such an attempt would be the same. ‘To cite a foreign potentate into a municipal court for any complaint against him in his public capacity is contrary to the law of nations, and an insult which he is entitled to resent.’ De Haber v. Queen of Portugal, 17 Q. B. 171. In either case, to do so would ‘vex the peace of nations.’ In either case the hands of the state department would be tied. Unwillingly it would find itself involved in disputes it might think unwise. Such is not the proper method of redress, if a citizen of the United States is wronged. The question is a political one, not confided to the courts, but to

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another department of government. Whenever an act done by a sovereign in his sovereign character is questioned, it becomes a matter of negotiation, or of reprisals, or of war. If the complaint and the affidavits upon which the warrant of attachment was based in the case before us clearly indicate that the plaintiffs must ultimately fail, the warrant should be vacated. It does so appear in this case.

17) WALTHIER V. THOMPSON

HELD: In 1960, the State Department recognized immunity of Canadian consular officer and the dominion of Catholic because the acts in question “In the course of on in connection with the consular officer’s duties described constitute sovereign or public acts of Canada. The Court subsequently discussed the action, on the grounds that a consular official is immune from suit when the acts complained of were performed in the course of his official duties.

18) NICOLAS V. ROMULO ET AL

ISSUE:

HELD: The SC ruled The Visiting Forces Agreement (VFA) between the Republic of the Philippines and the United States, entered into on February 10, 1998, is constitutional, but the Romulo-Kenney Agreements of December 19 and 22, 2006 are DECLARED not in accordance with the VFA.

VFA is Constitutional

The SC ruled that “the VFA was duly concurred in by the Philippine Senate and has been recognized as a treaty by the United States,” and “the fact that (it) was not submitted for advice and consent of the United States does not detract from its status as a binding international agreement or treaty recognized by the said State.”

Section 25, Article XVIII, 1987 Constitution provides that “foreign military bases, troops, or facilities shall not be allowed in the Philippines except under a treaty duly concurred in by the Senate and, when the Congress so requires, ratified by a majority of the votes cast by the people in a national referendum held for that purpose, and recognized as a treaty by the other contracting State.”

The issue, the Court said, is “whether or not the presence of the US Armed Forces in Philippine territory pursuant to the VFA is allowed ‘under a treaty duly concurred in by the Senate and recognized as a treaty by the other contracting State.’” “It is,” the Court ruled. “The VFA, which is the instrument agreed upon to provide for the joint RP-US military exercises, is simply an implementing agreement to the main RP-US Mutual Defense Treaty,” the Court held. visit

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fellester.blogspot.com The RP-US Mutual Defense Treaty of August 30, 1951 was signed and duly ratified with the concurrence of both the Philippine Senate and the United States Senate.

Romulo-Kenney Agreements not in accord with the VFA itself

The Court however ruled that “the Romulo-Kenney Agreements of December 19 and 22, 2006, which are agreements on the detention of the accused in the United States Embassy, are not in accord with the VFA itself because such detention is not “by Philippine authorities.” Article V, Section 10 of the VFA provides that “the confinement or detention by Philippine authorities of the United States personnel shall be carried out in facilities agreed on by appropriate Philippines and United States authorities.” (Suzette Nicolas y Sombilon Vs. Alberto Romulo, G.R. No. 175888, February 11, 2009)

19) MEDELLIN V. TEXAS

Issue: Is the ICJs judgment in Avena directly enforceable as domestic law in a state court in the US?

HELD: This court has long recognized the distinction between treaties that automatically have effect as domestic law and those that- while they constitute international law commitments- do not by themselves function as binding federal law. The distinction was well explained by Chief Justice Marshall’s opinion in Foster v Neilson, overruled on other grounds, US v Percheman, which held that a treaty is “equivalent to an act of the legislature”, and hence, self-executing when it operates of itself without the aid of any legislative mission.” When, in contrast, treaty stipulations are not self-executing, they can only be enforced pursuant to legislation to carry them into effect. In sum, while treaties may comprise international commitments, they are not domestic law unless Congress has either implementing statutes or the treaty itself conveys an intention that it be “self-executing” and is ratified on these terms.

Only if the treaty contains stipulations which are self-executing, that it, requires no legislation to make them operative, will they have the force and effect of a legislative enactment. In the case at bar, because none of the treaty sources creates binding federal law in absence of implementing legislation and because it is uncontested that no such legislation exists, we conclude that the Avena judgment is not automatically binding domestic law.

20) THE CANAVERO CASE

HELD: According to Peruvian legislation, Rafael Canavero is a Peruvian by birth because born on Peruvian territory. On the other hand, according to Italian legislation, he us of Italian nationality because born of an Italian father. Under these circumstances, whatever Rafael Canavero’s status as a national may be in Italy, the government of Peru has a right to consider him as Peruvian citizen and to deny his status as an Italian claimant.

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21) US (TELLECH) V. AUSTRIA AND HUNGARY

HELD: Citizenship is determined by ruled prescribed by municipal law. Under the law of Austria, to which claimant had voluntarily subjected himself, he was an Austrian citizen. The Austrian and the Austro-Hungarian authorities were well within their rights in dealing with him as such. Possessing as he did nationality, he voluntarily took the risk incident to residing in Austrian territory and subjecting himself to the duties and obligations of an Austrian citizen arising under the municipal laws of Austria.

22) IN RE MUNIER

In Re Meunier, (1894) 2 QB 415, the fugitive was an anarchist and he was accused of causing explosion at a cafe and in certain barracks in France as a protest against the French Government. The French Government requested his extradition after the fugitive had escaped to England. The fugitive resisted extradition by pleading that the offence was a political offence. Cave J. held that “in order to constitute an offence of a political character, there must be two or more parties in the State, each seeking to impose the Government of their own choice on the other, and that, if the offence is committed by one side or the other in pursuance of that object, it is a political offence, otherwise not” (see page 419 of judgment) The fugitive’s plea of political offence failed because he committed the offences with the mere intention of expressing his hatred, distrust of, or disbelief in government as an institution. It appears that the court in Meunier had followed closely the principles laid down in Castioni in that in construing an offence of a political character, the fugitive had to commit the offence with the object of staging a political disturbance and that there must be a nexus between the criminal act and the political disturbance. The interpretation in Castioni and Meunier was regarded as being too restrictive in R v. Governor of Brixton Prison, ex pate Kolczynski, (1955) 1 QB 540 (“the Polish Seamen Case”). Seven Polish seamen served as members of the crew in a trawler fishing in the North Sea. The activities of the seamen in the trawler were monitored by a political officer who was gathering evidence to prosecute them on account of their political opinion when they returned to Poland. Knowing that they would be prosecuted for their political opinion if they returned to Poland, the seamen took control of the trawler and went to England. The Polish Government requested their extradition for various criminal offences including that of wounding. In distinguishing the case from that of Castioni, and Meunier, Cassels J. said: “The words “offence of a political character” must always be considered according to the circumstances existing at the time when they have to be considered. The present time is very different from 1891, when Castioni’s case was decided. It was not then treason for a citizen to leave his country and start a fresh life in another. Countries were not regarded as enemy countries when no war was in progress. Now a state of totalitarianism prevails in some parts of the world and it is a crime for citizens in such places to take steps to leave. In this case the members of the crew of a small trawler engaged in fishing were under political supervision and they revolted by the only means open to them. They committed an offence of a political

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character, and if they were surrendered there could be no doubt that, while they would be tried for the particular offence mentioned, they would be punished as for a political crime. Thus they have brought themselves within section 3(1) (i.e. that the political offence exception) and made good their claim to have the restrictions referred to observed.” 23) THE NOTTEBOHM CASE

HELD: Nottebohm’s actual connections with Liechtenstein were extremely tenuous. No settled abode, no prolonged residence in that country at the time of his application for naturalization. No intention of settling there was shown at that time or realized in the ensuing weeks, months, or years- on the contrary, he returned to Guatemala very shortly after his naturalization and showed every intention of remaining there.

Naturalization was asked not so much for the purpose of obtaining a legal recognition of Nottebohm’s membership in fact in the population of Liechtenstein ass it was to enable him to substitute for his status as a national of a belligerent state that of a nationalof a neutral state, with the sole aim of thus coming within the protection of Liechtenstein without becoming wedded to its traditions, its interests, its way of life, or assuming the obligations-other than fiscal obligations-and exercising the rights pertaining to the status acquired.

Guatemala is under no obligation to recognize a nationality granted in such circumstances. Liechtenstein consequently is not entitled to extend its protection to Nottebohm vis-à-vis Guatemala and its claim must, for this reason, be held inadmissible.

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