G.R. No. 81561 January 18, 1991
PEOPLE OF THE PHILIPPINES, plaintiff-appellee vs. ANDRE MARTI, accused-appellant.
Facts:
- Appeal from a decision convicting accused-appellant of violation Dangerous Drugs Act.
- Appellant and his common-law wife, Shirley Reyes, went to the booth of the "Manila Packing and Export Forwarders" to send four (4) gift wrapped packages to a friend (WALTER FIERZ, Mattacketr II) in Zurich, Switzerland.
- Anita Reyes asked the appellant if she could examine and inspect the packages but appellant, refused, assuring her that the packages simply contained books, cigars, and gloves. Anita relied on the statement, and the box was sealed.
- Before delivery to the Bureau of Customs and/or Bureau of Posts, Mr. Job Reyes (proprietor) opened the boxes for final inspection. Peculiar odor emitted therefrom. He opened one of the bundles, took several grams of the contents thereof, reported the shipment to the NBI and requested a laboratory examination
- 3 NBI agents, and a photographer, went to the Reyes' office at Ermita. Reyes brought out the box and opened it, in the presence of the NBI agents.
- Agents requested assistance from the Manila Post Office Chief Security. Appellant, was invited while claiming his mail at the Central Post Office. Information was filed against appellant
Issues/Contentions:
- Appellant contends that the evidence had been obtained in violation of his constitutional rights against unreasonable search and seizure and privacy of communication hence, inadmissible in evidence Ruling:
- The evidence was primarily discovered and obtained by a private person, acting in a private capacity and without the intervention and participation of State authorities.
- In the absence of governmental interference, the liberties guaranteed by the Constitution cannot be invoked against the State.
- Right against unreasonable search and seizure refers to the immunity of one's person, whether citizen or alien, from interference by government, included in which is his residence, his papers, and other possessions.
- Intended as a restraint upon the activities of sovereign authority, and was not intended to be a limitation upon other than governmental agencies;
- Mr. Job Reyes, the proprietor of the forwarding agency, who made search/inspection of the packages under reasonable and a standard operating procedure - Mere presence of the NBI agents did not convert the
reasonable search effected by Reyes into a warrantless search and seizure Merely to observe and look at that which is in plain sight is not a search. - The liberties guaranteed by Constitution must always
be subject to protection against the state.
- The Bill of Rights governs the relationship between the individual and the state, not the relation between individuals, between a private individual and other individuals.
- Bill of Rights declare some forbidden zones in the private sphere inaccessible to any power holder. - The modifications made in 1935 Constitution deviate
in no manner as to whom the restriction or inhibition against unreasonable search and seizure is directed against. The restraint stayed with the State and did not shift to anyone else.
Issues/Contentions:
- His rights under the constitution while under custodial investigation were not observed.
Ruling:
- Contention is without merit, as law enforcers testified that accused/appellant was informed of his constitutional rights. It is presumed that they have regularly performed their duties
Issues/Contentions:
- he was not the owner of the packages but rather a certain Michael, a German national, whom appellant met in a pub, requested him to ship the packages Ruling:
- Appellant's disclaimer as incredulous, self-serving and contrary to human experience. Complete stranger struck in half an hour could not have pushed a man to entrust the shipment. The Accused, would not simply accept such undertaking to take custody of the packages and ship the same from a complete stranger on his mere say-so"
- Appellant's bare denial is even made more suspect since he was previously convicted of possession of hashish by the Kleve Court in the Federal Republic of Germany including Walter Fierz, also a Swiss national - If indeed, the German national was the owner of the
merchandise, appellant should have so indicated in the contract of shipment but did not, hence presumption that things which a person possesses, or exercises acts of ownership over, are owned by him. Appellant is therefore estopped to claim otherwise. - Decision affirmed.
Velasquez –Rodriguez vs Honduras, Inter-American Court of Human rights
- It is a principle of international law that every violation of an international obligation which results in harm creates a duty to make adequate reparation.
- Reparation of harm brought about by the violation of an international obligation consists in full restitution which includes the restoration of the prior situation, the reparation of the consequences of the violation, and indemnification for patrimonial and non-patrimonial damages, including emotional harm which may be awarded in the case of human rights violations. Indemnification must be based upon the principles of equity.
- Indemnification for human rights violations is supported by international instruments of a universal and regional character. The Human Rights Committee, created by the International Covenant of Civil and Political Rights of the United Nations, has repeatedly called for, based on the Optional Protocol, indemnification for the violation of human rights recognized in the Covenant
- Court has already pointed out the Government's continuing duty to investigate so long as the fate of a disappeared person is unknown. The duty to investigate is in addition to the duties to prevent involuntary disappearances and to punish those directly responsible. Court believes, then, that the fair compensation, described as "compensatory" includes reparation to the family of the victim of the material and moral damages they suffered because of the involuntary disappearance of Manfredo Velásquez. Oposa v Factoran –
- The right to a balanced and healthful ecology carries with it the correlative duty to refrain from impairing the environment. The said right implies, among many other things, the judicious management and conservation of the country's forests. Intergenerational justice and responsibility.
Barcelona Traction Case
- Arose out of the adjudication in bankruptcy in Spain of Barcelona Traction, a company incorporated in Canada. Barcelona Traction issued several series of bonds, principally in sterling. After that war the Spanish exchange control authorities refused to authorize the transfer of the foreign currency necessary for the resumption of the servicing of the sterling bonds. Subsequently, when the Belgian Government complained of this, the Spanish Government stated that the transfers could not be authorized unless it were shown that the foreign currency was to be used to repay debts arising from the genuine importation of foreign capital into Spain and that this had not been established. Spanish holders of recently acquired Barcelona Traction sterling bonds petitioned the court of Reus (Province of Tarragona) for a declaration adjudging the company bankrupt, on account of failure to pay the interest on the bonds. A judgment was given declaring the company bankrupt and ordering the seizure of the assets of Barcelona Traction and of two of its subsidiary companies. Pursuant to this judgment the principal management personnel of the two companies were dismissed and Spanish directors appointed. Shortly afterwards, these measures were extended to the other subsidiary companies. New shares of the subsidiary companies were created. Belgian nationals contended that no judicial notice of bankruptcy was provided and thus did not enter a plea of opposition against the bankruptcy judgment. Its object was to seek reparation for damage alleged by Belgium to have been sustained by Belgian nationals, shareholders in the company, as a result of acts said to be contrary to international law committed towards the company by organs of the Spanish State.
- The Court observed that when a State admitted into its territory foreign investments or foreign nationals it was bound to extend to them the protection of the law and assumed obligations concerning the treatment to be afforded them. But such obligations were not absolute. In order to bring a claim in respect of the breach of such an obligation, a State must first establish its right to do so.
- In the field of diplomatic protection, international law was in continuous evolution and was called upon to recognize institutions of municipal law. In municipal law, the concept of the company was founded on a firm distinction between the rights of the company and those of the shareholder. Only the company, which was endowed with legal personality, could take action in respect of matters that were of a corporate character. A wrong done to the company frequently caused prejudice to its shareholders, but this did not imply that both were entitled to claim compensation. Whenever a shareholder's interests were harmed by an act done to the company, it was to the latter that he had to look to institute appropriate action. An act infringing only the company's rights did not involve responsibility towards the shareholders, even if their interests were affected.
- Where it was a question of an unlawful act committed against a company representing foreign capital, the general rule of international law authorized the national State of the company alone to exercise diplomatic protection for the purpose of seeking redress. No rule of international law expressly conferred such a right on the shareholder's national State.
- Possession by the Belgian Government of a right of protection was a prerequisite for the examination of
such problems. Since no jus standi before the Court had been established, it was not for the Court to pronounce upon any other aspect of the case.
- A state assumes an obligation concerning the treatment of foreign investments based on general international law, once the state admits foreign investments or foreign nationals into its territory. It is highly imperative to draw a distinction between those obligations of a state toward the international community as a whole and those arising from the field of diplomatic protection. It is only the party to whom an international obligation is due can bring a claim if a breach of an obligation that is the subject of diplomatic protection occurs. State could make claim when investment by its nationals abroad were prejudicially affected in violation of their right of State itself to have its national enjoy certain treatment. Such right could only result from a treaty or special agreement.
- General rule: State of the company can seek redress. - The general principle of law is that: Corporation has
juridical personality distinct from its shareholders U.S. v Mexico, 4 RIAA (1926) Neer Claim
- Neer contended that Mexican authorities showed an unwarrantable lack of diligence or an unwarrantable lack of intelligent investigation in prosecuting the culprits; and that therefore the Mexican Government ought to pay to the claimants the said amount.
- Commission accordingly decides that the claim of the United States is disallowed. The Commission is mindful that the task of the local Mexican authorities was hampered by the fact that the only eyewitness of the murder was unable to furnish them any helpful information. There might have been reason for the higher authorities of the State to intervene in the matter, as they apparently did. But in the view of the Commission there is a long way between holding that a more active and more efficient course of procedure might have been pursued, on the one hand, and holding that this record presents such lack of diligence and of intelligent investigation as constitutes an international delinquency, on the other hand.
- It is not for an international tribunal such as this Commission to decide, whether another course of procedure taken by the local authorities at Guanacevi might have been more effective. On the contrary, the grounds of liability limit its inquiry to whether there is convincing evidence either (1) that the authorities administering the Mexican law acted in an outrageous way, in bad faith, in willful neglect of their duties, or in a pronounced degree of improper action, or (2) that Mexican law rendered it impossible for them properly to fulfil their task.
France v Mexico, (1929) Jean-Baptiste Caire Claim
- Jean-Baptiste Caire, a French national, was unlawfully shot and killed at an army barracks in Mexico by two Mexican army officers, a major and a captain aided by a few privates, after Caire refused a demand by one of the officers to pay a sum of money.
- Mexico was internationally responsible for the conduct of the army officers. Under the doctrine of objective responsibility (state responsibility for the acts of state officials or state organs even in the absence of “fault” on the part of the state), a state is internationally responsible for acts committed by its officials or organs outside their competence if the officials or organs “acted at least to all appearances as
competent officials or organs, or… used powers or methods appropriate to their official capacity”
- The officers in question consistently conducted themselves as officers, in this capacity they began by exacting the remittance of certain sums of money; they continued by having the victim taken to a barracks of the occupying troops; and it was clearly because of the refusal of M Caire to meet their repeated demands that they finally shot him.
UK v Albania, Corfu Channel Case
- Two British cruisers and two destroyers entered the North Corfu Strait. Though the Strait was regarded as safe, the destroyers struck mines in Albanian waters and suffered damage. Albanian battery had fired in the direction of two British cruisers. The United Kingdom Government had protested, stating that innocent passage through straits is a right recognized by international law; the Albanian Government had replied that foreign warships and merchant vessels had no right to pass through Albanian territorial waters without prior authorization. UK government sent a Note to Tirana announcing its intent to sweep Corfu Channel shortly
- Laying of the minefield could not have been accomplished without the knowledge of Albania. It was her duty to notify shipping and especially to warn the ships proceeding through the Strait of the danger to which they were exposed. In fact, nothing was attempted by Alba- nia to prevent the disaster, and these grave omissions involve her international responsibility
- Passage was innocent both in its principle, since it was designed to affirm a right which had been unjustly denied, and in its methods of execution, which were not unreasonable in view of the firing from the Albanian battery.
- Court must declare that the action of the British Navy constituted a violation of Albanian sovereignty
Nicaragua v U.S. (1986) ICJ Rep
- Decides that the United States of America, by certain attacks on Nicaraguan territory in 1983-1984 and further by those acts of intervention has acted, against the Republic of Nicaragua, in breach of its obligation under customary international law not to use force against another State;
- Court finds it established that, the President of the United States authorized a United States Government agency to lay mines in Nicaraguan ports, United States Government did not issue any public and official warning to international shipping of the existence and location of the mines
- It is also established in the Court's view that the support of the United States for the activities of the contras took various forms over the years, such as logistic support the supply of information on the location and movements of the Sandinista troops, the use of sophisticated methods of communication, etc. The evidence does not however warrant a finding that the United States gave direct combat support, if that is taken to mean direct intervention by United States combat forces. Court ruled that the contras remain responsible for their acts, in particular the alleged violations by them of humanitarian law
- The Court concluded that it has to apply the multilateral treaty reservation in the United States declaration, the consequential exclusion of multilateral treaties being without prejudice either to other treaties or other sources of law enumerated in Article 38 of the Statute. In order to determine the law actually to be applied to the dispute, it has to
ascertain the consequences of the exclusion of the applicability of the multilateral treaties for the definition of the content of the customary international law which remains applicable.
- Even if a treaty norm and a customary norm relevant to the present dispute were to have exactly the same content, this would not be a reason for the Court to take the view that the operation of the treaty process must necessarily deprive the customary norm of its separate applicability. Consequently, the Court is in no way bound to uphold customary rules only in so far as they differ from the treaty rules which it is prevented by the United States reservation from applying.
- There exists in customary law an opinio juris as to the binding character of such abstention. Opinio juris may be deduced from, inter alia, the attitude of the Parties and of States towards certain General Assembly resolutions, and particularly resolution 2625 (XXV) entitled "Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in Accordance with the Charter of the United Nations". Consent to such resolutions is one of the forms of expression of an opinio juris with regard to the principle of non-use of force, regarded as a principle of customary international law, independently of the provisions, especially those of an institutional kind, to which it is subject on the treaty-law plane of the Charter.
- Court finds that in customary international law, there is no rule permitting the exercise of collective self-defense in the absence of a request by the State which is a victim of the alleged attack, this being additional to the requirement that the State in question should have declared itself to have been attacked.
- The principle of non-intervention - prohibited intervention must be one bearing on matters in which each State is permitted, by the principle of State sovereignty, to decide freely. Intervention is wrongful when it uses methods of coercion, particularly force, either in the direct form of military action or in the indirect form of support for subversive activities in another State.
- The laying of mines in the waters of another State without any warning or notification is not only an unlawful act but also a breach of the principles of humanitarian law underlying the Hague Convention. United States is under an obligation to "respect" the Conventions and even to "ensure respect" for them, and thus not to encourage persons or groups engaged in the conflict in Nicaragua to act in violation of the provisions of Article 3. This obligation derives from the general principles of humanitarian law to which the Conventions merely give specific expression.
- United States has committed a prima facie violation of the principle by arming and training the contras, unless this can be justified as an exercise of the right of self-defense.
- As regards El Salvador, the Court considers that in customary international law the provision of arms to the opposition in another State does not constitute an armed attack on that State.
U.S. v Iran (1980) ICJ Rep
- Court decided (1) that Iran has violated and is skill violating obligations owed by it to the United States; (2) that these violations engage Iran's responsibility; (3) that the Government of Iran must immediately release the United States nationals held as hostages and place the premises of the Embassy in the hands
of the protecting power; (4) that no member of the United States diplomatic or consular staff may be kept in Iran to be subjected to any form of judicial proceedings or to participate in them as a witness; (5) that Iran is under an obligation to make reparation for the injury caused to the United States, and (6) that the form and amount of such reparation, failing agreement between the parties, shall be settled by the Court.
- Attributability to the Iranian State of the acts complained of, and violation by Iran of certain -Iranian State was under obligation to take appropriate steps to protect the United States Embassy but did nothing to prevent the attack, stop it before it reached its completion or oblige the militants to withdraw from the premises and release the hostages. Instead, expressions of approval were immediately heard from numerous Iranian authorities. Once organs of the Iranian State had thus given approval to the acts complained of and decided to perpetuate them as a means of pressure on the United States, those acts were transformed into acts of the Iranian State: the militants became agents of that State, which itself became internationally responsible for their acts.
Home Missionary Society Claim, U.S. b Great Britain
- In 1898 the collection of a tax newly imposed on the natives of the Protectorate and known as the "hut tax" was the signal for a serious and widespread revolt in the Ronietta district where Home Missionary Society had several establishments. In the course of the rebellion all these missions were attacked, and either destroyed or damaged, and some of the missionaries were murdered.
- The contention of the United States Government before this Tribunal is that the revolt was the result of the imposition and attempted collection of the "hut tax"; that it was within the knowledge of the British Government that this tax was the object of deep native resentment; that in the face of the native danger the British Government wholly failed to take proper steps for the maintenance of order and the protection of life and property; that the loss of life and damage to property was the result of this neglect and failure of duty, and therefore that it is liable to pay compensation
- It is a well-established principle of international law that no government can be held responsible for the act of rebellious bodies of men committed in violation of its authority, where it is itself guilty of no breach of good faith, or of no negligence in suppressing insurrection. The good faith of the British Government cannot be questioned, and as to the conditions prevailing in the Protectorate there is no evidence to support the contention that it failed in its duty to afford adequate protection for life and property. On the contrary the evidence of eye-witnesses proves that under peculiarly difficult and trying conditions they did their duty with loyalty and daring, and upheld the highest traditions of the British army. - Missionary Society must have been aware of the
difficulties and perils to which it exposes itself in its task of carrying Christianity to so remote and barbarous a people. The contempt for difficulty and peril is one of the noblest sides of their missionary zeal
- Claim presented is dismissed.
Short v Iran
- About 45,000 United States nationals left Iran during the four month period of the Islamic revolution in that country which was accompanied by intense anti-United States sentiment and acts of violence against United States owned property and United States nationals. United States filed case against Iran in respect of the alleged “wrongful expulsion” from Iran of a United States national, Alfred Short, with consequential loss of personal property and employment income. The issue is whether the facts invoked by Short as having caused his departure from Iran are attributable to Iran, either directly, or indirectly as a result of its deliberate policies, or whether they reveal a lack of due diligence in meeting Iran’s international duties towards the Claimant.
- The reports that many thousands of Iranians lost their lives in the course of these revolutionary events is an indicator of the magnitude of the turmoil associated with the Revolution. Where a revolution leads to the establishment of a new government, the State is held responsible for the acts of the overthrown government insofar as the latter maintained control of the situation. The successor government is also held responsible for the acts imputable to the revolutionary movement which established it, even if those acts occurred prior to its establishment, as a consequence of the continuity existing between the new organization of the State and the organization of the revolutionary movement. Declarations made by the leader of the Revolution, Ayatollah Khomeini, are of anti-foreign and in particular anti-American sentiment, but the Tribunal notes that these pronouncements were of a general nature and did not specify that Americans should be expelled en masse. Such declarations referred to by the Claimant did not amount to an authorization to revolutionaries to act in such a way that the Claimant should be forced to leave Iran forthwith. Tribunal is of the view that the Claimant has failed to prove that his departure from Iran can be imputed to the wrongful conduct of Iran. The claim is therefore dismissed.
U.S. v Iran
- United States of America had instituted proceedings against Iran in a case arising out of the situation at its Embassy in Tehran and Consulates at Tabriz and Shiraz, and the seizure and detention as hostages of its diplomatic and consular staff in Tehran and two more citizens of the United States. United States, in its final submissions, requested it to adjudge and declare, inter alia, that the Iranian Government had violated its international legal obligations to the United States and must: ensure the immediate release of the hostages; afford the United States diplomatic and consular personnel the protection and immunities to which they -were entitled. Iran took no part in the proceedings. It neither filed pleadings nor was represented at the hearing
- Court pints out that the conduct of the militants on that occasion could be directly attributed to the Iranian State only if it were established that they were in fact acting on its behalf. However, the Iranian State--which, as the State to which the mission was accredited, was under obligation to take appropriate steps to protect the United States Embassy-did nothing to prevent the attack, stop it before it reached its completion or oblige the militants to withdraw from the premises anti release the hostages. Court finds, a clear and serious violation of Iran's obligations to the United States under Vienna
Convention on Diplomatic Relation and Consular Relations.
- The Court finds that Iran, by committing successive and continuing breaches of the obligations laid upon it by the Vienna Conventions has incurred responsibility towards the United States. A$; a consequence, there is an obligation on the part of the Iranian State to make reparation for the injury caused to the United States. Since, however, the breaches are still continuing, the form and amount of such reparation cannot yet be determined
Chorgow Factory Case, Germany v Poland PCIJ - Government of the German Reich, has submitted to
the Permanent Court of International Justice a suit concerning the reparation due by the Polish Government for the damage suffered by the Oberschlesische and the Bayerische in consequence of the attitude adopted by that Government towards those Companies in taking possession of the nitrate factory situated at Chorzów, which attitude has been declared by the Court in Judgment No. 7 not to have been in conformity with the provisions of Geneva Convention
- It is a principle of international law that the reparation of a wrong may consist in an indemnity corresponding to the damage which the nationals of the injured State have suffered as a result of the act which is contrary to international law. The rules of law governing the reparation are the rules of international law in force between the two States concerned, and not the law governing relations between the State which has committed a wrongful act and the individual who has suffered damage.
- It is a principle of international law, and even a general conception of law, that any breach of an engagement involves an obligation to make reparation. Reparation must, as far as possible, wipe-¬out all the consequences of the illegal act and re-establish the situation which would, in. all probability, have existed if that act had not been committed.
- Reparation of wrong may consist in an indemnity corresponding to damages which the nationals of injured state suffered as a result of the act which is contrary to international law.
- Reparation is indispensable complement of failure to apply convention.
- When expropriation is legal, amount of reparation is the logistical value of property taken at the time of the expropriation. If illegal, amount of reparation includes intangible assets (loss profits)
North American Dredgin Company Claim (1926) - US in behalf of American Dredging Company of Texas,
an American corporation, filed recovery of the sum with damages against Government of Mexico to whom American Dredging has contracted with. In their contract, it states that: Corporation shall be considered as Mexicans in all matters, within the Republic of Mexico, concerning the execution of such work and the fulfilment of this contract. They shall not claim, nor shall they have, with regard to the interests and the business connected with this contract, any other rights or means to enforce the same than those granted by the laws of the Republic to Mexicans
- A Calvo clause held to bar claimant from presenting to his Government any claim connected with the contract in which it appeared and hence to place any such claim beyond the jurisdiction of the tribunal. It appreciates the legitimate desire on the part of nations to deal with persons and property within their
respective jurisdictions according to their own laws and to apply remedies.
- The Calvo clause is neither upheld by all outstanding international authorities and by the soundest among international awards nor is it universally rejected - The contested provision, in this case, is part of a
contract and must be upheld unless it be repugnant to a recognized rule of international law. What must be established is not that the Calvo clause is universally accepted or universally recognized, but that there exists a generally accepted rule of international law condemning the Calvo clause and denying to an individual the right to relinquish to any extent, large or small, and under any circumstances or conditions, the protection of the government to which he owes allegiance. There exists no international rule prohibiting the sovereign right of a nation to protect its citizens abroad from being subject to any limitation whatsoever under any circumstances. The right of protection has been limited by treaties between nations in provisions related to the Calvo clause.
- A person cannot deprive the government of his nation of its undoubted right of applying international remedies to violations of international law committed to his damage. Such government frequently has a larger interest in maintaining the principles of international law than in recovering damage for one of its citizens in a particular case, and manifestly such citizen cannot by contract tie in this respect the hands of his Government
- As the claimant voluntarily entered into a legal contract binding itself not to call as to this contract upon its Government to intervene in its behalf, and as all of its claim relates to this contract, and as therefore it cannot present its claim to its Government for interposition or espousal before this Commission, the second ground of the notion to dismiss is sustained.
Chinese Flour Importers Assn. v Price Stabilization Board
- Appeal interposed by respondents as well as intervenors from a decision of the CFI ordering the Price Stabilization Corporation (PRISCO) to grant flour quota allocations to the members of the petitioner association and other qualified importers pursuant to the provision of sections 12 and 14 of Republic Act No. 426 on the basis of their quota allocations for the years 1948 and 1949, and dismissing the complaint of the intervenors.
- Policy of our Government which is indeed very plausible and should be encouraged to give a break to our countrymen so that they may have greater share in our local trade, business and commerce, however, be adopted gradually so as not to cause injustice and discrimination to alien firms or businessmen. When the PRATRA decided to ignore entirely the rights of the old importers, simply because they are aliens, in complete disregard of this policy of our Government, these importers have the right to recur to the sanctuary of justice for redress, for they too are entitled to certain rights under our Constitution.
- Aliens within the state of their residence enjoy certain rights and privileges like those enjoyed by its citizens, such as free access to the courts and the equal protection of the laws. Nor may aliens be deprived of life, liberty, or property without due process of law. Citizens may, of course, be preferred to non-citizen without violating constitutional guaranties. They are excluded from the enjoyment of political rights, such
as the right to vote and to hold public office. Other restrictions may be imposed for reasons of public policy and in the exercise of the police power.
People v Chan Fook 42 Phil 230
- Chan Fook was prosecuted for the crime of resistance and disobedience to the public authority, and sentenced by CFI to two months and one day of arresto mayor and to pay a fine. Accused, a Chinese subject, was a passenger of the United States Military Transport South Bend, which arrived in Manila, he went to pier no. 1 to get his baggage. After the search of the baggage in which postcards of an indecent character were found, a customs agent, Eugenio M. Cruz, attempted to search the body of the accused, to which the latter apparently objected. A dispute took place between the two. The accused resisted and struck the secret agent on the stomach. Defense, contends that once the accused has arrived at the point of his destination by being allowed to leave the boat and to land he was beyond the jurisdiction of the customs authorities, and, therefore, not liable to search without judicial warrant.
- Court ruled that after the customs authorities have permitted the accused to land in Manila, he ceased to be a passenger. It was too late to look for any contraband. He had already been searched when he left the boat. The accused had reached his destination, spending the night in the house where he had taken lodging. It is not, therefore, reasonable to believe that when he returned to pier No. 1 the next day, he had about his body any contraband. Thus the search made by the agent Cruz appears to be unreasonable.
- Foreigners in the Philippines are entitled to the benefits of the individual rights secured by the Philippine Bill is undeniable. Provisions on life, liberty and property are universal in their application to all persons within the territorial jurisdiction, without regard to any differences of race, of color, or of nationality; and the equal protection of the laws is a pledge of the protection of equal laws.
Kwong Sing v City of Manila 41 Phil 103
- The validity of Ordinance No. 532 of the city of Manila requiring receipts in duplicate in English and Spanish duly signed showing the kind and number of articles delivered by laundries and dyeing and cleaning establishments, must be decided on this appeal. The government of the city of Manila possesses the power to enact Ordinance No. 532 deem necessary and proper for the sanitation and safety, the furtherance of the prosperity, and the promotion of the morality, peace, good order, comfort, convenience, and general welfare of the city and its inhabitants, and such others as may be necessary to carry into effect and discharge the powers and duties conferred by this chapter. Ordinance No. 532 was enacted, it is said, to avoid disputes between laundrymen and their patrons and to protect customers of laundries who are not able to decipher Chinese characters from being defrauded. The object of the ordinance was, accordingly, the promotion of peace and good order and the prevention of fraud, deceit, cheating, and imposition. Appellant's claim is, that Ordinance No. 532 savors of class legislation; that it unjustly discriminates between persons in similar circumstances; and that it constitutes an arbitrary infringement of property rights.
- Court ruled that ordinance invades no fundamental right, and impairs no personal privilege. The ordinance is neither discriminatory nor unreasonable
in its operation. It applies to all public laundries without distinction, whether they belong to Americans, Filipinos, Chinese, or any other nationality. The very foundation of the police power is the control of private interests for the public welfare.
Youmans Case, U.S. v United Mexican State, 1926
- Mexican military forces, under command of officer, instead of protecting American citizens attacked by mob, opened fire on Americans, as a result of which all were killed either by armed forces or by mob. No one appeared to have been punished for the crime, though some prosecutions were begun
- Commission is of the opinion that the record shows a lack of diligence in the punishment of the persons implicated in the crime. There is not sufficient information before the Commission to warrant us in undertaking to draw any definite conclusions with respect to certain cases in which prisoners were released and other cases in which severe sentences imposed by the court of first instance were mitigated by a higher court. It is also pertinent to note touching this point that some soldiers were arrested but were not sentenced. Evidence before the Commission does not disclose whose weapons killed the Americans, bul the participation of the soldiers with members of the mob is established. Compensation is due to the claimant from the Mexican Government
- Government is not responsible for malicious acts of soldiers committed in their private capacity. Awards have repeatedly been rendered for wrongful acts of soldiers acting under the command of an officer. Angangueo can be regarded as acts of soldiers committed in their private capacity when it is clear that at the time of the commission of these acts the men were on duty under the immediate supervision and in the presence of a commanding officer. Soldiers inflicting personal injuries or committing wanton destruction or looting always act in disobedience of some rules laid down by superior authority.
U.S. v Panama , 6 United Rep, Intl Arb Awards, 308
- Acts of violence committed June 19, 1927, by mob attending political meeting. No increase of police force before crowd became unruly. Active police protection of claimant when attacked. No prosecution of assailants. Held that neither mere fact of aggression which could have been averted by sufficient police force, nor failure, m prevailing conditions, to institute prosecution against assailants make government liable for damages under international law
- The facts related above show that in both instances the police most actively protected the claimant against his assailants and that in the second instance the protection was due to the fact, that the authorities sent reinforcements from Panama City upon learning that the conditions in Juan Diaz rendered assistance necessary.
- The mere fact that an alien has suffered at the hands of private persons an aggression, which could have been averted by the presence of a sufficient police force on the spot, does not make a government liable for damages under international law. There must be shown special circumstances from which the responsibility of the authorities arises: either their behavior in connection with the particular occurrence, or a general failure to comply with their duty to maintain order, to prevent crimes or to prosecute and punish criminals. There were no such circumstances
in the present case. Accordingly a lack of protection has not been established.
Texas Cattle Case; American Mexican Claims Com. 1948 – Missing (Ate Jen)
Boffolo Claim, Italy v. Venezuela, 10 UN Rep Intl Arb Awards, 528 (1938)
- A state possesses the general right of expulsion; but expulsion should only be resorted to in extreme instances and must be accomplished in the manner least injurious to the person affected. The state exercising the power must, when occasion demands, state the reason of such expulsion before an international tribunal, an insufficient reason or none being advanced, accepts the consequences. Venezuela, by the constitution of 1893, established as subject to expulsion foreigners having no domicile and notoriously prejudicial to the public order. The case of Boffolo it appears that he had no domicile in Venezuela
- The right to expel foreigners is fully held by every State and is deduced from its very sovereignty. Boffolo had no domicile in the country, and the fact of his having been notoriously prejudicial to public order is a question that the Government is fully competent to determine, since to it is confided the power to expel without appeal or revision. It is to be noted that if it be true that foreigners enjoy the same civil rights as the natives, this refers solely to those foreigners who are domiciled. From the foregoing it appears that the claim must be dismissed, but without prejudice to any right the claimant may have to present his claim in Venezuela courts or elsewhere against persons guilty of any legal wrong so far as he is concerned. LAGRAND CASE (GERMANY v. UNITED STATES OF AMERICA) 27 JUNE 2001
Background:
- Case brought to ICJ pursuant to its jurisdiction provided in Article I of Optional Protocol concerning Compulsory Settlement of Disputes to Vienna Convention on Consular Relations of 24 April 1963. - On March 2, 1999, Germany filed in Registry of
Application instituting proceedings against USA for violations of Vienna Convention on Consular Relations and provisional measures. The same was communicated to US Government entitling them to appear in Court. Both parties provided time-limits to file Memorial (Germany) and counter-Memorial (USA) discussing their respective stand on the case. Both filed timely.
Prosecution of Walter and Karl LaGrand (Under US Domestic Laws)
- The two German Nationals moved to US when both were still young children and had permanent residence therein. Both were adoptive children of US national but never acquired nationality of US. They appeared as US national, did not learn to speak German (as they were fluent in English).
- The two were apprehended for being involved in armed bank robbery in Marana, Arizona in the course of which the bank manager was murdered and another bank employee seriously injured
- Superior Court of Pitna County, Arizona convicted them both of murder in the first degree, attempted murder in the first degree, attempted armed robbery and two counts of kidnapping. Each was sentenced to death for first degree murder and to concurrent sentences of imprisonment for the other charges.
- The decision was challenged in 3 principal sets of proceedings:
1. Appeal to Supreme Court of Arizona – Denied. The issue of the lack of consular notification, which had not been raised
at trial, was also not raised
2. Post-conviction relief before Arizona state court – Denied. The issue of the lack of consular
notification, which had not been raised at trial, was also not raised
3. Applications for writs of habeus corpus in the United States District Court for the District of Arizona – Denied on the basis of Procedural Default. LaGrands had not shown an objective external factor that prevented them from raising the issue of the lack of consular notification earlier.
- Procedural Default Rule - before a state criminal
defendant can obtain relief in federal court, the claim must be presented to a state court. If a state
defendant attempts to raise a new issue in a federal habeus corpus proceeding, the defendant can only do so by showing cause and prejudice. Cause is an external impediment that prevents a defendant from raising a claim and prejudice must be obvious on its face.
- German consular post was only made aware of the case in June 1992 by the LaGrands themselves, not the Arizona authorities
- January 19, 1999, Germany claims that German Consulate learned that Supreme Court of Arizona decided that Karl LaGrand to be executed on February 24, 1999 and Walter on March 3,1999. Various interventions were made by Germany seeking to prevent the execution of the LaGrands including the sending of letter of German Chancellor to US president. Such letter did not raise the issue of absence of consular notification, but only opposition to capital punishment generally.
- Arizona Board of Executive Clemency rejected an appeal for clemency of Karl, hence Karl was executed on February 24
- On March 2, the present case filed in Registry of Application and provisional measures.
Facts:
- Memorial of Germany: USA prosecuted under its domestic laws two German nationals, Karl and Walter LaGrand, allegedly, without informing the German government, hence, depriving the latter to render consular assistance. US applied the doctrine of procedural default which barred LaGrand from raising their claims under the Convention. US also failed to provide measures to ensure that Walter LaGrand was not executed pending final decision of ICJ nor provide guarantee that it will not repeat its illegal acts. During trial, both were provided with counsel by US Court. Conformity with Convention, however, was not raised during the trial nor informed the German consular authorities.
- Germany asked the Court the following:
1. To declare US violating the international legal obligations, in its own right and in right of diplomatic protection provided in Articles 36 of Vienna Convention
2. US should not apply doctrine of procedural default as to preclude exercise of Art 36.
3. US is obliged to conform with foregoing international legal obligations any future detention of or criminal proceedings against Germans in US territory
4. Declare void the criminal liability imposed on Karl and Walter LaGrand as it is a violation of international legal obligation
5. US to provide reparation by giving compensation for the execution of Karl LaGrand
6. Restore the status quo ante in the case of Walter LaGrand
7. US to provide guarantee of non-repetition acts - US Counter-Memorial: US confirmed the breached
obligation and has apologized to Germany, taking substantial measure aimed at preventing recurrence. US requested the dismissal of other claims and submissions.
- US granted the provisional measure, granting 60-day reprieve, but nevertheless, Governor of Arizona decided to go forward the execution of Walter as scheduled.
- ICJ issued summarily provisional measures such as the delay of execution pending the final decision of the case, and ordered US to inform the Court of any measures taken to implement the same. This order was not complied, Walter was executed as scheduled.
Article 36 of Vienna Convention:
Par 1 sub a: Consular officers shall be free to communicate with nationals of the sending State and to have access to them. Nationals of the sending State shall have the same freedom with respect to communication with and access to consular officers of the sending State;
Par 1 sub b: If he so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State if, within its consular district, a national of that State is arrested or committed to prison or to custody pending trial or is detained in any other manner. Any communication addressed to the consular post by the person arrested, in prison, custody or detention shall be forwarded by the said authorities without delay. The said authorities shall inform the person concerned without delay of his rights under this subparagraph;
Par 1 sub c: Consular officers shall have the right to visit a national of the sending State who is in prison, custody or detention, to converse and correspond with him and to arrange for his legal representation. They shall also have the right to visit any national of the sending State who is in prison, custody or detention in their district in pursuance of a judgement. Nevertheless, consular officers shall refrain from taking action on behalf of a national who is in prison, custody or detention if he expressly opposes such action." Conflicts/Contentions: Procedural Aspect
1. Whether the ICJ has jurisdiction over the case and the authority to issue Orders
- US argued that:
o Provisional measures issued by ICJ are not binding and do not furnish a basis for judicial relief.
o The case is not within the Court's jurisdiction" under the Optional Protocol because it "does not concern the interpretation or application of the Vienna Convention. US pointed out that there is distinction between jurisdiction over treaties and jurisdiction over customary law and even they contain the same content, the applicability is separate. Vienna Convention deals with consular assistance, not diplomatic protection
o Right of the consul to assist an incarcerated national of his country is within the jurisdiction of the Court under the Optional Protocol. But the diplomatic protection on customary law is not covered.
o That Germany seeks to have the Court play the role of ultimate court of appeal in national criminal proceedings
- Germany contended that
o Court has jurisdiction under Article I of the Optional Protocol (Disputes arising out of the interpretation or application of the Convention shall lie within the compulsory jurisdiction of the International Court of Justice and may accordingly be brought before the Court by an application made by any party to the dispute being a Party to the present Protocol)
o Germany denies that it requests the Court to act as an appellate criminal court. It is merely asking the Court to adjudge and declare that the conduct of the United States was inconsistent with its international legal obligations towards Germany under the Vienna Convention and to draw from this failure certain legal consequences provided for in the international law of state responsibility. - Ruling: The Court has jurisdiction.
o Whether it is a customary law, this fact does not prevent a State party to a treaty, from taking up the case of one of its nationals and instituting international judicial proceedings on behalf of that national, on the basis of a general jurisdictional clause in such a treaty.
o Whether US were obliged to comply and did comply with the Order" necessarily arises out of the interpretation or application of the Convention, thus falls within the jurisdiction of the Court.
o Consequently, where Court has jurisdiction to decide a case, it also has jurisdiction to deal with provisional measure requests which seek to preserve the rights of the Parties
2. Whether or not ICJ has jurisdiction to order Assurances of non-repetition
- US argued that: Court has no jurisdiction since accepting the claim, shall impose additional obligation different in character from those to which the US consented to.
- Germany contended the action arises under the principles of State responsibility, hence, Germany is entitled to a whole range of remedies. Questions of State responsibility "are clearly within the ambit of the Optional Protocol”
- Ruling:
o The Court has jurisdiction. Dispute regarding the appropriate remedies for the violation of the Convention is a dispute that arises out of the interpretation or application of the Convention
o Though US has apologized, Court considered that apologies were insufficient and that in the case of severe penalties, it would be incumbent upon the US, by means of its own choice, to allow the review and reconsideration of the conviction and sentence of German nationals, by taking into account the violation of the rights set forth in the VCCR.
3. Whether or not the provisional measures ordered by ICJ is invalid as it is inconsistent with principles of “equality of the parties”, sufficient opportunity to be heard
- US argued that: Germany's late filing compelled the Court to respond to its request for provisional measures ex parte, without full information. That Germany was in delay for knowing that the two were German nationals as early as 1992, and yet asked raised protest only after 6 and half years. - Germany: Germany acknowledges that delay
may render an application inadmissible, but maintains that international law does not lay down any specific time-limit in that regard. It contended that it was only seven days before it filed its Application that it became aware of al1 the relevant facts underlying its claim.
- Ruling:
o Notwithstanding its awareness of the consequences of Germany's filing at such a late date it nevertheless considered it appropriate to enter the Order, given that an irreparable prejudice appeared to be imminent. Such Order was violated by US, giving Germany the standing to challenge the non-compliance.
o Failure of the American authorities to comply with their obligation, the procedural default rule had the effect of preventing "full effect [from being] given to the purposes for which the rights accorded under this article are intended", and thus violated paragraph 2 of Article 36.
4. Whether the conviction of LaGrand is proper as it has not fully exhaust local remedies
- US – Such breach on legal obligation could have been remedied at the trial stage, provided it was raised in a timely fashion. When a person fails to sue in a national court before a statute of limitations has expired, the claim is both procedurally barred in national courts and inadmissible in international tribunals for failure to exhaust local remedies. Failure of counsels does not excuse the non-exhaustion of local remedies.
- Germany – The rule on local exhaustion only applies to those remedies which are legally and practically available. In this case there was no remedy which the LaGrands could resort to, as they were unaware of their right.
- Ruling – It is the United States itself which had failed to carry out its obligation under the Convention to inform the LaGrand brothers. It cannot rely on this fact.
5. Whether or not the criminal conviction should be annulled based on the breach of duty of consular notification
- US – Neither Germany has shown that its system requires the annulment of criminal convictions where there has been a breach of the duty of consular notification. Practice of Germany in similar cases has been to do an apology. It would be contrary to basic principles of administration of justice and equality of the Parties to apply against the United States alleged rules that Germany appears not to accept for itself
- Germany –
- Ruling – Court rejected the contention of US. The German cases used by US are light offenses, the same cannot be the basis and it does not follow that, remedies for violation of the Article must be identical.
Conflicts/Contentions: Substantive Aspect
6. Whether or not US violated an international legal obligation to inform the German Consular Post under Article 36, par 1(b), depriving Germany of the possibility of rendering consular assistance, ultimately resulted in execution of the LaGrands. - US acknowledged that "there was a breach of US
obligation to inform the LaGrand brothers that they could ask that a German consular post be notified of their arrest and detention
- Germany alleged that they were not notified of the case.
7. Whether there is violation of Article 36, Par 1 sub a and c as consequence to the violation of Art 36, par 1(b)
- US contended that the claims regarding violations of Paragraphs 1(a) and (c) are misplaced, since the underlying conduct complained of is the same as the one already claimed under Paragraph 1(b). Hence, when a detainee's right to notification without delay is violated, he or she cannot establish contact with the consulate, receive visits from consular officers, nor be supported by adequate counsel. When the obligation to inform the arrested person without delay of his or her right to contact the consulate is disregarded, "the other rights contained in Article 36 par 1 become in practice irrelevant, indeed meaningless. Violation of this right is bound to imply violation of the other rights.
- Germany alleged that:
o The failure of the United States to inform the LaGrand brothers of their right to contact the German authorities, prevented Germany from exercising its rights under Art. 36 par 1 (b).
o That by breaching its obligations to inform, the United States also violated individual rights conferred on the detainees by Article 36 par 1 (a) and 1(c) causing injury to the two Germans, and as matter of diplomatic protection, raising the action on behalf of the two.
o Had Germany been properly afforded its rights under the Vienna Convention, it would have been able to intervene in time and present a "persuasive mitigation case" which "likely would have saved" the lives of the brothers
- Ruling:
o Article 36, paragraph 1, establishes an interrelated régime designed to facilitate the implementation of the system of consular protection: Right of communication and access under Par 1 (a), modalities of consular notification under under Par 1 (b), sets out the measures consular officers may take in rendering consular assistance to their nationals in the custody of the receiving State under Par 1 (c).
o Germany and the LaGrands were in effect prevented by the breach of the United States from exercising them.
o Failure of US to comply and take all measures at its disposal to ensure that Walter LaGrand is not executed pending the final decision in the proceedings, falls within the jurisdiction of the Governor of Arizona; that the Government of the United
States is consequently under the obligation to transmit the present Order to the said Governor. Hence, under State responsibility principle, the international responsibility of a State is engaged by the action of the competent organs and authorities acting in that State, whatever they may be.
o A state that breaches its obligations to another under the Vienna Convention on consular relations by failing to inform an arrested alien of the right to consular notification and to provide judicial review of the alien’s conviction sentence also violates individual rights held by the alien under international law
Decision: ICJ ruled in favor of Germany -Provisional Measures of the ICJ are Binding
-Art. 36 (1) (b) VCCR entails individual rights for nationals of the sending State. It offers the individuals and their sending State a new, procedural way to challenge domestic decisions violating the VCCR, by exercising the classical legal concept of diplomatic protection. Recognizing the right of individuals to be informed of their right to contact their consular authorities is only one step to ensure the implementation of the obligations of the receiving State under the convention
-The admission of guarantees of non-repetition, general and specific, as a means of remedy for an international wrongful act can be regarded as confirmation of the often neglected function of State responsibility as a means of controlling and ensuring legality in the international legal order. These guarantees and measures can also take the form of obligations of result and may require, under specific circumstances, the domestic legal system to make considerable efforts in order to be in conformity with the obligations thereby imposed on it
Polgrave Brown’s Case 8 Whitman , p. 854 – Missing (Ate Cynthia)
Anglo Iranian Case ; UK v Iran, ICJ Rep 23, (1952) – PDF
- An agreement was concluded between the Government of Iran and the Anglo-Iranian Oil Company. In March, April and May, 1951, laws were passed in Iran, enunciating the principle of the nationalism of the oil industry in Iran and establishing procedure for the enforcement of this principle. The result of these laws was a dispute between Iran and the Company. The United Kingdom adopted the case of the latter, and in virtue of its right of diplomatic protection it instituted proceedings before the Court, whereupon Iran disputed the Court's jurisdiction - The jurisdiction depends on the Declarations accepting
the compulsory jurisdiction of the Court made by Iran and by the United Kingdom under Article 36, paragraph 2, of the Statute. These Declarations contain the condition of reciprocity, and as that of Iran is more limited, it is upon that Declaration that the Court must base itself. Only treaties subsequent to the ratification come into consideration. In order to reach an opposite conclusion, special and clearly estab1ishe:d reasons would be required: but the United Kingdom was not able to produce them. Under the contract, Iran cannot claim from the United Kingdom any rights which it may claim from the Company, nor can it be called upon to perform towards the United Kingdom any obligations which it is bound to perform towards the Company. This
juridical situation is not altered by the fact that the concessionary contract was negotiated through the good offices of the Council of the League of Nations, acting through its rapporteur. The United Kingdom in submitting its dispute with Iran to the League Council, was only exercising its right of diplomatic protection in favour of one of its nationals. Thus the Court arrives at the conclusion that it lacks jurisdiction. Goldberg Case, Germany v Romania, 2 UN Rep Intl Arb awards, 234 (1908)
- In July 1914, the applicants, David Goldberg and sons, traders in Braila,Romania bought certain goods (30 tons of tin) valued at 3229.10 marks of gold, which were shipped to Antwerp, Belgium on July 21, 1914. - The declaration of war in 1914 prevented the
departure of the ship; the goods remained at the sender, in whose hands they were requisitioned on 11 September 1915 by the German military authorities. The plaintiffs were not ompensated immediately, but the German commission awarded them on 28 October 1921, an allowance of 22.55 & Paper marks, representing, during the time 532.30 Marks gold or a little less than a sixth of the gold value of goods requisitioned.
- They claim today the difference between the compensation received and the value of the seized property.
- The German government decided to reject the request. The German State Agent invokes the jurisprudence of the Hague Tribunal. According to its ruling, it is necessary for there to have a right to compensation, that there was act contrary to international law. - In this case, this is a requisition expressly permitted by
international law act, or by Article 52 of the Hague Convention of 1907. Goods requisitioned were paid. It cannot therefore have been "act contrary to law.” - Whether or not David Goldberg should be granted an
additional compensation, despite the fact that the goods requisitioned have already been paid, thus, could not have been regarded as ‘an act contrary to law.’
- Although International law authorizes the State to make an exception to the principle of respect for the private property of aliens when the public interest so requires, it does so on the condition sine qua non that fair payment shall be made for the expropriated or requisitioned property as quickly as possible.
- Both as regards expropriation and requisition, the payment of compensation to individuals who have been deprived of their property is now considered indispensable. The duty to pay compensation has either been based upon respect for private property, or upon the enrichment of the community at the expense of isolated individuals, or classes of individuals, by a definite act of appropriation without any fault on the part of the individual.
- In the present case, Goldenberg was awarded an amount barely reaching the sixth value of the expropriated property. He was deprived of 5/6 his property without compensation. For this reason, the arbitrator fixed to 2696.80 Marks of gold, with interest at 5% from September 11 1915, the compensation due to the applicants by the German state.
VICTOR BOROVSKY, Petitioner, v. THE COMMISSIONER OF IMMIGRATION and THE DIRECTOR OF PRISONS, Respondents.
- Victor A. Borovsky, the petitioner, claims to be a stateless citizen, born in Shanghai, China, of Russian
