PIL Compilation Prefinals 2013-2014

8/9/2019 PIL Compilation Prefinals 2013-2014

1/25

PUBLIC INTERNATIONAL LAW

Pre-fnals Notes (Atty. DBL Transcript, Digests rom the

internet, Some provisions an efnitions!

Pro" Atty. D.B. Largo

G. JURISDICTION

Forms of Jurisdiction

Jurisdiction of Ntion! Courts

Con"icts of Jurisdiction

Jurisdiction. There are three categories of Jurisdiction class

around the world. Of course all these would have to aect

persons, acts, events, or transactions, all of these, ok. So

there is what we called jurisdiction to prescribe law, meaning

to say that a particular conduct of a citien or an individual is

governed by this particular law where ever he goes. !lthough

States makes its policy, when we say policy, it"s a rule of

conduct applicable to persons or activities. This is best

e#empli$ed by the %S, & told you to read the %S statement on

foreign relations. 'ecause that"s where we will see a good

discussion on international law.

(e also have jurisdiction to adjudicate. So that is a dierent

type of jurisdiction. That is the authority of the state to

subject particular persons or things to these courts. )robably

that"s the usual jurisdiction that comes to mind when we hear

the word jurisdiction.

&n international law, what is jurisdiction* &n international law

we distinguish between jurisdiction to prescribe law by asking

our citiens to behave in a particular manner on the basis of

domestic law for e#ample. +ike our family law, status, our

family code reuires that we should be at least eighteen

before we can validly contract marriage. So personal laws

follow our citien. So if you go to other states, this becomes

complicated because we also have con-ict of laws. our

capacity to marry is largely based on nationality principle. So

the policy is for you to marry you have to be /0. That isjurisdiction to prescribe law. Jurisdiction to adjudicate to clear

the case and lastly, jurisdiction to enforce. This two of course

have various controversial issues which we will discuss later

on.

1oncern with the authority of the states to use their resources

of government we compel compliance with these laws. 'ut

probably, if we are to talk of jurisdiction, we talk about

criminal jurisdiction. 2ao man nay usual concern when it

comes to jurisdiction.

ou must have read territorial principle, nationality principle,

protective principle, and universality principle. Territorial

principle may be subjective or objective. &f the act is donewithin the territory the court will have jurisdiction over the

crime. That is criminal jurisdiction. 'ut crimes are committed

with diering elements, diering mens rea, diering actus

rios. So the problem here is what if mens rea is present

outside the territory, but the eect of the actus rios is in your

territory. 3ow are you going to solve that* So that"s why we

distinguish between subjective and objective.

TERRITORIAL PRINCIPLE

(e go to territorial jurisdiction, you were right. States have

jurisdiction over persons, properties, acts or events occurring

within its territory. !pplied to criminal jurisdiction, then State

has jurisdiction over acts, or crimes committed within its

territory. This stipulation is applicable to territorial jurisdiction

in general. +ike ta#ation for e#ample is territorial. (ith few

e#ceptions when the case of resident citiens working abroad

for e#ample. 'ut in criminal law, the crime is committed

within its territory. These are the two kinds of principles about

territorial jurisdiction. Subjective territorial principle

commence within. &n objective, it"s the eect no, commenced

abroad but consummated within their territory, no. one.

Second, it will take rest producing gravely harmful

conseuences to the social or economic order inside their

territory which had been used by the %S a lot of times.

So if this is the situation, we have 1anada and %S kay

adjacent man sila, suddenly 1anada $res a gun and then hit

someone in the %S. So how do you apply subjective and

objective territorial principle* The %S is... in objective because

the eect of the crime is felt in its territory. So mens rea is in

1anada, then the actus rios is completed in the %S. 2ens rea

is criminal intent, actus rios is the overt act. The pulling of the

trigger is not what constitutes the crime. (hat constitute the

crime is the killing and then for the death of the victim. The

overt act is the pulling of the trigger and then the death of the

victim. Objective for %S. Subjective, 1anada would have

jurisdiction. 'ecause the act commenced within 1anada.

!nd then & asked someone about the case of %S vs. 4asue5

4elasco. 6atuo man gud ni silang 4asue54elasco ba nga

katong ilang gipang5pusil mga agents sa %S 7rug

8nforcement !gency, it turned out nga dili. !ng arguments sa

taga 2e#ico, the crime was committed in 2e#ico and the

victims were not agents mistaken identity lang. !ww dili sad

mistaken identity but they thought, ang ako lang, dili kaha to

fabricated nga evidence on the part of %S so that it can justify

e#tra..ambot lang kay dili man lagi nato kaso so wala taybackground so we can only have to perhaps surmise. 'ut

since it was an attemptagainst the national security of the %S,

the attack was intended to be committed against the %S

through 78! then it must have threatened %S national

interest justifying e#tra5territorial application of penal law in

the %S. This is what the %S 1ourt said,

9 8#tra5territorial application of a penal statute to the

murder of the %S citien mistaken as a federal agent is

consistent with the principle of international law. &nternational

law generally permits the e#ercise of e#tra5territorial

jurisdiction under the objective territorial principle under

which jurisdiction is asserted over acts performed outside the

%S that produced detrimental eects within the %S. 9

&t was also justi$ed in protective principle because according

to the %S court it was an act committed outside the %S that

may impede on the territorial security or political

independence of the %S. 7ia ra oh.

9 7espite the fact that the crimes in this case did

not include murder of a 78! agent, e#tra5territorial

jurisdiction is still appropriate because according to the

government"s theory, the crime was directed against the %S.:

2ao ni akong giingon. (ala kaha ni gihilot;# lang jud ba

during trial nga naa sila ana nga theory. The court said that

the crime was directed against the %S. 2ao ra nay ilang

interest, it was directed against %S because it was against %S

interest. %S interest is prejudiced, threatened, under5

attacked.


2/25

)ects Doctrine * regarless o +here the crime +as

committe, i it a)ecte the state, then it has oective

territorial risiction. nnciate in the cases o /S vs.

0as1e2-0elasco an the 3artorfre 4ase.

CASE BRIEFS

Unit#d Stt#s $. %s&u#'(%#!sco'5 6.7 877

Proc#dur! )istor*+

Appeal o criminal conviction.

O$#r$i#,+-9avier 0as1e2-0elasco (D!, a memer o a rg cartel in:aalaara, an several other memers, eat an &ille(9ohn; e?ico;an =Alerto; @aelat =a photographer an /.S. legalresient;.-D +as convicte ner /.S. la+. n appeal, 0as1e2-0elasco(D! arge that /.S. penal la+s o not apply e?traterritorially./nite States v. 6eli?-:tierre2, #$ 6.% '%$$ (th 4ir. ''!,cert. enie, 5$8 /.S. $C ('7!, a case in +hich a eenant+as convicte o &inapping an mrering nri1e4amarena, an American Drg norcement Agency (DA!agent, an Alreo avala, a DA inormant, +as the asis orthe appeal y the eenant in this case, 9avier 0as1e2-

0elasco (D!. 0as1e2-0elasco (D!, a memer o a rg cartel in:aalaara, an several other memers, eat an &ille(9ohn; e?ico;an =Alerto; @aelat =a photographer an /.S. legalresient;.-At trial, the /.S. government (P! arge that 0as1e2-0elasco(D! an his three co-eenants committe the crimes torther their positions in a :aalaara rg cartel. Themrers 0elasco (D! +as charge +ith +ere allegelyretaliatory actions against a DA crac&o+n.-3e +as convicte in a ry trial o committing violent crimesin ai o a rac&eteering enterprise in violation o '8 /.S.4. E'5. n appeal, 0as1e2-0elasco (D! arge that /.S. penalla+s o not apply e?traterritorially.

Issu#+Fs the e?traterritorial application o a penal statte to the

mrer o a /.S. citi2en mista&en or a eeral agentconsistent +ith principles o international la+G

Ru!#+?traterritorial application o a penal statte to the mrer oa /S citi2en mista&en or a eeral agent is consistent +ith theprinciples o intl. la+.

An!*sis+-The oective territorial an protective principles applyecase the eenant in this case mrere the t+o /.S.citi2ens on the mista&en elie they +ere DA agents, antheir mrers might intimiate the DA an local police anrg agencies, +ho might other+ise cooperate +ith the DA.-The case thereore trns on the eenantHs sectiveeliesI i the government ha een nsccessl in its

argment that the mrers +ere committe as retaliationagainst the DA, e?traterritorial risiction +ol e harerto apply.

Outcom#+-Jes. ?traterritorial application o a penal statte to themrer o a /.S. citi2en mista&en or a eeral agent isconsistent +ith principles o international la+.-Fnternational la+ generally permits the e?ercise oe?traterritorial risiction ner the oective territorialprinciple, ner +hich risiction is asserte over actsperorme otsie the /nite States (P! that proceetrimental e)ects +ithin the /nite States (P!, an theprotective principle, ner +hich risiction is" asserte overoreigners or an act committe otsie .the /nite States (P!that may impinge on the territorial integrity, secrity, or

political inepenence o the /nite States (P!.-?traterritorial application o '8 /.S.4. E '5 to violentcrimes associate +ith rg traKc&ing is reasonale nerinternational la+ principles, since it is a serios anniversally conemne o)ense. Despite the act that thecrimes in this case i not involve the mrer o a DA agent,e?traterritorial risiction is still appropriate ecase,accoring to the governmentHs theory, the cartel memersmistoo& .p

NATIONALIT- PRINCIPLE

@oreign conduct that was meant to produce and does in fact

produce substantial eect in the %S may be covered by their

own law. Tan5awa ra gud ang sentence class oh, 9

&nternational committee would not prevent a %S court from

#$% ShineBrightLi&eADiamon Page%


3/25

e#ercising jurisdiction in the circumstances alleged here.: !ng

ponencia ni ha. 1ommittee ra man sad gud, wala man siya

miingon nga customary international law would not prevent.

Aana kulba kaayo na declaration on the part of the %S court.

Okay so that territorial jurisdiction, objective and passive. (e

have nationality principle in jurisdiction. (e also have active

and passive. !ctive, state may regulate the conduct of their

national wherever they are in the world. (e have personal

law, whether or not you are married, you are governed by our

personal laws even if they are outside our territory, our

capacity to contract marriage, what else.. Status usually noh.

There is what we call passive nationality however. The state

may prescribe a law for situations where the state"s nationals

are victims of the act being regulated. Sa active nationality,

ang link is that you are a national and therefore you can be

reached by the domestic law wherever you are. (e are not

saying that, by following thate, all rules should be applied. &t

depends on the domestic law of course. !s & have said, diba in

our case, an e#ample is in the case of our personal laws. &n

passive nationality, the link however is that a victim is a

national. Sa passive nationality man gud class, the jurisdiction

is applied to the oender. &n active nationality, the jurisdiction

is applied to the citien.


4/25

jurisdictions. 1ounterfeiting of bills a common e#ample.

'asis* @or the %S, in their Eestatement. This is an illustration

of a practice in protective jurisdiction. 7o not uote as a

de$nition of protective principle. ou can cite it as a practice

of the %S. &t has a very narrow scope. Terrorism is still a

uestion mark. & think states can now validly argue on the

basis of terrorism.

&n the old case of %S vs. 'owman which was cited in 'in

+aden case. They purchased /FFF tonnes of fuel oil and sabot

sila na GFF ra ang ilang isaka sa barko. The vessel was owned

by the %S, that is the link. ! criminal statute that deals with

acts that are directly injurious to the govt and capable of

perpetration without regard to particular locality is to be

construed as to be applicable to the citiens of the %S even

committed in the high seas, or even on a foreign country,

even if there is no e#press declaration to that eect.

%S vs. Eomero 6alue, %S applied protective principle. The

protective principle permits a nation to assert jurisdiction over

a person whose conduct outside the nation"s territory

threatens the nation"s security or could potentially interfere

with the operation of its governmental functions. %S e#ercised

jurisdiction over a foreign ship, which was in the high seas,

but carrying marijuana, prohibited drugs. There was a

)OT8illar +as a British sect.

9ohnston U 4o. +ere the agents o the National Shipping

4orporation at @io. The inictment charge that the plot +as

hatche y


5/25

reache @io. Their plan +as to orer, throgh 9ohnston U 4o.,

an receipt or, ',$$$ tons o el oil rom the Stanar il

4ompany, t to ta&e only C$$ tons aoar, an to collect

cash or a elivery o ',$$$ tons throgh 9ohnston U 4o., rom

the 6leet 4orporation, an then ivie the money pai or the

nelivere #$$ tons among the or eenants. This plan

+as to e, an +as, mae possile throgh the gilty

connivance o the Stanar il agent, 3a+&inson, an >illar,

the @io merchant, +ho +as to, an i, collect the money.

vert acts charge incle a +ireless telegram to the

agents, 9ohnston U 4o., rom the Dio +hile on the high seasorering the ',$$$ tons o oil. The Sothern District o Ne+

Jor& +as the istrict into +hich the American eenants +ere

frst roght an +ere on, t >illar, the British eenant,

has not een on.

The frst cont charge a conspiracy y the eenants to

era the 6leet 4orporation, in +hich the /nite States +as

a stoc&holer, y otaining an aiing to otain the payment

an allo+ance o a alse an ralent claim against the

6leet 4orporation. Ft lai the o)ense on the high seas, ot o

the risiction o any particlar state, an ot o the

risiction o any istrict o the /nite States, t +ithin the

amiralty an maritime risiction o the /nite States. The

secon cont lai the conspiracy on the Dio on the high seasan at the port o @io 9aneiro, as +ell as in the city. The thir

cont lai it in the city o @io 9aneiro. The orth cont +as or

ma&ing an casing to e mae in the name o the Stanar

il 4ompany, or payment an approval, a alse an

ralent claim against the 6leet 4orporation in the orm o

an invoice or ',$$$ tons o el oil, o +hich #$$ tons +ere

not elivere. This cont lai the same crime on oar the Dio

in the haror o @io 9aneiro. The fth cont lai it in the city,

an the si?th at the port an in the city.

No oection +as mae to the inictment or any cont o it or

lac& o precision o lness in escriing all the elements o

the crimes enonce in section 75 o the 4riminal 4oe as

amene. The sole oection +as that the crime +ascommitte +ithot the risiction o the /nite States or o

any state thereo an on the high seas or +ithin the

risiction o Bra2il. The District 4ort consiere only the

frst cont, +hich charge the conspiracy to have een

committe on the Dio on the high seas, an, having hel that

a or lac& o risiction, a ortiori it sstaine the emrrer

as the others.

The cort in its opinion concee that ner many athorities

the /nite States as a sovereign may reglate the ships ner

its Mag an the conct o its citi2ens +hile on those ships,

an cite to this point 4rapo v. Velly, 'C


6/25

reasonale to hol that i any one, certainly i a citi2en o the

/nite States, +ere to steal or eme22le sch property +hich

may properly an la+lly e in the cstoy o army or naval

oKcers either in oreign contries, in oreign ports or on the

high seas, it +ol not e in sch places an o)ense +hich

4ongress intene to pnish y this section.

ilitia, or to

any person accompanying, serving, or retaine +ith the lan

or naval orces an sect to military or naval la+, having

&no+lege or reason to elieve that the property has een

ta&en rom the possession o the /nite States or rnishe y

the /nite States ner sch allo+ance, shall e fne not

more than [5$$ or imprisone not more than t+o years, or

oth.

UNITED STATES $. RO2ERO(GALUE

T96LAT, 4ircit 9ge"

Section 55a(c! o Title %' o the /nite States 4oe ma&es it

a crime or any person on oar any vessel +ithin the

cstoms +aters o the /nite States to &no+ingly or

intentionally ... possess +ith intent to ... istrite mariana.

This appeal 1estions +hether the 4ongress, in enacting this

#$% ShineBrightLi&eADiamon PageC
http://www.law.cornell.edu/supremecourt/text/260/94#fn1http://www.law.cornell.edu/supremecourt/text/260/94#fn1http://www.law.cornell.edu/supremecourt/text/260/94#fn1http://www.law.cornell.edu/supremecourt/text/134/624http://www.law.cornell.edu/supremecourt/text/134/624http://www.law.cornell.edu/supremecourt/text/134/624http://www.law.cornell.edu/supremecourt/text/260/94#fn1_refhttp://www.law.cornell.edu/supremecourt/text/260/94#fn1http://www.law.cornell.edu/supremecourt/text/134/624http://www.law.cornell.edu/supremecourt/text/134/624http://www.law.cornell.edu/supremecourt/text/260/94#fn1_ref


7/25

statte, intene to reach the possession o mariana y

oreigners aoar a oreign vessel on the high seas.' The

istrict cort hel that 4ongress i not so inten an

ismisse the inictment.%ariana on the 3igh Seas Act o '8$# an the

4omprehensive Drg Ase Prevention an 4ontrol Act o

'$5in fve

9:;: F.4d ariana on the 3igh Seas Act on +hich the conts +ere

ase +ere so vage an overroa as to violate the e

process clase o the fth amenment. They attac&e conts F

an FF on an aitional gronI 4ongress i not inten to

ma&e it a crime or a person not a /nite States citi2en to

conspire to possess, or to possess, mariana on a oreign

vessel on the high seas. The eenants also move the cort

to sppress the mariana the 4oast :ar ha ta&en rom

the 8l 7on, claiming that the sei2re violate the orth

amenment.

The istrict cort, on >arch 7$, '8#, convene a hearing on

the eenantsX motions. At that an sse1ent hearings,the parties proce the acts +e have recite, aleit in

some+hat greater etail, on the isse o the valiity o the

4oast :arXs search an sei2re o the 8l 7on.6ollo+ing the

hearings, the cort, in a memoranm orer, ismisse the

inictment. The cort gave no reasons or its action, e?cept as

to cont FF.'$Ft concle

9:;: F.4d


8/25

the stattorily measre cstoms +aters. Bt this i not en

the in1iry. The cort shol have recogni2e that the point

on the high seas o the 8l 7onXs sei2re col have een

cstoms +aters esignate y the /nite States an

Panama, y treaty or other arrangement, as a place +here

the /nite States col sei2e an prosecte ner section

55a(c! those in possession o mariana aoar a

Panamanian vessel. The cort shol have allo+e the

government to prove sch a esignation at trial. The

legislative history o the section 55(a! cstoms +aters

efnition ma&es it clear that 4ongress intene section55a(c! to reach oreign citi2ens aoar oreign Mag vessels in

areas on the high seas esignate y the /nite States an

the nation +hose Mag the vessel Mies as places +here the la+s

o the /nite States +ill e enorce.'7

4ongress frst ormlate the efnition o cstoms +aters

+hen it passe the Anti-Smggling Act o '75, ' /.S.4. EE

'$'-''' ('8%!,'#to rece the smggling o li1or into the

/nite States in contravention o or revene la+s. Prior to

the passage o the Anti-Smggling Act, the government col

only prosecte smgglers in vessels sei2e +ithin the

stattory t+elve-mile cstoms +aters areaI smggling vessels

col hover eyon that t+elve-mile limit +ith impnity. The

/nite States i have li1or treaties +ith si?teen nations,+hich allo+e it to sei2e a treaty nationXs vessel an to

enorce the anti-smggling la+s i the vessel +as caght

+ithin one horXs sailing istance o the coast o the /nite

States, t these treaties +ere not sel-e?ecting. Asent

stattory athority, the /nite States lac&e the po+er to

apply its penal la+s to

9:;: F.4d ANDD.

Eic/mnn nd Pinoc/#t Cs#s+ Emodim#nt of t/#

Princi3!# of Uni$#rs! Jurisdiction

By >ansha Vhem&a Z '5th Novemer, %$'7

#$% ShineBrightLi&eADiamon Page8
http://www.leagle.com/decision/19851904757F2d1147_11729#fid14http://www.leagle.com/decision/19851904757F2d1147_11729#fid15http://www.leagle.com/decision/19851904757F2d1147_11729#fid15http://www.leagle.com/decision/19851904757F2d1147_11729#fid15http://www.leagle.com/decision/19851904757F2d1147_11729#fid16http://www.leagle.com/decision/19851904757F2d1147_11729#fid17http://www.leagle.com/decision/19851904757F2d1147_11729#fid18http://www.leagle.com/decision/19851904757F2d1147_11729#fid19http://www.leagle.com/decision/19851904757F2d1147_11729#fid20http://www.leagle.com/decision/19851904757F2d1147_11729#fid20http://www.leagle.com/decision/19851904757F2d1147_11729#fid21http://www.leagle.com/get_cited/679%20F.2d%201373http://www.leagle.com/get_cited/679%20F.2d%201373http://www.leagle.com/get_cited/604%20F.2d%20356http://www.leagle.com/get_cited/604%20F.2d%20356http://www.leagle.com/get_cited/604%20F.2d%20356http://www.leagle.com/get_cited/375%20F.2d%20882http://www.leagle.com/get_cited/375%20F.2d%20882http://www.leagle.com/get_cited/375%20F.2d%20882http://www.leagle.com/decision/19851904757F2d1147_11729#fid22http://www.leagle.com/decision/19851904757F2d1147_11729#fid23http://www.leagle.com/decision/19851904757F2d1147_11729#fid23http://www.leagle.com/get_cited/639%20F.2d%20200http://www.leagle.com/get_cited/639%20F.2d%20200http://www.leagle.com/get_cited/632%20F.2d%201267http://www.leagle.com/get_cited/632%20F.2d%201267http://www.leagle.com/get_cited/619%20F.2d%201124http://www.leagle.com/get_cited/619%20F.2d%201124http://www.leagle.com/get_cited/619%20F.2d%201124http://www.leagle.com/get_cited/736%20F.2d%20142http://blog.athirtyeight.com/2013/11/universaljurisdiction.htmlhttp://blog.athirtyeight.com/2013/11/universaljurisdiction.htmlhttp://www.leagle.com/decision/19851904757F2d1147_11729#fid14http://www.leagle.com/decision/19851904757F2d1147_11729#fid15http://www.leagle.com/decision/19851904757F2d1147_11729#fid16http://www.leagle.com/decision/19851904757F2d1147_11729#fid17http://www.leagle.com/decision/19851904757F2d1147_11729#fid18http://www.leagle.com/decision/19851904757F2d1147_11729#fid19http://www.leagle.com/decision/19851904757F2d1147_11729#fid20http://www.leagle.com/decision/19851904757F2d1147_11729#fid21http://www.leagle.com/get_cited/679%20F.2d%201373http://www.leagle.com/get_cited/604%20F.2d%20356http://www.leagle.com/get_cited/604%20F.2d%20356http://www.leagle.com/get_cited/375%20F.2d%20882http://www.leagle.com/get_cited/375%20F.2d%20882http://www.leagle.com/decision/19851904757F2d1147_11729#fid22http://www.leagle.com/decision/19851904757F2d1147_11729#fid23http://www.leagle.com/get_cited/639%20F.2d%20200http://www.leagle.com/get_cited/632%20F.2d%201267http://www.leagle.com/get_cited/619%20F.2d%201124http://www.leagle.com/get_cited/619%20F.2d%201124http://www.leagle.com/get_cited/736%20F.2d%20142http://blog.athirtyeight.com/2013/11/universaljurisdiction.htmlhttp://blog.athirtyeight.com/2013/11/universaljurisdiction.html


9/25

/niversal risiction also calle the niversality principle

enales nations to prosecte o)eners o certain crimes, even

thogh they onHt have any ne?s to the crime, the allege

o)ener an the victim. As a concept it +as historically

evelope on the maritime legal principle o hostis hmani

generis (enemy o the hman&in! to aress the isse o

piracy, +hich case consierale estrction o international

trae.=';3o+ever, toay this principle is applie to prosecte

perpetrators o crimes against hmanity. This principle also

operates on the international concept o s cogens +hich

arges that certain oligations ner international la+ areining on all states an thereore they cannot e altere y a

treaty. The ichmann Trial an the Pinochet 4ase oth have

een very signifcant points in international legal history

emphasi2ing the niversality principle.

Fn the ichmann trial, the iciary in Fsrael set a sstantial

an contemporary preceent to+ars the avancement o

niversal risiction. The cort in a etaile verict appeale

to the iea o the natral la+ to fn niversal risiction

applie.=%;The accse in this case, Aol ichmann +as

appointe to the 9e+ish Section o the Secrity Services (SS!

in '7# an later on ecame e?tremely involve in 3itlerHsH

ormlation an operation o the 6inal Soltion. At the en oossa,

the Fsraeli Secret Service learne o his presence in Argentina

an in >ay that year he +as captre as a part o a covert

operation an roght to Tel Aviv to ace trial.=7;ichmannXs

trial egan in April, 'C' at the 9ersalem District 4ort. Ft

gave rise to international interest an roght the atrocities

committe y the Na2is to the rontline o the +orl ne+s. The

trial +as roacaste over raio live in Fsrael an +as

encorage to e roacaste aron the +orl y the Fsraeli

government. >any o the 3olocast srvivors +ere sharingtheir e?periences or the very frst time throgh their

testimonies in this trial. An appro?imate total o ''$ +itnesses

testife at the trial. Dr. @oert Servatis, a :erman La+yer

&no+n or eening Na2is in the Nremerg Trials +as

appointment as his eense la+yer. Fsraeli Attorney :eneral,

:ieon 3asner +as the 4hie Prosector on the case.

ichmann +as inicte on '5 criminal charges, +hich incle

+ar crimes, crimes against 9e+ish people an memership o

an otla+e organi2ation.

There +ere a nmer o controversies that srace eore,

ring an ater the ichmann 4ase. ichmann +as orcilyacte rom Argentina to e trie ner an inre1ent

e?traterritorial an retroactive la+. The Legal asis o the Trial

+as an Fsraeli la+ passe in '5$ calle the Na2i an Na2i

4ollaorators (Pnishment! La+.=#;Section ' o the Na2i an

Na2i 4ollaorators (Pnishment! La+, provies that any

person +ho has one, ring the perio o the Na2i regime, in

an enemy contry, an act constitting a crime against the

9e+ish people or an act constitting a crime against

hmanity or an act constitting a +ar crime is liale to the

eath penalty. The cort reasone an relie pon oth the

international an the omestic la+ +hen applying he principle

o niversality. Legal isses involve +hether Fsrael col try

ichmann ner sch circmstances, can Fsrael try ichmann

ner a statte enacte in '5$ or acts +ere committe

eore '#5 an lastly the legal valiity o Fsrael trying a

ichmann +ho +as not a citi2en o Fsrael or the o)enses

+hich +ere committe otsie Fsrael against the inivials

+ho +ere not citi2ens o Fsrael at the time o commission o

these o)ensesG=5; Fn the ecision, the cort mentione that

the crimes ealt +ith in this case are not crimes ner Fsraeli

la+ alone, t are in essence o)ences against the la+ o

nations. Fnee, the crimes in 1estion are not a ree creation

o the legislator +ho enacte the la+ or the pnishment o

Na2is an Na2i collaorators, t have een state an

efne in that la+ accoring to a precise pattern o

international la+s an conventions +hich efne crimes ner

the la+ o nations.=C;This pts emphasis on the act that

Fsrael +as ner an oligation to prosecte those +ho commit

crimes otsie o its risiction. Aitionally, ner

international la+, territorial veracity o a sovereign state is

sacrosanct. F ichmann +as in act aritrarily arreste y

Fsraeli intelligence in the asence o &no+lege an consent

o Argentina, the Fsrael ha committe an international tort.

=;

The eense la+yers i not cross e?amine any o the

+itnesses rom the prosection. The eense starte its case

y ptting ichmann on the stan, +ho tol the cort that he

i not ispte any o the acts o +hat ha ense ring the

3olocast, he ho+ever insiste in his eense that he +as

only ollo+ing orers, relin1ishing his conscience in orer to

ollo+ the government policies an orers.


10/25

acconts o nearly all victims +hose stories it hear. A

controversial pleiscite in year '8$ gave PinochetHs

seventeen year rle the legal strctre it neeeI approving a

resh 4onstittion rate y a government appointe

commission. ean+hile, The

Spanish Spreme 4ort ecie that the Spanish 9icial La+

y +ay o Article %7.#='7;allo+s Spain to prosecte those

+ho are not citi2ens o Spain, or certain crimes committe

otsie Spain. These incle terrorism, genocie an other

crimes ner international la+ prsant to treaties ratife y

Spain.='#; Thereater, Spain isse a ormal e?traition

re1est to the /nite Vingom an an arrest orer +as isse

y a >agistrate ner section 8 o the ?traition Act o

'8='5;, +hich enales states to isse provisional arrest

+arrants as long as the athorities elieve that there is

stifale reason an inormation or the same prsant the

ropean 4onvention on ?traition.

/pon reaching the 3ose Lors, the isse o +hether Pinochet

shol e e?traite to Spain +as to e ecie.='C;The

4ort enie Pinochet Sovereign Fmmnity in a 7-%

ecision='; reasoning that certain crimes sch as mrer

an tortre are crimes against hmanity an are not covere

y the State Fmmnity Act. They rther state that these acts

i not all ner the efnition o plic nction an ths,

6nctional Fmmnity cannot protect state heas or ormer

state heas o sch crimes.

/nsrprisingly, Pinochet appeale this ecision on the asis

that one o the ges presiing in the case ha ties to

Amnesty Fnternational='8;, +hich ha in act roght the case

against Pinochet in the frst place an the initial ecision y

the 3ose o Lors +as ismisse an hear again. Fn this

resh hearing=';, the original rling +as phel an the cort

orere that Pinochet shall e e?traite to Spain an stan

trial. The cort enie Pinochet immnity nerthe State

Fmmnity Act o '8. Ft +as the frst time that a omestic

cort ha enie immnity to a hea o state or a ormer

hea o state +ith the reasoning no one can e immne to

prosection o certain crimes against hmanity. 3o+ever,

eore the e?traition col e carrie ot, /nite VingomHs

3ome Secretary state that Pinochet +as not meically ft to

stan trial.=%$;At the time o his arrest he +as 87 years ol.

>any elieve that this +as a move to ease the political

strains this incient ha case et+een the /V an 4hileIrther accmlating consierale attention an controversy.

ventally, Pinochet +as release an allo+e to retrn to

4hile in %$$$. Later, there +ere nmeros attempts y the

4hilean government to hol him accontale or his actions,

they +ere nsccessl in prosecting him an he ie in

%$$C. Despite nmeros attempts, Pinochet +as never stoo

trial or all the crimes he allegely committe. This case

mar&e the frst time in international legal history that a

ormer 3ea o State +as arreste on principle o niversal

risiction. Later, international trinals sch as those in

Nremerg, 6ormer Jgoslavia, @+ana an Fnternational

4riminal cort are all seen asserting the principle o niversal

risiction an inivials +ho are responsile an

ans+erale or the crimes efne ner international states

an are prosecte otsie their stateHs risiction an

regarless o +here these atrocities occrre.

Both cases have asserte the principle o niversal risiction

in their o+n +ay. Ft can e seen as an attempt y inepenent

States to commit themselves to protection o hman rights

an the rle o la+ +hen they emrace international legal

principles sch as niversal risiction, as seen in the case o

the Pinochet an the ichman Trial.

The term?uni$#rs! @urisdictionreers to the iea that a

national cort may prosecte inivials or any serios crime

against international la+ W sch as crimes against hmanity,

+ar crimes, genocie, an tortre W ase on the principle

that sch crimes harm the international commnity or

international orer itsel, +hich inivial States may act to

protect. :enerally, niversal risiction is invo&e +hen

other, traitional ases o criminal risiction o not e?ist, or

e?ample" the eenant is not a national o the State, the

eenant i not commit a crime in that StateHs territory or

against its nationals, or the StateHs o+n national interests arenot aversely a)ecte.

The efnition an e?ercise o niversal risiction varies

aron the +orl. A national or international cortHs athority

to prosecte inivials or international crimes committe in

other territories +ill epen on the relevant sorces o la+

an risiction, sch as national legislation or an

international agreement, +hich may, or e?ample, re1ire that

only inivials +ithin the contryHs national territory may e

sect to prosection.

F0AN T3 T@@FBL

P@4DFN:S FN T3 /SA (' * '8C!

n %5 Agst ', the /S >inistry o 9stice initiate

proceeings against 9ohn Deman& to strip him o his /S

citi2enship. Deman& +as charge +ith having nla+lly

conceale his tre ientity pon arrival in the /SA. This

charge +as ase on statements y concentration camp

srvivors +ho reportely recogni2e Deman& on a

photograph as eing Fvan the Terrile.

n %5 9ne '8', his /S citi2enship +as revo&e ecase the

District 4ort or the Northern District o hio hel proo that

he ha lie in his application +ith respect to his past as a

+aren in Trelin&a an Soio an concerning his training tooin the SS in Tra+ni&i.

Fn ctoer '87, Fsrael as&e or Deman&Hs e?traition. 3e

+as e?traite on %C 6erary '8C.

P@4DFN:S FN FS@AL

The proceeings against Deman& +ere opene on 'C

6erary '8 in 9ersalem. These +ere initiate ase on the

'5$ Fsraeli la+ terme Na2is an Na2i 4ollaorators

(Pnishment! La+, 5'$-'5$ (NN4L!. This la+ is itsel ase

on the Lonon Agreement o '#5 +hich estalishe the

Fnternational >ilitary 4ort o Nremerg an the 4riminal

4oe rinance (44! o '7C.

Accoring to the inictment, Deman& +as to e hel

accontale or"

- crimes against the 9e+ish people (Sect. '. (a!('! NN4L!I

- crimes against hmanity (Sect.'.(a!(%! NN4L!I an

- crimes against persecte people (Sect. % NN4L!.

The plic prosector trie mainly to estalish Deman&Hs

ientity as Fvan the Terrile. The evience provie +as in

the orm o statements rom +itnesses, an his oKcial ientity

car +hich sho+e his photograph an his personal ata.

#$% ShineBrightLi&eADiamon Page'$
http://www.trial-ch.org/en/resources/trial-watch/trial-watch/profiles/profile/770/action/show/controller/Profile.htmlhttp://www.trial-ch.org/en/resources/trial-watch/trial-watch/profiles/profile/770/action/show/controller/Profile.html


11/25

6rthermore, traces o SS tattoo mar&s +hich ha not een

totally remove +ere to e seen ner his arms.

Deman& confrme having ha this tattoo an confrme

that the photograph on the ientity car +as his. 3o+ever his

eence arge that this ientity car ha een orge y the

Soviet Secret Service in orer to iscreit him. Also, his

eence claime that Deman& ha een a prisoner o +ar in

the :erman camps o 4helm (Polan! ntil the spring o '##,

ater +hich he +ol have een orce into memership in

the SS.

n '8 April '88, Deman& +as on gilty on all conts

an on %5 April '88 he +as sentence to eath y hanging.

Deman& appeale this gment on % 9ly '88.

n ' Agst '7, the Spreme 4ort o Fsrael rescine

this gment an ac1itte Deman&, +ho ntil then ha

een on eath ro+. The reason or this +as ase on ne+

eclarations rom ormer +arens +hich ha come to light

an rom ocments rom the Soviet Secret Service (V:B!

that Fvan the TerrileHs name +as not Fvan Deman& t

Fvan >archen&o. The ges o the Spreme 4ort thereore

came to the conclsion that there +as insKcient evience to

saely estalish that Fvan Deman& +as trly Fvan the

Terrile. Since this accsation +as the asis o his e?traition

rom the /SA as +ell as the asis or his conviction in Fsrael,

the cort i not investigate Deman&Hs participation in

other crimes in the concentration camps. n %% Septemer

'7, Deman& +as reee to retrn to the /SA.

P@4DFN: FN T3 /SA ('7-%$$8!

n ' Novemer '7, a /S cort etermine that the

>inistry o 9stice ha +ithhel evience on prpose +hich

sho+e that Deman& +as not Fvan the Terrile. Ths it

rescine the rling +hich ha allo+e Deman&Hs

e?traition. n %$ 6erary '7, his /S citi2enship +as

restore.

The ollo+ing year, on ' >ay ' the >inistry o 9stice

initiate a ne+ series o proceeings against Deman& to

strip him o his citi2enship. 3e +as no longer charge +ith

eing Fvan the Terrile t to have +or&e as a +aren in

i)erent concentration camps an to have een an SS-

memer in Polan. Ths, on %' 6erary %$$%, his /S

citi2enship +as again ta&en a+ay rom him y the District

4ort or the Northern District o hio.

n 7$ April %$$# the 6eeral 4ort o Appeals in 4levelan

enie his appeal against the rling an confrme the

+ithra+al o his citi2enship.

n %$ 9ne %$$5, an immigration cort orere his e?traitionto /&raine. n %8 Decemer %$$5, the cort ismisse

Deman&Xs claim that he +ol e sect to tortre i

e?traite to the /&raine. The cort also orere that

Deman& +as to e e?traite to Polan or :ermany in the

case that /&raine +ol e n+illing to ta&e him in. The

Appeals 4hamer o the Fmmigration Athority confrme this

rling on %' Decemer %$$C.

Deman& an his la+yers then appeale this ecision to the

6eeral 4ort o Appeals in 4levelan re1esting that the

e?traition procere against him e rescine. The cort

rle on 7$ 9anary %$$8 enying this re1est.

Fn April %$$8, Deman& fle an appeal against this rling tothe Spreme 4ort o the /SA. n ' >ay %$$8 the Spreme

4ort enie this appeal +ithot stating reasons therey

renering the permission to e?traite fnal.

n %% >ay %$$8, an investigation in Polan against

Deman&, +hich ha een ner+ay or many years, +as

terminate or lac& o evience.

P@4DFN:S FN :@>ANJ (since %$$!

n '' >arch %$$ the District 4ort (Amtsgericht! o >nich

isse an arrest +arrant against Deman& on the strong

sspicion that he ha participate in the mrer o at least

%$.$$$ 9e+s in the Soior e?termination camp.

n '$ April %$$, Deman& aile in his attempt to have his

e?traition staye. 6or ays later, /S oKcials too& him into

cstoy. 3o+ever, his eportation +as prevente at the very

last moment y a temporary innction y a /S 4ort o

Appeals. Deman& then retrne home. n 'C April %$$,the eportation proceeings +ere sspene or a e+ ays in

orer to allo+ time or Deman& to nergo a meical chec&-

p. Sse1ently, octors confrme that it +as ft enogh to

My to :ermany.

n ' >ay %$$, a 6eeral 4ort o Appeals in 4incinnati hio

enie his petition to stop the e?traition process. Si? ays

later, Deman&Hs petition to the Spreme 4ort to prevent

his e?traition aile.

n '' >ay %$$, the 3igher Aministrative 4ort o Berlin-

Branenrg enie Deman&Hs petition to stop the

e?traition an, the same ay, he +as fnally e?traite to

:ermany. /pon arrival on '% >ay %$$, he +as at once ta&en

into cstoy pening trial.

Becase o his state o health, it ecame 1estionale as to

+hether Deman& +ol e ft to stan trial, leaing to

proceeings eing ismisse.

6rom the otset, Deman& pleae not-gilty on all conts

+ith +hich he +as charge.

n '7 9ly %$$, the >nich Plic Prosector fle an

inictment concerning Deman&Hs participation in the

mrer o at least %.$$ people, allegely committe ring

his time as +aren in the Soior e?termination camp in

'#7. The trial egan on 7$ Novemer %$$.

n %% >arch %$'', the :erman Prosector calle or a si?-

year sentence or the mrer o %,$$ 9e+s at the Soior

eath camp ring his time as a gar.

The verict +as renere on '% >ay %$'' +ith Deman&

eing sentence to 5 years imprisonment. :iven his age an

time alreay in cstoy it is nli&ely that he +ill serve ot this

sentence.

3e ie on ' >arch %$'% in a rest-home in Bavaria.

Unit#d Stt#s $. Usm Bin Ld#n cs# ri#f 74 F.

Su33. 4d


12/25

:overnmentHs risiction, t are enacte ecaseo the right o the :overnment to een itselagainst ostrction, or ra +herever perpetrate,especially is committe y its o+n citi2ens, oKcers,or agents. %nited States v. 'owman, %C$ /S #, 8('%%!. (This principle, calle the 'owman rle, ismost irectly relate to the protective principle orisiction.!

Ne?s argment" the 7avis cort annonce that inorer to apply e?traterritorially a eeral criminal

statte to a eenant consistently +ith e process,there mst e a sKcient ne?s et+een theeenant an the /nite States, so that schapplication +ol not e aritrary or namentallynair. $5 6.% %#5, %#8-%# (th 4ir. '$!

o This cort concles that +here anattempte transaction is aime at casingcriminal acts +ithin the /nite States, thereis a sKcient asis or the /nite States toe?ercise risiction\.

o The cort also concles that i thee?traterritorial application o a statte isstife y the protective principle, schapplication accors +ith e process

The cort notes that

o The passive personality principle isincreasingly accepte as applie toterrorists an other organi2e attac&s on astateHs nationals y reason o theirnationality, or to assassination o a stateHsiplomatic representatives or otheroKcials\. (citing @estatement E #$%, cmt.g.!

o niversal risiction is increasinglyaccepte or certain acts o terrorism\.

(citing @estatement E #$#, cmt. a.!

oth niversal risiction an the protectiveprinciple are ases or risiction y the /niteStates over the eath o oreign citi2ens

the case goes throgh a reasonaleness analysis toetermine +hether it +ol e nreasonale or the/S to apply a specifc la+ to the eaths o orinaryoreign nationals on oreign soil (see p. $ oretails!, an fns that sch application is reasonale

EXTRADITION

&n one bar e#amination uestion, e#tradition was

distinguished from deportation. ou should also be ready to

distinguish these two.

7eportation however class does not reuire a treaty.

&t is a unilateral act on the part of any state. &t is a principle

and agreed by most states that the presence of aliens in their

respective territories will have to be subject to certain

conditions. &t is more of a privilege rather than a right. &n fact

in our case going back to the )hilippines, in the case of

marcos vs. manglapus, it was even considered by the 1ourt

as also a privilege rather than a right. 3ow much more for

aliens, states even can deport no need of a treaty. &t"s an

e#ercise of a sovereign act of the state.

7estination of the deportee is irrelevant in a case ofa deportation. &n e#tradition, speci$c, the reuesting state

must get the person subject of e#tradition. 1ommon uestion

in bar e#amination is kaning dependent siya sa treaty class as

you will see later on that there is no duty to e#tradite until

and unless there is a treaty. The person to be e#tradited must

have been charged or convicted of an e#traditable oense,

charged or convicted. So that you can invoke the provisions

on the treaty, you must charge the person $rst. Then the

e#traditable oense should either be listed or covered by

double or dual criminality principle. &n most cases, kung naa

mo time i5check ninyo mga e#tradition treaties naa ni sila

didto.

(hy should there be double or dual criminality

principle in the e#tradition treaties* (hat is the reason why

e#tradition treaties provide for the double or dual criminality

principle* So not all oenses ha* So number /I listed, ;I

tapos dapat all e#tradition treaties must have this clause

double or dual criminality principle which means an oense is

e#traditable if it is an oense in both contracting states. (hy

is that* 'ecause there is a need to make e#tradition treaties

stable and -e#ible in the sense that it can easily adapt to

changing penal system of a contracting party. Aung maglisted

raka, the following year naa nay bag5o nga crime nga

gipublish si state ! di makig negotiate nasad siya ni state '

nga oi state ' naa nasad mi gipublish nga bag5o nga crime

called cybercrime we have this in our treaty so we wanted

this to be included so makig negotiate nasad ka nya > years

after na nasad bag5o gipublish so negotiate nasad ka. !yaw

na there is no need for renegotiation kay listed na gud nya

naa pa jud mga oenses nga common. So kung naa tong

duha then there is really no need for renegotiation.

!nd very uickly, you have to take note of this basic

provisions, all these came out in bar e#am uestions. Theseare the important principles in e#traditionH

a. .1overed ka sa e#tradition treaty which wasin ;F/F* es, because the usual argumentsa pikas kay ah e# post facto law thee#tradition treaty should not be given aretroactive eect kay ang crime committed;FF>, the e#tradition treaty e#ecuted in;F/F so should not be given retroactiveeect. That not a good argument. 8# postfacto law as argument is not properbecause it is not a penal law e#cept that forpurposes of aording individuals rights or in

#$% ShineBrightLi&eADiamon Page'%


13/25

the case of 6overnment of 3ongkong vs.Olalia Jr., in our case in the )hilippines,Justice )uno emphasied the signi$cance ofindividuals in international law kay ine#tradition proceeding although it is not acriminal proceeding it is not also correct tosay that the individual has no right to bailbecause of this right or freedom given ininternational law.

LEGALIT- OF ABDUCTION OF CRI2INALS IN FOREIGN

TERRITOR-

One of the most controversial topic in )&+, with reference to

the e#ercise of jurisdiction, is the matter of the legality of

abduction of criminals in foreign territory. This is basically an

issue, considering that not a lot of states practice this. ou

only have a few states who have attempted to, or in fact,

completed the abduction of certain alleged criminals abroad.

(e have the case of 8ichmann for e#ample by &srael. (e also

have the case of !lvare52achain in the %S. (e have the case

of Spain serving a warrant of arrest in +ondon against

)inochet. &ndeed, it is a controversial issue if there is an e#tra5

territorial e#ercise of jurisdiction. 'ut what is most

controversial is when that is done via abduction and not just

the service of due process.

2ost authors agree that abduction per se may be considered

as a violation of the sovereignty of one state because that

would ualify as intervention prohibited under !rticle ;,

paragraph of the %< 1harter. 'ut the uestion is, the fact

that it is a violation of the %< 1harter, therefore it is an

intervention, will it aect the jurisdiction of the prosecuting

state. There is no speci$c, comprehensive, or consistent

practice about the matter. (hat we do have is %S

jurisprudence as well as some cases mentioned earlier that

aDrmed the validity of the e#ercise of jurisdiction not

withstanding that abduction actually, maybe considered as

intervention under the %< 1harter. &ts intervention but not

necessarily aecting jurisdiction. !s you will see later on thatthe %S Supreme 1ourt will say, 9ok, that may be. 'ut whether

or not this court will emphasie jurisdiction depends largely

on what the court will say.: (ho will decide jurisdiction*

&nternational +aw will not decide on jurisdiction but it is the

laws of the domestic courts.

'ut, &t has been observed that the way to probably strike a

balance is to allow the e#ercise of jurisdiction even if it is via

abduction provided that there is no accompanying torture,

brutality and other similar outrageous conduct. (hat do you

think is the reason for this* &n Aer vs. &llinois and @risbie case,

what do you think was the justi$cation of the %S Supreme

1ourt in saying that there is no problem even if the accused

had been unlawfully abducted from a foreign territory* The

illegal apprehension will not aect jurisdiction of the

apprehending state. +et us focus on this $rst, what do you

think is a valid justi$cation why the illegality of the abduction

will not aect the jurisdiction of the court* &n every criminal

prosecution, what do you think is the most fundamental right

of the accused that must be aorded to him by the court

trying the case* 7ue processB (hen abducted, your right to

due process will not be violated because for one you will be

asked to answer the charges, you will be asked to testify and

present witnesses in your favor and other actions that will

assure that due process is observed. &f you relate that to the

limitation to abduction...K+ong 'reakI

now if the abduction, apart from being illegal, accompanied

by torture, brutality, and other similar conducts, there wouldprobably be a violation of the right to due process on the part

of the accused because these methods are usually employed

by law enforcers to coerce the person to make confessions,

admissions, etc. which may not be a good indication that due

process has been aorded to the accused. !s & have

mentioned earlier, we have this case of 8ichmann. &t was a

controversial case e#cept that it was however mooted by the

agreement between !rgentina and &srael about the

jurisdiction of &srael over 8ichmann. +ets take a look at Aer vs.

&llinois. !ccording to the %S Supreme 1ourt, 93ow far as such

forcible transfer of the defendant so as to bring him within the

jurisdiction of the state where the oense was committed

may be set up against the right to try him is the province of

the state court to decide because issue of jurisdiction of the

domestic court is not to be governed by international law.:

then later on, Aer was aDrmed in /=>; in the case of @risbie.

That is why this doctrine is also known as Aer5@risbie 7octrine.

The )ower of the 1ourt to try a person contrived is not

impaired in the fact that he has been brought in the courts

jurisdiction by reason of forcible abduction. This is where the

court justi$ed the legitimate e#ercise of jurisdiction because

the court said that the accused will be aorded due process.

7o you think that is a legitimate justi$cation on the part of

the party* That forcible abduction has nothing to do with

jurisdiction and that what is important is that the accused is

aorded due process* !nyway, at the end of the day, the

court is asked the culpability of the accused.

&n /==;, after Aer5@risbie, you have the case of %S vs. !lvare5

2achain.

&s forcible abduction invalidated on the ground of an

e#isting e#tradition treaty between the States involved* So,

what would probably invalidate abduction* There is a

suggestion that abduction may be invalidated and thereforeaect the jurisdiction of the court if there is a speci$c

prohibition against it in the e#tradition treaty. 2eaning, okay

we have an e#tradition treaty and under it, it is e#pressly

stated that forcible abduction is not allowed and not

legitimate and that it will aect the jurisdiction of the court.

So that in the absence of the e#press prohibition daw class

and especially considering that both parties must have been

aware of forcible abduction yet they had decided to be silent

on the matter in the treaty and it can be assumed that it is

not prohibited by the parties. Auyaw ng ina.ana nga thinking

class, d ba na pwede ignon nga necessarily the e#tradition

treaty is an e#pression of the States involved that delivery of

the person should be done in accordance with the e#tradition

process and therefore in can in fact be assumed that anyother act of delivery not in accordance with the e#tradition

treaty should be considered as not contemplated by the

parties, dba* 2ao nay naka5nindot sa &nternational law class

kay you can argue otherwise. Tan5awa ang %S. v. !lvare nga

case, gi e#plain mani dri. &n the past gud nga mga cases,

walay e#tradition treaty, murag safe for the court to say nga

forcible abduction per se will not invalidate e#ercise of

jurisdiction katong Aer v. &llinois ug @risbie v. 1ollins. 'ut

here mahimo #ang a little bit complicated kay naa gyud #ay

e#tradition treaty, dba* )ero gi unsa pag analye sa court dri*

2e#ico knew that %S had been doing that Kreferring to

forcible abductionI yet 2e#ico did not secure that forcible

abduction should be e#pressly prohibited in the e#tradition

treaty.

Ec#3tion to t/# #rr(Frisi# Doctrin#

/S vs. Toscanino

State an eeral corts have long sanctione a ni1e ormo la+lessness y assming risiction over the person o acirminal eenant +hom la+ enorcement oKcials haveillegally apprehene an orcily roght into theirrisiction. 4orts have e?hiite an almost niversalaherence to a octrine maintaining that the po+er ogovernment to prosecte a eenant is not impaire y theillegality o the metho se to ac1ire risiction over thateenant. This octrine has come to e &no+n as the &er-risie rle an has een the sect o mch criticism. Ft +as

sharply attac&e in the nite states verss toscanino case+here the cort on that the &er-risie rle no longercomporte +ith contemporary concepts o e process.ther corts have een n+illing to ollo+ this lea,ho+ever, an have contine to hol that they +ill notin1ire as to the manner in +hich a eenant is roght intotheir risiction. By analy2ing the techni1e o action,the toscanino case, an relate icial ecisions, it isemonstrate that the &er-risie octrine inringes pon eprocess rights o eenants. Becase the concept o eprocess is roa an re1ires that accse persons e

#$% ShineBrightLi&eADiamon Page'7


14/25

protecte against pretrial illegalities, action an orcileremoval are latant acts o la+lessness +hen legal meansare availale or e?traition or transer. 4ase la+ is revie+e.(ep!

). Immunit* from Jurisdiction

So$#r#in 0or Stt# Immunit*1

This are the things we will talk about, sovereignty of State

immunity, you remember your doctrine of qualiedimmunityalso knows as the doctrine of restrictive immunity,

immunity only if acts jure imperii not jure gestiones. (e will

discuss cases here. The dierence between the way %S courts

analye jure imperii and jure gestiones and )hil courts they

dier a bit. !s a result of the observance of State immunity,

we also have the acts of the state doctrine then related to

immunity of jurisdiction, of course, diplomatic immunity. This

will reuire you to read the entire diplomatic and consular law

as found in the 4ienna 1onventions on diplomatic relations

and you add consular convention also. There are also a lot of

things to talk about in that convention some of which are but

mura rag recall ba. (e don"t need to discuss all of them.

&mmunity is the most important part in the study of diplomatic

and consular law, kanang who are the dierent members of

the diplomatic mission, what is a letter of credit, what is

e#euatur , what is angry mob. ou just have to go over this

but one thing is for sure is that the bulk of the discussion of

diplomatic and consular law is immunity. &"ve seen this in bar

e#am uestions. So, iapil nlng nato na class immunity from

jurisdiction for bot di!lomatic and consular. Of course,

there is a distinction. @or ambassadors, we have ambassadors

acting for the political and governmental interest of the state

while consular for proprietary and commercial interest of the

state. So mao na ang ilahang dierence. 2as broader ang

scope of protection or immunity for diplomatic oDcials,

ambassadors and other diplomatic oDcials and medyo

narrower ang protection given to consular oDcials. )robably,

the distinction is based in the nature of their functions

because ambassadors and diplomatic oDcials aregovernmental while consular privateLcommercial.

Okay, you already knew about the restrictive theory of state

immunity in 1onsti/, only with regard to public acts or jure

imperii. ou will notice that we applied jure imperii in the

following casesH lease by the foreign gov"t of an apartment

building for use of its military oDces KS1 caseIM conduct of

public bidding for the repair of wharf of a %S naval station KS1

caseI and etc. (e also applied jure gestiones in the followingH

hiring of cook in the recreation center, etc. So, you have to

take note of that. &n the %S, that is also an acceptable

doctrine. They have also applied restrictive theory of foreignimmunity con$ned to public acts. !nother %S case, the Saudi

!rabia v. itchell an thers v '! Al-Dali an

others %! Sai Araia" 9ones v Sai Araia

=%$$C; /V3L %C

3L (Lor Bingham o 4ornhill, Lor 3o)mann, Lor @oger o

arlserry, Lor


15/25

ABST@A4T

The octrine o state immnity ner the State Fmmnity Act

'8 prevente the nglish 4orts rom entertaining claims

against a oreign state y claimants +ho allege that they ha

een systematically tortre y oKcials o that state. The

right o access to cort ner Article C col not apply +hen

there +as no risiction in the frst place.

S/>>A@J

The frst claimant ha soght to ring an action or amages

against the eenant Vingom o Sai Araia an one o its

servants or agents or tortre allegely committe in Sai

Araia. The secon claimant ha soght to ring an action o

amages against or inivials, t+o o +hom +ere Sai

Araian police oKcers, one o +hom +as a colonel in the

>inistry o Fnterior an the other +as hea o the >inistry o

Fnterior.

The 4ort o Appeal ismisse the frst claimantXs appeal

against the ismissal o all his claims against Sai Araia,

incling his claim ase on tortre, on the gron o state

immnity. 3o+ever, it allo+e oth the frst an the secon

claimantsX appeals against the resal o permission to serve

the inivial eenants ot o the risiction ((%$$#! illett. The

rle o international la+ is not, that a state shol not e?ercise

over another state a risiction +hich it has, t that a state

has no risiction at all over another state. Ft is a logical non-

se1itr to say that a state has enie accss to its cort, i it

has no access to give. Lor Bingham conesse that he ha

some iKclty in accepting the approach o the :ran4hamer o the Strasorg 4ort in !l5!dsani v %nited

Aingdom (%$$'! 7# 3@@ %7 +here all the ges ha

assme that Article C +as engage.

Bt even i they ha navigate past this roc& * an the 3ose

o Lors +as prepare to procee on the asis that Article C

i apply * the claimants +ere on to oner on the har

place, +hich +as to sho+ that the restriction is not irecte to

a legitimate oective an is isproportionate.

Ft +as not srprising that they aile in this eneavor, given

that the rat o agreements, treaties an principles o

international la+ that conemn an criminali2e tortre is

neither rost nor +eighty enogh to isplace a simple rlease on iplomacyI that no contry can assert risiction

over another. To pt it in terms o international la+ argon,

the anti-tortrejus cogens may e applicale erga omnest

it has no speriority vis a vis other rles o international la+,

as Lor Bingham so amply emonstrates in his recital o the

risprence an scholarly +or&s on the sect. The case

most helpl to the claimants on the applicaility o Article C

point +as alone enogh to eeat them on the sstantive

argment" in !l5!dsani the maority o the Strasorg 4ort

#$% ShineBrightLi&eADiamon Page'5
http://www.1cor.com/435/http://www.1cor.com/435/


16/25

hel that the grant o sovereign immnity to a state in civil

proceeings prse the legitimate aim o complying +ith

international la+ to promote comity an goo relations

et+een states throgh the respect o another stateXs

sovereignty. Fn this conte?t, they sai, the ropean

4onvention on 3man @ights shol so ar as possile e

interprete in harmony +ith other rles o international la+ o

+hich it orme part, incling those relating to the grant o

state immnityI an that some restrictions on the right o

access to a cort mst e regare as inherent, incling

those limitations generally accepte y the commnity onations as part o the octrine o state immnity.

ven the oy set p as +atchog o the enorceaility an

applicaility o international la+, the Fnternational 4ort o

9stice, has mae plain that reach o a s cogens norm o

international la+ oes not sKce to coner risiction +here

state immnity has negate its e?istence (7emocratic

Eepublic of the 1ongo v Ewanda (nreporte! 7 6erary

%$$C, para C#!.

illett sai in +ampen5(olfe, a sel-impose

restriction on the risiction o =the; corts t a limitation

impose rom +ithot ('588!

Ar#ntin# R#3u!ic $. Am#rd )#ss S/i33in Cor3.case rie smmary#88 /.S. #%8 ('8!

Proc#dur! )istor*+@evie+ o reversal o ismissal o action see&ing amages orproperty estrction.

O$#r$i#,+-A pair o Lierian corporations (P! soght to se theArgentine @eplic (D! in /.S. corts ner the Alien TortStatte.-/nite 4arriers, Fnc. (P!, a Lierian corporation, chartere avessel calle the 3ercles to Ameraa 3ess Shipping

4orporation (P!, another Lierian corporation.-The ship +as to e se to transport el. ore importantly, in 'C,4ongress enacte the 6oreign Sovereign Fmmnities Act(6SFA!, +hich ealt in a comprehensive manner +ith the isseo risiction over oreign states.-The la+ provies that, e?cept as provie in the Act, oreignstates shall e immne rom /.S. cortsX risiction.


17/25

Outcom#+-6oreign states are entitle to immnity rom the risictiono corts in the /nite States, nless the action is ase pona commercial activity in the manner o a private player in themar&et.-Sai AraiaHs (D! tortios conct in this case ails to 1aliyas commercial activity +ithin the meaning o the 6oreignSovereign Fmmnities Act o 'C. Fts conct oils o+n toase o the po+er o its police y the Sai government (D!.A oreign stateHs e?ercise o the po+er o its police ispecliarly sovereign in natre an is not the sort o activityengage in y private parties.

-6rthermore, NelsonHs (P! ailre to +arn claim mst also ailIsovereign nations have no ty to +arn o their propensity ortortios conct.-The NelsonsH (P! action is not ase pon a commercialactivity +ithin the meaning o the Act an thereore is otsiethe sect-matter risiction o the eeral corts. >otion toismiss is grante. @everse.

4N4/@@N4" (


18/25

'.% Leaving the case to the people o 4hile

A more stle argment +as mae early on y Lay Thatcher,

+ho +as glo+ingly approve y the erst+hile sole rler o

4hile in his statement. Accoring to the ormer British Prime

>inister, the 4hilean people mst come to terms +ith their

history +ithot intererence y any oreign system o stice.

There is strength in the argment, t the +ay Pinochet has

railroae the 4hilean constittional process to ensre his

protection ad vitam aeternamcannot to e lightly ismisse.

F Pinochet cannot e trie in 4hile, it is ecase he se his

po+er to ensre his o+n impermeaility to+ars any omestic

process o la+, an this +as arrange y +riting himsel into

a senator or lie, ths ac1iring immnity, also or lie,

ner 4hilean la+. nly a change in the constittion, +hich is

nsally oneros to carry ot, col allo+ the legal system in

4hile to e?amine his case. The 1asi-impossiility to see the

people o 4hile given a chance to come to terms +ith their

history raises the principle o legal ssiiarity (or

complementarity!. This principle is no+ +ell estalishe in a

nmer o treaties, incling the Treaty o >aastricht or

ropean la+. Ft has een confrme in the Fnternational

4riminal 4ort (F44! Treaty, signe in @ome in 9ly '8,

+hich encapslates +ell-estalishe niversal principles ointernational criminal la+. The Preamle o the F44 Treaty

emphasi2=es; that the Fnternational 4riminal 4ort shall e

complementary to national criminal risictions, an Article

' specifes that a case +ill e amissile only i the state

+hich has normal risiction over it is n+illing or nale

geninely to carry ot the investigation or prosection. This

is n1estionaly the case o 4hile in the +a&e o the

amenments introce to its constittion y the accse

himsel. Therein lay the main +ea&ness o >rs ThatcherXs

argment, or the people o 4hile have een arre y the

man himsel rom coming to terms +ith the violent history he

stans accse or.

%. The legal argments

n the more technical, an more signifcant grons +hich

orme the conclsive oection to PinochetXs arrest

accoring to the 3igh 4ort, the main argments or his legal

eence can e smmarise as ollo+s" Are the La+ Lors

on y an array o principles, ner nglish la+, +hich

+ol, y inverse orer o importance,

(%.'! ris& opening the Moogates or people aggrieve y

government rtalityI

(%.%! e?pect Parliament to pass a special act to eal +ith sch

cases, alternatively +ait or an a hoc international trinalI

an, more namentally,

(%.7! give immnity to a ormer hea o state, ths"

(%.#! e1ate an inivial crime +ith mass crimes G

%.' The OMoogatesH argment

ne contention o PinochetXs la+yers is easily rettale, an

is relate to the sole competence o 4hilean stice. This is the

so-calle Moogate argment.


19/25

sovereigns oght their gron on the asis o the immnity

o+e to their titles. >ary sai she +as a 1een since irth,

that she +as ree an col not accept orers rom anyone,

least so a grop o ges +ho ha no athority +hatsoever

over her, to +hich 4hancellor Bromley respone early on

that her royal prerogative +ol not protect her. Fmmnity

i not protect 4harles either, an the act o accsation o

'C# is not ninteresting, +hich specifcally mentions his

responsiility or thosans o eaths in the Vingom.


20/25

imensions o the Ara-Fsraeli Accors" Ft is here that the role

o the corts an the importance o the rle o la+ has

something to sho+. 3e i proaly not e?pect to presie,

t+o years later, over a matter so close to the people o the

region as PinochetXs crimes. The +orl is +aiting to see

+hether, in his LorshipXs o+n +ors, the 3ose o Lors +ill

ensre the protection o namental rights =an; control the

ase o po+er +hich the citi2en, in the >ile ast an

else+here, is yearning or.

(hat happened in the case of )inochet* This is controversial,

not controversial that it wasn"t a legitimate reasoning of the

court or acceptable reasoning of the court, but in the case of

)inochet it involves a former head of state so that will

perhaps be considered a little bit complicated because it

involves a former head of state. &f we talk about head of state,

certainly that"s not a problematic matter. &s the head of state

immune from jurisdiction* This is immunity from jurisdiction,

ha* 'asi"g nya panutan.on mo nako, what is the rule of

immunity of heads of state* Simple ra na nga uestion. Sir,

klaroha, sir. &ncumbent or former head of state* Siguro, part

na sa uestion. ! former head of state is a head of state,

former lang while the other one is incumbent. &ncumbenthead of state is absolutely immune, yes or no* Aung immune

#a, immunity covers all casesH administrative, civil, criminal.

!fter incumbency, former na #a, unsa man ang rule* (e

distinguish acts that are considered oDcial and acts that are

not considered oDcial. 2ao nan oh* ou have learned that in

your 1onsti /. Then what"s the rule, if the act which is the

subject matter for criminal prosecution, is done in his oDcial

capacity, then e#empt #a. 'ut for acts which are not

performed in his oDcial capacity, no immunity is aorded to a

former head of state. !ng problema sa )inochet class kay

torture under the direction of )inochet, who once served for

/P years in 1hile like 2arcos, for human rights violations

including = counts of torture against Spanish citiens and the

killing of a Spanish ambassador, 2r. Soria. So, uestion,

torture man ni sya class, )inochet said that whether it was

torture or not, it was done under my direct instruction and

therefore we did it as part of what the discharge of my

function as a military leader or as a leader. So, oDcial to sya.

(hat do you think was the ruling of the 3ouse of +ords, then

the then Supreme 1ourt of 8ngland* )inochet died in ;FFG, by

the way, wa pa nahuman ang kaso. The prohibition against

torture is jus cogens so it could never be oDcial. The absolute

prohibition on torture is jus cogens and therefore overrides

any immunity from suit aorded to a head of state in criminal

proceedings. &n criminal proceedings, ha* 'ecause in the case

of Saudi !rabia, it does not matter. &mmunity in civil

proceedings still apply. Aa remember mo aning Jones, they

were in Saudi !rabia and they were tortured by police in

Saudi !rabia. They sued for damages, not for criminalculpability, but for damages in civil case. &ngon ang 3ouse of

+ords, civil gani, kana nga torture dili pa settled ang rule nga

mo.override ang prohibition on torture sa immunity in civil

proceedings. 'ut immunity in criminal proceedings will have

to be overridden by a jus cogens norm. ou have to

distinguish between criminal and civil proceedings when it

comes to torture and in relation to immunity. &kiha nimo ang

police for torture, ang cause of action mo civil case for

damages, that will not apply here because we have a

statutory provision allowing the $ling of damages against a

police who violated our constitutional rights. &n international

law, immunity may be invoked because this happens usually

when a case is $led in another tribunal and impleaded in a

foreign court of a foreign state. So this is entirely dierent.Take note of the ruling in this case.

Some observations here, it appears that if )inochet was still a

head of state, he would have been immune from prosecution,

even for torture.


21/25

(ill it reuire the court to determine the validity of

the bidding5 a public act, awarding of the contract to the

supposed winner* 7oes it involve the act of state doctrine*

The court said no, because the court was not asked

to determine the validity of the award but on the validity of

the awarding of the contract on the basis of bribery. The act

of state doctrine therefore is not always applied, it depends

on if it is the true inuiry of the court. &f it is not the true

inuiry of the court, like what happened here. The Supreme

1ourt said that the determination to whether the bribe took

place, does not reuire the court to decide whether or not to

give legal eect of the oDcial act of


22/25

/.The receiving State shall permit and protect free

communication on the part of the mission for all oDcial

purposes. &n communicating with the 6overnment and the

other missions and consulates of the sending State, wherever

situated, the mission may employ all appropriate means,

including diplomatic couriers and messages in code or cipher.

3owever, the mission may install and use a wireless

transmitter only with the consent of the receiving State.

;.The oDcial correspondence of the mission shall be

inviolable. ODcial correspondence means all correspondence

relating to the mission and its functions.

N.The diplomatic bag shall not be opened or detained.

.The packages constituting the diplomatic bag must bear

visible e#ternal marks of their character and may contain only

diplomatic documents or articles intended for oDcial use.

>.The diplomatic courier, who shall be provided with an oDcial

document indicating his status and the number of packages

constituting the diplomatic bag, shall be protected by the

receiving State in the performance of his functions. 3e shall

enjoy person inviolability and shall not be liable to any form of

arrest or detention.

G.The sending State or the mission may designate diplomatic

couriers ad hoc. &n such cases the provisions of paragraph >

of this article shall also apply, e#cept that the immunities

therein mentioned shall cease to apply when such a courier

has delivered to the consignee the diplomatic bag in his

charge.

P.! diplomatic bag may be entrusted to the captain of a

commercial aircraft scheduled to land at an authoried port of

entry. 3e shall be provided with an oDcial document

indicating the number of packages constituting the bag but

he shall not be considered to be a diplomatic courier. The

mission may send one of its members to take possession of

the diplomatic bag directly and freely from the captain of the

aircraft.

The rule is non5interference with the nations oDcial

communication.

!ccording to &+1, there is an opinion that the use of snier

dogs and e#ternal e#amination of the bag may be permitted

&f there is reasonable suspicion that the bag contains illegal

substance, then the authorities may be allowed to open in the

presence of course of the representative of the sending state.

Take note that this is just e#ternal and only on reasonable

suspicion may the local authorities be permitted to inspect in

the presence of the representative of the sending state.

)rovided however, this shall be complied with, that there shall

be e#ternal marks visible to the local authorities. &f there is

compliance of e#ternal marks then local laws can be applied.

That is according to &+1. 'ut of course in the )hilippines, we

dont usually make e#ceptions. &n fact, our policy is that we

grant immunity. (e dont want o spawn controversies

especially with powerful states.

&nviolability of the person 5 !rticle ;=

The person of a diplomatic agent shall be inviolable. 3e shall

not be liable to any form of arrest or detention. The receiving

State shall treat him with due respect and shall take all

appropriate steps to prevent any attack on his person,

freedom or dignity.

5 apply the same theories, take note that it is the functional

necessity theory that is adhered to by modern international

laws. &t doesnt mean that other theories do not justify the

observance of ...

Scope of the diplomatic personal inviolability

!rticle NF

/.The private residence of a diplomatic agent shall enjoy the

same inviolability and protection as the premises of the

mission.

;.3is papers, correspondence and, e#cept as provided in

paragraph N of article N/, his property, shall likewise enjoy

inviolability.

!rticle N/

/.! diplomatic agent shall enjoy immunity from the criminaljurisdiction of the receiving State. 3e shall also enjoy

immunity from its civil and administrative jurisdiction, e#cept

in the case ofH

KaI ! real action relating to private immovable property

situated in the territory of the receiving State, unless he holds

it on behalf of the sending State for the purposes of the

missionM

KbI !n action relating to succession in which the diplomaticagent is involved as e#ecutor, administrator, heir or legatee as

a private person and not on behalf of the sending StateM

KcI !n action relating to any professional or commercial

activity e#ercised by the diplomatic agent in the receiving

State outside his oDcial functions.

;.! diplomatic agent is not obliged to give evidence as a

witness.

5 he is e#empt from processes, arrest, e#ecution, detention,subpoena.

N.


23/25

without infringing the inviolability of his person or of his

residence.

.The immunity of a diplomatic agent from the jurisdiction of

the receiving State does not e#empt him from the jurisdiction

of the sending State.

!rticle NP

/.The members of the family of a diplomatic agent forming

part of his household shall, if they are not nationals of the

receiving State, enjoy the privileges and immunities speci$ed

in articles ;= to NG.

;.2embers of the administrative and technical sta of the

mission, together with members of their families forming part

of their respective households, shall, if they are not nationals

of or permanently resident in the receiving State, enjoy the

privileges and immunities speci$ed in articles ;= to N>,

e#cept that the immunity from civil and administrativejurisdiction of the receiving State speci$ed in paragraph / of

article N/ shall not e#tend to acts performed outside the

course of their duties. They shall also enjoy the privileges

speci$ed in article NG, paragraph /, in respect of articles

imported at the time of $rst installation.

N.2embers of the service sta of the mission who are not

nationals of or permanently resident in the receiving State

shall enjoy immunity in respect of acts performed in the

course of their duties, e#emption from dues and ta#es on the

emoluments they receive by reason of their employment and

the e#emption contained in article NN.

.)rivate servants of members of the mission shall, if they are

not nationals of or permanently resident in the receiving

State, be e#empt from dues and ta#es on the emoluments

they receive by reason of their employment. &n other

respects, they may enjoy privileges and immunities only to

the e#tent admitted by the receiving State. 3owever, the

receiving State must e#ercise its jurisdiction over those

persons in such a manner as not to interfere unduly with the

performance of the functions of the mission.

5 for these people 5 civil and administrative jurisdiction,to

!vail of immunity that its should be for acts intra vires,

7istinguish between two categories of 7iplomatic immunityH

&mmunity rationae personae

5 &mmunity attaches to the person, the diplomat. So for as

long as he is a diplomat and therefore during his incumbency,

then the diplomat is e#empt.

!mbassador, e#empt totallyH criminal

@or civil, there are instances where he cannot invoke

immunity . !rt. N/of 417E

&f out from the service, no longer an incumbent, apply

immunity rationae personae

&mmunity rationae personae

5 immunity attaches for the oDcial acts.

5 for former ambassador.

5 point here is that the act must be oDcial for former

diplomats for immunity to be invoked, Otherwise, if ultravires, even performed at the time that he was a diplomat,

immunity does not attach.

These same categories of immunity were applied in the case

of )inochet for acts violative of jus cogens. &mmunity rationae

materiae.

1ommitting torture is not lawful, the state does not sanction

illegal acts, a violation of jus cogens. Thus even if ordered by

a head of state, it can never be an oDcial act of a head of

state. The moment it becomes sees illegal, then it is outside

the scope of his function.

Immunit* from 3ros#cution is a octrine o international

la+ that allo+s an accse to avoi prosection or criminal

o)ences. Fmmnities are o t+o types. The frst is function!

immunit*, or immnity ratione materiae.This is an immnity

grante to people +ho perorm certain nctions o state. The

secon is 3#rson! immunit*, or immnityratione personae.

This is an immnity grante to certain oKcials ecase o the

oKce they hol, rather than in relation to the act they have

committe.

Arr#st Wrrnt of


24/25

-D +ill case to enoy immnity rom oreign risiction i theState +hich they represent +aives immnity.-Ater inivial ceases to hol position, they +ill no longerenoy all the immnities grante y international la+ in otherStates.-Fncment or ormer >inister may e sect to criminalproceeings eore certain international criminal corts +herethey have risiction.- See more at"http"QQ+++.la+schoolcaseries.netQ%$''Q''Qarrest-+arrant-o-''-april-%$$$.htmlRsthash.:FNNs.p

(ho these people are*

7iplomats5 e#. !mbassador, immunity is absolute in

criminal jurisdiction, the reason again is functional theory.

Eemedy of declaring the diplomat persona non grata. Take

note of the process and conditions for declaring the diplomat

persona non grata. &t is discretionary on the part of the

receiving state to declare him as such. There is no hard and

fast rule in what grounds may he be declared for it.

This is a term speci$cally applicable to diplomatic agents but

very often there are local councils which declare some artistaor others for their commission of displeasing behavior. The

term has perhaps been applied in certain case but originally it

is the term to diplomatic agents declared persona non grata

and should leave the country.

&n civil cases there are N e#ceptions as shown in the case of

1ongo vs. 'elgiumH includes !rrest, 7etention. all of these will

hamper the eective functioning of diplomat.

1onsular oDcials5 immunity is narrower, for oDcial acts

only.

&mmunity from civil and criminal jurisdiction e#tends to oDcial

acts only. K@or diplomats, in criminal jurisdiction, we dont

distinguish if it is oDcial act or not. The fact na diplomat he

may avail of it. this is the 1ontention. !s you have noticed

some states can invoke their sovereignty as prevailing over

some international rules and conventions.

&1J said that the immunity for current foreign ministers is

absolute even for international crimes.

8#cept that under the Eome statute, invocation of immunity

of head of state is not a ground that jurisdiction should not be

e#ercised. )robably because of the understanding that the

Eome statute is there because of their duty to prosecute

international crimes. &t has become very controversial since

there is no distinction as to the kind of crimes committed. &

believe this case suggest a dierent perspective

1onsuls C &mmunity is NARRO3M should always be an

O##I(IA& A(T

M their immunity from 1riminal and 1ivil

Jurisdiction e#tends to their O@@&1&!+ acts only.

7iplomats C &mmunity BROADER than 1onsuls especially in

1riminal Jurisdiction. @or 7iplomats, in 1riminal jurisdiction,

we don"t distinguish whether it"s criminal or not, the fact that

he is a diplomat, he may avail of the immunity. KThat is what

the convention saysI. &n some states, they can always invoke

their sovereignty as prevailing over international rules or

conventions.

I(

. &n our

case, it"s more of purpose. &f it is for the bene$t of

the embassy then it must be )%'+.1,

3"O +s Aquino

&nsofar as international organiations are concerned, the

immunities are usually granted by reason of treaties

a1reementsbetween the international organiation and the

state concerned. 3ere, it is a foreign agent, member of 48!K*I

but the 1ourt observed that the )hilippine government had

authoried and allowed Kbecause there was a coordination

between )hilippine government and the !meri

PIL Compilation Prefinals 2013-2014

Documents

Transcript of PIL Compilation Prefinals 2013-2014