G.R. No.
101949 December 1, 1994 Manila for annulment of the sale of the three parcels of land,
THE HOLY SEE, petitioner,
vs.
THE HON. ERIBERTO U. ROSARIO, JR., as Presiding
Judge of the Regional Trial Court of Makati, Branch 61
and STARBRIGHT SALES ENTERPRISES,
INC., respondents.
Padilla Law Office for petitioner.
Siguion Reyna, Montecillo & Ongsiako for private
respondent
QUIASON, J.:
This is a petition for certiorari under Rule 65 of the Revised
Rules of Court to reverse and set aside the Orders dated
June 20, 1991 and September 19, 1991 of the Regional
Trial Court, Branch 61, Makati, Metro Manila in Civil Case
No. 90-183.
The Order dated June 20, 1991 denied the motion of
petitioner to dismiss the complaint in Civil Case No. 90-183,
while the Order dated September 19, 1991 denied the
motion for reconsideration of the June 20,1991 Order.
Petitioner is the Holy See who exercises sovereignty over
the Vatican City in Rome, Italy, and is represented in the
Philippines by the Papal Nuncio.
Private respondent, Starbright Sales Enterprises, Inc., is a
domestic corporation engaged in the real estate business.
This petition arose from a controversy over a parcel of land
consisting of 6,000 square meters (Lot 5-A, Transfer
Certificate of Title No. 390440) located in the Municipality
of Parañaque, Metro Manila and registered in the name of
petitioner.
Said Lot 5-A is contiguous to Lots 5-B and 5-D which are
covered by Transfer Certificates of Title Nos. 271108 and
265388 respectively and registered in the name of the
Philippine Realty Corporation (PRC).
The three lots were sold to Ramon Licup, through Msgr.
Domingo A. Cirilos, Jr., acting as agent to the sellers. Later,
Licup assigned his rights to the sale to private respondent.
In view of the refusal of the squatters to vacate the lots sold
to private respondent, a dispute arose as to who of the
parties has the responsibility of evicting and clearing the
land of squatters. Complicating the relations of the parties
was the sale by petitioner of Lot 5-A to Tropicana
Properties and Development Corporation (Tropicana).
I the rigors of a trial.
On January 23, 1990, private respondent filed a complaint
with the Regional Trial Court, Branch 61, Makati, Metro
On June 20, 1991, the trial court issued an order denying,
and specific performance and damages against petitioner,
represented by the Papal Nuncio, and three other
defendants: namely, Msgr. Domingo A. Cirilos, Jr., the PRC
and Tropicana (Civil Case No.
90-183).
The complaint alleged that: (1) on April 17, 1988, Msgr.
Cirilos, Jr., on behalf of petitioner and the PRC, agreed to
sell to Ramon Licup Lots 5-A, 5-B and 5-D at the price of
P1,240.00 per square meters; (2) the agreement to sell was
made on the condition that earnest money of P100,000.00
be paid by Licup to the sellers, and that the sellers clear the
said lots of squatters who were then occupying the same;
(3) Licup paid the earnest money to Msgr. Cirilos; (4) in the
same month, Licup assigned his rights over the property to
private respondent and informed the sellers of the said
assignment; (5) thereafter, private respondent demanded
from Msgr. Cirilos that the sellers fulfill their undertaking
and clear the property of squatters; however, Msgr. Cirilos
informed private respondent of the squatters' refusal to
vacate the lots, proposing instead either that private
respondent undertake the eviction or that the earnest
money be returned to the latter; (6) private respondent
counterproposed that if it would undertake the eviction of
the squatters, the purchase price of the lots should be
reduced from P1,240.00 to P1,150.00 per square meter; (7)
Msgr. Cirilos returned the earnest money of P100,000.00
and wrote private respondent giving it seven days from
receipt of the letter to pay the original purchase price in
cash; (8) private respondent sent the earnest money back
to the sellers, but later discovered that on March 30, 1989,
petitioner and the PRC, without notice to private
respondent, sold the lots to Tropicana, as evidenced by two
separate Deeds of Sale, one over Lot 5-A, and another over
Lots 5-B and 5-D; and that the sellers' transfer certificate of
title over the lots were cancelled, transferred and registered
in the name of Tropicana; (9) Tropicana induced petitioner
and the PRC to sell the lots to it and thus enriched itself at
the expense of private respondent; (10) private respondent
demanded the rescission of the sale to Tropicana and the
reconveyance of the lots, to no avail; and (11) private
respondent is willing and able to comply with the terms of
the contract to sell and has actually made plans to develop
the lots into a townhouse project, but in view of the sellers'
breach, it lost profits of not less than P30,000.000.00.
Private respondent thus prayed for: (1) the annulment of
the Deeds of Sale between petitioner and the PRC on the
one hand, and Tropicana on the other; (2) the
reconveyance of the lots in question; (3) specific
performance of the agreement to sell between it and the
owners of the lots; and (4) damages.
On June 8, 1990, petitioner and Msgr. Cirilos separately
moved to dismiss the complaint — petitioner for lack of
jurisdiction based on sovereign immunity from suit, and
Msgr. Cirilos for being an improper party. An opposition to
the motion was filed by private respondent.
Foreign Affairs to intervene in the case in behalf of the Holy
among others, petitioner's motion to dismiss after finding
that petitioner "shed off [its] sovereign immunity by entering
into the business contract in question" (Rollo, pp. 20-21).
On July 12, 1991, petitioner moved for reconsideration of
the order. On August 30, 1991, petitioner filed a "Motion for
a Hearing for the Sole Purpose of Establishing Factual
Allegation for claim of Immunity as a Jurisdictional
Defense." So as to facilitate the determination of its defense
of sovereign immunity, petitioner prayed that a hearing be
conducted to allow it to establish certain facts upon which
the said defense is based. Private respondent opposed this
motion as well as the motion for reconsideration.
On October 1, 1991, the trial court issued an order deferring
the resolution on the motion for reconsideration until after
trial on the merits and directing petitioner to file its answer
(Rollo, p. 22).
Petitioner forthwith elevated the matter to us. In its petition,
petitioner invokes the privilege of sovereign immunity only
on its own behalf and on behalf of its official representative,
the Papal Nuncio.
On December 9, 1991, a Motion for Intervention was filed
before us by the Department of Foreign Affairs, claiming
that it has a legal interest in the outcome of the case as
regards the diplomatic immunity of petitioner, and that it
"adopts by reference, the allegations contained in the
petition of the Holy See insofar as they refer to arguments
relative to its claim of sovereign immunity from suit" (Rollo,
p. 87).
Private respondent opposed the intervention of the
Department of Foreign Affairs. In compliance with the
resolution of this Court, both parties and the Department of
Foreign Affairs submitted their respective memoranda.
II
A preliminary matter to be threshed out is the procedural
issue of whether the petition for certiorari under Rule 65 of
the Revised Rules of Court can be availed of to question
the order denying petitioner's motion to dismiss. The
general rule is that an order denying a motion to dismiss is
not reviewable by the appellate courts, the remedy of the
movant being to file his answer and to proceed with the
hearing before the trial court. But the general rule admits of
exceptions, and one of these is when it is very clear in the
records that the trial court has no alternative but to dismiss
the complaint (Philippine National Bank v. Florendo, 206
SCRA 582 [1992]; Zagada v. Civil Service Commission,
216 SCRA 114 [1992]. In such a case, it would be a sheer
waste of time and energy to require the parties to undergo
The other procedural question raised by private respondent
is the personality or legal interest of the Department of
See (Rollo, pp. 186-190).
In Public International Law, when a state or international
agency wishes to plead sovereign or diplomatic immunity
in a foreign court, it requests the Foreign Office of the state
where it is sued to convey to the court that said defendant
is entitled to immunity.
In the United States, the procedure followed is the process
of "suggestion," where the foreign state or the international
organization sued in an American court requests the
Secretary of State to make a determination as to whether it
is entitled to immunity. If the Secretary of State finds that
the defendant is immune from suit, he, in turn, asks the
Attorney General to submit to the court a "suggestion" that
the defendant is entitled to immunity. In England, a similar
procedure is followed, only the Foreign Office issues a
certification to that effect instead of submitting a
"suggestion" (O'Connell, I International Law 130 [1965];
Note: Immunity from Suit of Foreign Sovereign
Instrumentalities and Obligations, 50 Yale Law Journal
1088 [1941]).
In the Philippines, the practice is for the foreign government
or the international organization to first secure an executive
endorsement of its claim of sovereign or diplomatic
immunity. But how the Philippine Foreign Office conveys its
endorsement to the courts varies. In International Catholic
Migration Commission v. Calleja, 190 SCRA 130 (1990),
the Secretary of Foreign Affairs just sent a letter directly to
the Secretary of Labor and Employment, informing the
latter that the respondent-employer could not be sued
because it enjoyed diplomatic immunity. In World Health
Organization v. Aquino, 48 SCRA 242 (1972), the
Secretary of Foreign Affairs sent the trial court a telegram
to that effect. In Baer v. Tizon, 57 SCRA 1 (1974), the U.S.
Embassy asked the Secretary of Foreign Affairs to request
the Solicitor General to make, in behalf of the Commander
of the United States Naval Base at Olongapo City,
Zambales, a "suggestion" to respondent Judge. The
Solicitor General embodied the "suggestion" in a
Manifestation and Memorandum as amicus curiae.
In the case at bench, the Department of Foreign Affairs,
through the Office of Legal Affairs moved with this Court to
be allowed to intervene on the side of petitioner. The Court
allowed the said Department to file its memorandum in
support of petitioner's claim of sovereign immunity.
In some cases, the defense of sovereign immunity was
submitted directly to the local courts by the respondents
through their private counsels (Raquiza v. Bradford, 75
Phil. 50 [1945]; Miquiabas v. Philippine-Ryukyus
Command, 80 Phil. 262 [1948]; United States of America v.
Guinto, 182 SCRA 644 [1990] and companion cases). In
cases where the foreign states bypass the Foreign Office,
the courts can inquire into the facts and make their own
determination as to the nature of the acts and transactions
involved.
III
The burden of the petition is that respondent trial court has
no jurisdiction over petitioner, being a foreign state enjoying
sovereign immunity. On the other hand, private respondent
insists that the doctrine of non-suability is not anymore
absolute and that petitioner has divested itself of such a
cloak when, of its own free will, it entered into a commercial
transaction for the sale of a parcel of land located in the
Philippines.
A. The Holy See
Before we determine the issue of petitioner's non-suability,
a brief look into its status as a sovereign state is in order.
Before the annexation of the Papal States by Italy in 1870,
the Pope was the monarch and he, as the Holy See, was
considered a subject of International Law. With the loss of
the Papal States and the limitation of the territory under the
Holy See to an area of 108.7 acres, the position of the Holy
See in International Law became controversial (Salonga
and Yap, Public International Law 36-37 [1992]).
In 1929, Italy and the Holy See entered into the Lateran
Treaty, where Italy recognized the exclusive dominion and
sovereign jurisdiction of the Holy See over the Vatican City.
It also recognized the right of the Holy See to receive
foreign diplomats, to send its own diplomats to foreign
countries, and to enter into treaties according to
International Law (Garcia, Questions and Problems In
International Law, Public and Private 81 [1948]).
The Lateran Treaty established the statehood of the
Vatican City "for the purpose of assuring to the Holy See
absolute and visible independence and of guaranteeing to
it indisputable sovereignty also in the field of international
relations" (O'Connell, I International Law 311 [1965]).
In view of the wordings of the Lateran Treaty, it is difficult
to determine whether the statehood is vested in the Holy
See or in the Vatican City. Some writers even suggested
that the treaty created two international persons — the Holy
See and Vatican City (Salonga and Yap, supra, 37).
The Vatican City fits into none of the established categories
of states, and the attribution to it of "sovereignty" must be
made in a sense different from that in which it is applied to
other states (Fenwick, International Law 124-125 [1948];
Cruz, International Law 37 [1991]). In a community of
national states, the Vatican City represents an entity
organized not for political but for ecclesiastical purposes
and international objects. Despite its size and object, the
Vatican City has an independent government of its own,
with the Pope, who is also head of the Roman Catholic
Church, as the Holy See or Head of State, in conformity
with its traditions, and the demands of its mission in the
world. Indeed, the world-wide interests and activities of the
Vatican City are such as to make it in a sense an
"international state" (Fenwick, supra., 125; Kelsen,
Principles of International Law 160 [1956]).
One authority wrote that the recognition of the Vatican City
as a state has significant implication — that it is possible for
any entity pursuing objects essentially different from those
pursued by states to be invested with international
personality (Kunz, The Status of the Holy See in
International Law, 46 The American Journal of International
Law 308 [1952]).
Inasmuch as the Pope prefers to conduct foreign relations
and enter into transactions as the Holy See and not in the
name of the Vatican City, one can conclude that in the
Pope's own view, it is the Holy See that is the international
person.
The Republic of the Philippines has accorded the Holy See
the status of a foreign sovereign. The Holy See, through its
Ambassador, the Papal Nuncio, has had diplomatic
representations with the Philippine government since 1957
(Rollo, p. 87). This appears to be the universal practice in
international relations.
B. Sovereign Immunity
As expressed in Section 2 of Article II of the 1987
Constitution, we have adopted the generally accepted
principles of International Law. Even without this
affirmation, such principles of International Law are
deemed incorporated as part of the law of the land as a
condition and consequence of our admission in the society
of nations (United States of America v. Guinto, 182 SCRA
644 [1990]).
There are two conflicting concepts of sovereign immunity,
each widely held and firmly established. According to the
classical or absolute theory, a sovereign cannot, without its
consent, be made a respondent in the courts of another
sovereign. According to the newer or restrictive theory, the
immunity of the sovereign is recognized only with regard to
public acts or acts jure imperii of a state, but not with regard
to private acts or acts jure gestionis
(United States of America v. Ruiz, 136 SCRA 487 [1987];
Coquia and Defensor-Santiago, Public International Law
194 [1984]).
Some states passed legislation to serve as guidelines for
the executive or judicial determination when an act may be
considered as jure gestionis. The United States passed the
Foreign Sovereign Immunities Act of 1976, which defines a
commercial activity as "either a regular course of
commercial conduct or a particular commercial transaction
or act." Furthermore, the law declared that the "commercial
character of the activity shall be determined by reference to
the nature of the course of conduct or particular transaction
or act, rather than by reference to its purpose." The
Canadian Parliament enacted in 1982 an Act to Provide For
State Immunity in Canadian Courts. The Act defines a
"commercial activity" as any particular transaction, act or
conduct or any regular course of conduct that by reason of
its nature, is of a "commercial character."
The restrictive theory, which is intended to be a solution to
the host of problems involving the issue of sovereign
immunity, has created problems of its own. Legal treatises
and the decisions in countries which follow the restrictive
theory have difficulty in characterizing whether a contract
of a sovereign state with a private party is an act jure
gestionis or an act jure imperii.
The restrictive theory came about because of the entry of
sovereign states into purely commercial activities remotely
connected with the discharge of governmental functions.
This is particularly true with respect to the Communist
states which took control of nationalized business activities
and international trading.
This Court has considered the following transactions by a
foreign state with private parties as acts jure imperii: (1) the
lease by a foreign government of apartment buildings for
use of its military officers (Syquia v. Lopez, 84 Phil. 312
[1949]; (2) the conduct of public bidding for the repair of a
wharf at a United States Naval Station (United States of
America v. Ruiz, supra.); and (3) the change of
employment status of base employees (Sanders v.
Veridiano, 162 SCRA 88 [1988]).
On the other hand, this Court has considered the following
transactions by a foreign state with private parties as
acts jure gestionis: (1) the hiring of a cook in the recreation
center, consisting of three restaurants, a cafeteria, a
bakery, a store, and a coffee and pastry shop at the John
Hay Air Station in Baguio City, to cater to American
servicemen and the general public (United States of
America v. Rodrigo, 182 SCRA 644 [1990]); and (2) the
bidding for the operation of barber shops in Clark Air Base
in Angeles City (United States of America v. Guinto, 182
SCRA 644 [1990]). The operation of the restaurants and
other facilities open to the general public is undoubtedly for
profit as a commercial and not a governmental activity. By
entering into the employment contract with the cook in the
discharge of its proprietary function, the United States
government impliedly divested itself of its sovereign
immunity from suit.
In the absence of legislation defining what activities and
transactions shall be considered "commercial" and as
constituting acts jure gestionis, we have to come out with
our own guidelines, tentative they may be.
Certainly, the mere entering into a contract by a foreign
state with a private party cannot be the ultimate test. Such
an act can only be the start of the inquiry. The logical
question is whether the foreign state is engaged in the
activity in the regular course of business. If the foreign state
is not engaged regularly in a business or trade, the
particular act or transaction must then be tested by its
nature. If the act is in pursuit of a sovereign activity, or an
incident thereof, then it is an act jure imperii, especially
when it is not undertaken for gain or profit.
As held in United States of America v. Guinto, (supra):
There is no question that the United States of America, like
any other state, will be deemed to have impliedly waived its
non-suability if it has entered into a contract in its
proprietary or private capacity. It is only when the contract
involves its sovereign or governmental capacity that no
such waiver may be implied.
In the case at bench, if petitioner has bought and sold lands
in the ordinary course of a real estate business, surely the
said transaction can be categorized as an act jure
gestionis. However, petitioner has denied that the
acquisition and subsequent disposal of Lot 5-A were made
for profit but claimed that it acquired said property for the
site of its mission or the Apostolic Nunciature in the
Philippines. Private respondent failed to dispute said claim.
Lot 5-A was acquired by petitioner as a donation from the
Archdiocese of Manila. The donation was made not for
commercial purpose, but for the use of petitioner to
construct thereon the official place of residence of the
Papal Nuncio. The right of a foreign sovereign to acquire
property, real or personal, in a receiving state, necessary
for the creation and maintenance of its diplomatic mission,
is recognized in the 1961 Vienna Convention on Diplomatic
Relations (Arts. 20-22). This treaty was concurred in by the
Philippine Senate and entered into force in the Philippines
on November 15, 1965.
In Article 31(a) of the Convention, a diplomatic envoy is
granted immunity from the civil and administrative
jurisdiction of the receiving state over any real action
relating to private immovable property situated in the
territory of the receiving state which the envoy holds on
behalf of the sending state for the purposes of the mission.
If this immunity is provided for a diplomatic envoy, with all
the more reason should immunity be recognized as regards
the sovereign itself, which in this case is the Holy See.
The decision to transfer the property and the subsequent
disposal thereof are likewise clothed with a governmental
character. Petitioner did not sell Lot
5-A for profit or gain. It merely wanted to dispose off the
same because the squatters living thereon made it almost
impossible for petitioner to use it for the purpose of the
donation. The fact that squatters have occupied and are still
occupying the lot, and that they stubbornly refuse to leave
the premises, has been admitted by private respondent in
its complaint (Rollo, pp. 26, 27).
The issue of petitioner's non-suability can be determined by
the trial court without going to trial in the light of the
pleadings, particularly the admission of private respondent.
Besides, the privilege of sovereign immunity in this case
was sufficiently established by the Memorandum and
Certification of the Department of Foreign Affairs. As the
department tasked with the conduct of the Philippines'
foreign relations (Administrative Code of 1987, Book IV,
Title I, Sec. 3), the Department of Foreign Affairs has
formally intervened in this case and officially certified that
the Embassy of the Holy See is a duly accredited diplomatic
mission to the Republic of the Philippines exempt from local
jurisdiction and entitled to all the rights, privileges and
immunities of a diplomatic mission or embassy in this
country (Rollo, pp. 156-157). The determination of the
executive arm of government that a state or instrumentality
is entitled to sovereign or diplomatic immunity is a political
question that is conclusive upon the courts (International
Catholic Migration Commission v. Calleja, 190 SCRA 130
[1990]). Where the plea of immunity is recognized and
affirmed by the executive branch, it is the duty of the courts
to accept this claim so as not to embarrass the executive
arm of the government in conducting the country's foreign
relations (World Health Organization v. Aquino, 48 SCRA
242 [1972]). As in International Catholic Migration
Commission and in World Health Organization, we abide
by the certification of the Department of Foreign Affairs.
Ordinarily, the procedure would be to remand the case and
order the trial court to conduct a hearing to establish the
facts alleged by petitioner in its motion. In view of said
certification, such procedure would however be pointless
and unduly circuitous (Ortigas & Co. Ltd. Partnership v.
Judge Tirso Velasco, G.R. No. 109645, July 25, 1994).
IV
Private respondent is not left without any legal remedy for
the redress of its grievances. Under both Public
International Law and Transnational Law, a person who
feels aggrieved by the acts of a foreign sovereign can ask
his own government to espouse his cause through
diplomatic channels.
Private respondent can ask the Philippine government,
through the Foreign Office, to espouse its claims against
the Holy See. Its first task is to persuade the Philippine
government to take up with the Holy See the validity of its
claims. Of course, the Foreign Office shall first make a
determination of the impact of its espousal on the relations
between the Philippine government and the Holy See
(Young, Remedies of Private Claimants Against Foreign
States, Selected Readings on Protection by Law of Private
Foreign Investments 905, 919 [1964]). Once the Philippine
government decides to espouse the claim, the latter ceases
to be a private cause.
According to the Permanent Court of International Justice,
the forerunner of the International Court of Justice:
By taking up the case of one of its subjects and by reporting
to diplomatic action or international judicial proceedings on
his behalf, a State is in reality asserting its own rights — its
right to ensure, in the person of its subjects, respect for the
rules of international law (The Mavrommatis Palestine
Concessions, 1 Hudson, World Court Reports 293, 302
[1924]).
WHEREFORE, the petition for certiorari is GRANTED and
the complaint in Civil Case No. 90-183 against petitioner is
DISMISSED.
SO ORDERED
G.R. No. 125865 January 28, 2000
JEFFREY LIANG (HUEFENG), petitioner,
vs.
PEOPLE OF THE PHILIPPINES, respondent.
YNARES-SANTIAGO, J.:
Petitioner is an economist working with the Asian
Development Bank (ADB). Sometime in 1994, for allegedly
uttering defamatory words against fellow ADB worker
Joyce Cabal, he was charged before the Metropolitan Trial
Court (MeTC) of Mandaluyong City with two counts of
grave oral defamation docketed as Criminal Cases Nos.
53170 and 53171. Petitioner was arrested by virtue of a
warrant issued by the MeTC. After fixing petitioner's bail at
P2,400.00 per criminal charge, the MeTC released him to
the custody of the Security Officer of ADB. The next day,
the MeTC judge received an "office of protocol" from the
Department of Foreign Affairs (DFA) stating that petitioner
is covered by immunity from legal process under Section
45 of the Agreement between the ADB and the Philippine
Government regarding the Headquarters of the ADB
(hereinafter Agreement) in the country. Based on the said
protocol communication that petitioner is immune from suit,
the MeTC judge without notice to the prosecution
dismissed the two criminal cases. The latter filed a motion
for reconsideration which was opposed by the DFA. When
its motion was denied, the prosecution filed a petition
for certiorari and mandamus with the Regional Trial Court
(RTC) of Pasig City which set aside the MeTC rulings and
ordered the latter court to enforce the warrant of arrest it
earlier issued. After the motion for reconsideration was
denied, petitioner elevated the case to this Court via a
petition for review arguing that he is covered by immunity
under the Agreement and that no preliminary investigation
was held before the criminal cases were filed in
court.1âwphi1.nêt
The petition is not impressed with merit.
First, courts cannot blindly adhere and take on its face the
communication from the DFA that petitioner is covered by
any immunity. The DFA's determination that a certain
person is covered by immunity is only preliminary which
has no binding effect in courts. In receiving ex-parte the
DFA's advice and in motu propio dismissing the two
criminal cases without notice to the prosecution, the latter's
right to due process was violated. It should be noted that
due process is a right of the accused as much as it is of the
prosecution. The needed inquiry in what capacity petitioner
was acting at the time of the alleged utterances requires for
its resolution evidentiary basis that has yet to be presented
at the proper time.1 At any rate, it has been ruled that the
mere invocation of the immunity clause does not ipso
facto result in the dropping of the charges.2
Second, under Section 45 of the Agreement which
provides:
Officers and staff of the Bank including for the purpose of
this Article experts and consultants performing missions for
the Bank shall enjoy the following privileges and
immunities:
a.) immunity from legal process with respect to acts
performed by them in their official capacity except when the
Bank waives the immunity.
the immunity mentioned therein is not absolute, but subject
to the exception that the acts was done in "official capacity."
It is therefore necessary to determine if petitioner's case
falls within the ambit of Section 45(a). Thus, the
prosecution should have been given the chance to rebut
the DFA protocol and it must be accorded the opportunity
to present its controverting evidence, should it so desire.
Third, slandering a person could not possibly be covered
by the immunity agreement because our laws do not allow
the commission of a crime, such as defamation, in the
name of official duty.3 The imputation of theft is ultra
vires and cannot be part of official functions. It is well-
settled principle of law that a public official may be liable in
his personal private capacity for whatever damage he may
have caused by his act done with malice or in bad faith or
beyond the scope of his authority or jurisdiction.4 It appears
that even the government's chief legal counsel, the Solicitor
General, does not support the stand taken by petitioner and
that of the DFA.
Fourth, under the Vienna Convention on Diplomatic
Relations, a diplomatic agent, assuming petitioner is such,
enjoys immunity from criminal jurisdiction of the receiving
state except in the case of an action relating to any
professional or commercial activity exercised by the
diplomatic agent in the receiving state outside his official
functions.5 As already mentioned above, the commission of
a crime is not part of official duty.
Finally, on the contention that there was no preliminary
investigation conducted, suffice it to say that preliminary
investigation is not a matter of right in cases cognizable by
the MeTC such as the one at bar.6 Being purely a statutory
right, preliminary investigation may be invoked only when
specifically granted by law.7 The rule on the criminal
procedure is clear that no preliminary investigation is
required in cases falling within the jurisdiction of the
MeTC.8 Besides the absence of preliminary investigation
does not affect the court's jurisdiction nor does it impair the
validity of the information or otherwise render it defective.9
WHEREFORE, the petition is DENIED.
SO ORDERED.1âwphi1.nêt
United States Supreme Court
THE SAPPHIRE(1870)
Argued: Decided: December 1, 1870
THIS was an appeal from the Circuit Court of the United
States for the District of California.
The case was one of collision between the American ship
Sapphire and the French transport Euryale, which took
place in the harbor of San Francisco on the morning of
December 22, 1867, by which the Euryale was
considerably damaged. A libel was filed in the District Court
two days afterwards, in the name of the Emperor Napoleon
III, then Emperor of the French, as owner of the Euryale,
against the Sapphire. The claimants filed an answer,
alleging, among other things, that the damage was
occasioned by the fault of the Euryale. Depositions were
taken, and the court decreed in favor of the libellant, and
awarded him $15,000, the total amount claimed. The
claimants appealed to the Circuit Court, which affirmed the
decree. They then, in July, 1869, appealed to this court. In
the summer of 1870, Napoleon [78 U.S. 164, 165] III was
deposed. The case came on to be argued here February
16, 1871. Three questions were raised:
1. The right of the Emperor of France to have brought suit
in our courts.
2. Whether, if rightly brought, the suit had not become
abated by the deposition of the Emperor Napoleon III.
3. The question of merits; one of fact, and depending upon
evidence stated towards the conclusion of the opinion (see
infra, pp. 169, 170), where the point is considered.
Mr. C. B. Gooderich, for the appellant:
1. The sovereign of a country, the public rights or property
of which have been destroyed, or injured, by a citizen of
another country, cannot maintain suit against such citizen,
in the judicial tribunals of the country to which such citizen
belongs, to recover compensation for the injury. The
remedy, and the only remedy, of the foreign sovereign is by
diplomatic correspondence and arrangement between the
two countries. The repose of nations, and their intercourse
with each other, cannot be maintained, if sovereign rights
are to be ascertained and adjudicated by a suit, in the name
of the foreign sovereign, against a private citizen by whom
they may have been violated. 1
The case before the court illustrates the propriety of the
principle and reason upon which the position is taken. The
claimants cannot call upon Napoleon, to answer
interrogatories, upon oath, under the admiralty rule which
requires libellants to answer. The owners of the Sapphire,
in their answer, say that the collision was caused by the
fault of the French transport. Admitting this to be true, still
they cannot obtain a warrant for the arrest of a vessel
belonging to the navy of France,2 and which is in our harbor
in the charge of an officer of the French navy. [78 U.S. 164,
166] There should in every proceeding be a mutuality of
remedy. In the case of specific performance, whenever
from personal incapacity, the nature of the contract, or any
other cause, the contract is incapable of being performed,
against one party, that party is equally incapable of
enforcing it against the other, though its execution in the
latter way might in itself be free from the difficulty attending
its execution in the former.
The case of Prioleau v. United States and Andrew
Johnson,3 presents in its result difficulties attending a suit
in the name of a foreign government, which can be
surmounted only by holding that a foreign sovereign cannot
maintain suit in the courts of another country, against its
citizens, for the purpose of vindicating his sovereign rights.
In the assertion of individual private rights he may have suit.
The cases cited say, that a foreign sovereign, by the
institution of a suit, submits to the jurisdiction of the court
divested of his sovereign rights; must answer to a cross-
bill, upon oath; make discovery, or put some one forward,
as party to the suit, who can. This shows that his sovereign
rights cannot with propriety become the subject of a suit.
2. But supposing that the suit could yet be maintained if
Napoleon III were now Emperor, it would seem certain that
it cannot be continued, he being now deposed, and
reduced to the state of a private person. The Euryale is a
vessel of the French government; a government with which
he has nothing whatever now to do; being banished and a
fugitive.
3. [The counsel then discussed the question of fact.]
Mr. C. Cushing, contra (a brief of Mr. Melton Andrews being
submitted on the merits), stated that suits had been
maintained in Great Britain, in the name of the United
States, within the last five years, in the following cases, he
himself having been counsel in the same, namely: The
Sumter (Admiralty), The Rappahannock (Admiralty), The
Gibraltar (Admiralty ), The Tallahassee (Admiralty), The
Alexander (Admiralty), [78 U.S. 164, 167] Prioleau
(Chancery), Wagner (Chancery), Tait (Law), Gudgeon
(Chancery), Blakely Company (Rolls), and in British
America, in the case of Boyd and others (Chancery), and
The Georgia (Admiralty).
Indeed the right of a government to sue in the courts of
Great Britain is a right recognized from the time of Rolle's
Abridgement (Temp. James I).4
The courts in England hold, indeed, that a sovereign cannot
be forced into court by suit, and to that extent some of the
cases cited on the other side go. But they admit that, if a
foreign sovereign appears in court voluntarily as plaintiff,
the defendant may then sue him by cross- bill or otherwise.
That is not to deny his right to sue, but only to declare its
consequences.
2. The right to sue having been in this case one in which
the name of the late Emperor was used only as
representing the government, survives his deposition.
Substitution on the record of the name of any new
government of France, is matter as of course.
3. [The counsel then discussed the question of fact.]
Mr. Justice BRADLEY delivered the opinion of the court.
The first question raised is as to the right of the French
Emperor to sue in our courts. On this point not the slightest
difficulty exists. A foreign sovereign, as well as any other
foreign person, who has a demand of a civil nature against
any person here, may prosecute it in our courts. To deny
him this privilege would manifest a want of comity and
friendly feeling. Such a suit was sustained a want of comity
and King of Spain in the third circuit by Justice Washington
and Judge Peters in 1810.5 The Constitution expressly
extends the judicial power to controversies between a
State, or citizens thereof, and foreign States, citizens, or
subjects, without reference to the subject-matter of the
controversy. Our own government has largely availed itself
of the like privilege to bring suits in the English courts in
cases growing [78 U.S. 164, 168] out of our late civil war.
Twelve or more of such suits are enumerated in the brief of
the appellees, brought within the last five years in the
English law, chancery, and admiralty courts. There are
numerous cases in the English reports in which suits of
foreign sovereigns have been sustained, though it is held
that a sovereign cannot be forced into court by suit. 6
The next question is, whether the suit has become abated
by the recent deposition of the Emperor Napoleon. We
think it has not. The reigning sovereign represents the
national sovereignty, and that sovereignty is continuous
and perpetual, residing in the proper successors of the
sovereign for the time being. Napoleon was the owner of
the Euryale, not as an individual, but as sovereign of
France. This is substantially averred in the libel. On his
deposition the sovereignty does not change, but merely the
person or persons in whom it resides. The foreign state is
the true and real owner of its public vessels of war. The
reigning Emperor, or National Assembly, or other actual
person or party in power, is but the agent and
representative of the national sovereignty. A change in
such representative works no change in the national
sovereignty or its rights. The next successor recognized by
our government is competent to carry on a suit already
commenced and receive the fruits of it. A deed to or treaty
with a sovereign as such enures to his successors in the
government of the country. If a substitution of names is
necessary or proper it is a formal matter, and can be made
by the court under its general power to preserve due
symmetry in its forms of proceeding. No allegation has
been made that any change in the [78 U.S. 164, 169] real
and substantial ownership of the Euryale has occurred by
the recent devolution of the sovereign power. The vessel
has always belonged and still belongs to the French nation.
If a special case should arise in which it could be shown
that injustice to the other party would ensue from a
continuance of the proceedings after the death or
deposition of a sovereign, the court, in the exercise of its
discretionary power, would take such order as the exigency
might require to prevent such a result.
The remaining question relates to the merits of the case.
And on the merits of the case, as presented by the record,
we think that the court below erred in imposing the whole
damage upon the Sapphire. We think that the Euryale was
equally in fault, and that the damage ought to be divided
between them. It is not our general practice to scrutinize
very carefully the weight of evidence in cases of collision,
where the evidence is substantially conflicting, and where
both District and Circuit Courts have concurred in a decree
upon the merits. Our views upon this subject will be found
quite fully expressed by Mr. Justice Clifford in the case of
The Baltimore. 7 But this case depends upon a narrow
point, the evidence on which is in our view so decidedly
adverse to the sole liability of the Sapphire that it becomes
our duty to notice it.
The Euryale came to anchor in the harbor on the 14th of
December, about six hundred yards from the wharf. She
was of four hundred and fifty tons burden, drew thirteen feet
of water, and had out fifty-six fathoms of chain, and an
anchor weighing 3500 pounds. The Sapphire, of thirteen
hundred tons burden, came to anchor about the 18th of
December, about three hundred yards (as alleged both in
the libel and answer) to the southeasterly of the Euryale, at
a point father up the harbor, and farther from the wharf. She
had out about fifty fathoms of chain, and an anchor
weighing 3600 to 3800 pounds, and she was heavily laden,
drawing about twenty-three feet of water. [78 U.S. 164, 170]
On the night of the 21st of December it commenced to blow
pretty strong from the southeast, by midnight blowing a six-
knot breeze, and it kept increasing up to the time of the
collision at five o'clock the next morning, when it seems to
have been blowing a gale. At half-past three in the morning
the tide changed from ebb to flood, the direction of flood-
tide being southeasterly, directly contrary to that of the
wind. And the captain of the Euryale says (and he is not
contradicted) that the wind was twice as strong as the tide.
The weight of the evidence is that the Sapphire, under the
force of the wind, dragged her anchor and got inside of the
Euryale; that is, between her and the city. At a few minutes
past five the collision occurred.
The libellant insists that the Sapphire was in fault in two
points: 1st, in anchoring too near the Euryale in the first
instance; 2d, in not having out sufficient anchors. We think
that the first charge is not sustained. Experienced pilots
testified that two hundred and fifty yards distance is a good
and sufficient berth in that harbor. And it is to be noted that
the master of the Euryale made no complaint of too great
proximity, although she and the Sapphire were lying in the
same relative position for several days. On the other point,
we agree with the District and Circuit Courts that the
Sapphire was in fault. Had a second anchor been put out
at an earlier period the collision in all probability would not
have occurred. Indeed, the captain of the Sapphire gave
orders to the first officer that if she was likely to start, to put
the second anchor down. But it was not done till the
collision itself broke the ring-stopper and let it down. A more
careful watch would have led to the discovery of the
vessel's having started, and would have prevented the
catastrophe which ensued.
But we are also satisfied that the Euryale was not free from
fault. The captain was not on board. The first officer, though
on board, was not on deck from eleven o'clock until after
the collision. Le Noir, the third officer, was officer of the
deck that night. He was called up by the head, or chief, of
the watch at three o'clock to observe that the Sapphire [78
U.S. 164, 171] was approaching nearer to them than she
had been. He attributed it to her letting out more chain, and
returned below, and did not come on deck again until five
o'clock, a few moments before the collision, when it was too
late to avoid it. The instant he came on deck he ordered
done the thing that could have saved them had it been done
earlier-the jib to be hoisted. It would have sheered the
vessel off, and allowed the Sapphire to pass her. Such is
the testimony of the libellant's own witnesses. It is the
judgment of the first officer of the ship. Why was not this
done before? Why was not the officer, on such a night, in
such a gale, at his post? At four o'clock the man in charge
of the watch saw the Sapphire approaching, and says he
made a report to that effect. The first officer says that no
report was made to him. But the third officer, who was
officer of the deck, does not say that it was not made to him.
If the fact was not communicated to the proper officer, that
was in itself a fault. If it was communicated and not
attended to, the case of the libellant is not bettered. But the
evidence is very strong that the officer received the
information. Deveaux, the head of the watch, says that he
reported the fact at four o'clock; and Bioux, who had charge
of the watch between four and five o'clock, says that
between those hours he saw the Sapphire with the wind
astern, and heading the current, coming towards the
Euryale; that she continued to approach gradually, and that
he reported this to Mr. Le Noir between four and five
o'clock. Here, then, was a clear neglect of proper
precautions for an entire hour immediately preceding the
collision.
We cannot avoid the conviction that there was a want of
proper care and vigilance on the part of the officers of the
Euryale, and that this contributed to produce the collision
which ensued. Both parties being in fault, the damages
ought to be equally divided between them.
Decree of the Circuit Court REVERSED, and the cause
remitted to that court with directions to enter a decree
IN CONFORMITY WITH THIS OPINION.
Footnotes
Victory Transport (US Court of Appeals)
J. JOSEPH SMITH, Circuit Judge:
This is an appeal from an order of the United States District Court
for the Southern District of New York, Thomas F. Murphy,
District Judge, granting appellee's motion to compel arbitration
and denying appellant's cross motions to vacate service and
dismiss the petition. We think the district court's disposition of
the motions correct and affirm the order.
The appellant, a branch of the Spanish Ministry of Commerce,
voyage-chartered the S.S. Hudson from its owner, the appellee,
to transport a cargo of surplus wheat, purchased pursuant to the
Agricultural Trade Development and Assistance Act, 7 U.S.C. §
1691 et seq., from Mobile, Alabama to one or two safe Spanish
ports. The charter agreement contained the New York Produce
Arbitration Clause, providing for the arbitration of disputes
before three commercial men in New York. The ship was delayed
and sustained hull damage in discharging its cargo in Spanish
ports that were allegedly unsafe for a ship of the Hudson's size.
When the appellant failed to pay for the damages or submit the
dispute to arbitration, the appellee instituted this proceeding
under Section 4 of the United States Arbitration Act, 9 U.S.C. §
4, to compel arbitration. On March 22, 1963, appellee secured an
ex parte order from the district court permitting service of its
petition by registered mail at appellant's Madrid office. Service
pursuant to this order was effected on April 1, 1963.
This statute is designed to use surplus agricultural commodities
to expand international trade and to further the foreign policy of
the United States. It provides a means for the sale of such
commodities through private trade channels to governments of
friendly nations for foreign currencies. In negotiating agreements
for the sale of surplus agricultural commodities to foreign
countries the President is directed by § 1701(b) to "take
appropriate steps to assure that private trade channels are used to
the maximum extent practicable * * *." On May 22, 1961, Spain
and the United States entered into an Agricultural Commodities
Agreement which permitted purchasers authorized by the
Government of Spain to buy various amounts of surplus
commodities, including $14.4 million worth of wheat, by
depositing pesetas to the account of the United States.
"Should any dispute arise between Owners and the Charterers,
the matter in dispute shall be referred to three persons at New
York, one to be appointed by each of the parties hereto, and the
third by the two so chosen; their decision or that of any two of
them shall be final, and for the purpose of enforcing any award,
this agreement may be made a rule of the Court. The Arbitrators
shall be commercial men."
9 U.S.C. § 4.
"A party aggrieved by the alleged failure, neglect, or refusal of
another to arbitrate under a written agreement for arbitration may
petition any court of the United States which, save for such
agreement, would have jurisdiction under the judicial code at law,
in equity, or in admiralty of the subject matter of a suit arising out
of the controversy between the parties, for an order directing that
such arbitration proceed in the manner provided for in such
agreement. Five days' notice in writing of such application shall
be served upon the party in default. Service thereof shall be made
in the manner provided by law for the service of summons in the
jurisdiction in which the proceeding is brought. The court shall
hear the parties, and upon being satisfied that the making of the
agreement for arbitration or the failure to comply therewith is not
in issue, the court shall make an order directing the parties to
proceed to arbitration in accordance with the terms of the
agreement. The hearing and proceedings, under such agreement,
shall be within the district in which the petition for an order
directing such arbitration is filed. If the making of the arbitration
agreement or the failure, neglect, or refusal to perform the same
be in issue, the court shall proceed summarily to the trial thereof.
If no jury trial be demanded by the party alleged to be in default,
or if the matter in dispute is within admiralty jurisdiction, the
court shall hear and determine such issue. Where such an issue is
raised, the party alleged to be in default may, except in cases of
admiralty, on or before the return day of the notice of application,
demand a jury trial of such issue, and upon such demand the court
shall make an order referring the issue or issues to a jury in the
manner provided by law for referring to a jury issues in an equity
action, or may specially call a jury for that purpose. If the jury
find that no agreement in writing for arbitration was made or that
there is no default in proceeding thereunder, the proceeding shall
be dismissed. If the jury find that an agreement for arbitration was
made in writing and that there is a default in proceeding
thereunder, the court shall make an order summarily directing the
parties to proceed with the arbitration in accordance with the
terms thereof."
To make doubly sure that the appellant had been properly served,
the appellee, on October 22, 1963, sought to take advantage of
the recent amendment to Rule 4(i) of the Fed. Rules of Civil
Procedure by re-serving the appellant by registered mail without
a court order. Since we deem the initial service valid, we need not
pass on the validity of the second service.
On October 15, 1963 the appellant moved to vacate the
extraterritorial service as unauthorized by statute. Appearing
specially and supported by an affidavit of the Spanish Consul,
who stated that the appellant was a branch of the Spanish
Government and immune from suit, counsel for the appellant also
moved to dismiss the petition to compel arbitration because of a
lack of jurisdiction and sovereign immunity. Rejecting these
cross-motions, Judge Murphy held that the court had in
personam jurisdiction and granted the appellee's motion to
compel arbitration.
SOVEREIGN IMMUNITY
Appellant's primary contention is that as an arm of the soverign
Government of Spain, it cannot be sued in the courts of the United
States without its consent, which it declines to accord in this case.
There is certainly a great deal of impressive precedent to support
this contention, for the doctrine of the immunity of foreign
sovereigns from the jurisdiction of our courts was early
entrenched in our law by Chief Justice Marshall's historic
decision in The Schooner Exchange v. McFaddon, 7 Cranch 116,
3 L.Ed. 287 (U.S. 1812). The doctrine originated in an era of
personal sovereignty, when kings could theoretically do no
wrong and when the exercise of authority by one sovereign over
another indicated hostility or superiority. With the passing of that
era, sovereign immunity has been retained by the courts chiefly
to avoid possible embarrassment to those responsible for the
conduct of the nation's foreign relations. See Comment, The
Jurisdictional Immunity of Foreign Sovereigns, 63 YALE L.J.
1148 (1954). However, because of the dramatic changes in the
nature and functioning of sovereigns, particularly in the last half
century, the wisdom of retaining the doctrine has been cogently
questioned. See, e.g., Lauterpacht, The Problem of Jurisdictional
Immunities of Foreign States, 28 BRIT. Y.B. INT'L L. 220
(1951). Growing concern for individual rights and public
morality, coupled with the increasing entry of governments into
what had previously been regarded as private pursuits, has led a
substantial number of nations to abandon the absolute theory of
sovereign immunity in favor of a restrictive theory. See Dralle v.
Rep. of Czechoslovakia, 17 Int.L.Rep. 155 (Sup. Ct. of Austria
1950); SUCHARITKUL, STATE IMMUNITIES AND
TRADING ACTIVITIES IN INTERNATIONAL LAW (1959);
Lauterpacht, supra.
Meeting in Brussels in 1926, representatives of twenty nations,
including all the major powers except the United States and
Russia, signed a convention limiting sovereign immunity in the
area of maritime commerce to ships and cargoes employed
exclusively for public and non-commercial purposes. After
World War II the United States began to restrict immunity by
negotiating treaties obligating each contracting party to waive its
sovereign immunity for state-controlled enterprises engaged in
business activities within the territory of the other party. Fourteen
such treaties were negotiated by our State Department in the
decade 1948 to 1958. Setser, The Immunity Waiver for State-
Controlled Business Enterprises in United States Commercial
Treaties, Proceedings of Am.Soc.Int'l L. 89 (1961). And in 1952
our State Department, in a widely publicized letter from Acting
Legal Adviser Jack B. Tate to the Acting Attorney General Philip
B. Perlman, announced that the Department would generally
adhere to the restrictive theory of sovereign immunity,
recognizing immunity for a foreign state's public or sovereign
acts ( jure imperii) but denying immunity to a foreign state's
private or commercial acts ( jure gestionis). 26 Dept. State Bull.
984 (1952).
International Convention for the Unification of Certain Rules
Concerning the Immunities of State Ships. The French text of the
Convention is set out in HARVARD RESEARCH IN
INTERNATIONAL LAW, 426-429 (1931). An English
translation prepared by the Department of State may be found in
ALLEN, THE POSITION OF FOREIGN STATES BEFORE
NATIONAL COURTS, 303-308 (1933).
Article I of the Convention provided:
"Seagoing vessels owned or operated by States, cargoes owned
by them, and cargoes and passengers carried on Government
vessels, and the States owning or operating such vessels, or
owning such cargoes, are subject in respect of claims relating to
the operation of such vessels or the carriage of such cargoes, to
the same rules of liability and to the same obligations as those
applicable to private vessels, cargoes, and equipments."
Article II provided that these liabilities and obligations may be
enforced by the same rules and procedure applied to private
ships and cargoes, while Article III excepted from the application
of the first articles "ships of war, Government yachts, patrol
vessels, hospital ships, auxiliary vessels, supply ships, and other
craft owned or operated by a State and used at the time a cause
of action arises exclusively on Governmental and
noncommercial service * * *" However, Article III did provide for
certain remedies before the courts of the sovereign owning or
operating a vessel as a public activity.
In delineating the scope of a doctrine designed to avert possible
embarrassment to the conduct of our foreign relations, the courts
have quite naturally deferred to the policy pronouncements of the
State Department. National City Bank of New York v. Republic
of China, 1955). See generally, Cardozo, Judicial Deference to
State Department Suggestions: Recognition of Prerogative or
Abdication to Usurper, 48 CORN.L.Q. 461 (1963). The Supreme
Court's dictum in Republic of Mexico v. Hoffman, 324 U.S. 30,
35, 65 S.Ct. 530, 533, 89 L.Ed. 729 (1945) — "It is therefore not
for the courts to deny an immunity which our government has
seen fit to allow, or to allow an immunity on new grounds which
the government has not seen fit to recognize" — has been
variously construed, but we think it means at least that the courts
should deny immunity where the State Department has indicated,
either directly or indirectly, that immunity need not be accorded.
It makes no sense for the courts to deny a litigant his day in court
and to permit the disregard of legal obligations to avoid
embarrassing the State Department if that agency indicates it will
not be embarrassed. Cf. National City Bank v. Republic of
China, (1955). Moreover, "recognition by the courts of an
immunity upon principles which the political department of
government has not sanctioned may be equally embarrassing to
it in securing the protection of our national interests and their
recognition by other nations." Republic of Mexico v. Hoffman,
See Comment, supra, 63 YALE L.J. at 1157-1159.
This is not to say that the courts will never grant immunity unless
the State Department specifically requests it. A claim of
sovereign immunity may be presented to the court by either of
two procedures. The foreign sovereign may request its claim of
immunity be recognized by the State Department, which will
normally present its suggestion to the court through the Attorney
General or some law officer acting under his direction.
Alternatively, the accredited and recognized representative of the
foreign sovereign may present the claim of sovereign immunity
directly to the court. Ex parte Muir, (1921). In some situations
the State Department may find it expedient to make no response
to a request for immunity. Where, as here, the court has received
no communication from the State Department concerning the
immunity of the Comisaria General, the court must decide for
itself whether it is the established policy of the State Department
to recognize claims of immunity of this type. Republic of Mexico
v. Hoffman,
The plea of sovereign immunity for the Comisaría General in the
district court was supported only by a conclusionary affidavit of
the Spanish Consul in New York. A consul is supposedly clothed
with authority to act for his government only in commercial
matters. Since nothing in the record indicates that the Spanish
Consul was specially authorized to interpose a claim of sovereign
immunity, the affidavit was plainly insufficient. The Sao
Vicente, 260 U.S. 151, 43 S.Ct. 15, 67 L.Ed. 179 (1922); The
Anne, 16 U.S. 435, 3 Wheat. 435, 4 L.Ed. 428 (1818); The
Secundus, 13 F.2d 469 (E.D.N.Y. 1926); Harris Co. Adv. Inc. v.
Republic of Cuba, 127 So.2d 687 (D.C.App.Fla. 1961).
On appeal the Spanish Ambassador to the United States has
written a letter directly to this court claiming immunity for the
Comisaría General and has moved for permission to appear
specially in the proceeding. We find it unnecessary to decide
whether this procedure is sufficient to raise the claim of sovereign
immunity or whether the defense has been waived through a
failure to present it properly. Under the view we take of sovereign
immunity, permitting the Spanish Ambassador to intervene at this
stage in the proceedings will not materially prejudice the
appellee, who does not dispute appellant's sovereign status. We
therefore grant the motion of the Spanish Ambassador and treat
the claim of sovereign immunity as properly presented to the
court.
Through the "Tate letter" the State Department has made it clear
that its policy is to decline immunity to friendly foreign
sovereigns in suits arising from private or commercial activity.
But the "Tate letter" offers no guide-lines or criteria for
differentiating between a sovereign's private and public acts. Nor
have the courts or commentators suggested any satisfactory test.
Some have looked to the nature of the transaction, categorizing
as sovereign acts only activity which could not be performed by
individuals. While this criterion is relatively easy to apply, it
ofttimes produces rather astonishing results, such as the holdings
of some European courts that purchases of bullets or shoes for the
army, the erection of fortifications for defense, or the rental of a
house for an embassy, are private acts. See ALLEN, The Position
of Foreign States Before National Courts 31 (1933) and cases
cited therein. Furthermore, this test merely postpones the
difficulty, for particular contracts in some instances may be made
only by states. Others have looked to the purpose of the
transaction, categorizing as jure imperii all activities in which the
object of performance is public in character. But this test is even
more unsatisfactory, for conceptually the modern sovereign
always acts for a public purpose. Lauterpacht, supra, 28 BRIT.
Y.B. INT'L L. at 224. Functionally the criterion is purely
arbitrary and necessarily involves the court in projecting personal
notions about the proper realm of state functioning. See
Lalive, supra, fn. 9, 3 RECUEIL DES COURS at 260 (1953).
See also, Friedmann, The Growth of State Control Over the
Individual and Its Effect Upon the Rules of International State
Responsibility, 19 BRIT. Y.B. INT'L L. 118, 128 (1938); Setser,
The Immunities of the State and Government Activities, 24
LAW CONT. PROBS. 291, 309 (1959).
Weiss, Compétence ou l'incompétence des tribunaux à l'égard
des États étrangers, RECUEIL DES COURS, 525 (Hague
Academy of Int'l L. 1923); De Paepe, De la compétence civile a
l'égard des États étrangers et de leurs agents politiques,
diplomatiques ou consulaires, 22 Journal du droit
international 31, 33 (Clunet 1895); Draft Convention on the
Competence of Courts in Regard to Foreign States, HARVARD
LAW SCHOOL RESEARCH IN INTERNATIONAL LAW,
386-391 (1931).
Lauterpacht, supra, 28 BRIT. Y.B. INT'L L. at 225;
Lalive, L'immunité de jurisdiction des États et des Organisations
Internationales, 3 RECUEIL DES COURS 205, 259-260 (Hague
Academy of Int'l Law 1953). For example, any individual may be
able to purchase a boat, but only a sovereign may be able to
purchase a battleship. Should the purchase of a yacht be equated
with the purchase of a battleship?
See Fensterwald, Sovereign Immunity and Soviet State
Trading, 63 HARV. L.R. 614, 621 (1950);
SUCHARITKUL, supra, at 168-169.
The conceptual difficulties involved in formulating a satisfactory
method of differentiating between acts jure imperii and acts jure
gestionis have led many commentators to declare that the
distinction is unworkable. However, the Supreme Court has
made it plain that when the State Department has been silent on
the question of immunity in a particular case, it is the court's duty
to determine for itself whether the foreign sovereign is entitled to
immunity "in conformity to the principles accepted by the
department of the government charged with the conduct of
foreign relations." Republic of Mexico v. Hoffman, supra, 324
U.S. at 35, 65 S. Ct. at 532. And since the State Department has
publicly pronounced its adherence to the distinction, we must
apply it to the facts of this case.
E.g., Lauterpacht, supra, 28 BRIT. Y.B. INT'L L. at 225-226;
Fitzmaurice, State Immunity from Proceedings in Foreign
Courts, 14 BRIT. Y.B. INT'L L. 101, 123-124 (1933);
Comment, supra, 63 YALE L.J. at 1161-1162.
The purpose of the restrictive theory of sovereign immunity is to
try to accommodate the interest of individuals doing business
with foreign governments in having their legal rights determined
by the courts, with the interest of foreign governments in being
free to perform certain political acts without undergoing the
embarrassment or hindrance of defending the propriety of such
acts before foreign courts. Sovereign immunity is a derogation
from the normal exercise of jurisdiction by the courts and should
be accorded only in clear cases. Since the State Department's
failure or refusal to suggest immunity is significant, we are
disposed to deny a claim of sovereign immunity that has not been
"recognized and allowed" by the State Department unless it is
plain that the activity in question falls within one of the categories
of strictly political or public acts about which sovereigns have
traditionally been quite sensitive. Such acts are generally limited
to the following categories:
National City Bank v. Republic of China, supra, 348 U.S. at
360, 75 S.Ct. 423; Compania Espanola de Navegacion Maritima,
S.A. v. The Navemar, 303 U.S. 68, 75, 58 S.Ct. 432, 82 L.Ed.
667 (1938).
In New York and Cuba Mail S.S. Co. v. Republic of Korea, 132
F. Supp. 684, 685 (S.D.N.Y. 1955), the State Department
declined to suggest immunity because the act in question was not
"purely governmental in character."
(1) internal administrative acts, such as expulsion of an alien.
(2) legislative acts, such as nationalization.
(3) acts concerning the armed forces.
(4) acts concerning diplomatic activity.
(5) public loans.
Lalive, supra, 3 RECUEIL DES COURS at 285-286.
We do not think that the restrictive theory adopted by the State
Department requires sacrificing the interests of private litigants
to international comity in other than these limited categories.
Should diplomacy require enlargement of these categories, the
State Department can file a suggestion of immunity with the
court. Should diplomacy require contraction of these categories,
the State Department can issue a new or clarifying policy
pronouncement.
The Comisaría General's chartering of the appellee's ship to
transport a purchase of wheat is not a strictly public or political
act. Indeed, it partakes far more of the character of a private
commercial act than a public or political act.
The charter party has all the earmarks of a typical commercial
transaction. It was executed for the Comisaría General by "El Jefe
del Servicio Commercial," the head of its commercial division.
The wheat was consigned to and shipped by a private
commercial concern. And one of the most significant indicators
of the private commercial nature of this charter is the inclusion of
the arbitration clause. The French Court of Appeal, in dismissing
a claim of sovereign immunity where the governmental charterer
had agreed to arbitration, pointed out:
"A contract relating to maritime transport is a private contract
where the owner merely puts his ship and the ship's crew at the
disposal of the State and does not take a direct part in the
performance of the public service undertaken by the State in the
latter's capacity as a charterer. The charter party does not
contain any clause peculiar to public law or unusual in private
law. It provides for a time charter of the vessel which is put at
the disposal of the State chartering it. The insertion of the
arbitration clause underlines the intention of the parties to
make their agreement subject to private law." Myrtoon
Steamship Company v. Agent Judicaire Du Tresor, 24 Int.L. Rep.
205, 206 (1957).
Maritime transport has been included among the commercial or
business activities specifically mentioned in recent United States
treaties restricting sovereign immunity. And the 1926 Brussels
Convention, the first major international attempt to restrict
sovereign immunity, which Spain signed but never ratified,
denied immunity to all maritime governmental activities except
vessels operated exclusively on non-commercial service, such as
warships, patrol vessels, or hospital ships.
A typical provision is contained in Article XVIII (Par. 3) of the
FCN Treaty with Israel, signed August 23, 1951:
"No enterprise of either Party, including corporations,
associations, and government agencies and instrumentalities,
which is publicly owned or controlled shall, if it engages in
commercial, manufacturing, processing, shipping or other
business activities within the territories of the other Party, claim
or enjoy, either for itself or for its property, immunity therein
from taxation, suit, execution of judgment or other liability to
which privately owned and controlled enterprises are subject
therein." Quoted in Setser, 1961 Proceedings of Am. Soc. Int'l L.
at 90.
See fn. 5, supra.
Even if we take a broader view of the transaction to encompass
the purchase of wheat pursuant to the Surplus Agricultural
Commodities Agreement to help feed the people of Spain, the
activity of the Comisaría General remains more in the
commercial than political realm. Appellant does not claim that
the wheat will be used for the public services of Spain;
presumptively the wheat will be resold to Spanish nationals.
Whether the Comisaría General loses money or makes a profit on
the sale, this purchasing activity has been conducted through
private channels of trade. Except for United States financing,
permitting payment in pesetas, the Comisaría General acted much
like any private purchaser of wheat.
Our conclusion that the Comisaría General's activity is more
properly labelled an act jure gestionis than jure imperii is
supported by the practice of those countries which have adopted
the restrictive theory of sovereign immunity. Thus the
Commercial Tribunal of Alexandria declined to grant immunity
to this same Spanish instrumentality in a more difficult case — a
suit arising from the Comisaría's purchase of rice to help feed the
people of neutral Spain during wartime.
"It is not contended in the present case that the rice in question
was bought by the Comisaría General for the needs of the
Spanish public services. On the contrary, it seems clearly
established that the rice was bought for the feeding of the
Spanish population during a difficult period. In negotiating this
purchase herself, instead of leaving the matter to private
enterprise, Spain proceeded in much the same manner as any
other Spanish trader would have done who wanted to buy rice
in Egypt; that is to say, she got it out of Egypt with the necessary
permits and carried it to Spain in a Spanish ship in order to re-
sell it on the usual commercial lines. This being so, the Comisaría
General cannot claim immunity from jurisdiction, and the
judgment entered against it must be confirmed.
Egyptian Delta Rice Mills Co. v. Comisaría General de Madrid,
55 Bulletin de législation et le jurisprudence egyptiénnes, 114
(1942-3), quoted in Lauterpacht, supra, 28 BRIT.Y.B.INT'L L. at
255.
Though there are a few inconsistencies, the courts in those
countries which have adopted the restrictive theory have
generally considered purchasing activity by a state
instrumentality, particularly for resale to nationals, as
commercial or private activity.
Takhowsky v. Gouvernement federal suisse et Regnier, 48
Journal du droit international 179 (Clunet) (Court of Appeal,
Paris 1921) (holding that Switzerland was entitled to immunity
in a suit arising from its charter of ships to transport cocoa for the
Swiss chocolate industry during World War I because the venture
was not exclusively commercial); Etienne v. Gouvernement
neerlandais, Dalloz 84 (1948), Annual Digest, Case No. 30
(Tribunal Commercial de la Rochelle 1947) (holding that a ship
requisitioned and operated by the Dutch Government to transport
wheat for the reprovisioning of the Netherlands was a political
rather than a commercial act). But these are decisions of courts
of France where it is difficult to tell to what extent the restrictive
theory of sovereign immunity has been adopted. The French
decisions are uncertain and often contradictory. Compare
Hamson, Immunity of Foreign States, The Practice of the French
Courts, 27 BRIT.Y.B.INT'L L. 293 (1950), concluding that the
French courts have departed very little from the classical theory
of immunity so far as the foreign State itself is concerned, with
Lauterpacht supra, 28 BRIT.Y.B. INT'L L. at 260, concluding
that France can no longer be included among countries adhering
to the absolute theory of immunity.
E.g., Monnoyer et Bernard v. Etat Francaise, 3 Pasierisie Belge
129 (1927); Etat roumain v. Pascalet et Cie., Dalloz 260 (1924);
Stato di Romania c. Trutta, I Monitore dei Tribunali 288 (1926),
Annual Digest 179 (1925-26); Societe pour la fabrication des
cartouches c. Col M., Ministre de la Guerre de Bulgarie, Belgique
Judiciare 383 (1889); Et Ve Balik Kurumu v. B.N.S. Internat'l
Sales Corp., 25 Misc.2d 299, 204 N.Y.S.2d 971 (Sup.Ct. 1960),
aff'd 17 A.D.2d 927, 233 N.Y.S.2d 1013 (A.D. 1962); Pacific
Molasses Co. v. Comite de Ventas de Mieles, 30 Misc.2d
560, 219 N.Y.S.2d 1018 (Sup.Ct. 1961). See generally,
Sucharitkul, supra, at 322, 324.
Finally, our conclusion that the Comisaría General's claim of
sovereign immunity should be denied finds support in the State
Department's communication to the court in New York and Cuba
Mail S.S. Co. v. Republic of Korea, 132 F. Supp. 684, 685 (S.D.N
Y 1955). There the Republic of Korea was allegedly responsible
for damaging a ship while assisting in the unloading of a cargo of
rice for distribution without charge to its civilian and military
personnel during the Korean War. Though suggesting that
Korea's property was immune from attachment, the State
Department refused to suggest immunity "inasmuch as the
particular acts out of which the cause of action arose are not
shown to be of a purely governmental character." If the wartime
transportation of rice to civilian and military personnel is not an
act jure imperii, a fortiori the peacetime transportation of wheat
for presumptive resale is not an act jure imperii.
Since in our view sovereign immunity does not apply, we find it
unnecessary to consider whether the agreement to arbitrate
constituted an implied waiver of sovereign immunity. Compare
Duff Development Company, Ltd. v. Government of Kelantan,
L.R. [1924] A.C. 797 with Ben Aiad c. Gouvernement tunisien,
Dalloz 305 (Cour de Cassation 1897).
THE ACT OF STATE DOCTRINE
The appellant also seeks to enter the sanctuary of sovereign
immunity through the side door by urging that since the acts
complained of occurred in Spanish ports, which were designated
as safe by a branch of the Spanish Government, the act of state
doctrine prohibits holding the Spanish Government to account for
the propriety of those acts. As most recently formulated by the
Supreme Court, the act of state doctrine "precludes the courts of
this country from inquiring into the validity of the public acts a
recognized foreign sovereign power committed within its own
territory." Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398,
401, 84 S.Ct. 923, 926, 11 L.Ed.2d 804 (1964). The difficulty
with appellant's argument is threefold. First of all, the act of state
doctrine applies only to the "public acts" of a foreign sovereign,
Restatement Foreign Relations law of U.S., § 41c (Proposed
Official Draft 1962), and we cannot see that designating ports as
safe for the S.S. Hudson was a public act of the Spanish
Government. The designation of safe ports for the discharge of
cargo is an act frequently performed by merchants voyage-
chartering a cargo ship. See Gilmore and Black, THE LAW OF
ADMIRALTY 179-181 (1957). It can hardly be termed an act of
state simply because a state instrumentality happened to be the
voyage-charterer. Moreover, designation of the ports as safe was
not an act performed within the territory of Spain, nor was it
performed by the Government of Spain. Here the designation of
the actual discharge ports was done on the bill of lading by the
appellant's shipper at Mobile, Alabama. Appellant's act of state
argument is therefore considerably wide of the mark.
JURISDICTION
Though in most cases jurisdiction over a foreign sovereign is
obtained in an in rem proceeding, there is no bar to the assertion
of in personam jurisdiction. See Kunglig Jarnvagsstyrelsen v.
Dexter Carpenter, 300 F. 891 (S.D.N Y 1924) (L. Hand, J.),
aff'd 32 F.2d 195 (2 Cir. 1929). Relying on the panel decision in
Petrol Shipping Corporation v. Kingdom of Greece, 326 F.2d
117 (2 Cir. 1964), appellant contends that there is here no basis
for the district court's assumption of in personam jurisdiction. In
Petrol Shipping Corp. v. Kingdom of Greece, a case factually
similar to this one, the majority of the panel held only that Greece
could raise the defense of sovereign immunity by a letter from its
ambassador sent directly to the court. The full court, sitting in
banc, altered the panel decision, vacated the district court's
judgment dismissing the petition to compel arbitration, and
remanded for further proceedings. 332 F.2d 370 (2 Cir. 1964).
We hold that the district court had in personam jurisdiction to
enter the order compelling arbitration. By agreeing to arbitrate in
New York, where the United States Arbitration Act makes such
agreements specifically enforceable, the Comisaría General must
be deemed to have consented to the jurisdiction of the court that
could compel the arbitration proceeding in New York. To hold
otherwise would be to render the arbitration clause a nullity. In
Farr Co. v. Cia. Intercontinental De Navegacion, 243 F.2d 342 (2
Cir. 1957) and Orion Shipping Trading Co. v. Eastern States
Petro. Corp. of Panama, 284 F.2d 419 (2 Cir. 1960), this court
held that § 4 of the United States Arbitration Act provides
sufficient jurisdictional basis for the district court to order a
foreign corporation which had agreed to arbitration in New York
to submit to arbitration. Unless the arbitration clause in this
charter differs significantly from the arbitration clauses
specifically enforced in the Farr and Orion cases, it is clear that
the court has in personam jurisdiction, for we see no reason to
treat a commercial branch of a foreign sovereign differently from
a foreign corporation. The arbitration clause construed in Farr
provided: "This submission may be made a rule of court by either
party." The corresponding language in the arbitration clause in
the instant case provides: "[F]or the purpose of enforcing any
award, this agreement may be made a rule of the Court."
Appellant argues that this slight difference in wording requires a
different result, for the appellee is seeking appointment of an
arbitrator, not enforcement of an award. We cannot agree. This
fine distinction did not trouble this court in Orion, where the
corresponding language of the arbitration clause provided: "For
the purpose of enforcing awards this agreement shall be made a
Rule of the Court." Implicit in the agreement to arbitrate is
consent to enforcement of that agreement.
The suggestion by the appellant that the subject matter of the
controversy is without the admiralty jurisdiction of the United
States courts is utterly devoid of merit. It has long been settled
that a charter-party is a maritime contract and that disputes arising
therefrom are within the admiralty jurisdiction of the United
States courts. Morewood v. Enequist,
SERVICE OF PROCESS
The appellant has also challenged the propriety of the
extraterritorial service employed here. But since the appellant as
consented beforehand to the jurisdiction of the district court, the
sole function of process in this case was, as Judge Murphy
correctly noted below, to notify the appellant that proceedings
had commenced. This function was certainly performed.
Moreover, similar service of process on nongovernmental foreign
corporations was held sufficient in the Farr and Orion cases,
supra. No rule of international law requires special treatment for
serving branches of foreign sovereigns. See
SUCHARITKUL, supra, at 350, 351.
Section 4 of the Arbitration Act provides that service of the
petition to compel arbitration shall be made in the manner
provided by the Federal Rules of Civil Procedure. The language
of Rule 4(d)(3), incorporated by reference into Rule 4(d)(7),
which permits service in the manner employed in the state courts,
provides for service on "a domestic or foreign corporation or
upon a partnership or other unincorporated association which is
subject to suit under a common name" and would seem broad
enough to cover the Comisaría General. Moreover, Rule 4(e)
provided, as of March 22, 1963, that:
"Whenever a statute of the United States or an order of court
provides for service of a summons, or of a notice, or of an order
in lieu of a summons upon a party not an inhabitant of or found
within the state, service shall be made under the circumstances
and in the manner prescribed by the statute, rule, or order."
Since the appellant had consented to the jurisdiction of the court,
Judge Dawson's order authorizing service by registered mail did
not violate due process. And since service was effected pursuant
to Judge Dawson's order, such service complied with the terms of
Rule 4(e).
The order of the district court is affirmed.
Underhill v. Hernandez
No. 36
Argued October 22, 25, 1897
Decided November 29, 1897
168 U.S. 250
CERTIORARI TO THE CIRCUIT COURT
OF APPEALS FOR THE SECOND CIRCUIT
Syllabus
Hernandez was in command of a revolutionary army in
Venezuela when an engagement took place with the
government forces which resulted in the defeat of the latter,
and the occupation of Bolivar by the former. Underhill was
living in Bolivar, where he had constructed a waterworks
system for the city under a contract with the government,
and carried on a machinery repair business. He applied for
a passport to leave the city, which was refused by
Hernandez with a view to coerce him to operate his
waterworks and his repair works for the benefit of the
community and the revolutionary forces. Subsequently a
passport was given him. The revolutionary government
under which Hernandez was acting was recognized by the
United States as the legitimate government of Venezuela.
Subsequently Underhill sued Hernandez in .the Circuit
Court for the Second Circuit to recover damages caused by
the refusal to grant the passport, for alleged confinement of
him to his own house, and for alleged assaults and affronts
by Hernandez' soldiers. Judgment being rendered for
defendant, the case was taken to the circuit court of
appeals, where the judgment was affirmed, the court
holding "that the acts of the defendant were the acts of
Venezuela, and as such are not properly the subject of
adjudication in the courts of another
government." Held that the circuit court of appeals was
justified in that conclusion.
Every sovereign state is bound to respect the
independence of every other sovereign state, and the
courts of one country will not sit in judgment on the acts of
the government of another, done within its own territory.
In the early part of 1892, a revolution was initiated in
Venezuela against the administration thereof, which the
revolutionists
Page 168 U. S. 251
claimed had ceased to be the legitimate government. The
principal parties to this conflict were those who recognized
Palacio as their head, and those who followed the
leadership of Crespo. General Hernandez belonged to the
anti-administration party and commanded its forces in the
vicinity of Ciudad Bolivar. On the 8th of August, 1892, an
engagement took place between the armies of the two
parties at Buena Vista, some seven miles from Bolivar, in
which the troops under Hernandez prevailed, and on the
13th of August, Hernandez entered Bolivar and assumed
command of the city. All of the local officials had in the
meantime left, and the vacant positions were filled by
General Hernandez, who from that date, and during the
period of the transactions complained of, was the civil and
military chief of the city and district. In October, the party in
revolt had achieved success generally, taking possession
of the capital of Venezuela October 6, and on October 23,
1892, the "Crespo government," so called, was formally
recognized as the legitimate government of Venezuela by
the United States.
George F. Underhill was a citizen of the United States, who
had constructed a waterworks system for the City of Bolivar
under a contract with the government, and was engaged in
supplying the place with water, and he also carried on a
machinery repair business. Some time after the entry of
General Hernandez, Underhill applied to him, as the officer
in command, for a passport to leave the city. Hernandez
refused this request, and requests made by others in
Underhill's behalf, until October 18, when a passport was
given, and Underhill left the country.
This action was brought to recover damages for the
detention caused by reason of the refusal to grant the
passport, for the alleged confinement of Underhill to his
own house, and for certain alleged assaults and affronts by
the soldiers of Hernandez' army.
The cause was tried in the Circuit Court of the United States
for the Eastern District of New York, and on the conclusion
of plaintiff's case, the circuit court ruled that, upon the facts,
plaintiff was not entitled to recover, and directed
a verdict for defendant on the ground that
"because the acts of defendant were those of a military
commander, representing a de facto government in the
prosecution of a war, he was not civilly responsible
therefor."
Judgment having been rendered for defendant, the case
was taken to the circuit court of appeals, and by that court
affirmed upon the ground
"that the acts of the defendant were the acts of the
government of Venezuela, and as such are not properly the
subject of adjudication in the courts of another
government."
65 F. 577. Thereupon the cause was brought to this Court
on certiorari.
MR. CHIEF JUSTICE FULLER, after stating the facts in the
foregoing language, delivered the opinion of the Court.
Every sovereign state is bound to respect the
independence of every other sovereign state, and the
courts of one country will not sit in judgment on the acts of
the government of another done within its own territory.
Redress of grievances by reason of such acts must be
obtained through the means open to be availed of by
sovereign powers as between themselves.
Nor can the principle be confined to lawful or recognized
governments, or to cases where redress can manifestly be
had through public channels. The immunity of individuals
from suits brought in foreign tribunals for acts done within
their own states in the exercise of governmental authority,
whether as civil officers or as military commanders, must
necessarily extend to the agents of governments ruling by
paramount force as matter of fact. Where a civil war
prevails (that is, where the people of a country are divided
into two hostile parties, who take up arms and oppose one
another by military force), generally speaking, foreign
nations do not assume to judge of the merits of the quarrel.
If the party seeking to dislodge the existing government
succeeds, and the independence of the government it has
set up is recognized, then the acts of such government,
from the commencement of its existence, are regarded as
those of an independent nation. If the political revolt fails of
success, still, if actual war has been waged, acts of
legitimate warfare cannot be made the basis of individual
liability. United States v. Rice, 4 Wheat. 246; Fleming v.
Page, 9 How. 603; Thorington v. Smith, 8 Wall. 1; Williams
v. Bruffy, 96 U. S. 176; Ford v. Surget, 97 U. S. 594; Dow
v. Johnson, 100 U. S. 158, and other cases.
Revolutions or insurrections may inconvenience other
nations, but by accommodation to the facts, the application
of settled rules is readily reached. And where the fact of the
existence of war is in issue in the instance of complaint of
acts committed within foreign territory, it is not an absolute
prerequisite that that fact should be made out by an
acknowledgment of belligerency, as other official
recognition of its existence may be sufficient proof
thereof. The Three Friends, 166 U. S. 1.
In this case, the archives of the State Department show that
civil war was flagrant in Venezuela from the spring of 1892,
that the revolution was successful, and that the
revolutionary government was recognized by the United
States as the government of the country, it being, to use the
language of the Secretary of State in a communication to
our minister to Venezuela, "accepted by the people, in the
possession of the power of the nation, and fully
established."
That these were facts of which the court is bound to take
judicial notice, and for information as to which it may consult
the Department of State, there can be no doubt. Jones v.
United States, 137 U. S. 202; Mighell v. Sultan of
Jahore, (1894) 1 Q.B. 149.
It is idle to argue that the proceedings of those who thus
triumphed should be treated as the acts of banditti or mere
mobs.
We entertain no doubt upon the evidence that Hernandez
Page 168 U. S. 254
was carrying on military operations in support of the
revolutionary party. It may be that adherents of that side of
the controversy in the particular locality where Hernandez
was the leader of the movement entertained a preference
for him as the future executive head of the nation, but that
is beside the question. The acts complained of were the
acts of a military commander representing the authority of
the revolutionary party as a government, which afterwards
succeeded and was recognized by the United States. We
think the circuit court of appeals was justified in concluding
"that the acts of the defendant were the acts of the
government of Venezuela, and as such are not properly the
subject of adjudication in the courts of another
government."
The decisions cited on plaintiff's behalf are not in point.
Cases respecting arrests by military authority in the
absence of the prevalence of war, or the validity of
contracts between individuals entered into in aid of
insurrection, or the right or revolutionary bodies to vex the
commerce of the world on its common highway without
incurring the penalties denounced on piracy, and the like,
do not involve the questions presented here.
We agree with the circuit court of appeals that
"the evidence upon the trial indicated that the purpose of
the defendant in his treatment of the plaintiff was to coerce
the plaintiff to operate his waterworks and his repair works
for the benefit of the community and the revolutionary
forces,"
and that "it was not sufficient to have warranted a finding
by the jury that the defendant was actuated by malice or
any personal or private motive," and we concur in its
disposition of the rulings below. The decree of the circuit
court is
Affirmed.
KING’S BENCH DIVISION
AKSIONAIRNOYE OBSCHESTVO DLIA
MECHANICHESKOYI OBRABOTKY DIEREVA (1)
A. M. LUTHER (COMPANY FOR MECHANICAL
WOODWORKING A. M. LUTHER) v. JAMES
SAGOR AND COMPANY
[1921] 1 K.B 456
[1920. A. 1861.]
DATES: 1920 Nov. 29; 1920 Dec. 8, 21.
JUDGE: ROCHE J.
COUNSEL: Barrington-Ward K.C. and St. John Field
for the plaintiffs.
Hogg K.C. and H. L. Murphy for the defendants.
SOLICITORS: For plaintiffs: Linklaters & Paines.
For defendants: H. W. & S. Patey.
HEADNOTE: International Law – Jurisdiction –
Status of Russian Soviet Republic – Recognition of
Sovereignty – Confiscatory Decree – Validity.
The plaintiff company, which was a Russian
company, had a factory or sawmill in Russia. The
Russian Soviet Government on June 20, 1918,
purported to make a decree declaring (inter alia)
that all mechanical sawmills of limited or private
companies with a capital of over 1,000,000 roubles
and all woodworking establishments equipped with
machinery belonging to private or limited
companies were the property of the Russian
Federative Republic. In 1919 the agents of the
Russian Soviet Government took possession of and
confiscated the plaintiff company’s mill or factory
and the manufactured stock of veneer or plywood.
In August, 1920, the agents of the Russian Soviet
Government purported to sell to the defendants a
quantity of the plaintiff company’s veneer or
plywood confiscated. The defendants imported that
wood into England, whereupon the plaintiff
company brought an action claiming a declaration
that they were entitled thereto.
The Secretary of State for Foreign Affairs in a letter
to the defendants' solicitors on October 5, 1920,
said that “His Majesty’s Government assent to the
claim of the [Russian Commercial] Delegation to
represent in this country a State Government of
Russia.” In a letter to the plaintiffs' solicitors on
November 27, 1920, he said that “for a certain
limited purpose His Majesty’s Government has
regarded M. Krassin as exempt from the process of
the Courts, and also for the like limited purpose His
Majesty’s Government has assented to the claim
that that which M. Krassin represents in this country
is a State Government of Russia, but that beyond
these propositions the Foreign Office has not gone,
nor moreover do these expressions of opinion
purport to decide difficult and it may be very special
questions of law upon which it may become
necessary for the Courts to pronounce. I am to add
that His Majesty’s Government have never officially
recognised the Soviet Government in any way”:—
Held, that if a foreign government or its sovereignty
is not recognized by His Majesty’s Government the
Courts of this country will not recognize such foreign
government or its sovereignty: that on the facts the
Russian Soviet Government had not been
recognized by His Majesty’s Government as the
government of a Russian Federative
(1) [Sic in the record; the transliteration is not quite
correct or consistent. – F. P.]
[*457] Republic or of any sovereign state or power:
that accordingly the Court was unable to recognize
any such Russian Government or to hold that it had
sovereignty or was able by its decree to deprive the
plaintiff company of their property.
ACTION tried by Roche J.
The plaintiff company alleged by their statement of
claim that they were incorporated in the Empire of
Russia according to the laws of Russia in 1898 and
that they thereafter carried on business in Russia.
They owned a factory or mill at Staraja Russa in the
Government of Novogorod in Russia where they
manufactured veneer or plywood. They marked or
stamped the boards of the veneer or plywood or the
crates or packages of the boards with the trade
mark or trade name “Venesta” or the mark “V. L.”
That trade mark or trade name was the property of
a company called Venesta, Ld., which authorized
the plaintiff company to use the same for marking
or stamping boards or crates or packages of boards
and to import into this country boards or crates or
packages of boards marked or stamped with that
trade mark or trade name.
The plaintiff company alleged that in 1919 they
owned and had in their factory at Staraja Russa a
large stock of boards of veneer or plywood all or
most of which were stamped or marked with the
trade mark or trade name “Venesta” or the mark
“V. L.” amounting in quantity to not less than 1500
cubic metres. In 1919, certain Russians calling
themselves Commissaries and claiming to be, or to
be the duly appointed agents of, a Republican
Government of Russia wrongfully seized and
purported to expropriate and wrongfully deprived
the plaintiffs of their factory or mill at Staraja
Russa, and wrongfully seized and purported to
expropriate and wrongfully deprived the plaintiffs of
their stock of boards at their factory or mill. Neither
the Russians nor the so-called Republican
Government ever paid or made over to the plaintiff
company any money or other consideration in
respect of the stock of boards. The plaintiffs alleged
that no such Republican Government of Russia ever
in fact or in law existed and no such Republican
Government had ever been [*458] recognized by
His Majesty’s Government. Those Russians were
therefore in law and in fact mere robbers and
wrongdoers.
By a contract dated August 14, 1920, the
defendants purported to agree to buy from the so-
called Republican Government of Russia the plaintiff
company’s stock of boards or not less than 1500
cubic metres. The plaintiffs alleged that the
defendants had under that contract obtained
possession of and imported into England by the
steamships Kajak and Baltibor a quantity of their
stock of boards amounting to about 135 tons.
The plaintiffs claimed: (1.) a declaration that the
1500 cubic metres of veneer or plywood, which the
defendants purported or agreed to buy as above
mentioned, were the unincumbered property of the
plaintiffs; (2.) a declaration that the shipments of
veneer or plywood on the steamships Kajak and
Baltibor were the unincumbered property of the
plaintiffs; (3.) an injunction restraining the
defendants their servants and agents from selling,
pledging or in any manner whatsoever dealing with
any part of the 1500 cubic metres of veneer or
plywood which they purported to agree to buy
under the contract of August 14, 1920, or
alternatively with any of the boards or crates or
packages of boards contained in the 1500 cubic
metres of boards which bore the trade mark or
trade name “Venesta” or the mark “V. L.”; and (4.)
damages for the wrongful conversion or detention
of the 1500 cubic metres of veneer or plywood or
alternatively of the shipments mentioned above.
The defendants by their defence said that the
plaintiffs were domiciled and resident in the
Republic of Esthonia and had their chief seat of
business at Reval in that Republic, and that the
plaintiffs had not at any material time any seat of
business in Russia nor had they carried on business
in Russia. The defendants said that the plaintiffs
were therefore subjects of the Republic of Esthonia
and subject to the laws and treaties made by that
Republic, which Republic had been recognized by
His Majesty’s Government before January 27, 1919.
During the whole of 1919 and up to February 2,
1920, the Republic of Esthonia was at war
with [*459] the Russian Soviet Republic. On
February 2, 1920, a treaty of peace was concluded
between the Republic of Esthonia and the Russian
Soviet Republic. By Art. III. of that treaty the State
boundary line between Russia and Esthonia was
fixed and described, and Staraja Russa was
recognized by the Republic of Esthonia as being
within the territory and jurisdiction of the Russian
Soviet Republic. Art. XIV. of the treaty provided for
the establishment of mixed Russo-Esthonian
Commissions to decide (inter alia) questions arising
between either of the parties to the treaty and the
citizens of the other party. Amongst the matters
specifically referred to those commissions was the
decision of the question of the delivering up of the
property of citizens of Esthonia situate in Russia and
also the property of Russian citizens situate in
Esthonia, and other questions connected with the
protection of the interests of citizens in the other
country. The defendants said that if the plaintiffs
ever had any claim to any property or goods which
were at the date of the treaty at Staraja Russa the
claim, if any, could by virtue of the facts set out
above only be prosecuted through the agency of the
mixed commissions.
The defendants said that if any factory or goods at
Staraja Russa had been expropriated the act was
the act of the Russian Soviet Republic being a
sovereign state exercising supreme authority at
Staraja Russa, and was valid and effectual to
deprive the owners of the factory or goods of the
property therein or alternatively to enable the
Republic to pass a good title to foreign purchasers
of the goods.
The defendants admitted that by a contract in
writing of August 14, 1920, expressed to be made
between the defendants and one L. B. Krassin, the
representative of the Russian Commercial
Delegation in London, the defendants purchased
from the Russian Soviet Republic certain quantities
of plywood (including the plywood claimed in this
action) and that 1500 cubic metres of the plywood
was therein described as being at “Station Starie
Russey.” The defendants denied however that the
plywood or any of it ever was the property of the
plaintiffs or that the plaintiffs had ever been
entitled [*460] to the possession thereof.
Alternatively the defendants said that the plywood
was manufactured by the servants and/or agents of
the Republic wholly from timber the property of the
Republic and that that timber never was the
property of the plaintiffs.
The defendants said that the Russian Commercial
Delegation was present in London with the
knowledge, consent, and permission of His
Majesty’s Government for the purpose of entering
into commercial contracts with traders in this
country, who were authorized and permitted by His
Majesty’s Government to enter into commercial
contracts with the delegation.
By a letter of July 28, 1920, written on behalf of His
Majesty’s Secretary of State for Foreign Affairs to
the solicitors for L. B. Krassin it was stated that
Krassin was the authorized representative of the
Soviet Government and had been received by His
Majesty’s Government for the purpose of carrying
out certain negotiations. It was further stated
therein that His Majesty’s Secretary of State
regarded Krassin as a foreign representative and as
one who in view of the negotiations should be
exempt from the processes of the Courts.
In a letter of October 5, 1920, written on behalf of
His Majesty’s Secretary of State for Foreign Affairs
to the defendants' solicitors it was stated that: “His
Majesty’s Government assent to the claim of the
Delegation to represent in this country a State
Government of Russia.”
The defendants said that the Russian Soviet
Republic had thereby been recognized by His
Majesty’s Government as the government of a
sovereign state exercising authority in territory
which included Staraja Russa.
The defendants further said that no demand for
delivery up of the goods claimed was made before
action brought by the plaintiffs or by any person on
their behalf.
On November 27, 1920, a letter was written on
behalf of His Majesty’s Secretary of State for
Foreign Affairs to the plaintiffs' solicitors in answer
to a request for information which stated: “I am to
inform you that for a certain limited [*461] purpose
His Majesty’s Government has regarded Monsieur
Krassin as exempt from the process of the Courts,
and also for the like limited purpose His Majesty’s
Government has assented to the claim that that
which Monsieur Krassin represents in this country is
a State Government of Russia, but that beyond
these propositions the Foreign Office has not gone,
nor moreover do these expressions of opinion
purport to decide difficult and, it may be, very
special questions of law, upon which it may become
necessary for the Courts to pronounce. I am to add
that His Majesty’s Government have never officially
recognised the Soviet Government in any way.”
The facts including the decree of the Russian Soviet
Republic under which the wood was confiscated and
the contract under which it was sold to the
defendants are set out in detail in the judgment.
Barrington-Ward K.C. and St. John Field for the
plaintiffs.
Hogg K.C. and H. L. Murphy for the defendants. The
plaintiff company had their head office at Reval and
were therefore domiciled and resident in Esthonia
and were accordingly bound by the treaty of peace
between the Republic of Esthonia and the Russian
Soviet Republic on February 2, 1920. Under that
treaty the plaintiffs were bound to prosecute any
claim they might have before the mixed Russo-
Esthonian Commissions as provided in Art. XIV. of
the treaty and they are not entitled to set up any
claim to their property before the Courts of this
country. Even if the plaintiff company are not bound
by that treaty of peace still they are bound by the
acts of the Russian Soviet Republic in taking
possession of their property and selling it to the
defendants. The Russian Soviet Republic made a
decree dated June 20, 1918, under which all
woodworking establishments equipped with
machinery which belonged to private or limited
companies were declared the property of the
Russian Socialist Federative Republic. The plaintiff
company’s factory and stock of veneer and plywood
were taken possession of under that decree. All that
the Courts of [*462] this country can consider is
whether that decree was made by a state which has
been recognized by the Government of this country,
and if it was they are bound to recognize acts done
under it as binding; they cannot consider whether
the decree is a proper decree. The letter from the
Foreign Office of October 5, 1920, amounts to a
recognition by the British Government of the
Russian Soviet Republic as a de facto Government
in Russia although it may not be a recognition of the
republic as a de jure government. It is sufficient to
enable the defendants to contract with the Russian
Soviet Republic that that government has been
recognized as a de facto government, and it is not
necessary that it should also have been recognized
as a de jure government: Republic of Peru v.
Dreyfus Brothers (1); United States of America v.
Prioleau. (2) The certificate of the Foreign Office is
conclusive on the point as to the status of the
Russian Soviet Republic: Mighell v. Sultan of
Johore. (3) In that case the Colonial Office had
written a letter stating that the Sultan of Johore
“generally speaking, exercises without question the
usual attributes of a sovereign ruler” and the Courts
held that the letter was conclusive as to his being
an independent foreign sovereign, and therefore
not subject to the jurisdiction of the Courts of this
country. It is true that Sir Robert Phillimore in the
case of The Charkieh (4) did not regard the letter of
the Foreign Office as to the status of the Khedive of
Egypt as conclusive but sought to inform himself
from historical and other sources as to his status.
Lord Esher M.R. however expressed the opinion
in Mighell v. Sultan of Johore (5) that he ought not
to have done so, but ought to have accepted the
authoritative certificate of the Queen through her
minister of state as to the status of another
sovereign as decisive. It is unnecessary to discuss
how far the rule of the Soviet. Republic extends in
Russia because it is admitted that its rule extends
over the place where the plaintiffs' factory is
situated. In order to entitle the defendants to
succeed it is
(1) (1888) 38 Ch. D. 348.
(2) (1865) 2 H. & M. 559.
(3) [1894] 1 Q. B. 149.
(4) (1873) L. R. 4 A. & E. 59.
(5) [1894] 1 Q. B. 158.
[*463] sufficient to show that the Soviet Republic
has been recognized by the British Government,
and that it has deprived the plaintiffs of their goods
under a decree, and that the defendants are in
possession of those goods under a contract with the
agents of the Soviet Government. In Williams v.
Bruffy (1) the Supreme Court of the United States
decided that the Confederate Government was a
rebel government and not a de facto government as
ultimately it was not successful. Field J. in delivering
the judgment of the Court discussed the question
as to what constitutes a de facto government. He
said that one kind of de facto government “is such
as exists after it has expelled the regularly
constituted authorities from the seats of power and
the public offices, and established its own
functionaries in their places, so as to represent in
fact the sovereignty of the nation. … As far as other
nations are concerned, such a government is
treated as in most respects possessing rightful
authority; its contracts and treaties are usually
enforced; its acquisitions are retained; its
legislation is in general recognised; and the rights
acquired under it are, with few exceptions,
respected after the restoration of the authorities
which were expelled.” That language applies almost
exactly to the position of the Soviet Government.
The Court assumed that the acts of a de facto
government, even though they are confiscatory,
cannot be called in question before the Courts of
another country. The Supreme Court of the United
States in Oetjen v. Central Leather Co. (2)
and Ricaud v. American Metal Co. (3) held that the
courts of one country will not sit in judgment on the
acts of the government of another country done
within its own territory and that redress of
grievances by reason of such acts must be obtained
through the means open to be availed of by
sovereign powers as between themselves. The
Court also held that the principle that the conduct
of one independent government cannot be
successfully questioned in the courts of another
country is applicable to a case involving the title to
property brought within the
(1) (1877) 96 U. S. R. 176, 185.
(2) (1918) 246 U. S. R. 297.
(3) (1918) 246 U. S. R. 304.
[*464] custody of that Court. As the Russian Soviet
Government has been recognized by the Foreign
Office as a State Government of Russia it follows
that the legality of what that Government has done
within the territory over which it rules in Russia
cannot be inquired into by this Court. This is an
action in detinue. In order to support an action of
detinue there must be proof that the detention of
the article claimed is wrongful, the mere fact of the
possession of the article is not sufficient to support
the action. It is therefore necessary in order to
support the action that there should have been a
demand and a refusal to deliver up possession of
the article before action: Clayton v. Le Roy. (1) In
the present case there was no demand before action
and therefore the action will not lie.
Barrington-Ward K.C. in reply. This action is not
brought in detinue but for a declaration that the
veneer or plywood is the property of the plaintiffs,
therefore the rule that in an action of detinue it is
necessary to prove a demand and refusal before
action does not apply. It was said in Clayton v. Le
Roy (1) that there must be an assertion by the
defendant of a hostile right. That was done in the
present case by the defendants' letter of October
22, 1920, to Venesta, Ld. The plaintiffs are not
bound by the treaty of peace between Esthonia and
the Russian Soviet Republic as they are not subjects
of Esthonia. By the treaty persons of non-Esthonian
origin including juridical persons are entitled to one
year within which to decide whether they will
become citizens of Esthonia. That year had not
expired and the plaintiffs had not elected to become
Esthonians. The treaty by Art. XIV. only refers to
the decision of the mixed commission questions as
to property of Esthonian citizens situated in Russia.
The property in this case is not situated in Russia
but in England, and therefore the treaty does not
apply. The main question in this case is whether or
not the Russian Soviet Republic has been
recognized by the British Government as an
independent sovereign state in that part of Russia
where the plaintiffs' factory is situated. If the
Government has not
(1) [1911] 2 K. B. 1031.
[*465] been recognized by the British Government
it cannot be recognized by the Courts of this
country, which in those circumstances are bound to
consider the ancient state of things as remaining
unaltered: see Halleck’s International Law, 4th ed.,
vol. i., p. 90. Republic of Peru v. Dreyfus
Brothers (1) and United States of America v.
Prioleau (2) merely establish the proposition that
after a foreign government has been recognized as
a de facto government by the British Government
the subsequent acts of that de facto government
cannot be called in question before the Courts of
this country. But until there has been recognition by
the British Government of such new state any
transaction with such new state is unenforceable
before the British Courts: Jones v. Garcia del Rio.
(3) In Thompson v. Barclay (4) it was held that a
transaction that formed part of a plan for raising a
loan for a foreign state, which was a revolted colony
of a friendly power, and which had not been
recognized by the Government of this country, was
illegal, and therefore an action could not be brought
in respect of that transaction. The Vice-Chancellor
there pointed out that the Courts of this country
cannot recognize persons representing themselves
to be governments of foreign countries till the
Government of this country have recognized them.
That statement of law was not dissented from by
Lord Brougham L.C. (5) in affirming the decision
although he expressed doubts on other points. It
had previously been decided in The City of Berne v.
Bank of England (6) that a judicial Court cannot
take notice of a foreign government not
acknowledged by the government of the country in
which that Court sits. In The Gagara (7) the
Attorney-General stated in open Court that the
British Government had, for the time being,
recognized the Esthonian National Council as a de
facto independent body, and that was held to be a
recognition which accorded them the status of a
foreign sovereign. In The Annette (8) the Foreign
Office
(1) 38 Ch. D. 348.
(2) 2 H. & M. 559.
(3) (1823) T. & R. 297.
(4) (1828) 6 L. J. (O. S.) Ch. 93.
(5) (1831) 9 L. J. (O. S.) Ch. 215.
(6) (1804) 9 Ves. 347.
(7) [1919] P. 95.
(8) [1919] P. 105.
[*466] wrote informing the Court that the
Provisional Government of Northern Russia had not
been formally recognized by the British Government
although the Allied Powers were co-operating with
them in opposition to the Russian Soviet
Government, and it was held that did not amount to
an informal recognition of the Provisional
Government as a sovereign independent state.
Following the authority of those cases this Court
ought to come to the conclusion that there has been
no recognition by the British Government of the
Russian Soviet Government as a sovereign
independent state. Even if the British Government
has recognized the Russian Soviet Government, still
the Courts of this country will not give effect to the
penal laws of the Russian Soviet Government
depriving the plaintiffs of their rights. “The penal
laws of foreign countries are strictly local, and affect
nothing more than they can reach, and can be
seized by virtue of their authority; a fugitive who
passes hither, comes with all his transitory rights;
he may recover money held for his use, stock,
obligations and the like; and cannot be affected in
this country, by proceedings against him in that
which he has left, beyond the limits of which such
proceedings do not extend”: Folliott v. Ogden. (1)
“No country regards the penal laws of
another”: Wolff v. Oxholm. (2) Marshall C.J. said in
United States v. Percheman (3): “It is very unusual,
even in cases of conquest, for the conqueror to do
more than to displace the sovereign and assume
dominion over the country. The modern usage of
nations, which has become law, would be violated;
that sense of justice and of right which is
acknowledged and felt by the whole civilized world
would be outraged, if private property should be
generally confiscated, and private rights annulled.”
The letter of the Foreign Office does not amount to
more than this, it informs the defendants that they
may trade with Krassin without incurring penalties;
it does not amount to a recognition of the Soviet
Government.
H. L. Murphy in reply on the cases. The point in
Folliott v.
(1) (1789) 1 H. Bl. 123, 135; affirmed (1790) 3 T.
R. 726.
(2) (1817) 6 M. & S. 92, 99.
(3) (1833) 7 Peters, 51, 86.
[*467] Ogden (1) and Wolff v. Oxholm (2) is
covered by the decision in Republic of Peru v.
Dreyfus Brothers. (3) City of Berne v. Bank of
England (4) is a peculiar case depending upon the
particular facts in that case. The case of Dolder v.
Lord Huntingfield (5) was brought subsequently in
respect of the same funds. At the time the Helvetic
Republic had not been recognized by the British
Government. In Yrisarri v. Clement (6) the Court of
King’s Bench heard evidence as to whether the
Republic of Chili was a sovereign independent state
before its independence had been recognized by
Great Britain. The Court is bound by the
unambiguous statement of the Foreign Office that
the Soviet Government is a State Government of
Russia. If the information supplied by the Foreign
Office does not lead to a clear conclusion the Court
is not confined to that source of information but
may inform itself from other sources as was done in
the case of The Charkieh. (7) The Court of Appeal
in Mighell v. Sultan of Johore (8) held that Sir R.
Phillimore was wrong in so doing, but that was
because the information supplied by the Foreign
Office in that case was clear and unambiguous. The
fact that the Soviet Government is the only
Government in existence in that part of Russia
where the plaintiffs' factory is and that it has
entered into a treaty of peace with Esthonia must
not be overlooked in considering whether it is a de
facto government. The information supplied by the
Foreign Office in the case of The Annette (9) with
regard to the recognition of the Government of
Northern Russia falls very short of that supplied in
the present case with regard to the recognition of
the Russian Soviet Government. The Foreign Office
have intimated that the head of the Russian
Commercial Delegation is entitled to diplomatic
immunity and therefore it must be implied that the
Government which he represents has been
recognized as a de facto government.
Cur. adv. vult.
(1) 1 H. Bl. 123.
(2) 6 M. & S. 92.
(3) 38 Ch. D. 348.
(4) 9 Vesey, 347.
(5) (1805) 11 Vesey, 283.
(6) (1825) 2 C. & P. 223; (1826) 3 Bing. 432.
(7) L. R. 4 A. & E. 59.
(8) [1894] 1 Q. B. 158.
(9) [1919] P. 105.
[*468] 1920. Dec. 21. ROCHE J. read the following
judgment. This action raises for determination a
dispute as to the property in certain parcels of wood
goods which arrived in this country in the autumn
of this year in the steamships Kajakand Baltibor.
The parties agreed that I should decide questions of
principle and liability only, and that all questions of
detail and amount as well as certain matters arising
under an interlocutory order of the Court should be
referred to Mr. Leck K.C.
The facts, so far as it is necessary for me to
determine them, I find to be as follows: Before the
war Venesta, Ld., a British company, imported into
this country large quantities of veneer, or plywood,
under the trade mark, or trade name, of “Venesta,”
and the brand of “V. L.” This trade mark, or name,
was the property of Venesta, Ld. The goods so
imported were manufactured at the factory, or mill,
of the plaintiff company for Venesta, Ld. This
factory, or mill, was at Staraja Russa in Russia.
Venesta, Ld., was by far the largest shareholder in
the plaintiff company, and had advanced, in
addition, large sums to the plaintiff company in
respect of goods in process of manufacture, or to be
manufactured for Venesta, Ld. The sums
outstanding in respect of such advances to provide
the plaintiff company with capital were stated to
amount to some 200,000l. No veneer or plywood,
or none of the description now in question, was
manufactured at Staraja Russa after the early part
of 1918. This cessation of manufacture was brought
about by the prevalence of conditions unfavourable
to commerce. A considerable portion of the goods
in the Kajak and Baltibornow in question bore the
marks of “Venesta,” or “V. L.,” either on the wood,
or on the crates in which the goods were packed,
and I find that all wood so marked or identifiable
was manufactured by the plaintiff company in or
before 1918. It is said by the plaintiff company that
it can be established that the whole of the parcels
were so manufactured. This is a matter which falls
to the referee to determine. My decision refers to
wood marked, or identifiable, as, or found to be,
manufactured at Staraja Russa prior to, or in the
year, 1918.
[*469] In January, 1919, the factory or mill passed
out of the control of the plaintiff company (whether
rightly or wrongly for this immediate purpose I need
not consider), and in so far as goods were thereafter
manufactured at that factory or mill, or were of
other manufacture, they would not fall within this
decision and the plaintiff company would fail to
satisfy me that the property in such goods was in
the plaintiff company. When I say “Whether rightly
or wrongly for this immediate purpose I need not
consider,” I do not mean by that for my main
purpose, but only for the purpose of ascertaining
the particular quantity of goods which fall within the
judgment.
Such being the history of the veneer in question,
and of the connection of Venesta, Ld., therewith, on
October 22, 1920, the defendants, a firm carrying
on business in London, wrote to Venesta. Ld. as
follows:-
“The Managing Director, “Venesta, Limited,
“1, Great Tower Street, E.C.3. “DEAR SIR,
“We have recently purchased a parcel of Birch
plywood and duly received information from our
agent that the goods have arrived at port, and
about 75 tons of plywood out of our parcel is
marked 'Venesta.' “We consider that it is our duty
to bring this fact to your notice as you may be
interested in purchasing the parcel from us. Should
you not be interested in doing so, we would like to
know if you would prefer us to remove the mark
before offering these goods on the market.
“Awaiting your reply, we remain,
“Yours faithfully,
“JAMES SAGOR & Co.”
Thereupon the writ in this action was issued, and by
that action the plaintiff company seeks to establish
that the goods which the defendants were
purporting to sell were the property of the plaintiff
company, and not of the defendants.
Between the plaintiff company’s right to the goods
in 1918 [*470] and its claim to them in 1920 the
defendants interpose matters which they assert
have transferred the property to themselves. These
matters are: (1.) A confiscatory decree affecting
establishments such as that at Staraja Russa
purporting to emanate from the Government of
Russia, and to bear date June 20, 1918. No official
copy of this decree is available, but there was
produced before me the following document:—
“Translation made by Official of Commission for
collecting
information in Russia.
“‘Board of Trade,
“‘22 Carlisle Place, S.W.1.
“‘From UNE LEGISLATION COMMUNISTE,
“‘Published by Hayot, Paris, 1920.
“‘Decree of Council of Commissars for the People of
20th June, 1918, which appeared in “Izviestia” in
Moscow on 30th June, 1918. No. 134.
“‘By Article 1: All industrial and commercial
establishments mentioned below with their capital
and assets of whatever nature are declared the
property of the Russian Socialist Federative
Republic (inter alia)
“‘(17) All the mechanical saw mills of limited or
private Companies which have a capital of at least
1,000,000 Roubles.
“‘(18) All woodworking establishments equipped
with machinery which belonged to private or limited
Companies.
“‘Decree signed by Lenin in presence of Council of
Commissars and by Commissars of the People.
“‘TSIRIOUP NAGUINE RIKOF,
“‘Business Director.
“‘BOVITCH-BROVENITSCH,
“‘Secretary of the Council.’”
I pause only to observe that the decree claims to be
made for, and presumably by, a federative republic,
and that a Mr. Muller, who was called before me,
and who was a member, or official, of a Soviet
Delegation in this country, made it plain that in his
view Russia as a whole, including, for example, the
Ukraine, was included within the ambit of
the [*471] territory and of the legislation or
decrees of the Government or body which the
delegation represented. (2.) The second matter
relied upon was the fact, which was alleged by the
plaintiffs and was established by the evidence on
both sides, that Commissaries or officials of some
central Soviet body or organization, in spite of some
resistance from the local workers or Soviets, did
succeed in 1919 in taking possession of the factory
or mill at Staraja Russa and of the manufactured
goods lying there. I am not clear, however, whether
the Commissaries, or the Council directing them,
really claim as of right to deal with and dispose of
such manufactured goods even if the product of
foreign capital; but whether by mistake or
otherwise, they have in this instance dealt with and
sought to dispose of them. (3.) The third matter
relied upon was a contract dated in London, August
14, 1920. That is the contract made in London on
that date between L. B. Krassin, the representative
of the Russian Commercial Delegation in London,
and James Sagor & Co. of Coventry House, South
Place, Finsbury, London. It sets out that Krassin, on
behalf of the Russian Commercial Delegation, sold
to Sagor & Co. about 8000 cubic metres of birch,
alder, and aspen plywood of different thicknesses
and sizes. The contract states, under the heading of
“Quality”: “The goods must be sorted to qualities as
has been done previous to the war, the goods being
accepted by the buyer as to the quality by his
agents at the mills. In case if one or another parcel
did not correspond to the standard of sorting as has
been done previous to the war the buyer has the
right to refuse this parcel, and the quantity sold will
be reduced by the quantity which is rejected if the
buyer will reject of that parcel more than 20 per
cent. Sizes: The sizes of the Boards must be about
60” x 60” 60” x 40” 48” x 40” in thicknesses 3 mm.,
4 mm., 5 mm., and 6 mm. Boards for tea chests
must be cut to the following sizes:— 4 Boards 23
7/8” by 18 5/8”. 2 Boards 18 5/8” by 18 5/8”.
Packing: The goods must be packed in bundles well
tied up either with rope or with iron hoops and each
package must bear the marks of the size of the
boards, the quantity of boards, and the quality.
After [*472] inspecting the goods at the mills with
the representative of the buyer the goods must be
sent to ports for loading on the steamers. The goods
may be loaded at Petrograd if the British
Government have no objection to same, otherwise
the goods will be sent to Reval. At any rate, the
steamers must be sent during the navigation of
1920, and in each case the seller must be notified
three weeks in advance when the steamer comes
into port. Loading on each steamer must be done
within ten days from the date when the steamer
arrives at the port, otherwise demurrage is to be
paid by the seller. Payment: James Sagor & Co.
undertake themselves to pay for all goods in cash
on the following conditions: If the goods will be sent
via Reval then as soon as the goods are transferred
at Reval to the forwarding agents of the buyer he is
to pay 30 per cent. of the value of the goods, and
the balance against bills of lading. In case the goods
will be shipped from Petrograd then the payment is
made against bills of lading. The place of payment
is at the option of the seller. If within six weeks of
the arrival of the goods at Reval there will be no
steamer to load same then the buyer accepts the
goods at the place, and pays the full value of same
less expenses of loading. In any case all expenses
for taking care of the goods at Reval after the
expiration of six weeks is to be borne by the buyer.
If for some reason which may occur on account of
the present negotiations between the British
Government and the representatives of the Russian
Commercial Delegation the above mentioned goods
cannot be transferred to the buyer during this
Summer at Petrograd and the seller will not be able
to send the whole parcel to Reval then not less than
50 per cent. sold goods must be sent to Reval
during this year’s navigation. The balance of the
quantity of the Contract must be delivered during
the navigation of 1921. The buyer has the option to
buy another 8,000 cubic metres to be delivered
during 1921. Signed on behalf of the Russian
Commercial Delegation. Commissary to the Foreign
Trade, Krassin; Secretary, Klishko.” That is under
the seal of the agents of the Soviets of the People’s
Commissaries. I do not know that that is [*473] a
very good translation, but that is the translation
which was given to me. It appears from the
correspondence, p. 1 (being a letter of May 27,
1920, from the Board of Trade, Department of
Overseas Trade), and from the evidence that the
negotiations which led up to this contract were
instituted by a delegation of Russian co-operative
societies known as “A.R.C.O.S.” Mr. Muller’s
evidence on this point was to the following effect:
“I know Russian Co-operative Societies. They are
called 'A.R.C.O.S.' They sent a delegation to this
country. Krassin was the head of that, and is the
head still of the present delegation. I was secretary
of that delegation, and am still. All the officials of
the two delegations are the same. Since we came
to this country the Central Co-operative Societies
have been abolished by the decree of the People’s
Commissaries. I do not know whether they asked
the Co-operative Societies before they abolished
them. We became the representatives of the Soviet
Government.”
It does not appear how, or by what title, the co-
operative societies came to be dealing with the
goods, nor, if they had a title, by what decree their
title passed to the body which made the contract
now relied upon. Apart from any criticisms or doubts
which may arise upon matters arising under the
above heads (2.) and (3.), it is clear that the
defendants' claim to defeat the plaintiffs' title
depends in the first instance upon the decree
mentioned under head (1.) being a valid legislative
act which can be recognized as such in the Courts
of this country. In the view I take of this point it is
not necessary further to consider heads (2.) and
(3.). I therefore confine my judgment to head (1.).
Whether the decree in question is a valid legislative
act which can be recognized as such by the Courts
of this country must, in my judgment, depend upon
whether the power from which it purports to
emanate is what it apparently claims to be, a
sovereign power, in this case the sovereign power
of the Russian Federative Republic. The proper
source of information as to a foreign power, its
status and sovereignty, is the Sovereign of this
country through the [*474] Government: Mighell v.
Sultan of Johore (1); Foster v. Globe Venture
Syndicate. (2) In the case of The Charkieh (3) Sir
Robert Phillimore had recourse to other sources of
information in order to determine a question arising
in the year 1873 as to the status and sovereignty of
the Khedive of Egypt, but in the opinion of Lord
Esher, expressed in his judgment in Mighell v.
Sultan of Johore (4), this course was wrong. At all
events, even if I were entitled to look elsewhere for
information I am certainly not bound to do so, and
in this case I know of no other sources of
information available to which I can safely or
properly resort.
I therefore propose to deal with the case upon the
information furnished by His Majesty’s Secretary of
State for Foreign Affairs. The attitude proper to be
adopted by a Court of this country with regard to
foreign governments or powers I understand to be
as follows: (1.) If a foreign government is
recognized by the Government of this country the
Courts of this country may and must recognize the
sovereignty of that foreign government and the
validity of its acts: see Republic of Peru v. Dreyfus
(5), and the cases there cited. (2.) If a foreign
government, or its sovereignty, is not recognized by
the Government of this country the Courts of this
country either cannot, or at least need not, or ought
not, to take notice of, or recognize such foreign
government or its sovereignty. This negative
proposition is, I think, also established and
recognized by the judgment of Kay J. in Republic of
Peru v. Dreyfus. (6) I think it, however, to be
desirable that I should notice some of the earlier
decisions. In the City of Berne v. Bank of England
(7) the question at issue was the right of an
unrecognized foreign government to maintain a
suit, but Lord Eldon’s judgment is, I think, an
authority for the general proposition I have stated.
It was suggested that in Dolder v. Lord
Huntingfield (8) Lord Eldon departed from or
expressed a doubt with
(1) [1894] 1 Q. B. 149.
(2) [1900] 1 Ch. 811.
(3) L. R. 4 A. & E. 59.
(4) [1894] 1 Q. B. 158.
(5) 38 Ch. D. 348.
(6) 38 Ch. D., pp. 357, 358, and 359.
(7) 9 Ves. 347.
(8) 11 Ves. 283.
[*475] regard to the view he had expressed in
the City of Berne Case. (1) I do not agree with this
suggestion. Dolder v. Lord Huntingfield (2) turned
on points of procedure and pleadings, and left the
question of the method of proof as to the status of
a foreign state which might arise at a later stage in
the suit exactly where it stood before. Indeed, it is
quite plain from his judgment in Jones v. Garcia del
Rio (3) that Lord Eldon was in the year 1823 of the
same opinion as he was when he decided the City
of Berne Case (1) in 1804. In Thompson v.
Barclay (4) Shadwell V.-C. stated the law with
regard to governments of foreign countries to be
that “the Courts cannot acknowledge them till the
Government of the Country has recognised them.”
This case came before Lord Brougham as Lord
Chancellor in 1831 (Thompson v. Barclay (5)), and
although on some other points he was not in
agreement with the Vice-Chancellor, yet on the
question of recognition Lord Brougham (6)
expressed the same view as the Vice-Chancellor
had expressed.
To come to quite recent times, Hill J., in The
Annette and The Dora (7), stated the law thus: “I
must be satisfied before I can recognise the
Provisional Government of Northern Russia as a
Sovereign State, for the purposes of this case, that
the British Government so recognise it.” The cases
of United States of America v. Prioleau (8)
and United States of America v. McRae (9), cited by
the defendants' counsel, were decided upon
principles other than any principle now under
discussion, and seem to me not to bear upon the
effect of recognition or its absence where matters
of sovereignty and status are in question: see West
Rand Central Mining Co. v. The King (10) at pp. 411
and 412 for the real point of these decisions.
On the general proposition the Courts of the United
States appear to take the same view as our Courts.
The Supreme
(1) 9 Ves. 347.
(2) 11 Ves. 283.
(3) T. & R. 297.
(4) 6 L. J. (O. S.) Ch. 93, 97.
(5) 9 L. J. (O. S.) Ch. 215.
( (6) Ib. 221.
(7) [1919] P. 105, 111.
(8) 2 H. & M. 559.
(9) (1869) L. R. 8 Eq. 69.
(10) [1905] 2 K. B. 391.
[*476] Court in Gelston v. Hoyt (1) laid down the
law as follows: “No doctrine is better established,
than that it belongs exclusively to Governments to
recognise new States in the revolutions which may
occur in the world; and until such recognition, either
by our own Government, or the Government to
which the new State belonged, Courts of Justice are
bound to consider the ancient state of things as
remaining unaltered. This was expressly held by
this Court in the case of Rose v. Himely (2), and to
that decision on this point we adhere. And the same
doctrine is clearly sustained by the judgment of
foreign tribunals: The Manilla (3); City of Berne v.
Bank of England. (4)” This being the law which must
guide and direct my decision, I have to consider
whether and in what sense the Government
represented by M. Krassin in this matter is
recognized by His Majesty’s Government. The
materials for a decision have been provided for me
by the parties who have each by their solicitors
asked for information from His Majesty’s Secretary
of State for Foreign Affairs. The information
conveyed in reply is summarized in the following
letters. At p. 5 of the correspondence there is a
letter to the defendants' solicitors which reads as
follows:—
“FOREIGN OFFICE,
5th October, 1920.
“Sir,
“I am directed by Earl Curzon of Kedleston to
acknowledge the receipt of your letter of the 22nd
September, and to inform you that His Majesty’s
Government assent to the claim of the Delegation
to represent in this country a State Government of
Russia.”
That was made more plain and was amplified in a
letter of November 27, 1920, to the plaintiffs'
solicitors in answer to certain requests for
information which were made by them. That letter
reads as follows:—
(1) (1818) 3 Wheat. 246, 324.
(2) (1808) 4 Cranch, 241.
(3) (1808) Edw. 1.
(4) 9 Ves. 347.
[*477] “FOREIGN OFFICE,
“27th November, 1920.
“Gentlemen,
“I am directed by Earl Curzon of Kedleston to
acknowledge the receipt of your letter FT/A of
November 19th, requesting certain information
concerning the Russian Trade Delegation in this
Country, and the Esthonian-Russian Peace Treaty. I
am to inform you that for a certain limited purpose
His Majesty’s Government has regarded Monsieur
Krassin as exempt from the process of the Courts,
and also for the like limited purpose His Majesty’s
Government has assented to the claim that that
which Monsieur Krassin represents in this Country
is a State Government of Russia, but that beyond
these propositions the Foreign Office has not gone,
nor moreover do these expressions of opinion
purport to decide difficult, and it may be very
special questions of law upon which it may become
necessary for the Courts to pronounce. I am to add
that His Majesty’s Government have never officially
recognised the Soviet Government in any way.”
It was said on behalf of the defendants that these
communications were vague and ambiguous. I
should rather say that they were guarded, but as
clear as the indeterminate position of affairs in
connection with the subject-matter of the
communications enabled them to be; but lest it
should be deemed that ampler or further
information might now be available, I caused
communication to be made by a Master of the
Crown Office to His Majesty’s Secretary of State for
Foreign Affairs, asking whether there was in
addition to the letters to the parties or their
solicitors further matter or information which should
be placed before me. The reply of the Secretary of
State was that he had no further information which
he desired to place before me. On these materials I
am not satisfied that His Majesty’s Government has
recognized the Soviet Government as the
Government of a Russian Federative Republic or of
any sovereign state or power. I therefore am unable
to recognize it, or to hold it has sovereignty, or is
able by decree to deprive the [*478] plaintiff
company of its property. Accordingly I decide this
point against the defendants.
The point was taken by the plaintiff company that
inasmuch as the decree relied upon by the
defendants was confiscatory and not conformable to
the usage of nations, it could not be relied upon in
this Court. Wolff v. Oxholm (1) was cited in support
of this argument, but having regard to my view that
I cannot recognize the decree as that of a sovereign
power, in my opinion it is unnecessary for me to
consider or decide this point, and I do not do so. I
merely record that it was taken, and is open to the
plaintiff company elsewhere.
A further and entirely different answer to the
plaintiffs' claim was raised by the defendants –
namely, that the plaintiff company was an
Esthonian company, and by reason of certain treaty
stipulations was unable to assert a claim to this
property in this Court. This matter is dealt with by
paras. 3 to 11 of the defence. The facts are shortly
as follows: Down to February 2, 1920, the plaintiff
company’s head office was at Reval, which is now
in Esthonia. Its mill, or factory, was in Russia. On
February 2 there was made a treaty of peace
between Esthonia and the Soviet Government. The
defendants say that the claims of Esthonian
subjects are, by the treaty, relegated to the sole
arbitrament of a mixed commission thereby set up.
Apart from any difficulty which might arise from the
absence of recognition of one of the parties to the
treaty, there is, as it seems to me on the facts as I
find them, a short answer to the defendants'
contention. The plaintiff company was not an
Esthonian company, but a Russian company before
the treaty, and after the treaty it did what the treaty
(Art. IV.) entitled it to do, elected to be, or remain,
Russian.
The defendants took the further point that at all
events this action, which they said was an action in
detinue, would not lie, because there was no
demand for the goods and no refusal of the demand
before writ: Clayton v. Le Roy. (2) The defendants,
desiring the main issues between the parties to be
decided, asked that a decision on this point should
be
(1) 6 M. & S. 92.
(2) [1911] 2 K. B. 1031.
[*479] treated as going only to the question of
costs. But although the proposition of law upon
which the defendants base this contention is beyond
dispute, the contention fails on the facts. The action
is framed as claiming certain declarations and
consequential relief, and one of the alternative
modes of relief available and sought is the award of
damages for conversion. I hold that the plaintiffs
are entitled, in substance, to the declaration
claimed, subject as to the quantity of goods covered
by my judgment to further inquiry before the
referee, and that the plaintiffs are entitled, with the
like reservation, to the injunction prayed. I also hold
that the claim of the defendants to sell the goods
amounted to conversion. But practically, having
regard to the interlocutory order made on
November 1, 1920, which embodied in an order a
business method of dealing with the matter evolved
by the parties, or their advisers, an assessment of
damages would seem to be unnecessary. It may,
however, and I think it will be desirable in case the
matter goes further, that the referee should assess
the money value of the goods when he is dealing
with the other matters arising for his decision. I give
judgment for the plaintiffs with costs.
Judgment for plaintiffs.
U.S. Supreme Court
Brown v. United States, 12 U.S. 8 Cranch 110 110 (1814)
Brown v. United States
12 U.S. (8 Cranch) 110
APPEAL FROM THE CIRCUIT COURT
OF THE DISTRICT OF MASSACHUSETTS
Syllabus
British property found in the United States on land at the
commencement of hostilities with Great Britain cannot be
condemned as enemy's property without a legislative act
authorizing its confiscation.
The act of the legislature declaring war is not such an act.
Timber, floated into a salt water creek, where the tide ebbs
and flows, leaving the ends of the timber resting on the mud
at low water and prevented from floating away at high water
by booms, is to be considered as landed.
In this country, from the structure of our government,
proceedings to condemn the property of an enemy found
within our territory at the declaration of war can be
sustained only upon the principle that they are commenced
in execution of some existing law.
In England, all property captured belongs originally to the
Crown, and individuals can acquire a title thereto in no
other manner than by a grant from the Crown.
War gives to the sovereign full right to take the persons and
confiscate the property of the enemy wherever found: the
mitigation of the rigid rule, which the policy of modern times
has introduced into practice, although it may effect its
exercise, cannot impair the right itself, and when the
sovereign authority shall choose to bring it into operation,
the Judicial Department must give effect to its will. Until,
however, that will is expressed by some legislative act, no
power of condemnation can exist in the court.
Page 12 U. S. 111
In expounding the Constitution of the United States, a
construction ought not lightly to be admitted which would
give to a declaration of war an effect in this country it does
not possess anywhere else and which would fetter that
exercise of entire discretion respecting enemy property
which may enable the government to apply to the enemy
the rule that he applies to us.
The declaration of war has only the effect of placing the two
nations in a state of hostility, of giving those rights which
war confers, but not of operating by its own force any of
those results, such as a transfer of property, which are
usually produced by ulterior measures of the government.
The power of making "rules concerning captures on land
and water," which are superadded in the Constitution to that
of declaring war, is not to be confined to captures which are
extraterritorial, but extends to rules respecting enemy's
property found within the territory, and is an express grant
to Congress of the power of confiscating enemy property
found within the territory at the declaration of war as an
independent, substantive power, not included in that of
declaring war.
When war breaks out, the question what shall be done with
enemy property in our country is a question of policy, and
is proper for the consideration of the Legislative
Department, which can modify it at will, not for the
consideration of the Judicial Department, which can pursue
only the law as it is written.
The modern usage of nations is to abstain from confiscating
the debts due to an enemy, or his property found within the
territory at the breaking out of war. This usage does not
constitute a rule acting directly on the thing itself by its own
force, but only through the sovereign power. It is a rule
which the sovereign follows or abandons at his will, but
unless it be abandoned, the right to the debts and the
property is only suspended during the war, and revives with
the return of peace.
This was an appeal from the sentence of the Circuit Court
of Massachusetts, which condemned 550 tons of pine
timber, claimed by Armitz Brown, the appellant.
Page 12 U. S. 121
MR. CHIEF JUSTICE MARSHALL delivered the opinion of
the Court as follows:
The material facts in this case are these:
The Emulous, owned by John Delano and others citizens
of the United States, was chartered to a company carrying
on trade in Great Britain, one of whom was an American
citizen, for the purpose of carrying a cargo from Savannah
to Plymouth. After the cargo was put on board, the vessel
was stopped in part by the embargo of 4 April, 1812. On the
25th of the same month, it was agreed between the master
of the ship and the agent of the shippers that she should
proceed with her cargo to New Bedford, where her owners
resided, and remain there without prejudice to the charter
party. In pursuance of this agreement,
the Emulous proceeded to New Bedford, where she
continued until after the declaration of war. In October or
November, the ship was unloaded and the cargo, except
the pine timber was landed. The pine timber was floated up
a salt water creek, where at low tide the ends of the timber
rested on the mud, where it was secured from floating out
with the tide by impediments fastened in the entrance of the
creek. On 7 November, 1812, the cargo was sold by the
agent of the owners, who is an American citizen, to the
claimant, who is also an American citizen. On 19 April, a
libel was filed by the attorney for the United States in the
District Court of Massachusetts against the said cargo as
well on behalf of the United States of America as for and in
behalf of John Delano and of all other persons concerned.
It does not appear
Page 12 U. S. 122
that this seizure was made under any instructions from the
President of the United States, nor is there any evidence of
its having his sanction, unless the libels being filed and
prosecuted by the law officer who represents the
government must imply that sanction.
On the contrary, it is admitted that the seizure was made by
an individual, and the libel filed at his instance by the district
attorney who acted from his own impressions of what
appertained to his duty. The property was claimed by
Armitz Brown under the purchase made in the preceding
November.
The district court dismissed the libel. The circuit court
reversed this sentence and condemned the pine timber as
enemy property forfeited to the United States. From the
sentence of the circuit court, the claimant appealed to this
Court.
The material question made at bar is this: can the pine
timber, even admitting the property not to be changed by
the sale in November, be condemned as prize of war?
The cargo of the Emulous having been legally acquired and
put on board the vessel, having been detained by an
embargo not intended to act on foreign property, the vessel
having sailed before the war from Savannah under a
stipulation to re-land the cargo in some port of the United
States, the re-landing having been made with respect to the
residue of the cargo, and the pine timber having been
floated into shallow water, where it was secured and in the
custody of the owner of the ship, and American citizen, the
Court cannot perceive any solid distinction, so far as
respects confiscation, between this property and other
British property found on land at the commencement of
hostilities. It will therefore be considered as a question
relating to such property generally, and to be governed by
the same rule.
Respecting the power of government no doubt is
entertained. That war gives to the sovereign full right to take
the persons and confiscate the property of the enemy
wherever found is conceded. The mitigations
Page 12 U. S. 123
of this rigid rule, which the humane and wise policy of
modern times has introduced into practice, will more or less
affect the exercise of this right, but cannot impair the right
itself. That remains undiminished, and when the sovereign
authority shall chose to bring it into operation, the Judicial
Department must give effect to its will. But until that will
shall be expressed, no power of condemnation can exist in
the court.
The questions to be decided by the court are:
1st. May enemy's property, found on land at the
commencement of hostilities, be seized and condemned as
a necessary consequence of the declaration of war?
2d. Is there any legislative act which authorizes such
seizure and condemnation?
Since, in this country, from the structure of our government,
proceedings to condemn the property of an enemy found
within our territory at the declaration of war, can be
sustained only upon the principle that they are instituted in
execution of some existing law, we are led to ask
"Is the declaration of war such a law? Does that declaration,
by its own operation, so vest the property of the enemy in
the government as to support proceedings for its seizure
and confiscation, or does it vest only a right, the assertion
of which depends on the will of the sovereign power?"
The universal practice of forbearing to seize and confiscate
debts and credits, the principle universally received, that
the right to them revives on the restoration of peace, would
seem to prove that war is not an absolute confiscation of
this property, but simply confers the right of confiscation.
Between debts contracted under the faith of laws, and
property acquired in the course of trade, on the faith of the
same laws, reason draws no distinction, and although in
practice vessels with their cargoes, found in port at the
declaration of war, may have been seized, it is not believed
that modern usage would sanction the seizure of the goods
of an enemy on land, which
Page 12 U. S. 124
were acquired in peace in the course of trade. Such a
proceeding is rare, and would be deemed a harsh exercise
of the rights of war. But although the practice in this respect
may not be uniform, that circumstance does not essentially
affect the question. The inquiry is whether such property
vests in the sovereign by the mere declaration of war, or
remains subject to a right, of confiscation, the exercise of
which depends on the national will, and the rule which
applies to one case, so far as respects the operation of a
declaration of war on the thing itself, must apply to all others
over which war gives an equal right. The right of the
sovereign to confiscate debts being precisely the same with
the right to confiscate other property found in the country,
the operation of a declaration of war on debts and on other
property found within the country must be the same. What
then is this operation?
Even Bynkershoek, who maintains the broad principle that
in war everything done against an enemy is lawful; that he
may be destroyed, though unarmed and defenseless; that
fraud or even poison may be employed against him; that a
most unlimited right is acquired to his person and property;
admits that war does not transfer to the sovereign a debt
due to his enemy, and therefore, if payment of such debt
be not exacted, peace revives the former right of the
creditor, "because," he says, "the occupation which is had
by war consists more in fact than in law." He adds to his
observations on this subject
"let it not, however, be supposed that it is only true of
actions, that they are not condemned ipso jure, for other
things also belonging to the enemy may be concealed and
escape condemnation."
Vattel says that "the sovereign can neither detain the
persons nor the property of those subjects of the enemy
who are within his dominions at the time of the declaration."
It is true that this rule is, in terms, applied by Vattel to the
property of those only who are personally within the territory
at the commencement of hostilities; but it applies equally to
things in action and to things in possession, and if war did,
of itself, without any further exercise of the sovereign will,
vest the property of the
Page 12 U. S. 125
enemy in the sovereign, his presence could not exempt it
from this operation of war. Nor can a reason be perceived
for maintaining that the public faith is more entirely pledged
for the security of property trusted in the territory of the
nation in time of peace, if it be accompanied by its owner,
than if it be confided to the care of others.
Chitty, after stating the general right of seizure, says
"But in strict justice, that right can take effect only on those
possessions of a belligerent which have come to the hands
of his adversary after the declaration of hostilities."
The modern rule then would seem to be that tangible
property belonging to an enemy and found in the country at
the commencement of war ought not to be immediately
confiscated, and in almost every commercial treaty an
article is inserted stipulating for the right to withdraw such
property.
This rule appears to be totally incompatible with the idea,
that war does of itself vest the property in the belligerent
government. It may be considered as the opinion of all who
have written on the jus belli, that war gives the right to
confiscate, but does not itself confiscate the property of the
enemy, and their rules go to the exercise of this right.
The Constitution of the United States was framed at a time
when this rule, introduced by commerce in favor of
moderation and humanity, was received throughout the
civilized world. In expounding that Constitution, a
construction ought not lightly to be admitted which would
give to a declaration of war an effect in this country it does
not possess elsewhere and which would fetter that exercise
of entire discretion respecting enemy property, which may
enable the government to apply to the enemy the rule that
he applies to us.
If we look to the Constitution itself, we find this general
reasoning much strengthened by the words of that
instrument.
That the declaration of war has only the effect of
Page 12 U. S. 126
placing the two nations in a state of hostility, of producing a
state of war, of giving those rights which war confers, but
not of operating, by its own force, any of those results, such
as a transfer of property, which are usually produced by
ulterior measures of government, is fairly deducible from
the enumeration of powers which accompanies that of
declaring war. "Congress shall have power" -- "to declare
war, grant letters of marque and reprisal, and make rules
concerning captures on land and water."
It would be restraining this clause within narrower limits
than the words themselves import to say that the power to
make rules concerning captures on land and water is to be
confined to captures which are exterritorial. If it extends to
rules respecting enemy property found within the territory,
then we perceive an express grant to Congress of the
power in question as an independent substantive power,
not included in that of declaring war.
The acts of Congress furnish many instances of an opinion
that the declaration of war does not, of itself, authorize
proceedings against the persons or property of the enemy
found, at the time, within the territory.
War gives an equal right over persons and property, and if
its declaration is not considered as prescribing a law
respecting the person of an enemy found in our country,
neither does it prescribe a law for his property. The act
concerning alien enemies, which confers on the President
very great discretionary powers respecting their persons,
affords a strong implication that he did not possess those
powers by virtue of the declaration of war.
The "act for the safekeeping and accommodation of
prisoners of war" is of the same character.
The act prohibiting trade with the enemy contains this
clause:
"And be it further enacted that the President of the United
States be and he is hereby authorized to give, at any time
within six months after the passage
Page 12 U. S. 127
of this act, passports for the safe transportation of any ship
or other property belonging to British subjects, and which is
now within the limits of the United States."
The phraseology of this law shows that the property of a
British subject was not considered by the legislature as
being vested in the United States by the declaration of war,
and the authority which the act confers on the President is
manifestly considered as one which he did not previously
possess.
The proposition that a declaration of war does not in itself
enact a confiscation of the property of the enemy within the
territory of the belligerent, is believed to be entirely free
from doubt. Is there in the act of Congress by which war is
declared against Great Britain any expression which would
indicate such an intention?
That act, after placing the two nations in a state of war,
authorizes the President of the United States to use the
whole land and naval force of the United States to carry the
war into effect, and
"to issue to private armed vessels of the United States,
commissions or letters of marque and general reprisal
against the vessels, goods and effects of the government
of the united kingdom of Great Britain and Ireland, and the
subjects thereof."
That reprisals may be made on enemy property found
within the United States at the declaration of war, if such be
the will of the nation, has been admitted, but it is not
admitted that, in the declaration of war, the nation has
expressed its will to that effect.
It cannot be necessary to employ argument in showing that
when the attorney for the United States institutes
proceedings at law for the confiscation of enemy property
found on land, or floating in one of our creeks, in the care
and custody of one of our citizens, he is not acting under
the authority of letters of marque and reprisal, still less
under the authority of such letters is sued to a private armed
vessel.
Page 12 U. S. 128
The "act concerning letters of marque, prizes and prize
goods," certainly contains nothing to authorize this seizure.
There being no other act of Congress which bears upon the
subject, it is considered as proved that the legislature has
not confiscated enemy property which was within the
United States at the declaration of war, and that this
sentence of condemnation cannot be sustained.
One view, however, has been taken of this subject which
deserves to be further considered.
It is urged that in executing the laws of war, the executive
may seize and the courts condemn all property which,
according to the modern law of nations, is subject to
confiscation, although it might require an act of the
legislature to justify the condemnation of that property
which, according to modern usage, ought not to be
confiscated.
This argument must assume for its basis the position that
modern usage constitutes a rule which acts directly upon
the thing itself by its own force, and not through the
sovereign power. This position is not allowed. This usage
is a guide which the sovereign follows or abandons at his
will. The rule, like other precepts of morality, of humanity,
and even of wisdom, is addressed to the judgment of the
sovereign, and although it cannot be disregarded by him
without obloquy, yet it may be disregarded.
The rule is in its nature flexible. It is subject to infinite
modification. It is not an immutable rule of law, but depends
on political considerations which may continually vary.
Commercial nations, in the situation of the United States,
have always a considerable quantity of property in the
possession of their neighbors. When war breaks out, the
question, what shall be done with enemy property in our
country is a question rather of policy than of law. The rule
which we apply to the property of our enemy will be applied
by him to the property of
Page 12 U. S. 129
our citizens. Like all other questions of policy, it is proper
for the consideration of a department which can modify it at
will, not for the consideration of a department which can
pursue only the law as it is written. It is proper for the
consideration of the legislature, not of the executive or
judiciary.
It appears to the Court that the power of confiscating enemy
property is in the legislature, and that the legislature has not
yet declared its will to confiscate property which was within
our territory at the declaration of war. The Court is therefore
of opinion that there is error in the sentence of
condemnation pronounced in the circuit court in this case,
and doth direct that the same be reversed and annulled,
and that the sentence of the district court be affirmed.
STORY, J.
In this case, I have the misfortune to differ in opinion from
my brethren, and as the grounds of the decree were fully
stated in an opinion delivered in the court below, I shall
make no apology for reading it in this place.
"This is a prize allegation filed by the district attorney, in
behalf of the United States, and of John Delano, against
550 tons of pine timber, part of the cargo of the American
ship Emulous, which was seized as enemies' property,
about 5 April, 1813, after the same had been discharged
from said ship, and while afloat in a creek or dock at New
Bedford, where the tide ebbs and flows."
"From the evidence in this case, it appears that the
ship Emulous is owned by the said John Delano, John
Johnson, Levi Jenny, and Joshua Delano of New Bedford,
and citizens of the United States. On 3 February, 1812, the
owners, by their agents, entered into a charter party with
Elijah Brown as agent of Messrs. Christopher Idle, Brother
& Co. and James Brown, of London, merchants, for said
ship, to proceed from the port of Charleston, South Carolina
(where the ship then lay), to Savannah, in Georgia, and
there take on board a cargo of timber and staves at a
certain
Page 12 U. S. 130
freight stipulated in the charter party and proceed with the
same to Plymouth in England 'for orders to unload there or
at any other of his Majesty's dockyards in England.' The
ship accordingly proceeded to Savannah, took on board the
agreed cargo, and was there stopped by the embargo laid
by Congress on 4 April, 1812. On the 25th of the same
April, it was agreed between Mr. E. Brown and the master
of the ship, that she should proceed with the cargo to and
lay at New Bedford, without prejudice to the charter party.
The ship accordingly proceeded for New Bedford, and
arrived there in the latter part of May, 1812, where, it
seems, the cargo was finally, but the particular time is not
stated, unloaded by the owners of the ship, the staves put
into a warehouse, and the timber into a salt water creek or
dock, where it has ever since remained, waterborne, under
the custody of said John Delano, by whom the subsequent
seizure was made for his own benefit and the benefit of the
United States. On 7 November, 1812, Mr. Elijah Brown, as
agent for the British owners (one of whom, James Brown,
is his brother) sold the whole cargo to the present claimant,
Mr. Armitz Brown (who it should seem is also his brother)
for $2,433.67, payable in nine months, for which the
claimant gave his note accordingly. The master of the ship,
Capt. Allen swears that, at the time of entering into the
charter party, Mr. Elijah Brown stated to him that the British
owners had contracted with the British government to
furnish a large quantity of timber to be delivered in some of
his Majesty's dockyards."
"Besides the claim of Mr. Brown, there is a claim interposed
by the owners of the ship Emulous, praying for an
allowance to them of their expenses and charges in the
premises."
"A preliminary exception has been taken to the libel for a
supposed incongruity in blending the rights of the United
States and of the informer in the manner of a qui tam action
at the common law."
"I do not think this exception is entitled to much
consideration. It is, at most, but an irregularity which cannot
affect the nature of the proceedings, or oust the jurisdiction
of this Court. If the informer cannot legally"
Page 12 U. S. 131
take any interest, the United States have still a right, if their
title is otherwise well founded, to claim a condemnation.
Nor would a proceeding of this nature be deemed a fatal
irregularity in courts having jurisdiction of seizures, whose
proceedings are governed by much more rigid rules than
those of the admiralty. It is a principle clearly settled at the
common law that any person might seize uncustomed
goods to the use of himself and the King, and thereupon
inform of the seizure; and if, in the Exchequer, the informer
be not entitled to any part, the whole shall, on such
information, be adjudged to the King. For this doctrine we
have the authority of Lord Hale. Harg. Law Tracts, p. 227.
And the solemn judgment of the court in Roe v. Roe, Hardr.
185, and Malden v. Bartlett, Parker, p. 105. The same rule
most undoubtedly exists in the prize court, and, as I
apprehend, applies with greater latitude. All property
captured belongs originally to the Crown, and individuals
can acquire a title thereto in no other manner than by grant
from the Crown. The Elsebe, 5 Rob. 173; 11 East 619; The
Maria Francoise. 6 Rob. 282. This, however, does not
preclude the right to seize; on the contrary, it is an
indisputable principle in the English prize courts that a
subject may seize hostile property for the use of the Crown
wherever it is found, and it rests in the discretion of the
Crown whether it will or will not ratify and consummate the
seizure by proceeding to condemnation.
"But to the prize court it is a matter of pure indifference
whether the seizure proceeded originally from the Crown,
or has been adopted by it, and whether the Crown would
take jure coronae, by its transcendant prerogative, or jure
admiralitatis, as a flower annexed by its grant to the office
of Lord high admiral. The cases of captures by
noncommissioned vessels, by commanders on foreign
stations, anterior to war, by private individuals in port or on
the coasts, and by naval commanders on shore on
unauthorized expeditions, are all very strong illustrations of
the principle. The Aquila, 1. Rob. 37; The Twee
Gesuster, 2 Rob. 284, note; The Rebeckah, 1 Rob.
227; The Gertruyda, 2 Rob. 211; The Melomane, 5 Rob.
41; The Charlotte, 4 Rob. 282; The Richmond, 5 Rob.
325; Thorshaven, I Edw. 102; Hale in Harg. Law Tracts, ch.
28, p. 245. And in cases where private captors seek
condemnation to themselves, it is the settled course of the
court, on failure of their title, to decree
Page 12 U. S. 132
condemnation to the Crown or the admiralty, as the
circumstances require. The Walsingham Packet, 2 Rob.
77; The Etrusco, 4. Rob. 262, note, and the cases
cited supra. Nor can I consider these principles of the
British courts a departure from the law of nations."
"The authority of Puffendorf and Vattel are introduced to
show that private subjects are not at liberty to seize the
property of enemies without the commission of the
sovereign, and if they do, they are considered as pirates.
But when attentively considered, it strikes me that, taking
the full scope of these authors, they will not be found to
support so broad a position. Puff. B. 8, ch. 6, § 24; Vattel,
B. 3, ch. 15, § 223, 224, 225, 226, 227. Vattel himself
admits (§ 234), that the declaration of war, which enjoins
the subjects at large to attach the enemy's subjects, implies
a general order; and that to commit hostilities on our enemy
without an order from our sovereign after the war, is not a
violation so much of the law of nations as of the public law
applicable to the sovereignty of our own nation (§ 225). And
he explicitly states (§ 226) that, by the law of nations, when
once two nations are engaged in war, all the subjects of the
one may commit hostilities against those of the other, and
do them all the mischief authorized by the state of war."
"All that he contends for is that though, by the declaration,
all the subjects in general are ordered to attack the enemy,
yet that by custom this is usually restrained to persons
acting under commission, and that the general order does
not invite the subjects to undertake any offensive
expedition without a commission or particular order (§ 227),
and that if they do, they are not usually treated by the
enemy in a manner as favorable as other prisoners of war,
(§ 226). And Vattel (§ 227) explicitly declares that the
declaration of war authorizes, indeed, and even obliges
every subject of whatever rank to secure the persons and
things belonging to the enemy when they fall into his hands.
And he then goes on to state cases in which the authority
of the sovereign may be presumed (§ 228). The whole
doctrine of Vattel, fairly considered, amounts to no more
than this that the subject is not required, by the mere
declaration of war, to originate predatory expeditions
against the enemy; that he is not authorized to wage war
contrary to the will of his own sovereign, and that, though
the ordinary declaration of war imports a general authority
to attack the enemy
Page 12 U. S. 133
and his property, yet custom has so far restrained its
meaning, that it is in general confined to persons acting
under the particular or constructive commission of the
sovereign. If, therefore, the subject do undertake a
predatory expedition, it is an infringement of the public law
of his own country, whose sovereignty he thus invades, but
it is not a violation of the law of nations of which the enemy
has a right to complain. But if the property of the enemy fall
into the hands of a subject, he is bound to secure it."
"For every purpose applicable to the present case, it does
not seem necessary to controvert these positions, and
whatever may be the correctness of the others, I am
perfectly satisfied the position is well founded, that no
subject can legally commit hostilities, or capture property of
an enemy, when, either expressly or constructively, the
sovereign has prohibited it. But suppose he does, I would
ask if the sovereign may not ratify his proceedings, and
thus, by a retroactive operation, give validity to them? Of
this there seems to me no legal doubt. The subject seizes
at his peril, and the sovereign decides, in the last resort,
whether he will approve or disapprove of the act.
Thorshaven, 1 Edw. 102. The authority of Puffendorf is still
less in favor of the position of the claimant's counsel. In the
section cited (book 8, ch. 6, sec. 21), Puffendorf considers
the question to whom property captured in war belongs -- a
question also examined by Vattel in the 229th section of the
book and chapter above referred to. In the course of that
discussion, Puffendorf observes"
"that it may be very justly questioned, whether everything
taken in war, by private hostilities, and by the bravery of
private subjects that have no commission to warrant them,
belongeth to them that take it. For this is also a part of the
war, to appoint what persons are to act in a hostile manner
against the enemy, and how far, and in consequence no
private person hath power to make devastations in an
enemy's country or to carry of spoil or plunder without
permission from his sovereign, and the sovereign is to
decide how for private men, when they are permitted, are
to use that liberty of plunder, and whether they are to be the
sole proprietors in the booty or only to share a part of it, so
that all a private adventurer in war can pretend to is no more
than
Page 12 U. S. 134
what his sovereign will please to allow him; for to be a
soldier and to act offensively, a man must be commissioned
by public authority."
"As to the point upon which Puffendorf here expresses his
doubts, I suppose that no person at this day entertains any
doubts. It is now clear, as I have already stated, that all
captures in war enure to the sovereign, and can become
private property only by his grant. But is there anything in
Puffendorf to authorize the doctrine, that the subject so
seizing property of the enemy, is guilty of a very enormous
crime -- of the odious crime of piracy? And is there, in this
language, anything to show that the sovereign may not
adopt the acts of his subjects, in such a case, and give them
the effect of full and perfect ratification? It has not been
pretended, that I recollect, that Grotius supports the
position contended for. To me it seems pretty clear that his
opinions lean rather the other way -- viz., to support the
indiscriminate right of captors to all property captured by
them. Grotius, lib. 3, ch. 6, sec. 2, sec. 10, sec. 12.
Bynkershoek has not discussed the question in direct
terms. In one place (Bynk. Pub.Juris, ch. 3), he says that
he is not guilty of any crime by the laws of war who invades
a hostile shore in hopes of getting booty. It is true that in
another place (id. ch. 20), he admits, in conformity to his
doctrine elsewhere (id. ch. 17), that if an uncommissioned
cruiser should sail for the purpose of making hostile
captures, she might be dealt with as a pirate, if she made
any captures except in self-defense. But this he expressly
grounds upon the municipal edicts of his own country in
relation to captures made by its own subjects. And he says
every declaration of war not only permits but expressly
orders all subjects to injure the enemy by every possible
means, not only to avert the danger of capture, but to
capture and strip the enemy of all his property. And looking
to the general scope of his observations (id., ch. 3, 4 & ch.
16 & 17), I think it may not unfairly be argued that,
independent of particular edicts, the subjects of hostile
nations might lawfully seize each other's property wherever
found; at least he states nothing from which it can be
inferred that the sovereign might not avail himself of
property captured from the enemy by uncommissioned
subjects. On
Page 12 U. S. 135
the whole, I hold that the true doctrine of the law of nations,
found in foreign jurists, is that private citizens cannot
acquire to themselves a title to hostile property, unless it is
seized under the commission of their sovereign, and that if
they depredate upon the enemy, they act upon their peril,
and may be liable to punishment, unless their acts are
adopted by their sovereign. That in modern times the mere
declaration of war is not supposed to clothe the citizens
with authority to capture hostile property, but that they may
lawfully seize hostile property in their own defense, and are
bound to secure, for the use of the sovereign, all hostile
property which falls into their hands. If the principles of
British prize law go further, I am free to say that I consider
them as the law of this country."
"I have been led into this discussion of the doctrine of
foreign jurists, further than I originally intended, because
the practice of this Court in prize proceedings must, as I
have already intimated, be governed by the rules of
admiralty law disclosed in English reports, in preference to
the mere dicta of elementary writers. I thought it my duty,
however, to notice these authorities, because they seem
generally relied on by the claimant's counsel. In my
judgment, the libel is well and properly brought -- at least
for all the purposes of justice between the parties before
the court -- and I overrule the exception taken to its
sufficiency."
"Having disposed of this objection, I come now to consider
the objection made by the United States against the
sufficiency of the claim of Mr. Brown, and I am entirely
satisfied that his claim must be rejected. It is a well known
rule of the prize court that the onus probandi lies on the
claimant; he must make out a good and sufficient title
before he can call upon the captors to show any ground for
the capture. The Walsingham Packet, 2 Rob. 77. If,
therefore, the claimant make no title, or trace it only by
illegal transactions, his claim must be rejected, and the
court left to dispose of the cause, as the other parties may
establish their rights. In the present case, Mr. Brown claims
a title by virtue of a contract and sale made by alien
enemies since the war. I say by alien enemies for it is of no
importance what the character of the agent is; the
transaction
Page 12 U. S. 136
must have the same legal construction as though made by
the aliens themselves. Now admitting that this sale was not
colorable, but bona fide, which, however, I am not at
present disposed to believe, still it was a contract made with
enemies pending a known war, and therefore invalid. No
principle of national or municipal law is better settled, than
that all contracts with an enemy, made during war, are
utterly void. This principle has grown hoary under the
reverend respect of centuries, 19 Edw. IV, p, 6, cited Theol.
Dig. lib. 1, ch. 6, sec. 21; Ex Parte Bonsmaker, 13 Ves.Jr.
71; Briston v. Towers, 6 T.R. 45, and cannot now be
shaken without uprooting the very foundations of national
law. Bynk., Quaest.Pub.Juris, ch. 3."
"I therefore altogether reject the claim interposed by Mr.
Brown. What, then, is to be done with the property? It is
contended on the part of the United States that it ought to
be condemned to the United States, with a recompense, in
the nature of salvage, to be awarded to Mr. Delano. On the
part of the claimant's counsel (who, under the
circumstances, must be considered as arguing as amicus
curiae to inform the conscience of the court) it is contended
1st, that this Court, as a court of prize, has no proper
jurisdiction over the cause; 2d, that if it have jurisdiction, it
cannot award condemnation to the United States, for
several reasons, 1st, because, by the law of nations, as
now understood, no government can lawfully confiscate the
debts, credits, or visible property of alien enemies, which
have been contracted or come into the country during
peace; 2d, because, if the law of nations does not, the
common law does afford such immunity from confiscation
to property situated like the present; 3d, because if the right
to confiscate exist, it can be exercised only by a positive act
of Congress, who have not yet legislated to this extent; 4th,
because, if the last position be not fully accurate, yet at all
events this process, being a high prerogative power, ought
not to be exercised, except by express instructions from the
President, which are not shown in this case."
"Some of these questions are of vast importance and most
extensive operation, and I am exceedingly obliged to the
gentlemen who have argued them with so
Page 12 U. S. 137
much ability and learning, for the light which they have
thrown upon a path so intricate and obscure. I have given
these questions as much consideration as the state of my
health and the brevity of time would allow, and I shall now
give them a distinct and separate discussion, that I may at
least disclose the sources of my errors, if any, and enable
those who unite higher powers of discernment with more
extensive knowledge, to give a more exact and just
opinion."
"And first, as to the jurisdiction of this Court in matters of
prize."
"This depends partly on the Prize Act of 26 June, 1812, ch.
107, § 6, and partly on the true extent and meaning of the
admiralty and maritime jurisdiction conferred on the courts
of the United States. The Act of 26 June, 1812, ch. 107,
provides that in all cases of captured vessels, goods and
effects which shall be brought within the jurisdiction of the
United States, the district court shall have exclusive original
cognizance thereof, as in civil causes of admiralty and
maritime jurisdiction. The Act of 18 June, 1812, ch. 102,
declaring war, authorizes the President to issue letters of
marque and reprisal to private armed ships against the
vessels, goods, and effects of the British government and
its subjects, and to use the whole land and naval force of
the United States to carry the war into effect. In neither of
these acts is there any limitation as to the places where
captures may be made on the land or on the seas, and of
course it would seem that the right of the courts to
adjudicate respecting captures would be coextensive with
such captures, wherever made, unless the jurisdiction
conferred is manifestly confined by the former act to
captures made by private armed vessels. It is not, however,
necessary closely to sift this point, as it may now be
considered as settled law that the courts of the United
States, under the Judicial Act of 30 September, 1789, ch.
20, have, by the delegation of all civil causes of admiralty
and maritime jurisdiction, at least as full jurisdiction of all
causes of prize as the admiralty in England. Glass v. The
Sloop Betsey, 3 Dall. 6; Talbot v. Janson, 3 Dall.
133; Penhallow v. Doane's Administrators, 3 Dall.
54; Jennings v. Carson, 4 Cranch 2."
"Over what captures,
Page 12 U. S. 138
then, has the admiralty jurisdiction as a prize court? This is
a question of considerable intricacy, and has not as yet, to
my knowledge, been fully settled. It has been doubted
whether the admiralty has an inherent jurisdiction of prize,
or obtains it by virtue of the commission usually issued on
the breaking out of war. That the exercise of the jurisdiction
is of very high antiquity and beyond the time of memory
seems to be incontestable. It is found recognized in various
articles of the black book of the admiralty, in public treaties
and proclamations of a very early date, and in the most
venerable relics of ancient jurisprudence. See Robb.
Coll.Marit., Intro., pp. 6-7; id., Instructions, 3 H. VIII, p. 10,
art. 18, &c.; id., p. 12, note letter; Edw. III, A.D. 1343; Treaty
Henry VII and Charles VIII, A.D. 1497; Rob.. Coll.Marit. 83
and 98, art. 8; Bob. Coll.Marit., p. 189, note; Roughton, art.
19, 20, &c., passim. In Lindo v. Rodney, Doug. 613, note.
Lord Mansfield, in discussing the subject, admits the
immemorial antiquity of the prize jurisdiction of the
admiralty, but leaves it uncertain whether it was coeval with
the instance jurisdiction, and whether it is constituted by
special commission, or only called into exercise thereby.
After the doubts of so eminent a judge, it would not become
me to express a decided opinion. But taking the fact that, in
the earliest times, the jurisdiction is found in the possession
of the admiralty, independent of any known special
commission; that in other countries, and especially in
France, upon whose ancient prize ordinances the
administration of prize law seems, in a great measure, to
have been modeled, vide Ordin. of France, A.D. 1400, Rob.
Coll. Marit. 75; Ordin. of France, A.D. 1584; id., p. 105;
Treaty Henry VII and Charles VIII; id., p. 83, and Rob.
note; id., p. 105. The jurisdiction has uniformly belonged to
the admiralty; there seems very strong reason to presume
that it always constituted an ordinary and not an
extraordinary branch of the admiralty powers, and so I
apprehend it was considered by the Supreme Court of the
United States in Glass v. The Betsey, 3 Dall. 6."
"However this question may be as to the right of the
admiralty to take cognizance of mere captures made on the
land exclusively by land forces, as to which I give no
opinion, it is very clear that its jurisdiction is not
Page 12 U. S. 139
confined to mere captures at sea. The prize jurisdiction
does not depend upon locality, but upon the subject matter.
The words of the prize commission contain authority to
proceed upon all and all manner of captures, seizures,
prizes and reprisals of all ships and goods that are and shall
be taken. The admiralty therefore not only takes
cognizance of all captures made at sea, in creeks, havens,
and rivers, but also of all captures made on land, where the
same have been made by a naval force, or by cooperation
with a naval force. This exercise of jurisdiction is settled by
the most solemn adjudications. Key & Hubbard v.
Pearse, cited in Le Caux v. Eden, Doug. 606; Lindo v.
Rodney, Doug. 613, note; the capture of the Cape of Good
Hope, 2 Rob. 274; The Stella del Norte, 5 Rob. 349' The
Island of Trinidad, 5 Rob. 92; Thorshaven, 1 Edw. 102; The
Capture of Chrinsurah, 1 Deten. 179; The Rebeckah, 1
Rob. 227; The Gertruyda, 2 Rob. 211; The Maria
Francoise, 6 Rob. 282."
"Such, then, being the acknowledged extent of the prize
jurisdiction of the admiralty, it is, at least in as ample an
extent, conferred on the courts of the United States. For the
determination, therefore, of the case before the Court, it is
not necessary to claim a more ample jurisdiction; for the
capture or seizure, though made in port, was made while
the property was waterborne. Had it been landed and
remained on land, it would have deserved consideration
whether it could have been proceeded against as prize,
under the admiralty jurisdiction, or whether, if liable to
seizure and condemnation in our courts, the remedy ought
not to have been pursued by a process applicable to
municipal confiscations. On these points I give no
opinion. See the case of The Oester Eems, cited in The
Two Friends, 1 Rob. 284, note; Hale de Portubus Maris,
&c., in Harg. Law Tracts, ch. 28, 245, &c., Parker 267."
"Having disposed of the question as to the jurisdiction of
this Court, I come to one of a more general
nature, viz., whether, by the modern law of nations, the
sovereign has a right to confiscate the debts due to his
enemy, or the goods of his enemy found within his territory
at the commencement of the war. I might spare myself the
consideration of the question as to debts, but, as it
Page 12 U. S. 140
has been ably argued, I will submit some views respecting
it, because they will illustrate and confirm the doctrine
applicable to goods. It seems conceded, and indeed is
quite too clear for argument, that in former times, the right
to confiscate debts was admitted as a doctrine of national
law. It had the countenance of the civil law. Dig. lib. 41. tit.
1; id., lib. 49, tit. 15; of Grotius, De jure belli et pacis, lib. 3,
ch. 2, § 2, ch. 6, § 2 ch. 7, § 3 and 4, ch. 13, § 1, 2; of
Puffendorf, De jure Nat. et Nat., lib. 8 ch. 6, § 23, and lastly
of Bynkershoek, Quoest. Pub.Juris, lib. 1, ch. 7, who is
himself of the highest authority, and pronounces his opinion
in the most explicit manner."
"Down to the year 1737, it may be considered as the
opinion of jurists that the right was unquestionable. It is,
then, incumbent on those who assume a different doctrine
to prove that, since that period, it has by the general
consent of nations become incorporated into the code of
public law. I take upon me to say that no jurist of reputation
can be found who has denied the right of confiscation of
enemies debts. Vattel has been supposed to be the most
favorable to the new doctrine. He certainly does not deny
the right to confiscate, and if he may be thought to hesitate
in admitting it, nothing more can be gathered from it than
that he considers that, in the present times, a relaxation of
the rigor of the law has been in practice among the
sovereigns of Europe. Vattel, lib. 3, ch. 5, § 77. Surely a
relaxation of the law in practice cannot be admitted to
constitute an abolition in principle, when the principle is
asserted, as late as 1737, by Bynkershoek, and the
relaxation shown by Vattel in 1775."
"In another place, however, Vattel, speaking on the subject
of reprisals, admits the right to seize the property of the
nation or its subjects by way of reprisal, and, if war ensues,
to confiscate the property so seized. The only exception he
makes is of property which has been deposited in the
hands of the nation, and entrusted to the public faith, as is
the case of property in the public funds. Vattel, lib. 2, ch.
18, § 342, 343, 344. The very exception evinces pretty
strongly the opinion of Vattel as to the general rule. Of the
character of Vattel as a jurist, I shall not undertake to
express an opinion. That he has great merit is conceded,
though a learned civilian, Sir James MacIntosh, informs us
that he has fallen into great mistakes in important 'practical
discussions of public law.'
Page 12 U. S. 141
Discourse on the law of nations, 32, note. But if he is singly
to be opposed to the weight of Grotius and Puffendorf, and,
above all, Bynkershock, it will be difficult for him to sustain
so unequal a contest. I have been pressed with the opinion
of a very distinguished writer of our own country on this
subject. Camillus, No. 18 to 23, on the British treaty of 1794.
I admit in the fullest manner the great merit of the argument
which he has adduced against the confiscation of private
debts due to enemy subjects. Looking to the measure not
as of strict right, but as of sound policy and national honor,
I have no hesitation to say that the argument is
unanswerable. He proves incontrovertibly what the highest
interest of nations dictates with a view to permanent policy.
But I have not been able to perceive the proofs by which he
overthrows the ancient principle. In respect to the opinion
of Grotius, quoted by him in No. 20, as indicating a doubt
by Grotius of his own principles, I cannot help thinking that
the learned writer has himself fallen into a mistake. Grotius,
in the place referred to, lib. 3, ch. 20, § 16, is not adverting
to the right of confiscation, but merely to the general results
of a treaty of peace. He says (§ 15) that after a peace, no
action lies for damages done in the war, but (§ 16) that
debts due before the war are not, by the mere operations
of the war, released, but remain suspended during the war,
and the right to recover them revives at the peace. It is
impossible to doubt the meaning of Grotius when the
preceding and succeeding sections are taken in
connection. Grotius, therefore, is not inconsistent with
himself, nor is 'Bynkershoek more inconsistent,' for the
latter explicitly avows the same doctrine, but considers it
inapplicable to debts confiscated during the war; for these
are completely extinguished. Bynk., Quaest.Pub.Juris, ch.
7."
"It is supposed by the same learned writer that the principle
of confiscating debts had been abandoned for more than a
century. That the practice was intermitted is certainly no
very clear proof of an abandonment of the principle.
Motives of policy and the general interests of commerce
may combine to induce a nation not to enforce its strict
rights, but it ought not therefore to be construed to release
them. It may, however, be well doubted if the practice is
quite so uniform as it is supposed.
Page 12 U. S. 142
The case of the Silesia loan, which exercised the highest
talents of the English nation, is an instance to the contrary,
almost within half a century (in 1752). In the very elaborate
discussions of national law to which that case gave birth,
there is not the slightest intimation that the law of nations
prohibited a sovereign from confiscating debts due to his
enemies, even where the debts were due from the nation,
though there is a very able statement of its injustice in that
particular case, and the English memorial admits that when
sovereigns or states borrow money from foreigners, it is
very commonly expressed in the contract that it should not
be seized as reprisals or in case of war."
"Now it strikes me that this very circumstance shows in a
strong light the general opinion as to the ordinary right of
confiscation. The stipulations of particular treaties of the
United States have been cited in corroboration of their
general doctrine by the claimant's counsel. These treaties
certainly show the opinion of the government as to the
impolicy of enforcing the right of confiscation against debts
and actions. See treaty with Great Britain, 1794, art. 10 --
with France 1778, art. 20 -- with Holland, 8 October, 1782,
art. 18 -- with Prussia, 11 July, 1799, art. 23 -- with
Morocco, 1787, art. 24. But I cannot admit them to be
evidence for the purpose for which they have been
introduced. It may be argued with quite as much if not
greater force that these stipulations imply an
acknowledgement of the general right of confiscation, and
provide for a liberal relaxation between the parties. I hold
with Bynkershoek (Quaest. Pub.Jur. ch. 7) that where such
treaties exist, they must be observed; where there are
none, the general right prevails. It has been further
supposed, that the common law of England is against the
right of confiscating debts; and the declaration of Magna
Charta, ch. 30, has been cited to show the liberal views of
the British Constitution. This declaration, so far as is
necessary to the present purpose, is as follows:"
"If they [i.e. foreign merchants] be of a land making war
against us, and be found in our realm at the beginning of
the war, they shall be attached without harm of body or
goods (rerum) until it be known unto us, or our Chief
Justice, how our merchants be entreated, then in the land
making war against us, and if our merchants be well
entreated there, theirs shall be likewise with us."
"I
Page 12 U. S. 143
quote the translation of Lord Coke, 2 Just. 27. This would
certainly seem to be a very liberal provision, and if its true
construction applied to all property and persons, as well
transiently in the country as domiciled and fixed there, it
would certainly be entitled to all the encomiums which it has
received. Montesq. Spirit of Laws, lib. 20, ch. 14. How far it
is now considered as binding, in relation to vessels and
goods found within the realm at the commencement of the
war, I shall hereafter consider. It will be observed, however,
that this article of Magna Charta does not protect the debts
or property of foreigners who are without the realm: it is
confined to foreigners within the realm upon the public faith
on the breaking out of the war. Now it seems to be the
established rule of the common law that all choses in
action, belonging to an enemy, are forfeitable to the Crown,
and that the Crown is at liberty at any time during the war
to institute a process, and thereby appropriate them to
itself. This was the doctrine of the yearbooks, and stands
confirmed by the solemn decision of the Exchequer,
in Attorney General v. Weeden, Parker 267. Maynard's
Edw. 2, cited ibid. It is a prerogative of the Crown which, I
admit, has been very rarely enforced; see Lord Alvanley's
observations in Furtado v. Rodgers, 3, Bos. & Pul. 191, but
its existence cannot admit of a legal doubt. On a review of
authorities, I am entirely satisfied that, by the rigor of the
law of nations and of the common law, the sovereign of a
nation may lawfully confiscate the debts of his enemy,
during war, or by way of reprisal, and I will add that I think
this opinion fully confirmed by the judgment of the Supreme
Court in Ware v. Hylton, 3 Dall. 199, where the doctrine
was explicitly asserted by some of the judges, reluctantly
admitted by others and denied by none."
"In respect to the goods of an enemy found within the
dominions of a belligerent power, the right of confiscation
is most amply admitted by Grotius, and Puffendorf, and
Bynkershoek, and Burlamaqui, and Rutherforth and
Vattel. See Grotius, and Puffendorf, and Bynkershoek ubi
supra, and Bynk., Qu.Pub.Jur. c. 4, and 6. 2 Burlam 209,
sec. 12, p. 219, sec. 2, p. 221, sec. 11; Ruth. lib. 2, c. 9, pp.
558 to 573. Such also is the rule of the common law. Hale
in Harg. Law Tracts, 245, c. 18. Vattel has indeed
contended (and
Page 12 U. S. 144
in this he is followed by Azuni, Part. 2, ch. 4, art. 2, sec. 7)
that the sovereign declaring war can neither detain the
persons nor the property of those subjects of the enemy
who are within his dominions at the time of the declaration,
because they came into the country upon the public faith.
This exception (which, in terms, is confined to the property
of persons who are within the country) seems highly
reasonable in itself, and is an extension of the rule in Magna
Charta. But even limited as it is, it does not seem followed
in practice, and Bynkershoek is an authority the other way.
Bynk. Quaest.Pub.Jur., c. 2, pp. 3, 7. In England, the
provision in Magna Charta seems in practice to have been
confined to foreign merchants domiciled there, and not
extended to others who came to ports of the realm for
occasional trade. Indeed, from the language of some
authorities, it would seem that the clause was inserted not
so much to benefit foreign merchants as to provide a
remedy for their own subjects in cases of hostile injuries in
foreign countries. See the opinion of Ch. J. Lee in Key v.
Pearse, cited Doug. 606, 607. However this may be, it is
very certain that Great Britain has uniformly seized as prize
all vessels and cargoes of her enemies found afloat in her
ports at the commencement of war. Nay, she has
proceeded yet further and, in contemplation of hostilities,
laid embargoes on foreign vessels and cargoes, that she
might at all events secure the prey. It cannot be necessary
for me to quote authorities on this point. In the articles
respecting the droits of admiralty in 1665, there is a very
formal recognition of the rights of the Crown to all vessels
and cargoes seized before hostilities. The Rebeckah, 1
Rob. 227, and id., p. 230, note (a). This exercise of hostile
right of the summum jus is so far, indeed, from being
obsolete that it is in constant operation, and in the present
hostilities has been applied to the property of the citizens of
the United States. Of a similar character is the detention of
American seamen found in her service at the
commencement of the war as prisoners of war -- a practice
which violates the spirit, though not the letter, of Magna
Charta, and certainly can in equity and good faith find few
advocates. Of the right of Great Britain thus to seize vessels
and cargoes found in her ports on the breaking out of war I
do not find any denial in authorities which are
Page 12 U. S. 145
entitled to much weight, and I therefore consider the rule of
the law of nations to be that every such exercise of authority
is lawful and rests in the sound discretion of the sovereign
of the nation."
"The next question is whether Congress (for with it rests the
sovereignty of the nation as to the right of making war and
declaring its limits and effects) has authorized the seizure
of enemies' property afloat in our ports. The act of 18 June,
1812, ch. 102, is in very general terms, declaring war
against Great Britain and authorizing the President to
employ the public forces to carry it into effect. Independent
of such express authority, I think that, as the executive of
the nation, he must, as an incident of the office, have a right
to employ all the usual and customary means
acknowledged in war to carry it into effect. And there being
no limitation in the act, it seems to follow that the executive
may authorize the capture of all enemies' property
wherever by the law of nations it may be lawfully seized. In
cases where no grant is made by Congress, all such
captures, made under the authority of the executive, must
enure to the use of the government. That the executive is
not restrained from authorizing captures on land is clear
from the provisions of the act. He may employ and actually
has employed the land forces for that purpose, and no one
has doubted the legality of the conduct. That captures may
be made within our own ports by commissioned ships
seems a natural result of the language -- of the generality
of expression in relation to the authority to grant letters of
marque and reprisal to private armed vessels, which the act
does not confine to captures on the high seas, and is
supported by the known usage of Great Britain in similar
cases. It would be strange indeed if the executive could not
authorize or ratify a capture in our own ports unless by
granting a commission to a public or private ship. I am not
bold enough to interpose a limitation where Congress has
not chosen to make one, and I hold that, by the act
declaring war, the executive may authorize all captures
which, by the modern law of nations, are permitted and
approved. It will be at once perceived that in this doctrine I
do not mean to include the right to confiscate debts due to
enemy subjects. This, though a strictly
Page 12 U. S. 146
national right, is so justly deemed odious in modern times
and is so generally discountenanced that nothing but an
express act of Congress would satisfy my mind that it ought
to be included among the fair objects of warfare -- more
especially as our own government has declared it unjust
and impolitic. But if Congress should enact such a law,
however much I might regret it, I am not aware that foreign
nations with whom we have no treaty to the contrary could,
on the footing of the rigid law of nations, complain, though
they might deem it a violation of the modern policy."
"On the whole, I am satisfied that Congress has authorized
a seizure and condemnation of enemy property found in our
ports under the circumstances of the present case. And the
executive may lawfully authorize proceedings to enforce
the confiscation of the same property before the proper
tribunals of the United States. The district attorney is for this
purpose the proper agent of the executive and of the United
States. From the character and duties of his station he is
bound to guard the rights of the United States and to secure
their interests. Whenever he choses to institute
proceedings on behalf of the United States, it is presumed
by courts of law that he has the sanction of the proper
authorities, and that presumption will avail until the
executive or the legislature disavow the proceedings and
sanction a restoration of the property."
"I have taken up more time than I originally intended in
discussing the various subjects submitted in the argument.
An apology will be found in their extraordinary importance.
If I shall have successfully shown that the principles of prize
law, as admitted in England and in the United States, have
the sanction of the principles of public law and public jurists,
I shall not regret the labor that has been employed,
although in this particular case I may pronounce an
erroneous sentence."
"I reverse the decree of the district court and condemn the
550 tons of timber to the United States, subject however to
the right of the owners of the Emulous to a reimbursement
of their actual charges and expenses for the custody of the
property, which I shall reserve for further consideration, and
I shall order the said
Page 12 U. S. 147
property to be sold, and the proceeds brought into court to
abide the further order of the court."
Such is the opinion which I had the honor to pronounce in
the circuit court, and upon the most mature reflection, I
adhere to it. The argument in this Court, urged on behalf of
the claimant, has put in controversy the same points which
were urged before me. But as the opinion of this Court
admits many of the principles for which I contended, I shall
confine my additional remarks to such as have been
overruled by my brethren.
It seems to have been taken for granted in the argument of
counsel that the opinion held in the circuit court proceeded
in some degree upon a supposition that a declaration of war
operates per se an actual confiscation of enemy's property
found within our territory. To me this is a perfectly novel
doctrine. It was not argued on either side in the circuit court
and certainly never received the slightest countenance
from the court. I disclaim, therefore, any intention to support
a doctrine which I always supposed to be wholly untenable.
I go yet further and admit that a declaration of war does not,
of itself, import a confiscation of enemies' property within or
without the country, on the land or on the high seas. The
title of the enemy is not by war divested, but remains
in proprio vigore until a hostile seizure and possession has
impaired his title. All that I contend for is that a declaration
of war gives a right to confiscate enemies' property and
enables the power to whom the execution of the laws and
the prosecution of the war are confided to enforce that right.
If, indeed, there be a limit imposed as to the extent to which
hostilities may be carried by the executive, I admit that the
executive cannot lawfully transcend that limit; but if no such
limit exist, the war may be carried on according to the
principles of the modern law of nations, and enforced when
and where and on what property the executive chooses.
In no act whatsoever that I recollect has Congress declared
the confiscation of enemies' property. It has authorized the
President to grant letters of marque and general reprisal,
which he may revoke and annul
Page 12 U. S. 148
at his pleasure, and even as to captures actually made
under such commissions, no absolute title by confiscation
vests in the captors until a sentence of condemnation. If,
therefore, British property had come into our ports since the
war and the President had declined to issue letters of
marque and reprisal, there is no act of Congress which in
terms declares it confiscated and subjects it to
condemnation. If, nevertheless, it be confiscable, the right
of confiscation results not from the express provisions of
any statute, but from the very state of war which subjects
the hostile property to the disposal of the government. But
until the title should be divested by some overt act of the
government and some judicial sentence, the property
would unquestionably remain in the British owners, and if a
peace should intervene, it would be completely beyond the
reach of subsequent condemnation.
There is, then, no distinction recognized by any act of
Congress between enemies' property which was within our
ports at the commencement of war and enemies' property
found elsewhere. Neither is declared ipso
facto confiscated, and each, as I contend, is merely
confiscable.
I will now consider what in point of law is the operation of
the acts of Congress made in relation to the present war.
The Act of 18 June, 1812, ch. 102, declares war to exist
between Great Britain and the United States, and
authorizes the President of the United States to use the
land and naval force of the United States to carry the same
into effect, and further authorizes him to issue letters of
marque, &c., to private armed vessels against the vessels,
goods, and effects of the government of Great Britain and
the subjects thereof.
The Prize Act of 26 June, 1812, ch. 107, confers the power
on the President to issue instructions to private armed
vessels for the regulation of their conduct. The Act of 6 July,
1812, ch. 128, authorizes the President to make
regulations, &c., for the support and exchange of prisoners
of war. The Act of 6 July, 1812, ch. 129, respecting trade
with the enemy, authorizes the President
Page 12 U. S. 149
to grant passports for the property of British subjects within
the limits of the United States during the space of six
months, and protects certain British packets, &c., with
dispatches from capture. The Act of 3 March, 1813, ch. 203,
vests in the President the power of retaliation for any
violation of the rules and usages of civilized warfare by
Great Britain.
These are all the acts which confer powers or make
provisions touching the management of the war. In no one
of them is there the slightest limitation upon the executive
powers growing out of a state of war, and they exist,
therefore, in their full and perfect vigor. By the Constitution,
the executive is charged with the faithful execution of the
laws, and the language of the act declaring war authorizes
him to carry it into effect. In what manner and to what extent
shall be carry it into effect? What are the legitimate objects
of the warfare which he is to wage? There is no act of the
legislature defining the powers, objects, or mode of
warfare; by what rule, then, must he be governed? I think
the only rational answer is by the law of nations as applied
to a state of war. Whatever act is legitimate, whatever act
is approved by the law, or hostilities among civilized
nations, such he may, in his discretion, adopt and exercise,
for with him the sovereignty of the nation rests as to the
execution of the laws. If any of such acts are disapproved
by the legislature, it is in their power to narrow and limit the
extent to which the rights of war shall be exercised; but until
such limit is assigned, the executive must have all the right
of modern warfare vested in him, to be exercised in his
sound discretion, or he can have none. Upon what
principle, I would ask, can he have an implied authority to
adopt one and not another? The best manner of annoying,
injuring, and pressing the enemy must, from the nature of
things, vary under different circumstances, and the
executive is responsible to the nation for the faithful
discharge of his duty under all the changes of hostilities.
But it is said that a declaration of war does not, of itself,
import a right to confiscate enemies' property found within
the country at the commencement of war. I cannot admit
this position in the extent in which it is
Page 12 U. S. 150
laid down. Nothing, in my judgment, is more clear from
authority than the right to seize hostile property afloat in our
ports at the commencement of war. It is the settled practice
of nations and the modern rule of Great Britain herself,
applied (as appears from the affidavits in this very cause)
to American property in the present war -- applied also to
property not merely on board of ships, but to spars floating
alongside of them -- I forbear, however, to press this point,
because my opinion in the court below contains a full
discussion of it.
It is also said that a declaration of war does not carry with
it the right to confiscate property found in our country at the
commencement of war, because the Constitution itself, in
giving Congress the power "to declare war, grant letters of
marque and reprisal, and make rules concerning captures
on land and water," has clearly evinced that the power to
declare war did not, ex vi terminorum, include a right to
capture property everywhere, and that the power to make
rules concerning captures on land and water may well be
considered as a substantive power as to captures of
property within our own territory. In my judgment, if this
argument prove anything, it proves too much. If the power
to make rules respecting captures, &c., be a substantive
power, it is equally applicable to all captures, wherever
made, on land or on water. The terms of the grant import
no limitation as to place, and I am not aware how we can
place around them a narrower limit than the terms import.
Upon the same construction, the power to grant letters of
marque and reprisal is a substantive power, and a
declaration of war could not of itself authorize any seizure
whatsoever of hostile property unless this power was called
into exercise. I cannot, therefore, yield assent to this
argument. The power to declare war, in my opinion,
includes all the powers incident to war and necessary to
carry it into effect. If the Constitution had been silent as to
letters of marque and captures, it would not have narrowed
the authority of Congress. The authority to grant letters of
marque and reprisal and to regulate captures are ordinary
and necessary incidents to the power of declaring war. It
would be utterly ineffectual without them. The expression,
therefore, of that which is implied in the very nature of the
grant cannot weaken the
Page 12 U. S. 151
force of the grant itself. The words are merely explanatory,
and introduced ex abundanti cautela. It might be as well
contended that the power "to provide and maintain a navy"
did not include the power to regulate and govern it, because
there is in the Constitution an express provision to this
effect. And yet I suppose that no person would doubt that
Congress, independent of such express provision, would
have the power to regulate and govern the navy, and if it
should authorize the executive "to provide and maintain a
navy," it seems to me as clear that he must have the
incidental power to make rules for its government. In truth,
it is by no means infrequent in the Constitution to add
clauses of a special nature to general powers which
embrace them and to provide affirmatively for certain
powers without meaning thereby to negative the existence
of powers of a more general nature. The power to provide
"for the common defense and general welfare" could hardly
be doubted to include the power "to borrow money;" the
power "to coin money," to include the power "to regulate the
value thereof;" and the power "to raise and support armies,"
to include the power "to make rules for the government and
regulation" thereof. On the other hand, the affirmative
power "to define and punish piracies and felonies
committed on the high seas" has never been supposed to
negative the right to punish other offenses on the high seas,
and Congress has actually legislated to a more enlarged
extent. I cannot, therefore, persuade myself that the
argument against the doctrine for which I contend is at all
affected by any provision in the Constitution.
The opinion of my brethren seems to admit that the effect
of hostilities is to confer all the rights which war confers,
and it seems tacitly to concede that by virtue of the
declaration of war, the executive would have a right to seize
enemies' property which should actually come within our
territory during the war. Certainly no such power is given
directly by any statute. And if the argument be correct that
the power to make captures on land or water must be
expressly called into exercise by Congress before the
executive can, even after war, enforce a capture and
condemnation, it will be very difficult to support the
concession. Suppose a
Page 12 U. S. 152
British ship of war or merchant ship should now come within
our ports, there is no statute declaring such ship actually
confiscated. There is no express authority either for the
navy or army to make a capture of her, and although the
executive might authorize a private armed ship so to do, yet
it would depend altogether on the will of the owners of the
ship whether they would so do or not. Can it be possible
that the executive has not the power to authorize such
seizure? And if he may authorize a seizure by the army or
navy, why not by private individuals if they will volunteer for
the purpose?
The act declaring was has authorized the executive to
employ the land and naval force of the United States, to
carry it into effect. When and where shall he carry it into
effect? Congress has not declared that any captures shall
be made on land, and if this be a substantive power, nor
included in a declaration of war, how can the executive
make captures on land, when Congress has not expressed
its will to this effect? The power to employ the army and
navy might well be exercised in preventing invasion and in
the common defense without unnecessarily including a
right to capture, if the right to capture be not an incident of
war; and upon what ground, then, can the executive plan
and execute foreign expeditions or foreign captures? Upon
what ground can he authorize a Canadian campaign, or
seize a British fort or territory and occupy it by right of
capture and conquest I am utterly at a loss to perceive,
unless it be that the power to carry the war into effect gives
every incidental power which the law of nations authorizes
and approves in a state of war. I am at a loss to perceive
how the power exists to seize and capture enemy's
property which was without our territory at the
commencement of the war, and not the power to seize that
which was within our territory at the same period. Neither is
expressly given nor denied (except as to private armed
ships), and how can either be assumed except as an
incident of war, acknowledged upon national and public
principles? It may be suggested that the executive, "as
commander in chief of the army and navy," has the power
to make foreign conquests. But this is utterly inadmissible
if the right to authorize captures resides as a substantive
power in Congress
Page 12 U. S. 153
and does not follow as an incident of a declaration of war,
and certainly the rights of the "commander in chief" must
be restrained to such acts as are allowed by the laws.
Besides, the same difficulty meets us here as in the former
case; if his powers as commander in chief authorize him to
make captures without the territory, why not within the
territory?
The acts respecting alien enemies and prisoners of war
have been supposed, even in a state of actual war, to
confer new powers on the executive. I cannot accede to the
inference in the extent to which it is claimed. In general,
these acts may be deemed mere regulations of war, limiting
and directing the discretion of the executive, and it cannot
be doubted that Congress had a perfect right to prescribe
such regulations. To regulate the exercise of the rights of
war as to enemies does not, however, imply that such rights
have not an independent existence. Besides, it is clear that
the act respecting alien enemies applies only to aliens
resident within the country, and not to the property of aliens,
FEBRUARY TERM, 1812.
DALLAS, Attorney of the United States, for the district of
Pennsylvania, contended,
1. That this is not a case of admiralty and maritime jurisdiction.
2. That the public character of the vessel is sufficiently proved;
and
3. That being a public national vessel of France, she is not liable
to the ordinary judicial process of this country.
1. It ought to appear upon the proceedings themselves that this is
a case of admiralty and maritime jurisdiction.
In England the jurisdiction of the Court of admiralty
comprehends three branches. 1. The criminal jurisdiction, for the
punishment of offences committed upon the high seas, or
submitted to its cognizance by the statute law.
2. The prize jurisdiction, as to captures as prize of war, on the
high seas. 3. The Instance Court, which has jurisdiction
of torts committed at sea, in which case locality is essential; and
of maritime contracts, which are also perhaps local.
The district Courts of the United States, have the same three
branches of jurisdiction, but the jurisdiction must be shewn in
the proceedings, together with the authority to seize within our
waters. Laws United States, Vol. 1. p. 53, sect. 9, 11. Vol. 3. p.
91. sect. 6. 3. Dall. 6.
But the libel does not bring the case within either of those
branches of jurisdiction. The libel simply states that while she
was lawfully and peaceably pursuing her voyage, she was
forcibly seized under the decrees of Napoleon, emperor of the
French. It does not allege any crime upon the high seas. It does
who are not so resident. I might answer in the same manner
the argument drawn from the Act of 6 July, 1812, ch. 129,
§ 4, and the Act of 3 March 1813, ch. 203. But even
admitting that these acts did confer some new powers, still,
as these powers do not respect the present case, I cannot
consider them as affording even a legislative implication
against the existence of the powers for which I contend.
It has been supposed that my opinion assumes for its basis
the position that modern usage constitutes a rule which
acts directly on the thing itself by its own force, and not
through the sovereign power. Certainly I do not admit this
supposition to be correct. My argument proceeds upon the
ground that when the legislative authority, to whom the right
to declare war is confided, has declared war in its most
unlimited manner, the executive authority, to whom the
execution of the war is confided, is bound to carry it into
effect. He has a discretion vested in him as to the manner
and extent, but he cannot lawfully transcend the rules of
warfare established among civilized nations. He cannot
lawfully exercise powers or authorize proceedings which
not state the seizure to be as prize of war. It does not allege a tort
committed upon the high seas, nor any maritime contract. The
admiralty has no jurisdiction upon the mere possession of the
vessel in our harbors, unconnected with a tort on the high seas.
Nor upon a tort committed here, or in a foreign country — nor
upon a mere question of title. 2. Browne, civ. and ad. law 111,
113, 114, 115, 116, 117.
There is not a single instance of admiralty jurisdiction exercised
in this country without possession, coupled with a maritime tort.
2. As to the proof of the public character of the vessel. The flag,
the public commission, and the possession of the officer, have
always been sufficient evidence, at sea or in port — and for fiscal
or executive purposes. Why should it not be sufficient evidence
in a judicial proceeding? No public vessel ever carries any other
documents. No other proof of property in the sovereign is ever
required. It is acknowledged in all our treaties. Even the common
law requires only the best evidence which the nature of the case
admits.
In the case of Mr. Pichon, 4. Dall. 321, no other evidence of his
public character was produced or required, than a letter from
Talleyrand, the French minister for foreign affairs. Upon that
evidence he was discharged.
HARPER, for the Appellees.
Admitted that the commission, the flag, and the possession, were
sufficient evidence of the public character of the vessel
DALLAS — The principal question then is, whether a public
national vessel of France, coming into the United States to repair,
is liable to be arrested upon the claim of title by an individual?
This vessel was seized by a sovereign, in virtue of his sovereign
prerogative. In such a case, the claim of the individual merges in
the civilized world repudiates and disclaims. The
sovereignty
Page 12 U. S. 154
as to declaring war and limiting its effects rests with the
legislature. The sovereignty as to its execution rests with
the President. If the legislature does not limit the nature of
the war, all the regulations and rights of general war attach
upon it. I do not, therefore, contend that modern usage of
nations constitutes a rule acting on enemies' property, so
as to produce confiscation of itself, and not through the
sovereign power. On the contrary, I consider enemies'
property in no case whatsoever confiscated by the mere
declaration of war; it is only liable to be confiscated at the
discretion of the sovereign power having the conduct and
execution of the war. The modern usage of nations is
resorted to merely as a limitation of this discretion, not as
conferring the authority to exercise it. The sovereignty to
execute it is supposed already to exist in the President, by
the very terms of the Constitution, and I would again ask if
this general power to confiscate enemies' property does not
the right of the offended sovereign. The size of the vessel can
make no difference. Upon principle, the Royal George, belonging
to his Britannic majesty is as liable to this process, as
the Balaou No. 5. Suppose a British frigate lying at New York,
and one of her seaman should escape and libel her for his wages
— the same argument which will support this case would support
that.
This was one of the seizures under the Rambouillet decree. We
do not justify that decree, but we say that whenever the act is done
by a sovereign in his sovereign character, it becomes a matter of
negotiation, or of reprisals, or of war, according to its importance.
It is proved that she arrived in distress — that she had been sent
on a distant mission with a military cargo. No assent to submit to
the ordinary jurisdiction of the country, can be presumed in such
a case as that. She had committed no offence while here. She did
not come to trade. There was no implied waver of the peculiar
immunities of a public vessel. The right of free passage was open
to her, as it was to the public vessels of every other nation, except
England, whose ships were expressly excluded by a particular
statute.
But put the question generally, can a vessel of war, for any cause,
be attached at the suit of an individual. In doubtful cases the
argument ab inconvenienti, ought to have great weight. The
jurisdiction now claimed would extend to all men, to all suits, to
torts and to contracts; to every vessel seized in a foreign port and
taken into the public service. Impressed seamen might libel a
whole British squadron for their wages. The peace of our ports
and harbors would be at the mercy of the individuals. It would be
impossible to carry it into practice. The sentence of the Court
could not be executed. It is beautiful in theory to exclaim
" fiat Justitia — ruat cœlum, but justice is to be administered
with a due regard to the law of nations, and to the rights of other
sovereigns. When an individual receives an injury from a foreign
exist in the executive, to be exercised in his discretion, how
is it possible that he can have authority to seize and
confiscate any enemies' property coming into the country
since the war, or found in the enemies' territory? Yet I
understood the opinion of my brethren to proceed upon the
tacit acknowledgement that the executive may seize and
confiscate such property under the circumstances which I
have stated.
On the whole, I am still of opinion that the judgment of the
circuit court was correct, and ought to be affirmed.
It is due, however, to myself to state that at the trial in the
circuit court it was agreed that the timber had always been
afloat on tidewaters, and the affidavit by which it is proved
to have rested on land at low tide was not taken until after
the hearing and decision of the cause.
In the opinion which I have expressed I am authorized to
state that I have the concurrence of one of my brethren.
Schooner Exchange v. M`FADDON Others
sovereign, he must complain to his own government, who will
make it a matter of negotiation, and if justice be refused may
grant reprisals.
Our acts of Congress never subject foreign public vessels to
forfeiture. The non-intercourse act (as it is called) forfeits
private, but not public British vessels — the public vessels are
forbidden to come, if they do come, you order them to depart. If
they refuse and you are not strong enough to drive them away,
you prohibit supplies to them; but you do not subject them to
forfeiture.
We do not, however, deny the right of a nation to change the
public law as to foreign nations, upon giving notice. We may
forbid the entrance of their public ships, and punish the breach of
this prohibition by forfeiture; nor do we deny the obligation of a
foreign sovereign to conform to pre-existing laws, as to offences
— and as to the acquisition of property; nor his liability for
his private debts and contracts. Vattel, 426. B. 2. c. 18. sect. 340.
344. 346. So if a sovereign descend from the throne and become
a merchant, he submits to the laws of the country. If he contract
private debts, his private funds are liable. So if he charter a vessel,
the cargo is liable for the freight.
But in the present case he appears in his sovereign character; the
commander of the national vessel exercises a part of his sovereign
power; and in such a case no consent to submit to the ordinary
judicial tribunals of the country can be implied. Such implied
consent must depend on the act, on the person, and on
the subject.
Such consent is implied where the municipal law, previously
provides and changes the law of nations — where it regulates
trade — where it defines and punishes crimes, and where it fixes
the tenure of property real or personal. But it cannot be implied
where the law of nations is unchanged — nor where the
implication is destructive of the independence, the equality, and
dignity of the sovereign. Such a jurisdiction is not given by the
constitution of the United States, nor is it mentioned in the
judiciary acts. If so important a jurisdiction was intended to be
given, it would certainly have been mentioned and regulated by
law. It cannot be derived from any practical construction of our
laws. In 1794, the public vessels were not seized, but ordered
away. The impost law, ( Laws of U.S. Vol. 4. p. 331, sect. 31)
excepts public vessels, from the obligation to make report and
entry. The act of March 3 d, 1805, ( Vol. 7. p. 334, sect. 4) for the
preservation of peace in our ports and harbors, gives authority to
the president to prohibit the foreign armed vessels from entering
our ports, and to order those to depart which may have entared,
and if they refuse to depart, to prohibit all intercourse with them,
and to drive them away; but not to seize them. Public vessels were
excepted from the embargo, in 1807 and 1808. ( Laws U.S. Vol.
9. p. 7, sect. 2. and p. 243. sect. 1, 2, and 3.)
The judicial construction of the law by the courts in
Pennsylvania, was, that a state could not be subjected to judicial
process, unless by the words of the Constitution of the United
States: and many sound minds were of opinion that even those
did not give the jurisdiction; and when it was finally decided in
the Supreme Court of the United States that a suit might be
maintained against a state in the Federal Courts, the states
amended the constitution so as not to admit of that construction.
The case of Nathan v. the Commonwealth of Virginia, 1 Dall. 77,
was a foreign attachment against some military stores belonging
to the state of Virginia: the object of which was to compel an
appearance; and the court refused to compel the sheriff to return
the writ; being of opinion that Virginia being a sovereign state
could not be compelled to appear in a court in Pennsylvania. The
present process against the vessel is to compel an appearance. It
is true the master may give security; but to compel him to do so
is to bring the emperor into court, and to subject him, in his
sovereign character, to the jurisdiction of the courts of the United
States.
The Cassius, (in the case of United States v. Judge Peters,
3 Dall. 121, and Ketland, qui tam v. the Cassius, 2 Dall. 365) had
violated a municipal law of the United States; yet, being a public
vessel of France, the government of the United States directed the
attorney general to file a suggestion, stating the character of the
vessel, which it was supposed would have taken the case out of
the jurisdiction of the court. But the case went off upon another
objection to the jurisdiction.
There is then no municipal law, nor any practical construction by
the executive, the legislative, or the judicial department of our
government, which authorizes the jurisdiction now claimed; we
can only have recourse to the law of nations to try the validity of
that claim. That law requires the consent of the sovereign, either
express or implied, before he can be subjected to a foreign
jurisdiction, 2 Rutherford, 163 to 170. There is no express assent
of a foreign sovereign to the jurisdiction over his prerogative. The
distinction is between his private acts, and his acts as sovereign,
and between his private and his public property. Vat. B. 2, p.
343, ch. 14. § 213, 216. 2 Ruth. 536. Vat. 707, B. 4. c. 7, §.
108, Martyn 181. Ruth. 54. Galliani B. 1, c. 5.
The cases of implied assent are, 1. Trade, when his goods are
liable for freight, or liable to his factor for advances, c. or liable
to pay duties. In all which cases there is a specific lien on the
goods. 2. In case he acquire property in the country, whether real
or personal. 3. In case of offences against existing laws, such as
entering when prohibited, or breaking the peace when in port. But
the law of nations excludes the implication and presumption in
every case where the sovereignty is concerned — as 1. In the case
of an ambassador — 2. Of the sovereign himself — 3. The
passing of his armies through the country, in which case he
retains all his rights of sovereignty and jurisdiction over his army
— 4. In case of his navy passing through our waters.
The British government, although it authorizes the search of
private ships for their seamen, disclaims the right to search ships
of war, even on the ocean, the place of common jurisdiction.
Bynkershosk, p. 39, c. 4. for the first time asserts a principle not
recognized by any prior writer: viz. that the goods of the
sovereign, however acquired, whether of a public or private
nature, are liable to process to compel an appearance. But he does
not cite one adjudged case, nor one writer upon the law of nations
to support him. The only case he cites is from Huber, and that
denies the jurisdiction. The exima which he cites is only a kind of
chronicle or journal, like the annual register.
It is a book of no authority. The case of the queen of Spain's ship
arrested at Flushing, and the queen of Bohemia's in 1654, which
were released by the states general, are against him. His book
clearly shows that the practice of nations is against his doctrine.
It is evident that he alludes to a practice of citation in the states
of Holland, or among the members of the Germanic body.
The general principle is against him. He is opposed by other
writers and supported by none. He is opposed by the practice of
nations and supported by no judicial decision.
If the courts of the United States should exercise such a
jurisdiction it will amount to a judicial declaration of war. There
is already a case before this court in which it will be called upon
to decide whether St. Domingo be an independent nation; and
another in which it is to determine whether the crown of Spain
belongs to Ferdinand the 7th or Joseph Bonaparte. If this court is
to exercise jurisdiction upon subjects of this nature, it will absorb
all the functions of government, and leave nothing for the
legislative or executive departments to perform.
HARE, contra.
The position which we are to meet, is understood to be this, That
the possession of property by a foreign sovereign, without the
limits of his jurisdiction, and within the limits of the United
States, precludes all enquiry into the title of the thing within his
possession.
This principle, we say, is unfounded. The general rule is that all
sovereignty is strictly local, and cannot be exercised beyond the
territorial limits. This flows from the nature of sovereignty, which
being supreme power, cannot exist where it is not supreme.
4 Cranch, 279, Rose v. Himely. There is no instance of its actual
extra-territorial operation, except where by fiction of law it is
supposed to be territorial; or at most where it exclusively operates
upon its own subjects. The household of an ambassador is
supposed to be within the territorial jurisdiction of his
sovereign. Vattel 448, Martyn 228, 230.
In other respects the rights of an ambassador are his own rights
founded in considerations appertaining exclusively to the
ambassadorial character. In the vessels belonging either to his
nation or to himself, he may exercise, on the high seas, a limited
jurisdiction. The same principle operates here. The ship is
considered as part of his territory. But in this case his jurisdiction
extends over his own subjects only. His armies abroad are also
subject to his jurisdiction, but this is the result of positive
compact, without which they cannot go abroad.
The general principle then being in our favor, our adversaries
must show the exception.
Whatever is within the extent of a country, is within the authority
of its sovereign; and if any dispute arises concerning the effects
within the country or passing through it, it must be decided by the
judge of the place. Vat. 446.
Unless the case now before the court be an exception, this rule is
universal. It grows out of the first principles of government,
which in giving security assumes jurisdiction.
The general authority over the property of foreigners is as
absolute as over the property of subjects.
The arguments in favor of the exception are drawn rather from
inconvenience than from principle, but cannot be supported upon
either ground.
As it regards the private property of the sovereign, why not
assume jurisdiction? Because it is said, it would violate his
dignity, inasmuch as it is to be presumed that he will never do
wrong. Such a presumption, contrary to the fact, may be
calculated to give him weight at home, but can be of no use
abroad. It is not universally adopted even at home. The king of
England may be sued by monstrans de droit. States may prescribe
the mode in which they shall be sued. This is a matter of internal
regulation. Will you then respect a foreign sovereign more than
his own subjects are bound to respect him?
If the sovereign of any free country should unlawfully seize the
goods of one of his subjects, he would be liable in his private
capacity like any other person. As regards the public property of
a foreign sovereign, why should there be any distinction, where
the only object of the suit is merely to ascertain the right.
His public service may suffer, but will you respect that service at
the expence of the rights of your own citizens?
But it is said, if you arrest this vessel you may arrest a fleet. This
is true — and when a foreign fleet shall have been created by the
plunder of our own citizens, let it be arrested.
But the danger of such a case is remote and improbable. The libel
must be supported by oath and probable cause. A judge would
not hastily direct process againt a fleet.
But consider the inconveniences on the other side. Your own
citizens plundered. Your national rights violated. Your courts
deaf to the complaints of the injured. Your government not
redressing their wrongs, but giving a sanction to their spoliators.
The argument of our opponents allows no remedy to the citizen
although dispossessed of his property within the limits of our own
territory. Although the ship should have been seized in the
Delaware, and converted into a public armed vessel, we are
supposed to have no redress. It does not appear upon the face of
the present proceedings, that this was not the case.
The argument of inconvenience is equally applicable to cases in
which our own laws authorize process to issue. Thus, under the
act of June 5 th, 1794, § 3, Vol. 3. p. 89, if any ship shall be armed
in any of the waters of the United States, with intent to be
employed in the service of any foreign state to cruize against the
subjects of another foreign state with whom the United States are
at peace, such ship shall be forfeited. So also in case a foreign
armed ship should be found smuggling. In cases of tort then,
there is a remedy against the public armed ship of a foreign
sovereign. It is obvious also that there must be such remedy in
cases of contract. As in the case of material men for repairs —
Bottomry and mortgage — wreck and pledges. If he may pledge,
the pledge may be proceeded against. If then there are cases both
of tort and contract in which there is a remedy, why not in this?
It is in vain to urge against the right of proceeding, the
inconveniences that may result from the mode.
On principle, then, there is no foundation for the exception. Nor
is it warranted by authority.
Vattel, B. 2, § 83, says "Many sovereigns have " fiefs, and other
properties, in the lands of another "prince: they therefore possess
them in the manner of "other individuals." Thus the kings of
England did homage for the lands they held in France.
Martins (p. 85, 182, Book 5, sect. 9) says that the supreme police
extends over the property of a sovereign.
The cases of Glass v. Sloop Betsy, 3 Dall. 6 — Rose v. Himely
and Hudson v. Guestier, 4 Cranch 279. The Cosmopolite, 3 Rob.
269, and the authority of Azuni 245, 246, affirm the right, in
certain cases, of examining the legality of the prizes of foreign
sovereigns.
Prizes are made for account of the sovereign. In England they are
distributed according to the prize act; but if made by a non-
commissioned vessel, they are droits of the admiralty.
The possession of the captors is the possession of the sovereign.
In these cases therefore the right of the sovereign to the thing in
his possession is subjected to judicial investigation.
Bynkershoek upon Ambassadors, 40 to 46, expressly states that
the property of the sovereign, public and private, is subject to the
authority of the judge of the place. 2 Rutherford 476, 382. The
case of the Swedish convoy is also an authority to the same effect.
The Constitution of the United States, Art. 3, sect. 2, expressly
gives the courts of the United States jurisdiction in cases between
citizens and foreign states.
The cases cited on the other side refer only to suits brought
directly against a sovereign, or to compel his appearance. But
such cases are wholly inapplicable, because not brought in
consequence of your jurisdiction over the thing within your
territory, but to create a jurisdiction over the person which is
without it.
In Massachusetts suits between foreigners by process of
attachment, cannot be sustained; but the right to the thing in
dispute, whether between foreigners or others, will be ascertained
there.
You cannot draw to your jurisdiction those who owe you neither
a local nor an absolute allegiance; but you may enquire into the
validity of every claim to a thing within your jurisdiction.
This doctrine is peculiarly applicable to sovereigns: —
In the case of Olmsteaa v. Rittenhouse's executors,
(5 Cranch 115, under the name of United States v. Judge
Peters) the state of Pennsylvania contended that the District
Court had not jurisdiction, because she, as a sovereign state,
claimed the money in the hands of the executors, and was really
the party interested; but this court decided that, as the state was
not ostensibly a party, and as the thing was within the jurisdiction
of the Court, the District Court should proceed to enforce its
sentence; thereby clearly marking the distinction between a suit
against a sovereign, and a process against a thing claimed by a
sovereign.
HARPER, on the same side.
Two questions are raised in this case.
1. Whether this be a case of admiralty jurisdiction, and
2. Whether a judicial remedy can be given for a wrong done by a
foreign sovereign.
1. The libel states the seizure to have been made "during the
voyage" — and the answer to the claim denies that she was seized
in port — it follows therefore that she must have been seized upon
the high seas.
2. As to the general power to interfere in case of an illegal seizure
made by a foreign sovereign.
Sovereignty is absolute and universal. This is the general rule.
But it is contended that there is an exception in four cases.
1. As to the person of a foreign sovereign.
2. As to his ambassadors.
3. As to his armies; and
4. As to his property — which last is said to be an inference from
the three former cases. But the three former cases are all founded
upon consent, and the latter is not; consequently there can be no
analogy between them. Besides, these cases are not exceptions to
the sovereignty, but merely exemptions from the ordinary judicial
process, by consent of the sovereign. If a foreign sovereign comes
secretly into the country, he is not protected from ordinary
process; but when he comes openly in his character as a
sovereign, an assent is implied, and he comes with all the
immunities incident to his dignity, according to the common
understanding of the word. All the cases supposed to be against
us are founded upon consent. Bynkershoek also places it upon the
ground of consent, and he is supported
by Barbeyrac and Galliani.
The positive authorities against the exemption of the property of
the sovereign from the ordinary judicial process,
are Bynkershoek 25, Martins 182, and 2 Rutherford 476. The
Constitution of the United States takes for granted the suability
of the states, and merely provides the means of carrying the
principle into effect. The exemption of the sovereign himself, his
ambassador and his armies, depends upon particular reasons
which do not apply to his property, nor to his ships of war.
PINKNEY, Attorney General, in reply.
When wrongs are inflicted by one nation upon another, in
tempestuous times, they cannot be redressed by the judicial
department. Its power cannot extend beyond the territorial
jurisdiction. However unjust a confiscation may be, a judicial
condemnation closes the judicial eye upon its enormity. The right
to demand redress belongs to the executive department, which
alone represents the sovereignty of the nation in its intercourse
with other nations.
The simple fact in this case is, that an individual is seeking, in the
ordinary course of justice, redress against the act of a foreign
sovereign. But the rights of a foreign sovereign cannot be
submitted to a judicial tribunal. He is supposed to be out of the
country, although he may happen to be within it.
An ambassador is unquestionably exempt from the ordinary
jurisdiction; but if he commit violence it may be lawfully repelled
by the injured individual — so if he commit public violence he
may be opposed by the nation. This right arises from the necessity
of the case. But as to ordinary cases he is to be referred to the
tribunals of his own country. In cases where those tribunals
cannot interfere to prevent the injury, the jurisdiction of the
country, for that purpose, may interfere; but when the act is done,
and prevention is too late, he must be referred to his own
tribunals.
We claim for this vessel, an immunity from the ordinary
jurisdiction, as extensive as that of an ambassador, or of the
Sovereign himself; — but no further; — If she attempt violence,
she may be restrained.
The constitution of the United States, decides nothing — it only
provides, a tribunal, if a case can by possibility exist.
The statutes of the United States, are in hostility to the idea of
jurisdiction. — Private vessels are made liable to confiscation,
but public vessels are to be driven away. The remedy is by
opposing Sovereign to Sovereign, not by subjecting him to the
ordinary jurisdiction.
The jurisdiction over things and persons, is the same in substance.
The arrest of the thing is to obtain jurisdiction over the person.
A distinction is taken between civil and territorial jurisdiction,
civil jurisdiction is referred to consent; — it binds all who have
consented. Territorial jurisdiction goes farther; it operates upon
those who have not assented — such as aliens — but the alien
must do some thing — he must come within the territory whereby
he submits to the jurisdiction — so if he purchases property
within the country, or sends property into the territory,
in ordinary cases, his assent is implied. But if the property of an
alien, be forcibly or fraudulently carried within the territory, no
consent is implied, and consequently there is no ground for
jurisdiction.
If a foreign Sovereign be found in the territory, he is not liable to
the ordinary jurisdiction. Vattel places his exemption on the
ground, that he did not intend to submit to it. — Rutherford, on
the ground of the assent of the other Sovereign.
The case of the Ambassador is precisely in point — his
immunities depend upon the implied assent. The reason is, that
he may be independent. Grotius, places it upon the conventional,
and Rutherford, upon the natural law of nations.
So in the case of the passage of troops through a neutral territory,
the permission to pass, implies a compact, that they should enjoy
all necessary immunities. From the nature of the case, they
cannot be subject to the ordinary jurisdiction of the country,
through which they pass. To suffer one of the soldiers to be
arrested for a debt due to a citizen of that country, would be
inconsistent with the permission to pass.
We are asked, whence we infer the immunity of the public armed
vessel of a sovereign. We answer from the nature of sovereignty,
and from the universal practice of nations from the time of Tyre
and Sidon.
Sovereigns are equal. It is the duty of a sovereign, not to submit
his rights to the decision of a co-sovereign. He is the sole arbiter
of his own rights. He acknowledges no superior, but God alone.
To his equals, he shows respect, but not submission.
This vessel is not the ordinary property of a sovereign. — It is
his national property — a public ship of war duly commissioned.
There is no difference in principle between such a vessel, and an
army passing through the territory. She has the same rights. She
has your permission to pass, and you are bound to give her all
necessary immunities. You gave her an asylum as the property of
a great and powerful nation, you must not suffer her to be thereby
entrapped in the fangs of a municipal court. She was charged with
public despatches; she visited your ports in itinere. It was a
deflexion merely, that she might more effectually perform her
voyage. It was a mere passage through your jurisdiction. Her
commander had an unquestionable right to exclusive jurisdiction
over her crew. In the eye of the law of nations, she was at home,
whether in your ports, or upon the high seas. The exemption from
delay, is more necessary than the exemption from final
condemnation.
By the usage of states, no other evidence is required of the
property of a sovereign than his commission and flag. This is
strong evidence, that such property is not subject to the ordinary
jurisdiction of the country. Otherwise other documents would be
required and would be furnished. No others are required at sea,
nor on shore. This usage of nations is universally known, and as
the vessel sailed upon the faith of such a usage, good faith
requires that you should receive the flag and commission as
evidence of the character of the vessel.
This court will not decide this case upon the authority of the
slovenly treatise of Bynkershoek, or the ravings of that sciolist
Martins, but upon the broad principles of national law, and
national independence. One would as soon consult Gibbons or
Hobbs, for the doctrines of our holy religion as Martins for the
principles of the law of nations. Bynkershoek, upon this point,
draws his authorities from Dutch courts, and Dutch jurists. Not
one of his cases was adjudged, except that cited from Huber. And
in one of the cases, the states general requested that the vessel
should be discharged, which had been arrested in Zealand, for a
debt due from Spain, saying that they would write to the Queen
of Spain, to pay her debts, or they would be obliged to issue
letters of marque and reprisal, — which was the proper course.
The other cases were only abortive attempts to subject national
property to the ordinary jurisdiction of the country.
The case of the Swedish convoy, was upon the ground, that the
convoy resisted by force the right of search. It was war quoad
hoc; and the seizure was made as prize of war. But that case was
never decided.
In the case of Glass v. The Sloop Betsy, the privateers
commission was to capture the property of an enemy, but she had
captured that of a friend. — The court did not subject
the privateer to their jurisdiction, but the prize which she had
wrongfully made.
Present. . . . . All the judges.
THIS being a cause in which the sovereign right claimed by
NAPOLEON, the reigning emperor of the French, and the
political relations between the United States and France, were
involved, it was, upon the suggestion of the Attorney General,
ordered to a hearing in preference to other causes which stood
before it on the docket.
It was an appeal from the sentence of the Circuit Court of the
United States, for the district of Pennsylvania, which reversed the
sentence of the District Court, and ordered the vessel to be
restored to the libellants.
The case was this — on the 24th of August, 1811, John
M`Faddon William Greetham, of the State of Maryland, filed
their libel in the District Court of the United States, for the
District of Pennsylvania, against the Schooner Exchange, setting
forth that they were her sole owners, on the 27th of October,
1809, when she sailed from Baltimore, bound to St. Sebastians,
in Spain. That while lawfully and peaceably pursuing her voyage,
she was on the 30th of December, 1810, violently and forcibly
taken by certain persons, acting under the decrees and orders of
NAPOLEON, Emperor of the French, out of the custody of the
libellants, and of their captain and agent, and was disposed of by
those persons, or some of them, in violation of the rights of the
libellants, and of the law of nations in that behalf. That she had
been brought into the port of Philadelphia, and was then in the
jurisdiction of that court, in possession of a certain Dennis M.
Begon, her reputed captain or master. That no sentence or decree
of condemnation had been pronounced against her, by any court
of competent jurisdiction; but that the property of the libellants in
her, remained unchanged and in full force. They therefore prayed
the usual process of the court, to attach the vessel, and that she
might be restored to them.
Upon this libel the usual process was issued, return able on the
30th of August, 1811, which was executed and returned
accordingly, but no person appeared to claim the vessel in
opposition to the libellants. On the 6th of September, the usual
proclamation was made for all persons to appear and show cause
why the vessel should not be restored to her former owners, but
no person appeared.
On the 13th of September, a like proclamation was made, but no
appearance was entered.
On the 20th of September, Mr. Dallas, the Attorney of the
United States, for the District of Pennsylvania, appeared, and (at
the instance of the executive department of the government of the
United States, as it is understood,) filed a suggestion, to the
following effect:
Protesting that he does not know, and does not admit the truth of
the allegations contained in the libel, he suggests and gives the
court to understand and be informed,
That in as much as there exists between the United States of
America and Napoleon, emperor of France and king of Italy, c.c.
a state of peace and amity; the public vessels of his said Imperial
and Royal Majesty, conforming to the law of nations, and laws of
the said United States, may freely enter the ports and harbors of
the said United States, and at pleasure depart therefrom without
seizure, arrest, detention or molestation. That a certain public
vessel described, and known as the Balaou, or vessel, No. 5,
belonging to his said Imperial and Royal Majesty, and actually
employed in his service, under the command of the Sieur Begon,
upon a voyage from Europe to the Indies, having encountered
great stress of weather upon the high seas, was compelled to enter
the port of Philadelphia, for refreshment and repairs, about the
22d of July, 1811. That having entered the said port from
necessity, and not voluntarily; having procured the requisite
refreshments and repairs, and having conformed in all things to
the law of nations and the laws of the United States, was about to
depart from the said port of Philadelphia, and to resume her
voyage in the service of his said Imperial and Royal Majesty,
when on the 24th of August, 1811, she was seized, arrested, and
detained in pursuance of the process of attachment issued upon
the prayer of the libellants. That the said public vessel had not, at
any time, been violently and forcibly taken or captured from the
libellants, their captain and agent on the high seas, as prize of war,
or otherwise; but that if the said public vessel, belonging to his
said Imperial and Royal Majesty as aforesaid, ever was a vessel
navigating under the flag of the United States, and possessed by
the libellants, citizens thereof, as in their libel is alleged, (which
nevertheless, the said Attorney does not admit) the property of
the libellants, in the said vessel was seized and divested, and the
same became vested in his Imperial and Royal Majesty, within a
port of his empire, or of a country occupied by his arms, out of
the jurisdiction of the United States, and of any particular state of
the United States, according to the decrees and laws of France, in
such case provided. And the said Attorney submitting, whether,
in consideration of the premises, the court will take cognizance
of the cause, respectfully prays that the court will be pleased to
order and decree, that the process of attachment, heretofore
issued, be quashed; that the libel be dismissed with costs; and that
the said public vessel, her tackle, c. belonging to his said Imperial
and Royal Majesty, be released, c. And the said Attorney brings
here into court, the original commission of the said Sieur Begon,
c.
On the 27th of September, 1811, the libellants filed their answer
to the suggestion of the District Attorney, to which they except,
because it does not appear to be made for, or on behalf, or at the
instance of the United States, or any other body politic or person.
They aver, that the schooner is not a public vessel, belonging to
his Imperial and Royal Majesty, but is the private property of the
libellants. They deny that she was compelled by stress of weather,
to enter the port of Philadelphia, or that she came otherwise than
voluntarily; and that the property of the libellants in the vessel
never was divested, or vested in his Imperial and Royal Majesty,
within a port of his empire, or of a country occupied by his arms.
The District Attorney, produced the affidavits of the Sieur Begon,
and the French consul, verifying the commission of the captain,
and stating the fact, that the public vessels of the Emperor of
France never carry with them any other document or evidence
that they belong to him, than his flag, the commission, and the
possession of his officers.
In the commission it was stated, that the vessel
was armed at Bayonne.
On the 4th of October, 1811, the District Judge dismissed the
libel with costs, upon the ground, that a public armed vessel of a
foreign sovereign, in amity with our government, is not subject
to the ordinary judicial tribunals of the country, so far as regards
the question of title, by which such sovereign claims to hold the
vessel.
From this sentence, the libellants appealed to the Circuit Court,
where it was reversed, on the 28th of October, 1811.
From this sentence of reversal, the District Attorney, appealed to
this Court.
All the Judges being present.
MARSHALL, Ch. J. Delivered the opinion of the Court as
follows:
This case involves the very delicate and important inquiry,
whether an American citizen can assert, in an American court, a
title to an armed national vessel, found within the waters of the
United States.
The question has been considered with an earnest solicitude, that
the decision may conform to those principles of national and
municipal law by which it ought to be regulated.
In exploring an unbeaten path, with few, if any, aids from
precedents or written law, the court has found it necessary to rely
much on general principles, and on a a train of reasoning, founded
on cases in some degree analogous to this.
The jurisdiction of courts is a branch of that which is possessed
by the nation as an independent sovereign power.
The jurisdiction of the nation within its own territory is
necessarily exclusive and absolute. It is susceptible of no
limitation not imposed by itself. Any restriction upon it, deriving
validity from an external source, would imply a diminution of its
sovereignty to the extent of the restriction, and an investment of
that sovereignty to the same extent in that power which could
impose such restriction.
All exceptions, therefore, to the full and complete power of a
nation within its own territories, must be traced up to the consent
of the nation itself. They can flow from no other legitimate
source.
This consent may be either express or implied. In the latter case,
it is less determinate, exposed more to the uncertainties of
construction; but, if understood, not less obligatory.
The world being composed of distinct sovereignties, possessing
equal rights and equal independence, whose mutual benefit is
promoted by intercourse with each other, and by an interchange
of those good offices which humanity dictates and its wants
require, all sovereigns have consented to a relaxation in practice,
in cases under certain peculiar circumstances, of that absolute and
complete jurisdiction within their respective territories which
sovereignty confers.
This consent may, in some instances, be tested by common usage,
and by common opinion, growing out of that usage.
A nation would justly be considered as violating its faith,
although that faith might not be expressly plighted, which should
suddenly and without previous notice, exercise its territorial
powers in a manner not consonant to the usages and received
obligations of the civilized world.
This full and absolute territorial jurisdiction being alike the
attribute of every sovereign, and being incapable of conferring
extra-territorial power, would not seem to contemplate foreign
sovereigns nor their sovereign rights as its objects. One sovereign
being in no respect amenable to another; and being bound by
obligations of the highest character not to degrade the dignity of
his nation, by placing himself or its sovereign rights within the
jurisdiction of another, can be supposed to enter a foreign
territory only under an express license, or in the confidence that
the immunities belonging to his independent sovereign station,
though not expressly stipulated, are reserved by implication, and
will be extended to him.
This perfect equality and absolute independence of sovereigns,
and this common interest impelling them to mutual intercourse,
and an interchange of good offices with each other, have given
rise to a class of cases in which every sovereign is understood to
wave the exercise of a part of that complete exclusive territorial
jurisdiction, which has been stated to be the attribute of every
nation.
1st. One of these is admitted to be the exemption of the person of
the sovereign from arrest or detention within a foreign territory.
If he enters that territory with the knowledge and license of its
sovereign, that license, although containing no stipulation
exempting his person from arrest, is universally understood to
imply such stipulation.
Why has the whole civilized world concurred in this
construction? The answer cannot be mistaken. A foreign
sovereign is not understood as intending to subject himself to a
jurisdiction incompatible with his dignity, and the dignity of his
nation, and it is to avoid this subjection that the license has been
obtained. The character to whom it is given, and the object for
which it is granted, equally require that it should be construed to
impart full security to the person who has obtained it. This
security, however, need not be expressed; it is implied from the
circumstances of the case.
Should one sovereign enter the territory of another, without the
consent of that other, expressed or implied, it would present a
question which does not appear to be perfectly settled, a decision
of which, is not necessary to any conclusion to which the Court
may come in the cause under consideration. If he did not thereby
expose himself to the territorial jurisdiction of the sovereign,
whose dominions he had entered, it would seem to be because all
sovereigns impliedly engage not to avail themselves of a power
over their equal, which a romantic confidence in their
magnanimity has placed in their hands.
2d. A second case, standing on the same principles with the first,
is the immunity which all civilized nations allow to foreign
ministers.
Whatever may be the principle on which this immunity is
established, whether we consider him as in the place of the
sovereign he represents, or by a political fiction suppose him to
be extra-territorial, and, therefore, in point of law, not within the
jurisdiction of the sovereign at whose Court he resides; still the
immunity itself is granted by the governing power of the nation
to which the minister is deputed. This fiction of exterritoriality
could not be erected and supported against the will of the
sovereign of the territory. He is supposed to assent to it.
This consent is not expressed. It is true that in some countries,
and in this among others, a special law is enacted for the case.
But the law obviously proceeds on the idea of prescribing the
punishment of an act previously unlawful, not of granting to a
foreign minister a privilege which he would not otherwise
possess.
The assent of the sovereign to the very important and extensive
exemptions from territorial jurisdiction which are admitted to
attach to foreign ministers, is implied from the considerations
that, without such exemption, every sovereign would hazard his
own dignity by employing a public minister abroad. His minister
would owe temporary and local allegiance to a foreign prince,
and would be less competent to the objects of his mission. A
sovereign committing the interests of his nation with a foreign
power, to the care of a person whom he has selected for that
purpose, cannot intend to subject his minister in any degree to
that power; and, therefore, a consent to receive him, implies a
consent that he shall possess those privileges which his principal
intended he should retain — privileges which are essential to the
dignity of his sovereign, and to the duties he is bound to perform.
In what cases a minister, by infracting the laws of the country in
which he resides, may subject himself to other punishment than
will be inflicted by his own sovereign, is an inquiry foreign to the
present purpose. If his crimes be such as to render him amenable
to the local jurisdiction, it must be because they forfeit the
privileges annexed to his character; and the minister, by violating
the conditions under which he was received as the representative
of a foreign sovereign, has surrendered the immunities granted
on those conditions; or, according to the true meaning of the
original assent, has ceased to be entitled to them.
3d. A third case in which a sovereign is understood to cede a
portion of his territorial jurisdiction is, where he allows the troops
of a foreign prince to pass through his dominions.
In such case, without any express declaration waving jurisdiction
over the army to which this right of passage has been granted, the
sovereign who should attempt to exercise it would certainly be
considered as violating his faith. By exercising it, the purpose for
which the free passage was granted would be defeated, and a
portion of the military force of a foreign independent nation
would be diverted from those national objects and duties to which
it was applicable, and would be withdrawn from the control of
the sovereign whose power and whose safety might greatly
depend on retaining the exclusive command and disposition of
this force. The grant of a free passage therefore implies a waver
of all jurisdiction over the troops during their passage, and
permits the foreign general to use that discipline, and to inflict
those punishments which the government of his army may
require.
But if, without such express permit, an army should be led
through the territories of a foreign prince, might the jurisdiction
of the territory be rightfully exercised over the individuals
composing this army?
Without doubt, a military force can never gain immunities of any
other description than those which war gives, by entering a
foreign territory against the will of its sovereign. But if his
consent, instead of being expressed by a particular license, be
expressed by a general declaration that foreign troops may pass
through a specified tract of country, a distinction between such
general permit and a particular license is not perceived. It would
seem reasonable that every immunity which would be conferred
by a special license, would be in like manner conferred by such
general permit.
We have seen that a license to pass through a territory implies
immunities not expressed, and it is material to enquire why the
license itself may not be presumed?
It is obvious that the passage of an army through a foreign
territory will probably be at all times inconvenient and injurious,
and would often be imminently dangerous to the sovereign
through whose dominion it passed. Such a practice would break
down some of the most decisive distinctions between peace and
war and would reduce a nation to the necessity of resisting by war
an act not absolutely hostile in its character, or of exposing itself
to the stratagems and frauds of a power whose integrity might be
doubted, and who might enter the country under deceitful
pretexts. It is for reasons like these that the general license to
foreigners to enter the dominions of a friendly power, is never
understood to extend to a military force; and an army marching
into the dominions of another sovereign, may justly be
considered as committing an act of hostility; and, if not opposed
by force, acquires no privilege by its irregular and
improper conduct. It may however well be questioned whether
any other than the sovereign power of the state be capable of
deciding that such military commander is without a license.
But the rule which is applicable to armies, does not appear to be
equally applicable to ships of war entering the ports of a friendly
power. The injury inseparable from the march of an army through
an inhabited country, and the dangers often, indeed generally,
attending it, do not ensue from admitting a ship of war, without
special license, into a friendly port. A different rule therefore with
respect to this species of military force has been generally
adopted. If, for reasons of state, the ports of a nation generally, or
any particular ports be closed against vessels of war generally, or
the vessels of any particular nation, notice is usually given of such
determination. If there be no prohibition, the ports of a friendly
nation are considered as open to the public ships of all powers
with whom it is at peace, and they are supposed to enter such
ports and to remain in them while allowed to remain, under the
protection of the government of the place.
In almost every instance, the treaties between civilized nations
contain a stipulation to this effect in favor of vessels driven in by
stress of weather or other urgent necessity. In such cases the
sovereign is bound by compact to authorize foreign vessels to
enter his ports. The treaty binds him to allow vessels in distress
to find refuge and asylum in his ports, and this is a license which
he is not at liberty to retract. It would be difficult to assign a
reason for withholding from a license thus granted, any immunity
from local jurisdiction which would be implied in a special
license.
If there be no treaty applicable to the case, and the sovereign,
from motives deemed adequate by himself, permits his ports to
remain open to the public ships of foreign friendly powers, the
conclusion seems irresistable, that they enter by his assent. And
if they enter by his assent necessarily implied, no just reason is
perceived by the Court for distinguishing their case from that of
vessels which enter by express assent.
In all the cases of exemption which have been reviewed, much
has been implied, but the obligation of what was implied has been
found equal to the obligation of that which was expressed. Are
there reasons for denying the application of this principle to ships
of war?
In this part of the subject a difficulty is to be encountered, the
seriousness of which is acknowledged, but which the Court will
not attempt to evade.
Those treaties which provide for the admission and safe departure
of public vessels entering a port from stress of weather, or other
urgent cause, provide in like manner for the private vessels of the
nation; and where public vessels enter a port under the general
license which is implied merely from the absence of a
prohibition, they are, it may be urged, in the same condition with
merchant vessels entering the same port for the purposes of trade
who cannot thereby claim any exemption from the jurisdiction of
the country. It may be contended, certainly with much plausibility
if not correctness, that the same rule, and same principle are
applicable to public and private ships; and since it is admitted that
private ships entering without special license become subject to
the local jurisdiction, it is demanded on what authority an
exception is made in favor of ships of war.
It is by no means conceded, that a private vessel really availing
herself of an asylum provided by treaty, and not attempting to
trade, would become amenable to the local jurisdiction, unless
she committed some act forfeiting the protection she claims under
compact. On the contrary, motives may be assigned for
stipulating, and according immunities to vessels in cases of
distress, which would not be demanded for, or allowed to those
which enter voluntarily and for ordinary purposes. On this part of
the subject, however, the Court does not mean to indicate any
opinion. The case itself may possibly occur, and ought not to be
prejudged.
Without deciding how far such stipulations in favor of distressed
vessels, as are usual in treaties, may exempt private ships from
the jurisdiction of the place, it may safely be asserted, that the
whole reasoning upon which such exemption has been implied in
other cases, applies with full force to the exemption of ships of
war in this.
"It is impossible to conceive," says Vattel, "that a Prince who
sends an ambassador or any other minister can have any intention
of subjecting him to the authority of a foreign power; and this
consideration furnishes an additional argument, which
completely establishes the independency of a public minister. If
it cannot be reasonably presumed that his sovereign means to
subject him to the authority of the prince to whom he is sent, the
latter, in receiving the minister, consents to admit him on the
footing of independency; and thus there exists between the two
princes a tacit convention, which gives a new force to the natural
obligation."
Equally impossible is it to conceive, whatever may be the
construction as to private ships, that a prince who stipulates a
passage for his troops, or an asylum for his ships of war in
distress, should mean to subject his army or his navy to the
jurisdiction of a foreign sovereign. And if this cannot be
presumed, the sovereign of the port must be considered as having
conceded the privilege to the extent in which it must have been
understood to be asked.
To the Court, it appears, that where, without treaty, the ports of a
nation are open to the private and public ships of a friendly
power, whose subjects have also liberty without special license,
to enter the country for business or amusement, a clear distinction
is to be drawn between the rights accorded to private individuals
or private trading vessels, and those accorded to public armed
ships which constitute a part of the military force of the nation.
The preceding reasoning, has maintained the propositions that all
exemptions from territorial jurisdiction, must be derived from the
consent of the sovereign of the territory; that this consent may be
implied or expressed; and that when implied, its extent must be
regulated by the nature of the case, and the views under which
the parties requiring and conceding it must be supposed to act.
When private individuals of one nation spread themselves
through another as business or caprice may direct, mingling
indiscriminately with the inhabitants of that other, or when
merchant vessels enter for the purposes of trade, it would be
obviously inconvenient and dangerous to society, and would
subject the laws to continual infraction, and the government to
degradation, if such individuals or merchants did not owe
temporary and local allegiance, and were not amenable to the
jurisdiction of the country. Nor can the foreign sovereign have
any motive for wishing such exemption. His subjects thus passing
into foreign countries, are not employed by him, nor are they
engaged in national pursuits. Consequently there are powerful
motives for not exempting persons of this description from the
jurisdiction of the country in which they are found, and no one
motive for requiring it. The implied license, therefore, under
which they enter can never be construed to grant such exemption.
But in all respects different is the situation of a public armed ship.
She constitutes a part of the military force of her nation; acts
under the immediate and direct command of the sovereign; is
employed by him in national objects. He has many and powerful
motives for preventing those objects from being defeated by the
interference of a foreign state. Such interference cannot take
place without affecting his power and his dignity. The implied
license therefore under which such vessel enters a friendly port,
may reasonably be construed, and it seems to the Court, ought to
be construed, as containing an exemption from the jurisdiction of
the sovereign, within whose territory she claims the rites of
hospitality.
Upon these principles, by the unanimous consent of nations, a
foreigner is amenable to the laws of the place; but certainly in
practice, nations have not yet asserted their jurisdiction over the
public armed ships of a foreign sovereign entering a port open for
their reception.
Bynkershoek, a jurist of great reputation, has indeed maintained
that the property of a foreign sovereign is not distinguishable by
any legal exemption from the property of an ordinary individual,
and has quoted several cases in which courts have exercised
jurisdiction over causes in which a foreign sovereign was made a
party defendant.
NATIONAL BANK v. REPUBLIC OF CHINA(1955)
No. 30
Argued: November 9, 1954Decided: March 7, 1955
1. The Republic of China sued an American bank in a
Federal District Court of recover $200,000 deposited in the
bank by a governmental agency of the Republic. The bank
interposed counterclaims seeking an affirmative judgment
for $1,634,432 on defaulted treasury notes of the Republic.
The Republic pleaded sovereign immunity. Held: The
counterclaims should not have been dismissed. Pp. 357-
366.
(a) Having been recognized as a sovereign by the
Executive, the Republic of China and its governmental
agencies enjoy a foreign sovereign's immunities to the
same extent as any other country recognized by the United
States. p. 358.
(b) This case does not involve an attempt to bring a
recognized foreign government into court as a defendant.
Without indicating any opinion on this question, it may safely be
affirmed, that there is a manifest distinction between the private
property of the person who happens to be a prince, and that
military force which supports the sovereign power, and maintains
the dignity and the independence of a nation. A prince, by
acquiring private property in a foreign country, may possibly be
considered as subjecting that property to the territorial
jurisdiction; he may be considered as so far laying down the
prince, and assuming the character of a private individual; but this
he cannot be presumed to do with respect to any portion of that
armed force, which upholds his crown, and the nation he is
enrusted to govern.
The only applicable case cited by Bynkershoek, is that of the
Spanish ships of war seized in Flushing for a debt due from the
king of Spain. In that case, the states general interposed; and there
is reason to believe, from the manner in which the transaction is
stated, that, either by the interference of government, or the
decision of the court, the vessels were released.
This case of the Spanish vessels is, it is believed, the only case
furnished by the history of the world, of an attempt made by an
individual to assert a claim against a foreign prince, by seizing
the armed vessels of the nation. That this proceeding was at once
arrested by the government, in a nation which appears to have
asserted the power of proceeding in the same manner against the
private property of the prince, would seem to furnish no feeble
argument in support of the universality of the opinion in favor of
the exemption claimed for ships of war. The distinction made in
our own laws between public and private ships would appear to
proceed from the same opinion.
A foreign government is invoking our law but resisting a
claim against it which fairly would curtail its recovery. Pp.
361-362.
(c) The contention that the counterclaim here involved is
not based on the subject matter of the Republic's suit does
not require a different result. Pp. 364-365.
2. That the bank, on certiorari, dropped its demand for
affirmative relief did not reduce the counterclaim to a mere
defense or deprive this Court of jurisdiction. P. 358, n. 2.
208 F.2d 627, reversed and remanded.
Wm. Harvey Reeves argued the cause for petitioner. With
him on the brief was Chauncey B. Garver.
Louis J. Gusmano argued the cause for respondents. With
him on a brief for the Republic of China were Cletus Keating
and Robert E. Kline, Jr. [348 U.S. 356, 357]
MR. JUSTICE FRANKFURTER delivered the opinion of the
Court.
It seems then to the Court, to be a principle of public law, that
national ships of war, entering the port of a friendly power open
for their reception, are to be considered as exempted by the
consent of that power from its jurisdiction.
Without doubt, the sovereign of the place is capable of destroying
this implication. He may claim and exercise jurisdiction either by
employing force, or by subjecting such vessels to the ordinary
tribunals. But until such power be exerted in a manner not to be
misunderstood, the sovereign cannot be considered as having
imparted to the ordinary tribunals a jurisdiction, which it would
be a breach of faith to exercise. Those general statutory
provisions therefore which are descriptive of the ordinary
jurisdiction of the judicial tribunals, which give an individual
whose property has been wrested from him, a right to claim that
property in the courts of the country, in which it is found, ought
not, in the opinion of this Court, to be so construed as to give
them jurisdiction in a case, in which the sovereign power has
impliedly consented to wave its jurisdiction.
The arguments in favor of this opinion which have been drawn
from the general inability of the judicial power to enforce its
decisions in cases of this description, from the consideration, that
the sovereign power of the nation is alone competent to avenge
wrongs committed by a sovereign, that the questions to which
such wrongs give birth are rather questions of policy than of law,
that they are for diplomatic, rather than legal discussion, are of
great weight, and merit serious attention. But the argument has
already been drawn to a length, which forbids a particular
examination of these points.
The principles which have been stated, will now be applied to the
case at bar.
The Shanghai-Nanking Railway Administration, an official
agency of respondent Republic of China, established a
$200,000 deposit account in 1948 with the New York head
office of petitioner National City Bank of New York.
Subsequently, respondent sought to withdraw the funds,
but petitioner refused to pay, and respondent brought suit
in Federal District Court under 48 Stat. 184, as amended,
12 U.S.C. 632.
In addition to various defenses, petitioner interposed two
counterclaims seeking an affirmative judgment for
$1,634,432 on defaulted Treasury Notes of respondent
owned by petitioner. 1 After a plea of sovereign immunity,
the District Court dismissed the counterclaims, 108 F.
Supp. 766, and entered judgment on them pursuant to Rule
54 (b), Federal Rules of Civil Procedure. Petitioner
appealed, and while the appeal was pending sought leave
from the District Court to amend the counterclaims by
denominating them setoffs and including additional data.
The District Court denied leave. 14 F. R. D. 186. The Court
of Appeals for the Second Circuit affirmed the dismissal
and the denial on the ground that the counterclaims were
not based on the subject matter of respondent's suit
(whether they be treated as requests for affirmative [348
U.S. 356, 358] relief or as setoffs) and, therefore, it would
In the present state of the evidence and proceedings, the
Exchange must be considered as a vessel, which was the property
of the Libellants, whose claim is repelled by the fact, that she is
now a national armed vessel, commissioned by, and in the service
of the emperor of France. The evidence of this fact is not
controverted. But it is contended, that it constitutes no bar to an
enquiry into the validity of the title, by which the emperor holds
this vessel. Every person, it is alleged, who is entitled to property
brought within the jurisdiction of our Courts, has a right to assert
his title in those Courts, unless there be some law taking his case
out of the general rule. It is therefore said to be the right, and if it
be the right, it is the duty of the Court, to enquire whether this
title has been extinguished by an act, the validity of which is
recognized by national or municipal law.
If the preceding reasoning be correct, the Exchange, being a
public armed ship, in the service of a foreign sovereign, with
whom the government of the United States is at peace, and having
entered an American port open for her reception, on the terms on
which ships of war are generally permitted to enter the ports of a
friendly power, must be considered as having come into the
American territory, under an implied promise, that while
necessarily within it, and demeaning herself in a friendly manner,
she should be exempt from the jurisdiction of the country.
If this opinion be correct, there seems to be a necessity for
admitting that the fact might be disclosed to the Court by the
suggestion of the Attorney for the United States.
I am directed to deliver it, as the opinion of the Court, that the
sentence of the Circuit Court, reversing the sentence of the
District Court, in the case of the Exchange be reversed, and that
of the District Court, dismissing the libel, be affirmed.
be an invasion of respondent's sovereign immunity for our
courts to permit them to be pursued. 208 F.2d 627.
Because of the importance of the question and its first
appearance in this Court, we granted certiorari. 2 347 U.S.
951 .
The status of the Republic of China in our courts is a matter
for determination by the Executive and is outside the
competence of this Court. Accordingly, we start with the
fact that the Republic and its governmental agencies enjoy
a foreign sovereign's immunities to the same extent as any
other country duly recognized by the United States. See
Guaranty Trust Co. v. United States, 304 U.S. 126, 137 -
138.
The freedom of a foreign sovereign from being haled into
court as a defendant has impressive title-deeds. Very early
in our history this immunity was recognized, De Moitez v.
The South Carolina, Bee 422, 17 Fed. Cas. 574, No. 9,697
(Admiralty Court of Pa., 1781, Francis Hopkinson, J.), and
it has since become part of the fabric of our law. It has
become such solely through adjudications of this Court.
Unlike the special position accorded our States as party
defendants by the Eleventh Amendment, [348 U.S. 356,
359] the privileged position of a foreign state is not an
explicit command of the Constitution. It rests on
considerations of policy given legal sanction by this Court.
To be sure, the nonsuability of the United States without its
consent is likewise derived from considerations of policy.
But these are of a different order from those that give a
foreign nation such immunity. It is idle to repeat or rehearse
the different considerations set forth in Mr. Chief Justice
Marshall's classic opinion in The Schooner Exchange v.
M'Faddon, 7 Cranch 116.
But even the immunity enjoyed by the United States as
territorial sovereign is a legal doctrine which has not been
favored by the test of time. It has increasingly been found
to be in conflict with the growing subjection of governmental
action to the moral judgment. A reflection of this steady shift
in attitude toward the American sovereign's immunity is
found in such observations in unanimous opinions of this
Court as "Public opinion as to the peculiar rights and
preferences due to the sovereign has changed," Davis v.
Pringle, 268 U.S. 315, 318 ; "There is no doubt an
intermittent tendency on the part of governments to be a
little less grasping than they have been in the past . . .,"
White v. Mechanics Securities Corp., 269 U.S. 283, 301 ; ".
. . the present climate of opinion . . . has brought
governmental immunity from suit into disfavor . . .," Keifer
& Keifer v. Reconstruction Finance Corp., 306 U.S. 381,
391 . This chilly feeling against sovereign immunity began
to reflect itself in federal legislation in 1797. 3 At that early
day Congress decided that when the United States sues an
individual, the individual can set off all debts properly due
him from the sovereign. And because of the objections to
ad hoc legislative allowance of private claims, Congress a
hundred [348 U.S. 356, 360] years ago created the Court
of Claims, 4 where the United States, like any other obligor,
may affirmatively be held to its undertakings. This
amenability to suit has become a commonplace in regard
to the various agencies which carry out "the enlarged scope
of government in economic affairs," Keifer & Keifer v.
Reconstruction Finance Corp., supra, at 390. The
substantive sweep of amenability to judicial process has
likewise grown apace. 5
The outlook and feeling thus reflected are not merely
relevant to our problem. They are important. The claims of
dominant opinion rooted in sentiments of justice and public
morality are among the most powerful shaping-forces in
lawmaking by courts. Legislation and adjudication are
interacting influences in the development of law. A steady
legislative trend, presumably manifesting a strong social
policy, properly makes demands on the judicial process.
See James M. Landis, Statutes and the Sources of Law, in
Harvard Legal Essays (1934), p. 213 et seq.; Harlan F.
Stone, The Common Law in the United States, 50 Harv. L.
Rev. 4, 13-16.
More immediately touching the evolution of legal doctrines
regarding a foreign sovereign's immunity is the restrictive
policy that our State Department has taken toward the
claim of such immunity. As the responsible agency for the
conduct of foreign affairs, the State Department is the
normal means of suggesting to the courts that a sovereign
be granted immunity from a particular suit. Ex parte
Republic of Peru, 318 U.S. 578, 581 . Its failure or refusal
to suggest such immunity has been accorded significant
weight by this Court. See Compania Espanola de
Navigacion Maritima, S. A. v. The Navemar, [348 U.S. 356,
361] 303 U.S. 68 ; Republic of Mexico v. Hoffman, 324
U.S. 30 . And this for the reason that a major consideration
for the rule enunciated in The Schooner Exchange is the
embarrassing consequences which judicial rejection of a
claim of sovereign immunity may have on diplomatic
relations. Recently the State Department has pronounced
broadly against recognizing sovereign immunity for the
commercial operations of a foreign government, 26 Dept.
State Bull. 984 (1952), despite the fact that this Court thirty
years earlier rejected the weighty opinion of Judge Mack in
The Pesaro, 277 F. 473 (see, also his opinion in The Gloria,
286 F. 188), for differentiating between commercial and war
vessels of governments. Berizzi Bros. Co. v. Steamship
Pesaro, 271 U.S. 562 .
And so we come to the immediate situation before us. The
short of the matter is that we are not dealing with an attempt
to bring a recognized foreign government into one of our
courts as a defendant and subject it to the rule of law to
which nongovernmental obligors must bow. We have a
foreign government invoking our law but resisting a claim
against it which fairly would curtail its recovery. 6 It wants
our law, like any other [348 U.S. 356, 362] litigant, but it
wants our law free from the claims of justice. It becomes
vital, therefore, to examine the extent to which the
considerations which led this Court to bar a suit against a
sovereign in The Schooner Exchange are applicable here
to foreclose a court from determining, according to
prevailing law, whether the Republic of China's claim
against the National City Bank would be unjustly enforced
by disregarding legitimate claims against the Republic of
China. As expounded in The Schooner Exchange, the
doctrine is one of implied consent by the territorial
sovereign to exempt the foreign sovereign from its
"exclusive and absolute" jurisdiction, the implication
deriving from standards of public morality, fair dealing,
reciprocal self-interest, and respect for the "power and
dignity" of the foreign sovereign. 7 [348 U.S. 356, 363]
(a) The Court of Claims is available to foreign nationals (or
their governments) on a simple condition: that the foreign
national's government can be sued in its courts on claims
by our citizens. 8 An American or a Chinese 9 could sue in
the Court of Claims for default on a United States bond, 28
U.S.C. 1491 (4), or could counterclaim - to the extent of the
Government's claim - in a suit by the United States in any
court, 28 U.S.C. 2406; see United States v. Wilkins, 6
Wheat. 135; cf. United States v. Bank of the Metropolis, 15
Pet. 377; United States v. United States F. & G. Co., 309
U.S. 506, 511 . Thus it seems only fair to subject a foreign
sovereign, coming into our courts by its own choice, to a
liability substantially less than our own Government long
ago willingly assumed.
(b) The Republic of China is apparently suable on contract
claims in its own courts, 10 and Americans have the same
rights as Chinese in those courts. 11 No parochial bias is
manifest in our courts which would make it an affront to the
"power and dignity" of the Republic of China for us to
subject it to counterclaims in our courts when it entertains
affirmative suits in its own. Decisions of the Chinese courts
which seem to grant absolute [348 U.S. 356,
364] immunity from direct suit to foreign sovereign 12 are
inapposite in this context and in light of our State
Department's reluctance to raise the defense of sovereign
immunity in foreign courts, see 26 Dept. State Bull. 984,
985 (1952); cf. 41 Stat. 527, 46 U.S.C. 747.
(c) Respondent urges that fiscal management falls within
the category of immune operations of a foreign government
as defined by the State Department's 1952
pronouncement. This is not to be denied, but it is beside the
point. A sovereign has freely come as a suitor into our
courts; our State Department neither has been asked nor
has it given the slightest intimation that in its judgment
allowance of counterclaims in such a situation would
embarrass friendly relations with the Republic of China.
(d) It is recognized that a counterclaim based on the subject
matter of a sovereign's suit is allowed to cut into the
doctrine of immunity. 13 This is proof positive that the
doctrine is not absolute, and that considerations of fair play
must be taken into account in its application. But the
limitation of "based on the subject matter" is too
indeterminate, indeed too capricious, to mark the bounds
of the limitations on the doctrine of sovereign immunity.
There is great diversity among courts on what is and what
is not a claim "based on the subject matter of the suit" or
"growing out of the same transaction." See Clark, Code
Pleading (2d ed.), 653-660; cf. United States v. National
City Bank of New York, 83 F.2d 236 (C. A. 2d Cir.). No
doubt the present counterclaims cannot fairly be deemed
to be related to the [348 U.S. 356, 365] Railway Agency's
deposit of funds except insofar as the transactions between
the Republic of China and the petitioner may be regarded
as aspects of a continuous business relationship. The point
is that the ultimate thrust of the consideration of fair dealing
which allows a setoff or counterclaim based on the same
subject matter reaches the present situation. The
considerations found controlling in The Schooner
Exchange are not here present, and no consent to
immunity can properly be implied. This conclusion was
anticipated by Mr. Justice Washington on circuit four years
after he had been of the Court which decided The Schooner
Exchange. 14 [348 U.S. 356, 366]
The judgment of the Court of Appeals must be reversed
and the case remanded to the District Court with directions
to reinstate the counterclaims and for further proceedings
not inconsistent with this opinion.
Reversed.
MR. JUSTICE DOUGLAS took no part in the consideration
or decision of this case.
Footnotes
[ Footnote 1 ] The Treasury Note on which the first
counterclaim is based was pledged by the Republic of
China in 1920 to secure a loan to the Pacific Development
Company by a banking syndicate in which petitioner
participated. The loan was not repaid, and during the
liquidation of the Development Company the syndicate
bought the collateral at a public sale. The Treasury Notes
on which the second counterclaim is based were
purchased by petitioner's Shanghai branch at the time of
issue in 1947-1948. The record allows us to assume that
the petitioner gave full value as its share of the loan to the
Development Company and bought the notes in the second
counterclaim at par.
[ Footnote 2 ] At the outset respondent argues that since
petitioner on certiorari has dropped its demand for
affirmative relief, the case is not properly before us. It is
conceded that dismissal of independent counterclaims
would ordinarily contain the requisite finality on which to
base our jurisdiction, but respondent contends that when
petitioner reduced its counterclaims to mere demands for
setoff, the claims became defenses and, as such, non
reviewable until the respondent's suit had been concluded
below. We reject this view. A counterclaim does not dwindle
to a defense solely because it is confined - as a result of
the accepted jurisprudence of sovereign immunity, see
United States v. Shaw, 309 U.S. 495 - to reducing the
sovereign's recovery. The District Court's judgment, as
affirmed by the Court of Appeals, terminated a separable
and distinct segment of the litigation.
[ Footnote 3 ] Act of Mar. 3, 1797, 3, 4, 1 Stat. 514-515. The
present version appears in 28 U.S.C. 2406.
[ Footnote 4 ] Act of Feb. 24, 1855, 10 Stat. 612, as
amended, 12 Stat. 765, 14 Stat. 9; see United States v.
Jones, 119 U.S. 477 .
[ Footnote 5 ] The most recent development is the
subjection of the Government to tort liability. Act of Aug. 2,
1946, now 28 U.S.C. 1346 (b).
[ Footnote 6 ] Those cases that have dealt with the problem
include: Republic of China v. American Express Co., 195
F.2d 230 (C. A. 2d Cir.); United States v. National City Bank
of New York, 83 F.2d 236 (C. A. 2d Cir.); In re Patterson-
MacDonald Shipbuilding Co., 293 F. 192 (C. A. 9th Cir.);
Kingdom of Roumania v. Guaranty Trust Co., 250 F. 341
(C. A. 2d Cir.); Hungarian People's Republic v. Cecil
Associates, Inc., 118 F. Supp. 954 (D.C. S. D. N. Y.);
Republic of China v. Pang-Tsu Mow, 105 F. Supp. 411
(D.C. D.C.); United States v. National City Bank of New
York, 90 F. Supp. 448 (D.C. S. D. N. Y.); United States v.
New York Trust Co., 75 F. Supp. 583 (D.C. S. D. N. Y.);
Kingdom of Norway v. Federal Sugar Refining Co., 286 F.
188 (D.C. S. D. N. Y., Mack, J.); French Republic v. Inland
Nav. Co., 263 F. 410 (D.C. E. D. Mo.); Union of Soviet
Republics v. Belaiew, 42 T. L. R. 21 (K. B. Div.); South
African Republic v. La Compagnie Franco-Belge, 1898. 1
Ch. 190; cf. Guaranty Trust Co. v. United States, 304 U.S.
126 ; Dexter & Carpenter, [348 U.S. 356, 362] Inc. v.
Kunglig Jarnvagsstyrelsen, 43 F.2d 705 (C. A. 2d Cir.);
Strousberg v. Republic of Costa Rica, 44 L. T. R. (N. S.)
199 (C. A.); Claim of the Russian Volunteer Fleet against
the British Admiralty, Annual Digest of Public International
Law Cases 1925-1926, p. 210 (British Admiralty Transport
Arbitration Board; affirmed by Court of Appeal).
Of the cited American decisions, only two district court
cases directly involved the dismissal of counterclaims not
based on the subject matter of the sovereign's suit and not
seeking affirmative judgment: Republic of China v. Pang-
Tsu Mow, supra, and United States v. New York Trust Co.,
supra.
[ Footnote 7 ] 7 Cranch, at 136-137, 143-144. For a
comprehensive critique of the doctrine as it has
subsequently been applied, see Lauterpacht, The Problem
of Jurisdictional Immunities of Foreign States, 28 Brit. Y. B.
Int'l L. 220.
The Privy Council recently rejected the view of Lord Justice
Scrutton in The Jupiter, 1924. P. 236 (C. A.), that the mere
assertion of a claim by a foreign government to property the
subject of an action by a private party compels the court to
stay the action and decline jurisdiction. Juan Ysmael & Co.
v. Republic of Indonesia, 1954. 3 W. L. R. 531. Earl Jowitt
reviewed the decisions and indicated some of the subtleties
into which the doctrine has led the English courts. Cf.
Republic of Mexico v. Hoffman, 324 U.S. 30, 38 -42
(concurring opinion).
[ Footnote 8 ] 28 U.S.C. 2502. The earliest version of this
statute appears in 15 Stat. 243 (Act of July 27, 1868); see
United States v. O'Keefe. 11 Wall. 178; cf. 43 Stat. 1113,
46 U.S.C. 785; Westfal-Larsen & Co. v. United States, 41
F.2d 550 (D.C. N. D. Calif.). That an American citizen can
sue the Chinese Government in Chinese courts, see
Judicial Yuan Interpretation No. 6 (Feb. 16, 1929).
[ Footnote 9 ] See Treaty of Nov. 4, 1946, Art. VI, 4, 63 Stat.
1305.
[ Footnote 10 ] Judicial Yuan Interpretation No. 373 (Dec.
15, 1930); Supreme Court Uniform Interpretation No. 1933
(Peking, June 22, 1925), 3 China L. Rev., No. 2, p. 84; cf.
Judicial Yuan Interpretation No. 6 (Feb. 16, 1929);
Constitution of the Republic of China, Art. 24 (1947).
[ Footnote 11 ] Treaty of Nov. 4, 1946, Art. VI, 4, 63 Stat.
1305.
[ Footnote 12 ] See Rizaeff Freres v. The Soviet Mercantile
Fleet, 3 China L. Rev., No. 6, p. 14 (Provisional Court of
Shanghai 1927).
[ Footnote 13 ] E. g., Hungarian People's Republic v. Cecil
Associates, Inc., 118 F. Supp. 954 (D.C. S. D. N. Y.);
French Republic v. Inland Nav. Co., 263 F. 410 (D.C. E. D.
Mo.); cf. Republic of China v. American Express Co., 195
F.2d 230 (C. A. 2d Cir.).
[ Footnote 14 ] The case is King of Spain v. Oliver, 1 Pet.
C. C. 276, 14 Fed. Cas. 572, No. 7,813 (C. C. D. Pa.). The
King of Spain had sued two Americans for duties he alleged
they owed him on shipments of goods they had made to the
Spanish American colonies under royal licenses. The
defendants replied that they had obtained the licenses from
and paid the duties to Hope & Co., a Dutch concern which
had a commercial concession from the King in return for
which it had promised, inter alia, to pay duties on shipments
to the colonies. Hope had also negotiated a loan for the
King in what appears to have been an unrelated
transaction, and the King had pledged all his public
revenues to repay the loan. Instead of handing over the
duties received from defendants to the King, Hope applied
them to reduce the debt due from the King on the loan.
Mr. Justice Washington directed a verdict for the
defendants. First he held that there was no privity of
contract between the defendants and the King, so that
payment to Hope discharged them. But assuming that there
was privity he ruled that the duties had been properly
applied by Hope to reduce the King's debt to it. "Let it be,
as was argued, that the consent of the Spanish
government, under the administration of Joseph
[Bonaparte, who had, while in power, agreed that the duties
be applied to reduce the debt], was invalid and of no
obligation upon Ferdinand; still, Ferdinand, as the
successor of his father [Charles IV, to whom the loan had
been made], and the nation, were and are bound to pay the
debt due in Holland; and if it has been in part discharged,
out of funds charged with the payment of it [because they
were public revenues], in the hands of Hope and Co., the
payments of the duties, have in effect been made to the
plaintiff, [348 U.S. 356, 366] because he owes, of the debt
due in Holland, less than what was originally due, by the
amount of duties which were applied to its discharge by
Hope and Co. After such an application, which I repeat it,
Hope and Co. were authorised to make, under all the
circumstances of the case, this action cannot be supported,
to recover the amount of the duties so appropriated." 1 Pet.
C. C., at 289-290, 14 Fed. Cas., at 577.
MR. JUSTICE REED, with whom MR. JUSTICE BURTON
and MR. JUSTICE CLARK join, dissenting.
Some data must be premised if discussion is to be confined
to a reasonable space. We start with the postulate that the
sovereign is released from the jurisdiction of its own courts
except as it may specifically submit itself to their power. 1
That does not create a situation of irresponsibility.
Satisfaction of sovereign liability may be had through the
legislative organ which recognizes a moral obligation to pay
the creditors of the government and to compensate those
injured by it.
A sovereign's freedom from judicial control does not arise
from or depend upon the will of the courts. As was said in
The Schooner Exchange in speaking of the immunity of a
foreign government, it depends upon "the will of the
sovereign of the territory." ". . . all exemptions [348 U.S.
356, 367] from territorial jurisdiction, must be derived from
the consent of the sovereign . . . ." 7 Cranch 116, 138, 143.
The immunity rests on the ground that no enforceable right
exists "against the authority that makes the law on which
the right depends." 2
The reason for the sovereign's consent to the exclusion of
foreign sovereignties from the general jurisdiction of its
courts was said by Chief Justice Marshall to rest on this
proposition:
"The world being composed of distinct sovereignties,
possessing equal rights and equal independence, whose
mutual benefit is promoted by intercourse with each other,
and by an interchange of those good offices which
humanity dictates and its wants require, all sovereigns have
consented to a relaxation in practice, in cases under certain
peculiar circumstances, of that absolute and complete
jurisdiction within their respective territories which
sovereignty confers.
"This consent may, in some instances, be tested by
common usage, and by common opinion, growing out of
that usage." 7 Cranch, at 136.
It might be summarized by the word "comity." 3 The local
sovereign may, of course, withdraw such consent.
"Without doubt, the sovereign of the place is capable of
destroying this implication. He may claim and exercise
jurisdiction either by employing force, or by subjecting such
vessels to the ordinary tribunal. But until such power be
exerted in a manner not to be misunderstood, the sovereign
cannot be considered [348 U.S. 356, 368] as having
imparted to the ordinary tribunal a jurisdiction, which it
would be a breach of faith to exercise." Id., at 146. 4
An ancillary principle of law is that, in determining whether
a defendant is a sovereign, the courts follow the guidance
of the political branch. 5 In this case the sovereignty of the
Republic of China is not questioned. Furthermore, the
Chinese Government Treasury Note and its 36th Year
Short Term Treasury Notes upon which the City Bank's
counterclaims rest are sovereign obligations, jure imperii in
form, of the highest public character. Consequently, the
attitude of the Department of State as to the desirability of
relaxing the strict rule of immunity as to acts of commerce,
jure gestionis, is inapplicable. See 26 Dept. State Bull. 984
(1952), referred to in the Court's opinion, p. 361.
If the foregoing statements of law are sound, the Republic
of China as a foreign sovereign is free from direct suits in
our courts on the notes here in question unless the
Congress of the United States has enacted a statute that
restricts its immunity. This it has not done. The question in
this case thus comes down to whether the Republic of
China, by bringing this suit for the recovery of a bank
deposit, waived its immunity and subjected itself to a
counterclaim under the Fed. Rules Civ. Proc., Rule 13.
Under the words of (c) of that Rule, judgment over against
the Republic of China would seem to be authorized if the
counterclaim were for more than plaintiff's claim. But there
would be no jurisdiction to render such judgment in an
American court. It would violate the [348 U.S. 356,
369] immunity of a foreign sovereign to do so. 6 In the
present case, the Court evidently feels that, since the
counterclaims is limited to the amount of the Republic of
China's claim, there is jurisdiction to allow a setoff to that
extent. But the mere fact that a judgment over is not sought
should not be relied upon to avoid the jurisdictional
immunity of a foreign sovereign. I find no justification for the
Court's restricting that immunity in the absence of
legislative or executive action. 7 [348 U.S. 356, 370]
Affirmative legislative action was necessary to allow such a
limited setoff against the United States. 8 Action of a similar
nature should be required to authorize this setoff. The
comity that gave the foreign sovereign full immunity from
process was, as The Schooner Exchange pointed out, p.
146, only to be withdrawn "in a manner not to be
misunderstood." That is by legislation. 9 The judicial
creation of such jurisdiction over the property of a friendly
nation might well merit the stricture of Chief Justice
Marshall:
"A nation would justly be considered as violating its faith,
although that faith might not be expressly plighted, which
should suddenly and without previous notice, exercise its
territorial powers in a manner not consonant to the usages
and received obligations of the civilized world." 7 Cranch,
at 137.
International relations are pre-eminently a matter of public
policy. Judicial views of supposed public interests are not
the touchstone whereby to determine the law. 10 [348
U.S. 356, 371] The change from a generous to a
parsimonious application of the principle of sovereign
immunity should come from Congress or the Executive.
Our courts possess great powers and have solemn
obligations. Our country allots power to the judiciary in the
confidence that, in view of the separation of powers, judicial
authority will not undertake determinations which are the
primary concern of other branches of our Government.
Differences of view exist as to the desirable scope of
sovereign immunity and the necessity for non judicial
determinations. 11 But surely it is better that the decisions
be left to those organs of Government that have the
responsibility for determining public policy in carrying out
foreign affairs. The establishment of political or economic
policies is not for the courts. Such action would be an abuse
of judicial power. It is only by a conscious and determined
purpose to keep the functions of the various branches of
government separate that the courts can most effectively
carry out their duties. I would leave this question of the
jurisdictional immunity of foreign sovereigns to the other
branches.
The Court determines, however, that the question of
changing the limitation of the immunity of foreign
sovereigns pertains to its functions. Even on the
assumption that such is a proper matter for judicial concern,
I would reach a different conclusion than does the Court. If
a direct suit cannot be brought against a foreign sovereign
(as is conceded), why should we allow the same claim to
be used as an offset to destroy the sovereign's right to
recover? Why should the City Bank be able to assert its
notes against the Republic of China, even defensively,
when other noteholders not obligated to the sovereign are
prevented from collecting their notes? [348 U.S. 356,
372] Here we have an entirely disconnected claim on
overdue national notes brought forward as a defense to an
action to recover a bank deposit. The Court recognizes that
the counterclaim is not related to China's cause of action
against the City Bank. It says:
"The point is that the ultimate thrust of the consideration of
fair dealing which allows a setoff or counterclaim based on
the same subject matter reaches the present situation."
The counterclaim here is of much the same character as a
suit against a foreign sovereign. Deposits may be the
lifeblood necessary for national existence. It is not wise for
us to tell the nations of the world that any assets they may
have in the United States, now or in the future, upon which
suit must be brought, are subject to every counterclaim
their debtors can acquire against them at par or at a
discount. It is unfair to our foreign friends and detrimental
to our own financial and mercantile interests. For fairness
we need not go beyond the allowance of counterclaims
arising out of transactions foreign sovereigns seek to
enforce in our courts. It seems to me that the Court
sanctions a circuitous evasion of the well-established rule
prohibiting direct suits against foreign sovereigns.
I would affirm. Nations adopted the following Resolution
INTERNATIONAL COURT OF JUSTICE "Whereas the series of tragic events which have lately befallen
agents of the United Nations engaged in the performance of their
duties raises, with greater urgency than ever, the question of the
arrangements to be made by the United Nations with a view to
ensuring to its agents the fullest Measure of protection in the
future and ensuring that reparation be made for the injuries
suffered ; and
REPARATION OF INJURIES SUFFERED IN THE
Whereas it is highly desirable that the Secretary-General should
SERVICE OF THE UNITED NATIONS
be able to act without question as efficaciously as possible with
a view to obtaining any reparation due ; therefore
The General Assembly
Decides to submit the following legal questions to the
International Court of Justice for an advisory opinion :
'1. In the event of an agent of the United Nations in the
ADVISORY OPINION performance of his duties suffering injury in circumstances
involving the responsibility of a State, has the United Nations,
as an Organization, the capacity to bring an international claim
against the responsible de jure or de facto government with a
Return Home
view to obtaining the reparation due in respect of the damage
caused (a) to the United Nations, (h) to the victim or to persons
entitled through him ? Faculty of Law, Nancy ; Legal Adviser to the Ministry for
II. In the event of an affirmative reply on point 1 (b), how is
BEFO President: Basdevant; action by the United Nations to be reconciled with such rights as
RE: Vice-President: Guerrero; may be possessed by the State of which the victim is a national
Judges: Alvarez, Fabela, Hackworth, Winiarsky, ?'
Zoricic, De Wisscher, Sir Arnold McNair, Klaestad,
Badavi Pasha, Krylov, Read, Hsu Mo, Azevedo Instructs the Secretary-General, after the Court has given its
opinion, to prepare proposals in the light of that opinion, and to
submit them to the General Assembly at its nest regular session."
Perma http://www.worldcourts.com/icj/eng/decisions/1949.04. In a letter of December 4th, 1948, filed in the Registry on
Link: 11_reparation_for_injuries.htm December 7th, the Secretary-General of the United Nations
forwarded to the Court a certified true copy of the Resolution of
the General Assembly. On December 10th, in accordance with
paragraph I of Article 66 of the Statute, the Registrar gave notice
Citatio Reparation of Injuries Suffered in Service of the U.N., of the Request to all States entitled to appear before the Court.
n: Advisory Opinion, 1949 I.C.J. 174 (Apr. 11)
On December 11th, by means of a special and direct
communication as provided in paragraph 2 of Article 66, he
informed these States that, in an Order made on the same date,
the Court had [p176] stated that it was prepared to receive
written statements on the questions before February 14th, 1949,
and to hear oral statements on March 7th, 1949.
[p174] Written statements were received from the following States :
The Court, India, China, United States of America, United Kingdom of
Great Britain and Northern Ireland, and France. These
composed as above, statements were communicated to all States entitled to appear
before the Court and to the Secretary-General of the United
gives the following advisory opinion : Nations. In the meantime, the Secretary-General of the United
Nations, having regard to Article 65 of the Statute (paragraph 2
On December 3rd, 1948, the General Assembly of the United of which provides that every- question submitted for an opinion
: shall be accompanied by all documents likely to throw light upon
it), had sent to the Registrar the documents which are
enumerated in the list annexed to this Opinion.
Furthermore, the Secretary-General of the United Nations and
the Governments of the French Republic, of the United Kingdom
and of the Kingdom of Belgium informed the Court that they had
designated representatives to present oral statements.
In the course of public sittings held on March 7th, 8th and 9th,
1949, the Court heard the oral statements presented
on behalf of the Secretary-General of the United Nations by Mr.
Ivan Kerno, Assistant Secretary-General in charge of the Legal
Department as his Representative, and by Mr. A. H. Feller,
Principal Director of that Department, as Counsel ;
on behalf of the Government of the Kingdom of Belgium, by M.
Georges Kaeckenbeeck, D.C.L., Minister Plenipotentiary of His
Majesty the King of the Belgians, Head of the Division for Peace
Conferences and International Organization at the Ministry for
Foreign Affairs, Member of the Permanent Court of Arbitration
;
on behalf of the Government of the French Republic, by M.
Charles Chaumont, Professor of Public International Law at the
Foreign Affairs ;
on behalf of the Government of the United Kingdom of Great
Britain and Northern Ireland by Mr. G. G. Fitzmaurice, Second
Legal Adviser to the Foreign Office.
The first question asked of the Court is as follows :
"In the event of an agent of the United Nations in the
performance of his duties suffering injury in circumstances
involving the responsibility of a State, has the United Nations,
as an Organization, the capacity. to bring an international claim
against [p177] the responsible de jure or de facfo government
with a view to obtaining the reparation due in respect of the
damage caused (a) to the United Nations, (b) to the victim or to
persons entitled through him ?"
It will be useful to make the following preliminary observations
:
(a) The Organization of the United Nations will be referred to
usually, but not invariably, as "the Organization".
(b) Questions 1 (a) and 1 (b) refer to "an international claim
against the responsible de iure or de facto government". The
Court understands that these questions are directed to claims
against a State, and will, therefore, in this opinion, use the
expression "State" or "defendant State".
(c) The Court understands the word "agent" in the most liberal
sense, that is to say, any person who, whether a paid official or
not, and whether permanently employed or not, has been
charged by an organ of the Organization with carrying out, or
helping to carry out, one of its functions—in short, any person
through whom it acts.
(d) As this question assumes an injury suffered in such
circumstances as to involve a State's responsibility, it must be
supposed, for the purpose of this Opinion, that the damage
results from a failure by the State to perform obligations of
which the purpose is to protect the agents of the Organization in
the performance of their duties.
(e) The position of a defendant State which is not a member of
the Organization is dealt with later, and for the present the Court
will assume that the defendant State is a Member of the
Organization.
***
The questions asked of the Court relate to the "capacity to bring
an international claim" ; accordingly, we must begin by defining
what is meant by that capacity, and consider the characteristics
of the Organization, so as to determine whether, in general, these
characteristics do, or do not, include for the Organization a right
to present an international claim.
Competence to bring an international claim is, for those
possessing it, the capacity to resort to the customary methods
recognized by international law for the establishment, the
preservation and the settlement of claims. Among these methods
may be mentioned protest, request for an enquiry, negotiation,
and request for submission to an arbitral tribunal or to the Court
in so far as this may be authorized by the Statute.
This capacity certainly belongs to the State ; a State can bring an
international claim against another State. Such a claim takes the
form of a claim between two political entitit.5, equal in law,
similar [p178] in form, and both the direct subjects of
international law. It is dealt with by means of negotiation, and
cannot, in the present state of the law as to international
jurisdiction, be submitted to a tribunal, except with the consent
of the States concerned.
When the Organization brings a claim against one of its
Members, this claim will be presented in the same manner, and
regulated by the same procedure. It may, when necessary, be
supported by the political means at the disposal of the
Organization. In these ways the Organization would find a
method for securing the observance of its rights by the Member
against which it has a claim.
But, in the international sphere, has the Organization such a
nature as involves the capacity to bring an international claim ?
In order to answer this question, the Court must first enquire
whether the Charter has given the Organization such a position
that it possesses, in regard to its Members, rights which it is
entitled to ask them to respect. In other words, does the
Organization possess international personality ? This is no doubt
a doctrinal expression, which has sometimes given rise to
controversy. But it will be used here to mean that if the
Organization is recognized as having that personality, it is an
entity capable of availing itself of obligations incumbent upon
its Members.
To answer this question, which is not settled by the actual terms
of the Charter, we must consider what characteristics it was
intended thereby to give to the Organization.
The subjects of law in any legal system are not necessarily
identical in their nature or in the extent of their rights, and their
nature depends upon the needs of the community. Throughout
its history, the development of international law has been
influenced by the requirements of international life, and the
progressive increase in the collective activities of States has
already given rise to instances of action upon the international
plane by certain entities which are not States. This development
culminated in the establishment in June 1945 of an international
organization whose purposes and principles are specified in the
Charter of the United Nations. But to achieve these ends the
attribution of international personality is indispensable.
The Charter has not been content to make the Organization
created by it merely a centre "for harmonizing the actions of
nations in the attainment of these common ends" (Article 1, para.
3). It has equipped that centre with organs, and has given it
special tasks. It has defined the position of the Members in
relation to the Organization by requiring them to give it every
assistance in any action undertaken by it (Article 2, para. 5), and
to accept and carry out the decisions of the Security Council; by
authorizing the General Assembly to make recommendations to
the Members ;[p179] by giving the Organization legal capacity
and privileges and immunities in the territory of each of its
Members; and by providing for the conclusion of agreements
between the Organization and its Members. Practice—in
particular the conclusion of conventions to which the
Organization is a party—has confirmed this character of the
Organization, which occupies a position in certain respects in
detachment from its Members, and which is under a duty to
remind them, if need be, of certain obligations. It must be added
that the Organization is a political body, charged with political
tasks of an important character, and covering a wide field
namely, the maintenance of international peace and security, the
development of friendly relations among nations, and the
achievement of international co-operation in the solution of
problems of an economic, social, cultural or humanitarian
character (Article 1) ; and in dealing with its Members it
employs political means. The "Convention on the Privileges and
Immunities of the United Nations" of 1946 creates rights and
duties between each of the signatories and the Organization (see,
in particular, Section 35). It is difficult to see how such a
convention could operate except upon the international plane
and as between parties possessing international personality.
In the opinion of the Court, the Organization was intended to
exercise and enjoy, and is in fact exercising and enjoying,
functions and rights which can only be explained on the basis of
the possession of a large measure of international personality
and the capacity to operate upon an international plane. It is at
present the supreme type of international organization, and it
could not carry out the intentions of its founders if it was devoid
of international personality. It must be acknowledged that its
Members, by entrusting certain functions to it, with the attendant
duties and responsibilities, have clothed it with the competence
required to enable those functions to be effectively discharged.
Accordingly, the Court has come to the conclusion that the
Organization is an international person. That is not the same
thing as saying that it is a State, which it certainly is not, or that
its legal personality and rights and duties are the same as those
of a State. Still less is it the same thing as saying that it is "a
super-State", whatever that expression may mean. It does not
even imply that all its rights and duties must be upon the
international plane, any more than all the rights and duties of a
State must be upon that plane. What it does mean is that it is a
subject of international law and capable of possessing
international rights and duties, and that it has capacity to
maintain its rights by bringing international claims.
The next question is whether the sum of the international rights
of the Organization comprises the right to bring the kind of
international claim described in the Request for this Opinion.
That is a claim against a State to obtain reparation in respect of
the [p180] damage caused by the injury of an agent of the
Organization in the course of the performance of his duties.
Whereas a State possesses the totality of international rights and
duties recognized by international law, the rights and duties of
an entity such as the Organization must depend upon its purposes
and functions as specified or implied in its constituent
documents and developed in practice. The functions of the
Organization are of such a character that they could not be
effectively discharged if they involved the concurrent action, on
the international plane, of fifty-eight or more Foreign Offices,
and the Court concludes that the Members have endowed the
Organization with capacity to bring international claims when
necessitated by the discharge of its functions.
What is the position as regards the claims mentioned in the
request for an opinion ? Question 1 is divided into two points.
which must be considered in turn.
Question 1 (a) is as follows
"In the event of an agent of the United Nations in the
performance of his duties suffering injury in circumstances
involving the responsibility of a State, has the United' Nations,
as an Organization, the capacity to bring an international claim
against the responsible de jure or de facto government with a
view to obtaining the reparation due in respect of the damage
caused (a) to the United Nations.... ?"
The question is concerned solely with the reparation of damage
caused to the Organization when one of its agents suffers injury
at the same time. It cannot be doubted that the Organization has
the capacity to bring an international claim against one of its
Members which has caused injury to it by a breach of its
international obligations towards it. The damage specified in
Question 1 (a) means exclusively damage caused to the interests
of the Organization itself, to its administrative machine, to its
property and assets, and to the interests of which it is the
guardian. It is clear that the Organization has the capacity to
bring a claim for this damage. As the claim is based on the
breach of an international obligation on the part of the Member
held responsible by the Organ-ization, the Member cannot
contend that this obligation is governed by municipal law, and
the Organization is justified in giving its claim the character of
an international claim.
When the Organization has sustained damage resulting from a
breach by a Member of its international obligations, it is
impossible to see how it can obtain reparation unless it possesses
capacity to bring an international claim. It cannot be supposed
that in such an event all the Members of the Organization, Save
the defendant [p181] State, must combine to bring a claim
against the defendant for the damage suffered by the
Organization.
The Court is not called upon to determine the precise extent of
the reparation which the Organization would be entitled to
recover. It may, however, be said that the measure of the
reparation should depend upon the amount of the damage which
the Organization has suffered as the result of the wrongful act or
omission of the defendant State and should be calculated in
accordance with the rules of international law. Amongst other
things, this damage would include the reimbursement of any
reasonable compensation which the Organization had to pay to
its agent or to persons entitled through him. Again, the death or
disablement of one of its agents engaged upon a distant mission
might involve very considerable expenditure in replacing him.
These are mere illustrations, and the Court cannot pretend to
forecast all the kinds of damage which the Organization itself
might sustain.
***
Question 1 (b) is as follows :
...."has the United Nations, as an Organization, the capacity to
bring an international claim .... in respect of the damage caused
: .... (b) to the victim or to persons entitled through him?"
In dealing with the question of law which arises out of Question
I (b), it is unnecessary to repeat the considerations which led to
an affirmative answer being given to Question 1 (a). It can now
be assumed that the Organization has the capacity to bring a
claim on the international plane, to negotiate, to conclude a
special agreement and to prosecute a claim before an
international tribunal. The only legal question which remains to
be considered is whether, in the course of bringing an
international claim of this kind, the Organization can recover
"the reparation due in respect of the damage caused .... to the
victim....".
The traditional rule that diplomatic protection is exercised by the
national State does not involve the giving of a negative answer
to Question 1 (b).
In the first place, this rule applies to claims brought by a State.
But here we have the different and new case of a claim that
would be brought by the Organization.
In the second place, even in inter-State relations, there are
important exceptions to the rule, for there are cases in which
protection may be exercised by a State on behalf of persons not
having its nationality.
In the third place, the rule rests on two bases. The first is that the
defendant State has broken an obligation towards the national
State in respect of its nationals. The second is that only the party
[p182] to whom an international obligation is due can bring a
claim in respect of its breach. This is precisely what happens
when the Organization, in bringing a claim for damage suffered
by its agent, does so by invoking the breach of an obligation
towards itself. Thus, the rule of the nationality of claims affords
no reason against recognizing that the Organization has the right
to bring a claim for the damage referred to in Question 1 (b). On
the contrary, the principle underlying this rule leads to the
recognition of this capacity as belonging to the Organization,
when the Organization invokes, as the ground of its claim, a
breach of an obligation towards itself.
Nor does the analogy of the traditional rule of diplomatic
protection of nationals abroad justify in itself an affirmative
reply. It is not possible, by a strained use of the concept of
allegiance, to assimilate the legal bond which exists, under
Article 100 of the Charter, between the Organization on the one
hand, and the Secretary-General and the staff on the other, to the
bond of nationality existing between a State and its nationals.
The Court is here faced with a new situation. The questions to
which it gives rise can only be solved by realizing that the
situation is dominated by the provisions of the Charter
considered in the light of the principles of international law.
The question lies within the limits already established; that is to
Say it presupposes that the injury for which the reparation is
demanded arises from a breach of an obligation designed to help
an agent of the Organization in the performance of his duties. It
is not a case in which the wrongful act or omission would merely
constitute a breach of the general obligations of a State
concerning the position of aliens; claims made under this head
would be within the competence of the national State and not, as
a general rule, within that of the Organization.
The Charter does not expressly confer upon the Organization the
capacity to include, in its claim for reparation, damage caused to
the victim or to persons entitled through him. The Court must
therefore begin by enquiring whether the provisions of the
Charter concerning the functions of the Organization, and the
part played by its agents in the performance of those functions,
imply for the Organization power to afford its agents the limited
protection that would consist in the bringing of a claim on their
behalf for reparation for damage suffered in such circumstances.
Under international law, the Organization must be deemed to
have those powers which, though not expressly provided in the
Charter, are conferred upon it by necessary implication. as being
essential to the performance of its duties. This principle of law
was applied by the Permanent Court of International Justice to
the International Labour Organization in its Advisory Opinion
No. 13 of July 23rd, [p183] 1926 (Series B., No. 13, p. 18), and
must be applied to the United Nations.
Having regard to its purposes and functions already referred to,
the Organization may find it necessary, and has in fact found it
necessary, to entrust its agents with important missions to be
performed in disturbed parts of the world. Many missions, from
their very nature, involve the agents in unusual dangers to which
ordinary persons are not exposed. For the same reason, the
injuries suffered by its agents in these circumstances will
sometimes have occurred in such a manner that their national
State would not be justified in bringing a claim for reparation on
the ground of diplomatic protection, or, at any rate, would not
feel disposed to do so. Both to ensure the efficient and
independent performance of these missions and to afford
effective support to its agents, the Organization must provide
them with adequate protection.
This need of protection for the agents of the Organization, as a
condition of the performance of its functions, has already been
realized, and the Preamble to the Resolution of December 3rd,
1948 (supra, p. 175), shows that this was the unanimous view of
the General Assembly.
For this purpose, the Members of the Organization have entered
into certain undertakings, some of which are in the Charter and
others in complementary agreements. The content of these
undertakings need not be described here ; but the Court must
stress the importance of the duty to render to the Organization
"every assistance" which is accepted by the Members in Article
2, paragraph 5, of the Charter. It must be noted that the effective
working of the Organization—the accomplishment of its task,
and the independence and effectiveness of the work of its
agents— require that these undertakings should be strictly
observed. For that purpose, it is necessary that, when an
infringement occurs, the Organization should be able to call
upon the responsible State to remedy its default, and, in
particular, to obtain from the State reparation for the damage that
the default may have caused to its agent.
In order that the agent may perform his duties satisfactorily, he
must feel that this protection is assured to him by the
Organization, and that he may count on it. To ensure the
independence of the agent, and, consequently, the independent
action of the Organization itself, it is essential that in performing
his duties he need not have to rely on any other protection than
that of the Organization (save of course for the more direct and
immediate protection due from the State in whose territory he
may be). In particular, lie should not have to rely on the
protection of his own State. If he had to rely on that State, his
independence might well be compromised, contrary to the
principle applied by Article 100 of the Charter. And lastly, it is
essential that—[p184] whether the agent belongs to a powerful
or to a weak State; to one more affected or less affected, by the
complications of international life; to one in sympathy or not in
sympathy with the mission of the agent—he should know that in
the performance of his duties he is under the protection of the
Organization. This assurance is even more necessary when the
agent is stateless.
Upon examination of the character of the functions entrusted to
the Organization and of the nature of the missions of its agents,
it becomes clear that the capacity of the Organization to exercise
a measure of functional protection of its agents arises by
necessary intendment out of the Charter.
The obligations entered into by States to enable the agents of the
Organization to perform their duties are undertaken not in the
interest of the agents, but in that of the Organization. When it
claims redress for a breach of these obligations, the Organization
is invoking its own right, the right that the obligations due to it
should be respected. On this ground, it asks for reparation of the
injury suffered, for "it is a principle of international law that the
breach of an engagement involves an obligation to make
reparation in an adequate form"; as was stated by the Permanent
Court in its Judgment No. 8 of July 26th, 1927 (Series A., No. g,
p. 21). In claiming reparation based on the injury suffered by its
agent, the Organization does not represent the agent, but is
asserting its own right, the right to secure respect for
undertakings entered into towards the Organization.
Having regard to the foregoing considerations, and to the
undeniable right of the Organization to demand that its Members
shall fulfil the obligations entered into by them in the interest of
the good working of the Organization, the Court is of the opinion
that, in the case of a breach of these obligations, the Organization
has the capacity to claim adequate reparation, and that in
assessing this reparation it is authorized to include the damage
suffered by the victim or by persons entitled through him.
***
The question remains whether the Organization has "the
capacity to bring an international claim against the responsible
de jure or de facto government with a view to obtaining the
reparation due in respect of the damage caused (a) to the United
Nations, (b) to the victim or to persons entitled through him"
when the defendant State is not a member of the Organization.
In considering this aspect of Question 1 (a) and (b), it is
necessary to keep in mind the reasons which have led the Court
to give an affirmative answer to it when the defendant State is a
Member of the Organization. It has now been established that
the Organization has capacity to bring claims on the
international [p185] plane, and that it possesses a right of
functional protection in respect of its agents. Here again the
Court is authorized to assume that the damage suffered involves
the responsibility of a State, and it is not called upon to express
an opinion upon the various ways in which that responsibility
might be engaged. Accordingly the question is whether the
Organization has capacity to bring a claim against the defendant
State to recover reparation in respect of that damage or whether,
on the contrary, the defendant State, not being a member, is
justified in raising the objection that the Organization lacks the
capacity to bring an international claim. On this point, the
Court's opinion is that fifty States, representing the vast majority
of the members of the international community, had the power,
in conformity with international law, to bring into being an entity
possessing objective international personality, and not merely
personality recognized by them alone, together with capacity to
bring international claims.
Accordingly, the Court arrives at the conclusion that ail
affirmative answer should be given to Question 1 (a) and (b)
whether or not the defendant State is a Member of the United
Nations.
***
Question II is as follows:
"In the event of an affirmative reply on point 1 (b), how is action
by the United Nations to be reconciled with such rights as may
be possessed by the State of which the victim is a national ?"
The affirmative reply given by the Court on point 1 (b) obliges
it now to examine Question II. When the victim has a nationality,
cases can clearly occur in which the injury suffered by him may
engage the interest both of his national State and of the
Organization. In such an event, competition between the State's
right of diplomatic protection and the Organization's right of
functional protection might arise, and this is the only case with
which the Court is invited to deal.
In such a case, there is no rule of law which assigns priority to
the one or to the other, or which compels either the State or the
Organization to refrain from bringing an international claim.
[p186]
The Court sees no reason why the parties concerned should not
find solutions inspired by goodwill and common sense, and as
between the Organization and its Members it draws attention to
their duty to render "every assistance" provided by Article 2,
paragraph 5, of the Charter.
Although the bases of the two claims are different, that does not
mean that the defendant State can be compelled to pay the
reparation due in respect of the damage twice over. International
tribunals are already familiar with the problem of a claim in
which two or more national States are interested. and they know
how to protect the defendant State in such a case.
The risk of competition between the Organization and the
national State can be reduced or eliminated either by a general
convention or by agreements entered into in each particular case.
There is no doubt that in due course a practice will be developed,
and it is worthy of note that already certain States whose
nationals have been injured in the performance of missions
undertaken for the Organization have shown a reasonable and
CO-operative disposition to find a practical solution.
***
The question of reconciling action by the Organization with the
rights of a national State may arise in another way ; that is to say,
when the agent bears the nationality of the defendant State.
The ordinary practice whereby a State does not exercise
protection on behalf of one of its nationals against a State which
regards him as its own national, does not constitute a precedent
which is relevant here. The action of the Organization is in fact
based not upon the nationality of the victim but upon his status
as agent of the Organization. Therefore it does not matter
whether or not the State to which the claim is addressed regards
him as its own national, because the question of nationality is
not pertinent to the admissibility of the claim.
In law, therefore, it does not seem that the fact of the possession
of the nationality of the defendant State by the agent constitutes
any obstacle to a claim brought by the Organization for a breach
of obligations towards it occurring in relation to the performance
of his mission by that agent. [p187]
For these reasons,
The Court is of opinion
On Question I (a) : agreements to be made between the Organization and individual
(i) unanimously,
That, in the event of an agent of the United Nations in the
performance of his duties suffering injury in circumstances
involving the responsibility of a Member State, the United
Nations as an Organization has the capacity to bring an
international claim against the responsible de jure or de facto
government with a view to obtaining the reparation due in
respect of the damage Cause to the United Nations.
(ii) unanimously,
That, in the event of an agent of the United Nations in the
performance of his duties suffering injury in circumstances
involving the responsibility of a State which is not a member,
the United Nations as an Organization has the capacity to bring
an international claim against the responsible de jure or de facto
government with a view to obtaining the reparation due in
respect of the damage caused to the United Nations.
On Question I (b) : Judges Alvarez and Azevedo, whilst concurring in the Opinion
(i) by eleven votes against four,
That, in the event of an agent of the United Nations iii the
performance of his duties suffering injury in circumstances
involving the responsibility of a Member State, the United
Nations as an Organization ha.; the capacity to bring an availed themselves of the right conferred on them by Article 57
international claim against the responsible de jure or de facto of the Statute and appended to the Opinion statements of their II.
government with a view to obtaining the reparation due in dissenting opinion.
respect of the damage caused to the victim or to persons entitled My answers to the questions put to the Court in the Request for
through him. (Initialled) J. B. an Advisory Opinion are as follows :
(ii) by eleven votes against four, (Initialled) E. H. "1. In the event of an agent of the United Nations in the
performance of his duties suffering injury in circumstances
That, in the event of an agent of the United Nations in the [p190] involving the responsibility of a State, has the United Nations,
performance of his duties suffering injury in circumstances as an Organization, the capacity to bring an international claim
involving the responsibility of a State which is not a member, INDIVIDUAL OPINION BY JUDGE ALVAREZ. against the responsible de jure or de facto government with a
the United Nations as an Organization has the capacity to bring view to obtaining the reparation due in respect of the damage
an international claim against the responsible de jure or de facto [Translation.] caused (a) to the United Nations, (b) to the victim or to persons
government with a view to obtaining the reparation due in 1. entitled through him ?"
respect of the damage caused to the victim or to persons entitled I consider, as I have just said, that the United Nations has the
through him. [p188] I am in agreement with the answer given by the Court to the capacity t O bring such a claim with a view to obtaining
Request for an Advisory Opinion which was addressed to it. I reparation for damage caused either to itself or to its agents or
On Question II: find in the reasons given by the Court at any rate a partial appli- persons entitled through them.
cation of the method and .principles which, in my view, are most
By ten votes against five, suitable having regard to the present state of international life "II. In the event of an affirmative reply on point 1 (b), how is
and to the exercise of the power, which I recognize the Court as action by the United Nations to be reconciled with such rights as
When the United Nations as an Organization is bringing a claim possessing, to develop international law and to contribute to its may be possessed by the State of which the victim is a national
for reparation of damage caused to its agent, it can only do so by creation in face of new situations. The Court has rightly ?"
basing its claim upon n breach of obligations due to itself ; considered that the situation which was submitted to it, with a
respect for this rule will usually prevent a conflict between the request that it should declare the law concerning it, was a new In my opinion, having regard to the above-mentioned capacity,
action of the United Nations and such rights as the agent's situation. While recognizing that the United Nations has the which the United Nations must be recognized as possessing, it is
national State may possess, and thus bring about a reconciliation capacity to bring an international claim in the case in point and not necessary that the latter should act in agreement with the
between their claims ; moreover, this reconciliation must depend for the purposes set forth in the Request for the Opinion, the State of which the victim is a national. It might happen, for
upon considerations applicable to each particular case, and upon Court has proclaimed a new precept of international law. To Say instance, that the victim was a stateless person, or that the State
that, in so doing, it has developed that law, or that it has created in question might neglect to submit a claim, or might be
States, either generally or in each case. a new precept, is a mere matter of words, for in many cases it is unwilling to do so for political or other reasons; or again, the
quite impossible to Say where the development of law ends and victim might have the nationality of the respondent State. In any
Done in English and French, the English text being authoritative, where its creation begins. case the United Nations Organization is entitled, by itself, to
at the Peace Palace, The Hague, this eleventh day of April, one claim reparation for the damage caused to its agents or to those
thousand nine hundred and forty-nine, in two copies, one of In thus declaring its opinion on this new subject, the Court has entitled through them; but if it neglects to bring a claim, the State
which will be placed in the archives of the Court and the other taken into account the nature and aims of the United Nations, of which the victim is a national may do so.
transmitted to the Secretary-General of the United Nations. and it has availed itself of the right which it now possesses under
Resolution 171 of the General Assembly of the United Nations The United Nations must be able to bring the claim either against
(Signed) Basdevant, in 1947 to develop international law. a State Member of the United Nations or against a non-member
President. State, irrespective of whether the State did or did not agree to the
The decision which the Court has arrived at appears to me to be despatch of the agent to its territory. The nature of the
(Signed) E. Hambro, in accordance with the general principles of the new Organization and the general interest make this necessary so that
Registrar. international law, the legal conscience of the peoples and the there should not be an inferiority—so to speak—of the former
exigencies of contemporary international life—three essential kind of States in relation to the latter. (See No. 6 of Art. 2 of the
factors which have to be taken into account in the development Charter.)
[p189] of international law.
Judge Winiarski states with regret that he is unable to concur in The fact of recognizing the United Nations as possessing the
the reply given by the Court to Question 1 (b). In general, he I therefore consider that the answer to the first question stated in right to bring international claims constitutes a derogation from
shares the views expressed in Judge Hackworth's dissenting the Request for an Opinion should be that the United Nations the precepts of the international law now in force, for that law
opinion. possesses an international juristic personality and is entitled to only attributes this right to the States ; but the latter will consent
bring international claims against States which have caused the to this right being also attributed to the highest international
damage in question. institution. [p192]
of the Court, have availed themselves of the right conferred on
them by Article 57 of the Statute and appended to the Opinion The United Nations could not attain the objects which it has Finally, it should be observed that the United Nations is an
statements of their individual opinion. before it if it did not possess that right. It would be strange indeed institution possessing a political character, and that this character
if an institution which has such extensive powers for the may influence its attitude. It is therefore desirable that an organ-
Judges Hackworth, Badawi Pasha and Krylov, declaring that maintenance of peace did not possess the capacity which has ism and a procedure should be established for dealing with this
they are unable to concur in the Opinion of the Court, have been referred to.[p190] matter.

(Signed) Alejandro Alvarez.
[p193]
INDIVIDUAL OPINION BY JUDGE AZEVEDO.
[Translation.]
I agree with the findings and, in general, with the reasons on
which they are based, and merely wish to add a few remarks
which are, in my opinion, a necessary development of the reply
to the second question.
I think another criterion must be supplied for the settlement of
differences that may arise : the drawing of a distinction between
the main claim and a subsidiary claim, which must certainly not
be neglected. The deliberate use of the word –“agent” in the
Request for an 0pinion.gives rise to this suggestion.
It is to be observed that the working of the United Nations
presupposes the action of two forces: one which directs the
thought and the particular purposes of Members towards the
deliberative organs, which thereupon adopt the solutions
required by the general interests of peace and justice ; and one
devoted to the carrying out of the decisions taken.
These different duties are carried out by distinct physical persons
: the representatives of States Members and the officials of the
Organization, although it is often necessary to use the same
individuals in different circumstances, as has already been stated
by Professor Bastid, née Suzanne Basdevant (Les
Fonctionnaires internationaux, Paris, 1938, p. 8). The example
of the new Organization of American Nations would be the most
striking, with its distinction between the deliberative organs set
up at Bogota in 1948, and the former Pan-American Union
retained permanently as General Secretariat.
It may also be noted that officials are included in the notion of
"agent", but representatives of Members are not, although the
Organization may be interested in supporting a proposed claim
for injuries suffered by such representatives in the performance
of their duties, e.g., in places where organs to which they belong
are sitting.
On the other hand, to carry out the decisions of its organs, the
Organization cannot always appoint officials, and must
sometimes choose persons from outside its normal staff.
The different kinds of duties that are performed in the interest of
the Organization are not fully set out in Article IOO of the .San
Francisco Charter, nor yet in Article 105, which mentions both
officials and representatives of Members. This insufficiency was
expressly recognized in the Convention of February 13th, 1946,
on Privileges and Immunities, and in certain arrangements
[p194] and agreements concluded with States or Specialized
Agencies.
These acts show that there exists a third class—that of experts,
other than officials, who perform duties on behalf of the
Organization. On this subject, it is interesting to note that the
Statute of the International Court of Justice added to the
provisions relating to the Permanent Court a concession of
privileges and immunities to agents, counsel and advocates of
the parties (Article 42 (3)), who are assimilated to
representatives of Members of the Organization ; whilst
witnesses and experts were, by the Court itself, with the approval
of the General Assembly, included in the third class mentioned
above. (I.C.J., Acts and Documents concerning the Organization
of the Court, No. 1, second edition, 1947, PP. 85, 86 and 89.)
This third class gives rise to difficulties and uncertainty, as
happens in ail classifications ; but it may be included under .the
general heading of "agents" more easily than under
representatives of the Members. But a further distinction must
be made : to perform duties exceptionally entrusted to those
classified as experts in the conventions and arrangements,.
persons must be chosen who belong to delegations of the
Members, or other suitable persons appointed either directly by
the Organization, or by the Members from amongst their
nationals.
Then another distinction must be made, according to the manner
in which the choice is effected, whether on purely personal
grounds, or on the contrary by the nationality of the experts,
account being taken of political, geographical, etc.,
considerations, but in any case, having regard to the technical
knowledge of candidates.
For instance, in the appointment of Members of the International
Court of Justice or of the new International Law Commission,
much more attention is paid to personal qualities than to
nationality, the influence of which is rather negative, when an
exaggerated predominance of one State is to be avoided. Thus,
it is not the nature of the duties that is important, but the method
of selection, which may consequently vary in the same case.
No doubt, a person who, owing to his own merits, is entrusted
with a mission, assumes in principle a duty of greater devotion
towards the Organization than does one who is appointed by his
country, or even by third parties, to a task entrusted to him,
having regard to his nationality. While admitting that, in both
cases, the duties will be performed with independence and in a
spirit of devoted co-operation, it must be observed that the ties
of nationality [p195] will, in the second case, be harder to throw
off and to replace by attachment to the performance of
international duties.
In conclusion : contracts, to acquire and dispose of property, to institute legal
In the case of officials or experts appointed directly by the
Organization, regardless of nationality, the Organization will
have a priority and may make a claim without having to put
forward a denial of justice, or even to show that domestic
remedies have been exhausted.
On the other hand, in the case of representatives of. States
Members, or even of experts appointed having regard to their
countries —especially if the appointment is made by these
countries—the main claim will conform to the principle of
nationality.
{Signed) Philadelpho Azevedo.
[p196]
DISSENTING OPINION BY JUDGE HACKWORTH.
I concur, but for different reasons, in the conclusion of the Court
that the United Nations Organization has capacity to bring an
international claim against the responsible government, with a
view to obtaining reparation due in respect of damage caused by
that government to the Organization. But I regret that I am
unable to concur in that part of the Opinion having to do with
the capacity of the Organization to sponsor an international
claim in behalf of one of its agents.
The authority of the Organization to make a claim for damage
caused to it by the wrongful act of a State can be very simply
stated, as follows : authority of the Organization. To this extent I am in agreement
(1) Article 104 of the Charter gives the Organization "such legal
capacity as may be necessary for the exercise of its functions and
the fulfillment of its purposes".
(2) Paragraphs I and 2 of Article 105 specify that the
Organization "shall enjoy in the territory of each of its Members
such privileges and immunities as are necessary for the
fulfillment of its purposes", and that officials of the Organization
shall "similarly enjoy such privileges and immunities as are
necessary for the independent exercise of their functions in
connection with the Organization".
(3) The Convention on Privileges and Immunities, adopted by
the General Assembly on February 13th, 1946, recognizes that
the United Nations shall possess juridical personality, with
capacity (a) to contract; (b) to acquire and dispose of immovable
and movable property ; and (c) to institute legal proceedings ;
also that the Organization and its officials shall enjoy certain
specified privileges and immunities.
The Convention has not been approved by all the Members of
the Organization, but we may assume, for present purposes, that
it is fairly representative of the views of most of them.
(4) It stands to reason that, if the Organization is to make
proceedings, and to claim the benefits of the privileges and
immunities to which it is entitled, it must be able to carry on
negotiations with governments as well as with private parties. It
must therefore be able to assert claims in its own behalf. No other
conclusion consistent with the specified powers and with the
inherent right of self-preservation could possibly be drawn. The
Organization must have and does have ample authority to [p197]
take needful steps for its protection against wrongful acts for
which Member States are responsible. Any damage suffered by
the Organization by reason of wrongful acts committed against
an agent, while in the performance of his duties, would likewise
be within its competence.
This is a proper application of the doctrine of implied powers.
(5) I, therefore, find no difficulty in giving an affirmative answer
to Question 1 (a) of the Assembly's request.
Such a claim by the United Nations would include any element
of damage susceptible of proof under customary rules relating to
damages in international claims. It would include any reasonable
payments made by the Organization to the victim of the
wrongful act or to those entitled through him, provided that such
payments were made pursuant to contractual undertakings of the
Organization, or on the basis of an established policy in such
cases.
(6) Thus it would appear that under 1 (a) the Organization has
ample and unquestionable authority to safeguard itself against
derelictions by States, and to vindicate the dignity, honour and
with the conclusions of the majority of the Court.
***
As to Question 1 (b), having to do with a claim for reparation
due in respect of damage caused to the victim of a wrongful act
or to persons entitled through him, as distinguished from a claim
on behalf of the Organization itself, a different situation is
presented.
The Court is asked to state its opinion as to whether the
Organization has capacity to espouse such a claim. In giving our
answer, we must look to the traditional international practice of
nations with respect to private claims, and to the express treaty
stipulations as regards the Organization.
As to international practice, we find at once that heretofore
States have been regarded as competent to advance such
international claims.
As to the Organization, we find nothing to suggest that it too has
capacity in this field. Certainly there is no specific provision in
the Charter, nor is there provision in any other agreement of
which I am aware, conferring upon the Organization authority to
[p198] assume the role of a State, and to represent its agents in
the espousal of diplomatic claims on their behalf. I am equally
convinced that there is no implied power to be drawn upon for
this purpose.
It is stated in the majority opinion that the Charter docs not
expressly provide that the Organization should have capacity to
include, in "its claim for reparation", damage caused to the
victim or to persons entitled through him, but the conclusion is
reached that such power is conferred by necessary implication.
This appears to be based on the assumption that, to ensure the
efficient and independent performance of missions entrusted to
agents of the Organization, and to afford them moral support, the
exercise of this power is necessary.
The conclusion that power in the Organization to sponsor private
claims is conferred by "necessary implication" is not believed to
be warranted under rules laid down by tribunals for filling
lacunæ in specific grants of power.
There can be no gainsaying the fact that the Organization is one
of delegated and enumerated powers. It is to be presumed that
such powers as the Member States desired to confer upon it are
stated either in the Charter or in complementary agreements
concluded by them. Powers not expressed cannot freely be
implied. Implied powers flow from a grant of expressed powers,
and are limited to those that are "necessary" to the exercise of
powers expressly granted. No necessity for the exercise of the
power here in question has been shown to exist. There is no
impelling reason, if any at all, why the Organization should
become the sponsor of claims on behalf of its employees, even
though limited to those arising while the employee' is in line of
duty. These employees are still nationals of their respective
countries, and the customary methods of handling such claims
are still available in full vigour. The prestige and efficiency of
the Organization will be safeguarded by an exercise of its
undoubted right under point 1 (a) supra. Even here it is necessary
to imply power, but, as stated above, the necessity is self-
evident. The exercise of an additional extraordinary power in the
field of private claims has not been shown to be necessary to the
efficient performance of duty by either the Organization or its
agents.
But we are presented with an analogy between the relationship
of a State to its nationals and the relationship of the Organization
[p199] to its employees ; also an analogy between functions of a
State in the protection of its nationals and functions of the
Organization in the protection of its employees.
The results of this liberality of judicial construction transcend,
by far, anything to be found in the Charter of the United Nations,
as well as any known purpose entertained by the drafters of the
Charter.
These supposed analogies, even assuming that they may have
some semblance of reality, which I do not admit, cannot avail to
give jurisdiction, where jurisdiction is otherwise lacking.
Capacity of the Organization to act in the field here in question
must rest upon a more solid foundation.
The Court advances the strange argument that if the employee
had to rely on the protection of his own State, his independence
might well be compromised, contrary to the intention of Article
100 of the Charter.
This would seem to be placing a rather low estimate upon the
employee's sense of fidelity. But let us explore this a step further.
Article 100 provides that : Conference
"1. In the performance of their duties, the Secretary-General and
the staff shall not seek or receive instructions from any
government or from any other authority external to the
Organization. They shall refrain from any action which might
reflect on their position as international officials responsible
only to the Organization.
2. Each Member of t-he United Nations undertakes to respect the
exclusively international character of the responsibilities of the
Secretary-General and the staff and not to seek to influence
,them in the discharge of their responsibilities."
This is a classical provision. It is found in this identical, or a
slightly modified, form in each of the agreements establishing
the various Specialized Agencies—some concluded before, and
some subsequent to, the signing of the Charter.
For example, we find in Article 59 of the Convention on
International Civil Aviation, signed in 1944, the following
provision:
"The President of the Council, the Secretary-General and other
personnel shall not seek or receive instructions in regard to the
discharge of their responsibilities from any authority external to
the Organization. Each contracting State undertakes fully to
respect the international character of the responsibilities of the
personnel and not to seek to influence any of its nationals in the
discharge of their responsibilities." (Yearbook of the United
Nations, 1946-1947, pp. 728, 736.) [p200]
Article XII of the articles of agreement of the International
Monetary Fund, negotiated in 1944. provides in Section 4 (c) :
"The Managing Director and the staff of the Fund, in the
discharge of their functions, shall owe their duty entirely to the
Fund and to no other authority. Each member of the Fund shall
respect the international character of this duty and shall refrain
from all attempts to influence any of the staff in the discharge of
his functions." (II, United Nations Treaty Series, 1947, PP. 40,
86.)
Article V of the contemporary agreement relating to the
International Bank for Reconstruction and Development is
practically identical with the provisions just quoted. (Ibid., pp.
134, 166.)
Article 9, paragraphs 4 and 5, of the Constitution of the
International Labour Organization, as amended, provides :
"4. The responsibilities of the Director-General and the staff
shall be exclusively international in character. In the
performance of their duties, the Director-General and the staff
shall not seek or receive instructions from any government or
from any other authority external to the Organization. They shall
refrain from any action which might reflect on their position as
international officials responsible only to the Organization.
5. Each Member of the Organization undertakes to respect the
exclusively international character of the responsibilities of the
Director-General and the staff and not to seek to influence them
in the discharge of their responsibilities." (Yearbook. of the
United Nations, 1946-1947, pp. 670, 672.)
To the same effect see : immunities to which employees are entitled under the Charter or
Article VIII of the Food and Agriculture Organization of the
United Nations (ibid., pp. 693, 695) ; Article VI of the
Constitution of the United Nations Educational, Scientific and
Cultural Organization (ibid., pp. 712, 715) ; Article 37 of the
Constitution of the World Health Organization (ibid., pp. 793.
797) ; and Article 9 of the Constitution of the International
Refugee Organization (ibid., pp. 810, 813).
Is it to be supposed that each of the Organizations has the
capacity to make diplomatic claims in behalf of its agents, and
that this should be done in order that their fidelity to the
Organization and their independence may not be compromised
? Reasons for such a conclusion would seem to have as great
force here as in the case of the United Nations. The language
employed in the respective instruments bears the same meaning.
Article 100 of the Charter, which, it should be remarked, relates
only to the Secretary-General and the staff, cannot be drawn
upon to claim for the Organization by indirection an authority
which obviously cannot be claimed under any direct
authorization. [p201]
The most charitable, and indeed the most realistic construction
to be given the article is that it is designed to place service with
the United Nations on a high plane of loyalty and fidelity and to
require Member States to respect this status and not to seek to
influence the Secretary-General or members of the staff in the
discharge of their duties.
This bond between the Organization and its employees, which is
an entirely proper and natural one, does not have and cannot
have the effect of expatriating the employee or of substituting
allegiance to the Organization for allegiance to his State. Neither
the State nor the employee can. be said to have contemplated
such a situation. There is nothing inconsistent between
continued allegiance to the national State and complete fidelity
to the Organization. The State may still protect its national under
international law. One can even visualize a situation where that
protection might be directed against acts by the Organization
itself.
The purpose of the article as stated in the Report of the Secretary
of State to the President of the United States on the Results of
the San Francisco Conference, June 26th, 1945, is :
" .... to make it perfectly clear that the nationals of Member
States serving on the staff of the Secretariat could not, in any
sense of the word, be considered as agents of their
governments". (Department of State Publication 2349,
Series 71, pp. 150, 151.)
It has also been suggested, as an argument in support of the
proposition that the United Nations Organization should be
regarded as having capacity in these cases, that the State of
nationality would not be in a position to base an international
claim in behalf of a national on the ground that privileges or
under provisions of the Convention relating to Privileges and
Immunities had been violated.
If this be a sound view, it must be because the privileges and
immunities are not for the personal benefit of the individual
himself. That this is true is admitted by the Court and is made
clear by Article V, Section 20, and Article VI, Section 23, of the
Convention. The former specifies :
"Privileges and immunities are granted to officials in the
interests of the United Nations and not for the personal benefit
of the individuals themselves." (1, United Nations Treaty Series,
1946-1947, pp. 16, 26.) [p202]
Since, according to this provision, the privileges and immunities
inure to the benefit of the United Nations and not to the benefit
of the individuals, any claim based upon a breach of them should
be in favour of the Organization and would fall to be dealt with
under 1 (a) above, and not under 1 (b).
Any claim on behalf of the individual must rest, not upon
stipulations contained in the Convention, but upon general
principles of' international law.
What reason, then, is there for thinking that the United Nations,
rather than the national State, should interpose on behalf of the
individual ? It may well be that the weight of the Organization's
authority would, in some cases, be more persuasive than that of
the national State, but this is not a judicial reason, nor does it
supply the legal capacity to act.
Aside from remedies afforded by local law under which private
claimants may be allowed access to judicial or other tribunals for
the adjustment of their claims against a government, the only
remedy known to international law in such cases is through the
government of the State of which the claimant is a national. "A
citizen of one nation, wronged by the conduct of another nation,
must seek redress through his own government. His government
must assume the responsibility of presenting his claim, or it need
not be considered." (United States v. Diekelman, 92 US. 320 ;
VI, Moore's Digest of International Law, 607.)
Such claims must be presented through the diplomatic channel
(ibid.).
Diplomatic protection is in its nature an international
proceeding, constituting "an appeal by nation to nation for the
performance of the obligations of the one to the other, growing
out of their mutual rights and duties" (Borchard, Diplomatic
Protection of Citizens abroad, 351 ; VI, Moore's Digest, 257). by the State of which the victim is a national".
The answer which I have suggested for point 1 (a) would
A claim by one State against another on account of an injury to probably give the Organization all that it needs from a practical
a national of the claimant State is based on the theory that the point of view.
State has been injured through injury to its national. Equally
sound is the theory that for the allegiance owed by the national If it desires to go further and to espouse claims on behalf of
to his State the latter owes the national its protection. Nationality employees, the conventional method is open. If the States should
is a sine qua non to the espousal of a diplomatic claim on behalf agree to allow the Organization to espouse claims on behalf of
of a private claimant. Aside from the special situation of their nationals who are in the service of the Organization, no one
protected persons under certain treaties and that of seamen and could question its authority to do so. The respondent State would
aliens serving in the armed forces, all of whom are assimilated be relieved of the possibility of demands from two sources, the
to the status of nationals, it is well settled that the right to protect employee or his dependants would know to whom to look for
is confined [p203]to nationals of the protecting State. If the assistance, and the whole procedure would be free from
private claimant is not a national of the State whose assistance is uncertainty and irregularity.
sought, the government of that State cannot properly sponsor the
claim, nor is the respondent government under any legal duty to (Signed) Green H. Hackworth.
entertain it.
[p205]
International law on this subject is well settled, and any attempt DISSENTING OPINION BY JUDGE BADAWI PASHA.
to engraft upon it, save by international compact, a theory, based
upon supposed analogy, that organizations, not States and hence [Translation.]
having no nationals, may act as if they were States and had
nationals, is, in my opinion, unwarranted. The Permanent Court After defining or making clear the meaning of the terms "agent"
of International Justice stated well the true situation when it said and "international claim", the Court goes on to show that the
in the Panevezys-Saldutiskis Railway Case, February 28th, 1939 United Nations has international personality. Then, before
: dealing with the concrete cases envisaged in the Request for an
Opinion, it reaches the conclusion that, on this ground, and apart
"In the opinion of the Court, the rule of international law on from the object of the claim, the Organization has the capacity
which the first Lithuanian objection is based is that in taking up to bring international claims in so far as may be required in the
the case of one of its nationals, by resorting to diplomatic action performance' of its duties.
or international judicial proceedings on his behalf, a State is in
reality asserting its own right, the right to ensure in the person of Evidently, this conclusion cannot be disputed. Long before the
its nationals respect for the rules of international law. This right Organization, international persons had existed ; and again quite
is necessarily limited to intervention on behalf of its own recently a number of institutions have been set up, both before
nationals because, in the absence of a special agreement, it is the and after the Organization itself, which have this personality.
bond of nationality between the State and the individual which The Charter of the International Trade Organization (the last of
alone confers upon the State the right of diplomatic protection, these institutions) expressly provides that it shall have
and it is as a part of the function of diplomatic protection that the international legal personality. It goes without saying that the
right to take up a claim and to ensure respect, for the rules of United Nations, as the main Organization and the most important
international law must be envisaged. Where the injury was done of all, must have international legal personality, just as much as
to the national of some other State, no claim to which such injury one of its branches.
may give rise falls within the scope of the diplomatic protection
which a State is entitled to afford nor can it give rise to a claim But, as the Court itself observes, a juridical system is not bound
which that State is entitled to espouse." (P.C.I.J., Series A./B., to admit that all persons to whom it accords rights are identical
No. 76, p. 16.) in their nature or as regards the extent of their rights.
See also to the same effect the Mavrommatis Palestine In stating that the Organization has international personality, we
Concessions Case (P.C.I.J., Series A., No. 2, 1924, p. 12) ; and shall therefore merely have defined its capacity as a subject of
the case concerning the Payment of various Serbian Loans law in regard to an international claim ; but we shall not yet have
issued in France (P.C.I.J., Series A., Nos. 20/21, 1929, p. 17). shown that it has a particular right.
It is generally admitted that the State of the employee's There is in fact no common law for international persons. There
nationality has a right to sponsor a claim, such as is here in are, on the one hand, States that have common characteristics,
question, and the General Assembly obviously envisaged the rights and obligations, recognized in international law ; and, on
possibility of complications in this respect, as is shown by its the other hand, a number of persons of different nature and
second question, wherein it inquires how, in the event of an different rank : unions, commissions, international groups, with
affirmative reply on point 1 (b), action by the United Nations is various names; Specialized Agencies, such as I.L.O., W.H.O.,
"to be reconciled with [p204] such rights as may be possessed F.A.O., I.R.O., I.T.O., the Monetary Fund, the International
Bank, U.N.E.S.C.O. and lastly U.N. In spite of a certain
resemblance one to another, each of these persons depends, as
regards its objects, principles, organization, competence, rights
and obligations, on the terms of its constitution, and is deemed
to exist only for the benefit of States which have signed and
ratified, or which have acceded to that instrument.[p206]
The Request for an Opinion relates to the Organization's right to
claim reparation for damage caused (a) to itself, and (b) to the
victim, when he is an agent of the United Nations, or to persons
entitled through him.
International law recognizes that a State has the right to claim
reparation for damage caused to itself and to the victim or to
persons entitled through him, when he is a national of that State,
and has not been able to obtain satisfaction through ordinary
channels (right known as diplomatic protection of nationals
abroad).
The first right belongs to the State as an attribute of its existence
as a State, and as a consequence of its international personality ;
the second is the fruit of a process-of laborious crystallization
that has been completed since the end of the nineteenth century.
In spite if certain abuses that have accompanied its exercise, this
right is universally recognized. But its conception and its
justification have constantly been discussed. In fact, the right to
claim reparation for injuries suffered by the victim or persons
entitled through him arises in the person of the victim, or in that
of the persons entitled, and as a general rule belongs only to other
persons in so far as they represent the victim or the persons
entitled through him.
International law recognizes that the State has the right to claim
reparation in respect of this damage, not because it considers that
the State is a legal representative of the victim, but because it
holds that the State, in asserting its own right, the right which it
has to ensure, in the person of its subjects, respect for the rules
of international law (Judgment No. 2 of the P.C.I.J., Series A.,
50. 2, p. 12). In the absence of a special agreement, it is the bond
of nationality between the State and the individual which alone
confers upon the State the right of diplomatic protection
(Judgment of the P.C.I.J., February 28th, ,1939, Series A./B.,
Fasc. 76, p. 16).[FN1] [p207]
----------------------------------------------------------------------------
-----------------------------------------
FN1 The bond of nationality is an essential condition of the
exercise by a State of the right to bring an international claim on
behalf of the victim ; but the Court's Opinion states (p. 181) that
there are important exceptions to this rule, and that there exist
classes of cases in which protection may be exercised by a State
on behalf of persons not having its nationality. Now the
Permanent Court of International Justice, in reply to a similar
objection, stated, in the above-mentioned Judgment of February
28th, 1939, that
"The Estonian agent both in the written pleadings and in the oral
arguments has endeavoured to discredit this rule of international
law, if not to deny its existence. He cited a certain number of
precedents, but when these precedents are examined, it will be
seen that they are cases where the governments concerned had
agreed to waive the strict application of the rule, cases where the
two governments had agreed to establish an international
tribunal with jurisdiction to adjudicate on claims even if this
condition as to nationality were not fulfilled."
On the other hand, the classes of cases envisaged in the Opinion
seem to relate to the protection of the flag and of armed forces,
in which case protection extends to everyone in the ship or in the
forces, independent of nationality. But it must be pointed out that
as the condition of nationality is satisfied as regards the flag or
the forces, its absence, in the case of one or more units or persons
of a national entity, may be held to be covered by a principle of
the indivisibility of the flag or of the armed forces.
----------------------------------------------------------------------------
-----------------------------------------
It is thus by juridically identifying the national and his national
State, that the latter is deemed to have the right to bring an
international claim for reparation due to the victim or to persons
entitled through him.
According to this theory, the State does not act as representative
of its national, although it claims reparation for the damage
suffered by him. But the reparation that it claims for this injury
possesses the international character of reparation due from one
State to another. In Judgment No. 13 of the P.C.I.J. (Series A.,
No. 17, pp 27-28), we find a remarkable statement of this
juridical theory in the following terms :
"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. This is even the
most usual form of reparation ; it is the form selected by
Germany in this case and the admissibility of it has not been
disputed. The reparation due by one State to another does not
however change its character by reason of the fact that it takes
the form of an indemnity for the calculation of which the damage
suffered by a private person is taken as the measure. The rules
of law governing the reparation are the rules of international lam
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. Rights
or interests of an individual the violation of which rights causes
damage are always in a different plane to rights belonging to a
State, which rights may also be infringed by the same act. The
damage suffered by an individual is never therefore identical in
kind with that which will be suffered by a State ; it can only
afford a convenient scale for the calculation of the reparation due
to the State."
The question, therefore, is whether, as regards injuries suffered
by one of its agents in the performance of his duties, the
: Organization has a right to make an international claim at any
rate of the same scope, if not of the same nature, as a claim made
by a State.
In the preliminary part of the Opinion, devoted to a consideration
of the question, the Court stated that:
"(d) As this question relates to a case of injury suffered in such
circumstances as to involve a State's responsibility, it must be
supposed, for the purpose of the examination, that the damage
results from a failure by the State to perform obligations of
which the purpose is to protect the agents of the United Nations
Organization in the performance of their duty." [p208]
The Court therefore admits as a postulate the existence of an
obligation in favour of the United Nations and incumbent on any
Member State whose responsibility might be involved. But there
is nothing in the terms of the question to authorize the admission
of such a postulate; the clause "in .circumstances involving the
responsibility of a State" seems to refer only to the traditional
conditions of diplomatic protection, namely the exhaustion of
local remedies and the existence of a denial of justice (see debate
in Committee VI of the United Nations General Assembly).
Has the Court in view the obligation of Members, under Article
2, paragraph 5, of the Charter, to give the United Nations every
assistance in any action it takes in accordance with the Charter ;
or has it in view the obligations derived from Article 105 of the
Charter, and from the Convention on Privileges and Immunities
? A passage from the Opinion (p. 183) seems to refer to both of
these obligations.
But, all the same, the Court has not endeavoured to discover the
source of this obligation, although it is evident that the disregard
by a State of an obligation, and the consequences that may
follow, are closely dependent on the actual terms of the
obligation.
But even whether the source of the supposed obligation be one
or other of the above-mentioned provisions, it would still have
to be shown that a breach of the obligation would give rise to a
right of the United Nations to make an international claim for
reparation of the damage caused by (b) of the first question ; the
right to claim reparation of the damage under (a) gives rise to no
difficulty. If the existence of an obligation is assumed, this right
would only be the direct result of this obligation.
***
Both the written statements of the governments (except that of
the United States Government) and the statements made in Court
recognized that the United Nations had the right to bring an
international claim in respect of the damage referred to under
(b), and they endeavoured to give reasons for this. Each
representative had his own argument.
They founded this right on one or more of the following grounds:
(1) The analogy between the position of the United Nations and
that of States, because the general principles underlying the
position of States would be equally applicable to the United
Nations.
(2) Creation of a new situation, owing to the development of
international organization; in this situation, the international
[p209] community requires that a step forward should be taken
towards the protection of its agents.
(3) The rule that the reparation of damage suffered by the victim
would habitually and principally be the measure of reparation
due to the State, and consequently to the United Nations.
(4) Weakening of the bond of national allegiance implied in
Article 100 of the Charter on the one hand, and by considerations
of expediency on the other hand, there being no national
protection for stateless persons, refugees and displaced persons,
or such protection being illusory if, for any reason, the national
State does not endeavour to exercise it.
(5) An international obligation to ensure protection of a foreign
public service ; this is confirmed by several precedents derived
from the application of Articles 88 and 362 of the Treaty of
Versailles, from the diplomatic history of the concert of
European Powers in the Cretan question, and from the Corfu
affair of 1923 (Tellini Affair).
(6) Article 100 of the Charter.
***
Apart from the actual value of each of these arguments, their
diversity gives rise to contradictions and inconsistency as
regards the justification of the United Nations' right. Those who
uphold certain arguments consider others inadequate or
insufficient.
The Court was right to set aside the argument drawn from Article
IOO (p. 182). Such an argument only justified the making of an
international claim for the Secretary-General and the staff of the
Secretariat, so that other grounds had to be found for the
protection of agents other than the staff of the Secretariat.
It must be added that this Article, and especially paragraph 1, is
only a rule of conduct or discipline for the Secretary-General and
the staff of the Secretariat. It is a rule which would have been
more in place in the Staff Regulations of the Secretariat, if it had
not been desired to link it up to the second paragraph, which
imposes an obligation on States, and if it had not also been
required to justify the privileges and immunities provided in
their favour by Article 105.
An official of the Organization who is a national of a particular
State may, in one may or another, have to take part in discussions
or decisions of the Organization, where actions and interests of
the particular State are involved. This official might
consequently find that his national feelings and his duties were
in conflict in a particular case. It was therefore necessary to
reassure States Members of the Secretariat's impartiality, and to
define what would be the situation of the staff in such cases of
conflict, and determine their duties. For this reason, in the first
paragraph [p210] of this Article, the staff are enjoined not to seek
or receive instructions from any government or from any other
authority external to the Organization. The following provision
is a repetition of the same rule in a more extended form ; it also
relates to the dignity of an international official position. The
reference to the exclusive responsibility towards the
Organization is a consequence and a necessary confirmation of
the preceding rules.
The second paragraph of this Article only repeats the ideas
underlying the first paragraph, as looked at from the viewpoint
of the State of which the official is a national.
In these specific conditions of the nature of the Organization, its
duties and powers, the provision implies nothing more than the
relations between employer and employed in an international
body. So much so that a similar provision is found in :
(1) the Agreement relating to the International Monetary Fund,
September 27th, 1945 (Article 12, Section 4 (c)) ;
(2) the Agreement relating to the International Bank for
Reconstruction and Development of the same date (Article 5,
Section 5 (c)) ; identity of the basic principle of the situations compared, and
(3) the U.N.E.S.C.O. Charter, November 16th, 1945 (Article VI,
Section 5) ; nationality.
(4) the constitution of the International Labour Organization
(Article 9, Sections 4 and 5) ; But in international law, recourse to analogy should only be had
(5) the constitution of the World Health Organization (Article
37);
(6) the constitution of the Food and Agriculture Organization of
the United Nations (Article 8, Section 2) ;
(7) the constitution of the International Refugee Organization
(Article 9, Section 3) ; ***
(8) the Convention on International Civil Aviation (Article 59) ;
(9) the constitution of the International Trade Organization
(Article 88, Sections 1, 2, 3).
In these circumstances, would it be conceivable that the
constitutions of all these Specialized Agencies can have created
so many allegiances involving a right of protection for their staff
similar to that accorded by States to their nationals ?
***
What is to be said of the other arguments ? reparation due to the victim. This right presupposes a definite
The Court rejects in general any argument by analogy from the
traditional rule of international law as to the diplomatic
protection of nationals abroad (p. 182). In this way, it rejects the
alleged allegiance resulting from Article 100, which would take
the place of nationality for the purpose of the exercise of the right
above [p211] mentioned. But surely the following reasoning of
the Court is only an argument by analogy, namely :
1° that if one goes back to the principle contained in the rule of
the nationality of the claim, one observes that, for an
international claim on behalf of an individual to be made by a
State, a breach by the State claimed to be responsible of an
obligation incurred towards the claimant State must be alleged,
and
2° that this principle leads to recognizing that the Organization
has the capacity to bring an international claim for injuries
suffered by its agent, if the Organization gives as a ground for
its claim a breach of an obligation incurred towards it (pp. 181
and 182).
It is true that when the Court relies on the principle mentioned
above and implied in the rule of the nationality of the claim, and
when it secondly relies on the existence of important exceptions
to that rule, and when it lastly relies on the new situation created
by the coming into existence of the United Nations, it only draws
the conclusion that a negative reply to Question 1 (b) cannot be
deduced from that rule. But that conclusion is only a part of the
Court's argument in favour of the Organization's right to make
an international claim for the damage referred to in 1 (b).
Whether this argument be considered as preliminary or
auxiliary, or whether it be given a greater importance, it is in any
case only an argument by analogy in favour of an affirmative
reply, and draws its elements from the new situation, from the
from the relative and in no way rigid character of the rule of
with reserve and circumspection. Contrary to what is the case in
municipal law, and precisely owing to the principle of State
sovereignty, the use of analogy has never been a customary
technique in international law.
In any case, this argument by the Court brings us to the
international obligation which the Court regards as involved in
this question, and which seems to be the foundation for the
above-mentioned argument by analogy.
It has been asked whether this obligation was derived from
Article 2, paragraph 5, of the Charter, or from Article 105. Rut
it is evident that the first of these two provisions, which creates
a defi-nitely political obligation, could not, if that obligation
were infringed, serve to found a right to make a claim for
relation between the [p212] victim and the Organization, which
cannot be deduced from this general political obligation.
Nor can a foundation be discovered in Article 105. For it is a rule
that in so far as diplomatic privileges and immunities impose on
a State a duty of special diligence, they only authorize and justify
a claim for reparation for damage caused to the State which
accredited the victim. So much so that in the case of a consul
who was not a national of the claimant State, the right of that
State would be limited to direct damage. On the other hand, in
the case of a diplomatic representative, a combination of his
rights as representative and as national enables reparation due to
the victim to be included in the international claim.
On the other hand, it must be observed that :
(1) Article 105 accords privileges and immunities only to
officials of the Organization ; this term does not necessarily
coincide with that of agent, as the Court has pointed out; i.e., it
has not the same meaning or scope ; international law said to have been applied by the P.C.I.J. to the
(2) Article 105 does not apply exclusively to the Organization.
All the constitutions of the Specialized Agencies contain
provisions declaring it to be applicable, or provisions in the same
terms.
By connecting up the right to claim reparation due to victims
with an obligation derived from provisions of such a nature,
situations would be arrived at that are contrary to those admitted
by international law in regard to master and servant. The result
would also be a generalization, in the interest of al1 the
Specialized Agencies, of a right which has hitherto belonged
only to States; the history of this right is closely connected with
the notion of nationality, and it draws from that notion a
fictitious identification between State and national.
The political character of the Organization and its importance in
the hierarchy of international bodies cannot be pertinent in this
case, nor can it justify the granting to the Organization, to the
exclusion of other bodies, of a right not derived from a provision
common to all.
This argument that the right to make an international claim is
based on the recognition by a State of its obligation to respect
the public services of another State, was upheld by the French
Government's representative, who considered that "a State's
international responsibility is involved if the protection
prescribed by international law for diplomatic and consular
services is not provided. The person of a diplomatic agent must
be the subject of special vigilance on the part of the State that
receives the agent. If this vigilance is lacking, and damage
results, the State whose diplomatic service is concerned can
make an international claim." It would further seem that damage
referred to in Question 1 (a)[p213] and that in (b) are both
included in this claim. The French representative mentioned
several precedents in support of this argument; but in truth none
of them is conclusive.
On the other hand, the United Kingdom representative thought
that the bond of service, as opposed to that of nationality, only
gives the State the right to make an international claim for the
damage directly suffered by it, i.e., damage referred to in
Question 1 (a); and he maintained that it was the insufficiency
of this argument to justify a claim for reparation referred to in
Question 1 (b) which led to the search for another argument. He
claimed to find this in Article 100, which the Court thought was
not pertinent.
***
I have enquired into all the details of .is obligation of protection,
as found in the arguments of the representatives of governments
and of the Secretary-General, because it was adopted by the
Court itself at the beginning as a hypothesis. Then the Court
found itself faced with a new situation—that the Charter did not
expressly Say that the Organization was entitled to include in its
claim reparation for injury suffered by the victim or persons
entitled through him. The Court then invoked a principle of
International Labour Organization, to the effect that "the
Organization must be deemed to have those powers which,
though not expressly provided in the Charter, are conferred upon
it by necessary implication as being essential to the performance
of its duties".
In application of this principle, the Court states that in order to
ensure the efficacious and independent exercise of its duties and
to secure effective support for its agents, the Organization must
give them suitable protection, and after asserting that it is
essential that the agent shall be able to count on this protection
without having to count on other protection (particularly that of
his own State), the Court concludes that it is evident that the
capacity of the Organization to exercise a certain measure of
functional Protection arises by intendment out of the Charter.
As this measure is not fixed, the Court adopts the juridical
construction given by the Permanent Court to a claim by a State
for reparation due to its national, and asserts "in claiming
reparation based on the injury suffered by its agent, the
Organization does not represent the agent, but is asserting its
own right, the right to secure respect for undertakings entered
into towards the Organization".
I regret I cannot accept this conclusion. [p214]
In the first place, I do not think that Opinion No. 13 of the
P.C.I.J. concerning the competence of the International Labour
Organization lays down the principle so categorically and
absolutely as a principle of international law, as the Court states.
The Permanent Court had to give an opinion on the question
whether a certain measure recommended by the International
Labour Organization was or was not within the Organization's
competence ; and it stated that "the terms in which the objects
committed to the International Labour Organization are stated
are so general that language could hardly be more
comprehensive", and that "while the competence .... so far as
concerns the investigation and discussion of labour questions
and the formulation of proposals.... is exceedingly broad, its
competence is almost entirely limited to that form of auxiliary
activity." The Permanent Court therefore concluded in the
following terms : basis in accordance with the general principles of law, nor one
"It results from the consideration of the provisions of the Treaty
that the High Contracting Parties clearly intended to give to the
International Labour Organization a very broad power of co-
operating with them in respect of measures to be taken in order
to assure humane conditions of labour and the protection of
workers. It is not conceivable that they intended to prevent the
Organization from drawing up and proposing measures essential
to the accomplishment of that end. The Organization, however,
would be so prevented if it were incompetent to propose for the
protection of wage earners a regulative measure to the
efficacious working of which it was found to be essential to
include to some extent work done by employers."
This Opinion therefore laid down no general principle. It only
interprets the intention of the Parties as to Part XIII of the Treaty
of Versailles in the light of the terms generally used therein.
If we admit that the principle proclaimed by the Court is a rule
of judicial interpretation and not a recommendation of legislative
policy, it would still have to be shown that the suitable protection
to be afforded by the Organization to its agent is precisely the
right to claim the reparation due to him. This right is evidently
not the only suitable method of protection. We know, on the
other hand, that the protection which a State owes to its national
does not consist in a right of this nature derived from the mere
notion of protection ; thanks to the additional help of an
ingenious juridical theory, based on nationality, it has identified
the State with its national, and it considers that reparation due to
the latter forms the measure of reparation due to the State. For
this reason, the Court had to establish a link between the
necessity for protection, and the right to claim the reparation due
to the agent ; namely, the capacity to exercise a certain measure
of functional protection and the obligation to "make adequate
reparation".[p215]
But the transfer by the Court (p. 183) of the terms used by the
Permanent Court in respect of the State and its national, to the
Organization and its agents, is a mere affirmation and remains
unproved.
It must further be noted that if the Organization must afford this
protection in the same way as a State must do for its national
(and there is no reason why this should not be so), its right of
action against the State responsible can only arise after its agent
has exhausted all municipal remedies, and has met with a denial
of justice.
But having regard to the situation of an agent of the Organization
who is bound to it by a contract in one form or another, the most
appropriate and indeed efficacious protection is certainly the
reparation which could be granted him by the Organization,
which could recover the sum in question from the State
responsible.
The only conclusion to be drawn from the foregoing
considerations is that the juristic interpretation cannot afford a
affording an acceptable or satisfactory solution.
I have noted the various suggestions made by governments. The
Court has not accepted them, or has accepted only one—
namely, the breach of obligations of which the object is to
protect agents of the Organization in the exercise of their duties,
an obligation which the Court, for that matter, has presumed to
exist. But in order to deduce a reply to question 1 (b), the Court
had to complete its answer by other propositions which it simply
affirmed and, in my view, never established. Inevitably,
solutions of an abstract and general character, like functional
protection, adopted by the Court, would then be the most
extreme. Thus, the Court holds that the Organization has the
capacity to make an international claim for reparation due to any
agent (in the widest sense of the term) against a State Member
or not member of the Organization. As regards this latter case, it
may be asked what are the conditions in which the obligation to
protect the agent, that the Court assumed to be contained in the
Request for the Opinion, can arise. The Organization has even
the capacity to make a claim against the national State of the
victim itself.
In short, it is impossible to avoid this diversity of arguments or
the contradictory solutions arising therefrom, when a rule is
removed from the framework in which it was formed, to another
of different dimensions, to which it cannot adapt itself as easily
as it did to its proper setting. In any case, the new construction
would necessarily be artificial and, with the best will of the
world, could not entirely satisfy the new requirements.
Suitable rules must be created. A special study of the question
would no doubt reveal all the circumstances of fact and the
numerous cases in which the question may arise, and the
practical [p216] solution that should be given to these various
cases in different circumstances. On these data can be built an
appropriate juridical construction.
It matters little that the interpretation of the rules of international
law in force is in accordance or not with the solutions, so long
as the unanimous desire of the General Assembly is to provide a
maximum of protection for the agents of the Organization, in the
widest sense, and not only for members of the Secretariat.
The Court's duty is to declare the law in the state of evolution
that it has reached ; and the Court cannot, in any case, in the
presence of new complex and varied cases and contingencies,
permit the simple and homogeneous rules, customarily
recognized as international law in force, to be the appropriate
juristic expression of such situations and contingencies.
According to the rules in force, the Organization has the capacity
to make international claims, when one of its agents (in the
widest sense) has suffered injury in the performance of his duty,
for the damage referred to in Question I (a). This damage may
include the damage suffered by the victim, iii so far as this was
provided for in the contract of service. But there is nothing to
prevent temporary agents, mediators or members of
commissions from entering into contracts for reparation due to
them in the event of injury sustained in the performance of their
duties, whenever the nature of their duties or missions obliges
them to expose themselves to danger in the territories of States
where they may have to perform these duties or carry out these
missions.
This form of reparation will be for the interested parties more
direct, more effective and more immediate than any right of
making an international claim that might be accorded to the
Organization on their behalf.
My reply is therefore yes to Question I (a), and no to Question I
(6).
In view of the reply to question 1 (a), the second Question does
not arise.
(Signed) Badawi Pasha. [p217]
DISSENTING OPINION BY JUDGE KRYLOV.
[Translation.]
I agree with the Court's Opinion to the effect that the United
Nations Organization has the right to bring an international
claim with a view to obtaining reparation for damage caused to
the Organization itself; i.e., I reply in the affirmative to Question
1 (a) put to the Court by the General Assembly. It is beyond
doubt that the Organization is entitled to defend its patrimony;
in particular, to claim compensation for direct damage caused to
itself, including disbursements in cases where an official of the
Organization has suffered injury in the performance of his
duties: for example, funeral expenses, medical expenses,
insurance premiums, etc. In my opinion an affirmative reply to
Question 1 (a) fully meets the practical requirements referred to
by the Secretary-General of the United Nations.
I agree in a large measure with the arguments used in the
dissenting opinions of Judges Hackworth and Badawi Pasha, and
I believe that the United Nations Organization is not entitled,
according to the international law in force, to claim
compensation for injuries suffered by its agents.
The majority of the Court has founded this right to bring a claim
on the right of functional protection exercised by the
Organization in regard to its officials and—more generally—its
agents.
I entirely associate myself with the desire unanimously
expressed by the General Assembly of the United Nations in the
recital clauses of its Resolution of December 3rd, 1948, of
"ensuring to its agents the fullest measure of protection....".
But I consider that this aim should be attained pvoprio modo,
i.e., by the elaboration and conclusion of a general convention. I
think that the problem should be approached in the same way as
in the Convention concerning the Privileges and Immunities of
the Organization, of representatives of governments and of the
officials of the Organization.
To affirm, in the Court's Opinion, a right of the Organization to
afford international protection to its agents as an already existing
right, would be to introduce a new rule into international law
and—what is more—a rule which would be concurrent with that
of diplomatic protection which appertains to every State vis-à-
vis its nationals.
The alleged new rule of functional protection will give rise to
conflicts or collisions with the international law in force. The
Court is not entitled to create a right of functional protection
which is unknown in existing international law.[p218]
The Court itself states that it is confronted with a "new
situation", but it considers itself authorized to reason—if I may
so express it—de lege ferenda.
I am also unable to associate myself with the following
affirmations of the majority of the Court. The Court considers
that it may understand the term "agent" in the very widest sense.
I think that the term "agent" must be interpreted restrictively.
The representatives of the governments accredited to the
Organization and the members of the different delegations are
not agent-of the Organization. Nor are the representatives of the
governments in the different commissions of the United Nations
agents of that Organization.
The conflict between the existing rules of international law
(diplomatic protection of nationals) and the rules declared by the
Court to be in existence—i.e., the rules of functional
protection— is still further intensified by the fact that the
majority of the Court even declares that the protection afforded
by the United Nations Organization to its agent may be exercised
against the State of which the agent is a national. We are thus far
outside the limits of the international law in force.
Organization to bring an international claim in order to protect
I have not lost sight of the fact that the protection afforded by its agent .on the express consent of the States, either by the
the United Nations is only functional, i.e., it is only asserted in preparation and conclusion of a general convention, or by
crises where the agent of the organization is "performing his agreements concluded between the Organization and the
duties", but the conflict between the two methods of respective States in each individual case.
protection—that of the United Nations Organization and that of
the State—nevertheless subsists. In my view, the Court cannot sanction by its Opinion the creation
of a new rule of international law, particularly in the present
It should also be observed that the relations between a State and case, where the new rule might entail a number of complications
its nationals are matters which belong essentially to the national .
competence of the State. The functional protection proclaimed The majority of the Court has in view the functional protection
by the Court is in contradiction with that well-established rule. of an agent of the United Nations Organization, even as against
the national State of the agent. But it has not borne in mind, for
I therefore feel justified in asserting that the protection by the example, the opposite—and possible—situation in which the
United Nations Organization of its agents could not be well said State may find it desirable and necessary to protect the agent
founded from the standpoint of the international law in force, against the acts of the Organization itself.
even if we are considering the relations between the United
Nations and its Members. The Court can only interpret and develop the international law
in force ; it can only adjudicate in conformity with international
Still less is it possible to assert this right of the United Nations law. In the present case, the Court cannot found an affirmative.
Organization vis-à-vis non-member States. It is true that reply to Question I (6) either on the existing international
paragraph 6 of Article 2 of the Charter lays down that States convention or on international custom (as evidence of a general
which are not members of the United Nations should act in practice,), or again, on any general principle of law (recognized
accordance with the Principles of the Organization (Chapter 1 of by the nations).
the Charter) “so far as may be necessary for the maintenance of
international peace and security". But this paragraph has very Such are the reasons for my negative answer to Question 1 (b)
little connexion with the right of the United Nations to bring an put by the General Assembly, and they render it unnecessary for
international claim with a view to obtaining reparation for me to give an answer to Question II.
damage.
(Signed) S. Krylov. [p220]
It is true that the non-member States cannot fail to recognize the
existence of the United Nations as an objective fact. But, in order ANNEX.
that they may be bound by a legal obligation to the [p219]
Organization, it is necessary that the latter should conclude a
special agreement with these States.
I associate myself with the concern of the majority of the Court
to find appropriate legal means whereby the United Nations may
attain its objects—i.e., in the present case, protect its agents. But,
as I have already said, we must found the right of the

Saudi Arabia v. Nelson, 507 U.S. 349 (1993)
OCTOBER TERM, 1992
Syllabus
SAUDI ARABIA ET AL. v. NELSON ET ux.
CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE ELEVENTH CIRCUIT
No. 91-522. Argued November 30, 1992-Decided March
23,1993
The respondents Nelson, a married couple, filed this action
for damages against petitioners, the Kingdom of Saudi
Arabia, a Saudi hospital, and the hospital's purchasing
agent in the United States. They alleged, among other
things, that respondent husband suffered personal injuries
as a result of the Saudi Government's unlawful detention
and torture of him and petitioners' negligent failure to warn
him of the possibility of severe retaliatory action if he
attempted to report on-the-job hazards. The Nelsons
asserted jurisdiction under the Foreign Sovereign
Immunities Act of 1976, 28 U. S. C. § 1605(a)(2), which
confers jurisdiction where an action is "based upon a
commercial activity carried on in the United States by the
foreign state." The District Court dismissed for lack of
subject-matter jurisdiction. The Court of Appeals reversed,
concluding that respondent husband's recruitment and
hiring were "commercial activities" upon which the Nelsons'
action was "based" for purposes of § 1605(a)(2).
Held: The Nelsons' action is not "based upon a commercial
activity" within the meaning of the first clause of §
1605(a)(2), and the Act therefore confers no jurisdiction
over their suit. Pp. 355-363.
(a) This action is not "based upon" a commercial activity.
Although the Act does not define "based upon," the phrase
is most naturally read to mean those elements of a claim
that, if proven, would entitle a plaintiff to relief under his
theory of the case, and the statutory context confirms that
the phrase requires something more than a mere
connection with, or relation to, commercial activity. Even
taking the Nelsons' allegations about respondent
husband's recruitment and employment as true, those facts
alone entitle the Nelsons to nothing under their theory of
the case. While these arguably commercial activities may
have led to the commission of the torts that allegedly
injured the Nelsons, it is only those torts upon which their
action is "based" for purposes of the Act. Pp. 355-358.
(b) Petitioners' tortious conduct fails to qualify as
"commercial activity" within the meaning of the Act. This
Court has ruled that the Act largely codifies the so-called
"restrictive" theory of foreign sovereign immunity, Republic
of Argentina v. Weltover, Inc., 504 U. S. 607, 612, and that
a state engages in commercial activity under that theory
where
350
Syllabus
it exercises only those powers that can also be exercised
by private citizens, rather than those powers peculiar to
sovereigns, id., at 614. The intentional conduct alleged
here (the Saudi Government's wrongful arrest,
imprisonment, and torture of Nelson) boils down to abuse
of the power of the police. However monstrous such abuse
undoubtedly may be, a foreign state's exercise of that
power has long been understood for purposes of the
restrictive theory as peculiarly sovereign in nature. The
Nelsons' argument that respondent husband's
mistreatment constituted retaliation for his reporting of
safety violations, and was therefore commercial in
character, does not alter the fact that the powers allegedly
abused were those of police and penal officers. In any
event, that argument goes to the purpose of petitioners'
conduct, which the Act explicitly renders irrelevant to the
determination of an activity's commercial character. Pp.
358-363.
(c) The Nelsons' attempt to claim failure to warn is merely
a semantic ploy. A plaintiff could recast virtually any claim
of intentional tort committed by sovereign act as a claim of
failure to warn. To give jurisdictional significance to this
feint of language would effectively thwart the Act's manifest
purpose to codify the restrictive theory of foreign sovereign
immunity. Cf. United States v. Shearer, 473 U. S. 52, 54-55
(opinion of Burger, C. J.). P. 363.
923 F.2d 1528, reversed.
SOUTER, J., delivered the opinion of the Court, in which
REHNQUIST, C. J., and O'CONNOR, SCALIA, and
THOMAS, JJ., joined, and in which KENNEDY, J., joined
except for the last paragraph of Part II. WHITE, J., filed an
opinion concurring in the judgment, in which BLACKMUN,
J., joined, post, p. 364. KENNEDY, J., filed an opinion
concurring in part and dissenting in part, in which
BLACKMUN and STEVENS, JJ., joined as to Parts I-B and
II, post, p. 370. BLACKMUN, J., filed an opinion concurring
in the judgment in part and dissenting in part, post, p. 376.
STEVENS, J., filed a dissenting opinion, post, p. 377.
Everett C. Johnson, Jr., argued the cause for petitioners.
With him on the briefs were Mark E. Newell and Marc
Cooper.
Jeffrey P. Minear argued the cause for the United States as
amicus curiae urging reversal. With him on the brief were
Solicitor General Starr, Assistant Attorney General Gerson,
Deputy Solicitor General Roberts, Douglas Letter, and
Edwin D. Williamson.
351
Paul Schott Stevens argued the cause for respondents.
With him on the brief were Leonard Garment, Abraham D.
Sofaer, William R. Stein, and Anthony D'Amato. *
JUSTICE SOUTER delivered the opinion of the Court.
The Foreign Sovereign Immunities Act of 1976 entitles
foreign states to immunity from the jurisdiction of courts in
the United States, 28 U. S. C. § 1604, subject to certain
enumerated exceptions. § 1605. One is that a foreign state
shall not be immune in any case "in which the action is
based upon a commercial activity carried on in the United
States by the foreign state." § 1605(a)(2). We hold that
respondents' action alleging personal injury resulting from
unlawful detention and torture by the Saudi Government is
not "based upon a commercial activity" within the meaning
of the Act, which consequently confers no jurisdiction over
respondents'suit.
I however, on September 27, 1984, when certain hospital
Because this case comes to us on a motion to dismiss the
complaint, we assume that we have truthful factual
allegations before us, see United States v. Gaubert, 499 U.
S. 315, 327 (1991), though many of those allegations are
subject to dispute, see Brief for Petitioners 3, n. 3; see also
n. 1, infra. Petitioner Kingdom of Saudi Arabia owns and
operates petitioner King Faisal Specialist Hospital in
Riyadh, as well as petitioner Royspec Purchasing Services,
the hospital's corporate purchasing agent in the United
States. App. 91. The Hospital Corporation of America, Ltd.
(HCA), an independent corporation existing under the laws
of the Cayman Islands, recruits Americans for employment
at the hospital
*Briefs of amici curiae urging affirmance were filed for
Human Rights Watch by Ellen Lutz, Kenneth Roth, and
Jeffrey L. Braun; and for the International Human Rights
Law Group et al. by Douglas G. Robinson, Julia E. Sullivan,
Andrew L. Sandler, Michael Ratner, Steven M.
Schneebaum, Janelle M. Diller, and Harold Koh.
352
under an agreement signed with Saudi Arabia in
1973. Id., at 73.
In its recruitment effort, HCA placed an advertisement in a
trade periodical seeking applications for a position as a
monitoring systems engineer at the hospital. The
advertisement drew the attention of respondent Scott
Nelson in September 1983, while Nelson was in the United
States. After interviewing for the position in Saudi Arabia,
Nelson returned to the United States, where he signed an
employment contract with the hospital, id., at 4, satisfied
personnel processing requirements, and attended an
orientation session that HCA conducted for hospital
employees. In the course of that program, HCA identified
Royspec as the point of contact in the United States for
family members who might wish to reach Nelson in an
emergency. Id., at 33.
In December 1983, Nelson went to Saudi Arabia and began
work at the hospital, monitoring all "facilities, equipment,
utilities and maintenance systems to insure the safety of
patients, hospital staff, and others." Id., at 4. He did his job
without significant incident until March 1984, when he
discovered safety defects in the hospital's oxygen and
nitrous oxide lines that posed fire hazards and otherwise
endangered patients' lives. Id., at 57-58. Over a period of
several months, Nelson repeatedly advised hospital
officials of the safety defects and reported the defects to a
Saudi Government commission as well. Id., at 4-5. Hospital
officials instructed Nelson to ignore the problems. Id., at 58.
The hospital's response to Nelson's reports changed,
employees summoned him to the hospital's security office
where agents of the Saudi Government arrested him.1 The
agents
1 Petitioners assert that the Saudi Government arrested
Nelson because he had falsely represented to the hospital
that he had received a degree from the Massachusetts
Institute of Technology and had provided the hospital with
a forged diploma to verify his claim. Brief for Petitioners 4-
5. The Nelsons concede these misrepresentations, but
dispute that they occasioned Scott Nelson's arrest. Brief for
Respondents 9.
353
transported Nelson to a jail cell, in which they "shackled,
tortured and bea[t]" him, id., at 5, and kept him four days
without food, id., at 59. Although Nelson did not understand
Arabic, government agents forced him to sign a statement
written in that language, the content of which he did not
know; a hospital employee who was supposed to act as
Nelson's interpreter advised him to sign "anything" the
agents gave him to avoid further beatings. Ibid. Two days
later, government agents transferred Nelson to the Al Sijan
Prison "to await trial on unknown charges." Ibid.
At the prison, Nelson was confined in an overcrowded cell
area infested with rats, where he had to fight other
prisoners for food and from which he was taken only once
a week for fresh air and exercise. Ibid. Although police
interrogators repeatedly questioned him in Arabic, Nelson
did not learn the nature of the charges, if any, against
him. Id., at 5. For several days, the Saudi Government
failed to advise Nelson's family of his whereabouts, though
a Saudi official eventually told Nelson's wife, respondent
Vivian Nelson, that he could arrange for her husband's
release if she provided sexual favors. Ibid.
Although officials from the United States Embassy visited
Nelson twice during his detention, they concluded that his
allegations of Saudi mistreatment were "not credible" and
made no protest to Saudi authorities. Id., at 64. It was only
at the personal request of a United States Senator that the
Saudi Government released Nelson, 39 days after his
arrest, on November 5, 1984. Id., at 60. Seven days later,
after failing to convince him to return to work at the hospital,
the Saudi Government allowed Nelson to leave the
country. Id., at 60-61.
In 1988, Nelson and his wife filed this action against
petitioners in the United States District Court for the
Southern District of Florida seeking damages for personal
injury. The Nelsons' complaint sets out 16 causes of action,
which fall into three categories. Counts II through VII and
counts X, XI, XIV, and XV allege that petitioners committed
vari-
354
ous intentional torts, including battery, unlawful detainment,
wrongful arrest and imprisonment, false imprisonment,
inhuman torture, disruption of normal family life, and
infliction of mental anguish. Id., at 6-11, 15, 19-20. Counts
I, IX, and XIII charge petitioners with negligently failing to
warn Nelson of otherwise undisclosed dangers of his
employment, namely, that if he attempted to report safety
hazards the hospital would likely retaliate against him and
the Saudi Government might detain and physically abuse
him without legal cause. Id., at 5-6, 14, 18-19. Finally,
counts VIII, XII, and XVI allege that Vivian Nelson sustained
derivative injury resulting from petitioners' actions. Id., at
11-12, 16, 20. Presumably because the employment
contract provided that Saudi courts would have exclusive
jurisdiction over claims for breach of contract, id., at 47, the
Nelsons raised no such matters.
The District Court dismissed for lack of subject-matter
jurisdiction under the Foreign Sovereign Immunities Act of
1976, 28 U. S. C. §§ 1330, 1602 et seq. It rejected the
Nelsons' argument that jurisdiction existed, under the first
clause of § 1605(a)(2), because the action was one "based
upon a commercial activity" that petitioners had "carried on
in the United States." Although HCA's recruitment of
Nelson in the United States might properly be attributed to
Saudi Arabia and the hospital, the District Court reasoned,
it did not amount to commercial activity "carried on in the
United States" for purposes of the Act. Id., at 94-95. The
court explained that there was no sufficient "nexus"
between Nelson's recruitment and the injuries alleged.
"Although [the Nelsons] argu[e] that but for [Scott Nelson's]
recruitment in the United States, he would not have taken
the job, been arrested, and suffered the personal injuries,"
the court said, "this 'connection' [is] far too tenuous to
support jurisdiction" under the Act. Id., at 97. Likewise, the
court concluded that Royspec's commercial activity in the
United States, purchasing supplies and equipment for the
hospital, id., at
355
93-94, had no nexus with the personal injuries alleged in
the complaint; Royspec had simply provided a way for
Nelson's family to reach him in an emergency, id., at 96.
The Court of Appeals reversed. 923 F.2d 1528 (CAll 1991).
It concluded that Nelson's recruitment and hiring were
commercial activities of Saudi Arabia and the hospital,
carried on in the United States for purposes of the Act, id.,
at 1533, and that the Nelsons' action was "based upon"
these activities within the meaning of the statute, id., at
15331536. There was, the court reasoned, a sufficient
nexus between those commercial activities and the
wrongful acts that had allegedly injured the Nelsons: "the
detention and torture of Nelson are so intertwined with his
employment at the Hospital," the court explained, "that they
are 'based upon' his recruitment and hiring" in the United
States. Id., at 1535. The court also found jurisdiction to
hear the claims against Royspec. Id., at 1536.2 After the
Court of Appeals denied petitioners' suggestion for
rehearing en bane, App. 133, we granted certiorari, 504 U.
S. 972 (1992). We now reverse.
II
The Foreign Sovereign Immunities Act "provides the sole
basis for obtaining jurisdiction over a foreign state in the
courts of this country." Argentine Republic v. Amerada
Hess Shipping Corp., 488 U. S. 428, 443 (1989). Under the
Act, a foreign state is presumptively immune from the
jurisdiction of United States courts; unless a specified
exception applies, a federal court lacks subject-matter
jurisdiction over a claim against a foreign state. Verlinden
B. v: v. Central Bank of Nigeria, 461 U. S. 480, 488-489
(1983); see 28 U. S. C. § 1604; J. Dellapenna, Suing
Foreign Governments and Their Corporations 11, and n. 64
(1988).
2 The Court of Appeals expressly declined to address the
act of state doctrine, 923 F. 2d, at 1536, and we do not
consider that doctrine here.
356
Only one such exception is said to apply here. The first
clause of § 1605(a)(2) of the Act provides that a foreign
state shall not be immune from the jurisdiction of United
States courts in any case "in which the action is based upon
a commercial activity carried on in the United States by the
foreign state."3 The Act defines such activity as
"commercial activity carried on by such state and having
substantial contact with the United States," § 1603(e), and
provides that a commercial activity may be "either a regular
course of commercial conduct or a particular commercial
transaction or act," the "commercial character of [which]
shall be determined by reference to" its "nature," rather
than its "purpose," § 1603(d).
There is no dispute here that Saudi Arabia, the hospital,
and Royspec all qualify as "foreign state[s]" within the
meaning of the Act. Brief for Respondents 3; see 28 U. S.
c. §§ 1603(a), (b) (term" 'foreign state'" includes" 'an
agency or instrumentality of a foreign state' "). For there to
be jurisdiction in this case, therefore, the Nelsons' action
must be "based upon" some "commercial activity" by
petitioners that had "substantial contact" with the United
States within the meaning of the Act. Because we conclude
that the suit is not based upon any commercial activity by
petitioners, we need not reach the issue of substantial
contact with the United States.
We begin our analysis by identifying the particular conduct
on which the Nelsons' action is "based" for purposes of the
Act. See Texas Trading & Milling Corp. v. Federal
3 In full, § 1605(a)(2) provides that "[a] foreign state shall
not be immune from the jurisdiction of courts of the United
States or of the States in any case ... in which the action is
based upon a commercial activity carried on in the United
States by the foreign state; or upon an act performed in the
United States in connection with a commercial activity of
the foreign state elsewhere; or upon an act outside the
territory of the United States in connection with a
commercial activity of the foreign state elsewhere and that
act causes a direct effect in the United States."
357
Republic of Nigeria, 647 F.2d 300, 308 (CA2 1981), cert.
denied, 454 U. S. 1148 (1982); Donoghue, Taking the
"Sovereign" Out of the Foreign Sovereign Immunities Act:
A Functional Approach to the Commercial Activity
Exception, 17 Yale J. Int'l L. 489, 500 (1992). Although the
Act contains no definition of the phrase "based upon," and
the relatively sparse legislative history offers no assistance,
guidance is hardly necessary. In denoting conduct that
forms the "basis," or "foundation," for a claim, see Black's
Law Dictionary 151 (6th ed. 1990) (defining "base");
Random House Dictionary 172 (2d ed. 1987) (same);
Webster's Third New International Dictionary 180, 181
(1976) (defining "base" and "based"), the phrase is read
most naturally to mean those elements of a claim that, if
proven, would entitle a plaintiff to relief under his theory of
the case. See Callejo v. Bancomer, S. A., 764 F.2d 1101,
1109 (CA5 1985) (focus should be on the "gravamen of the
complaint"); accord, Santos v. Compagnie Nationale Air
France, 934 F.2d 890, 893 (CA7 1991) ("An action is based
upon the elements that prove the claim, no more and no
less"); Millen Industries, Inc. v. Coordination Council for
North American Affairs, 272 U. S. App. D. C. 240, 246, 855
F.2d 879, 885 (1988).
What the natural meaning of the phrase "based upon"
suggests, the context confirms. Earlier, see n. 3, supra, we
noted that § 1605(a)(2) contains two clauses following the
one at issue here. The second allows for jurisdiction where
a suit "is based ... upon an act performed in the United
States in connection with a commercial activity of the
foreign state elsewhere," and the third speaks in like terms,
allowing for jurisdiction where an action "is based ... upon
an act outside the territory of the United States in
connection with a commercial activity of the foreign state
elsewhere and that act causes a direct effect in the United
States." Distinctions among descriptions juxtaposed
against each other are naturally understood to be
significant, see Melkonyan v. Sulli-
358
van, 501 U. S. 89, 94-95 (1991), and Congress manifestly
understood there to be a difference between a suit "based
upon" commercial activity and one "based upon" acts
performed "in connection with" such activity. The only
reasonable reading of the former term calls for something
more than a mere connection with, or relation to,
commercial activity.4
In this case, the Nelsons have alleged that petitioners
recruited Scott Nelson for work at the hospital, signed an
employment contract with him, and subsequently employed
him. While these activities led to the conduct that eventually
injured the Nelsons, they are not the basis for the Nelsons'
suit. Even taking each of the Nelsons' allegations about
Scott Nelson's recruitment and employment as true, those
facts alone entitle the Nelsons to nothing under their theory
of the case. The Nelsons have not, after all, alleged breach
of contract, see supra, at 354, but personal injuries caused
by petitioners' intentional wrongs and by petitioners'
negligent failure to warn Scott Nelson that they might
commit those wrongs. Those torts, and not the arguably
commercial activities that preceded their commission, form
the basis for the Nelsons' suit.
Petitioners' tortious conduct itself fails to qualify as
"commercial activity" within the meaning of the Act,
although the Act is too "'obtuse'" to be of much help in
reaching that conclusion. Callejo, supra, at 1107 (citation
omitted). We have seen already that the Act defines
"commercial activity" as "either a regular course of
commercial conduct or a partic-
4 We do not mean to suggest that the first clause of §
1605(a)(2) necessarily requires that each and every
element of a claim be commercial activity by a foreign state,
and we do not address the case where a claim consists of
both commercial and sovereign elements. We do conclude,
however, that where a claim rests entirely upon activities
sovereign in character, as here, see infra, at 361-363,
jurisdiction will not exist under that clause regardless of any
connection the sovereign acts may have with commercial
activity.
359
ular commercial transaction or act," and provides that "[t]he
commercial character of an activity shall be determined by
reference to the nature of the course of conduct or
particular transaction or act, rather than by reference to its
purpose." 28 U. S. C. § 1603(d). If this is a definition, it is
one distinguished only by its diffidence; as we observed in
our most recent case on the subject, it "leaves the critical
term 'commercial' largely undefined." Republic of
Argentina v. Weltover, Inc., 504 U. S. 607, 612 (1992); see
Donoghue, supra, at 499; Lowenfeld, Litigating a
Sovereign Immunity ClaimThe Haiti Case, 49 N. Y. U. L.
Rev. 377, 435, n. 244 (1974) (commenting on then-draft
Act) ("Start with 'activity,' proceed via 'conduct' or
'transaction' to 'character,' then refer to 'nature,' and then
go back to 'commercial,' the term you started out to define
in the first place"); G. Born & D. Westin, International Civil
Litigation in United States Courts 479480 (2d ed. 1992). We
do not, however, have the option to throw up our hands.
The term has to be given some interpretation, and
congressional diffidence necessarily results in judicial
responsibility to determine what a "commercial activity" is
for purposes of the Act.
We took up the task just last Term in Weltover,
supra, which involved Argentina's unilateral refinancing of
bonds it had issued under a plan to stabilize its currency.
Bondholders sued Argentina in federal court, asserting
jurisdiction under the third clause of § 1605(a)(2). In the
course of holding the refinancing to be a commercial
activity for purposes of the Act, we observed that the statute
"largely codifies the so-called 'restrictive' theory of foreign
sovereign immunity first endorsed by the State Department
in 1952." 504 U. S., at 612. We accordingly held that the
meaning of "commercial" for purposes of the Act must be
the meaning Congress understood the restrictive theory to
require at the time it passed the statute. See id., at 612-
613.
Under the restrictive, as opposed to the "absolute," theory
of foreign sovereign immunity, a state is immune from the
360
jurisdiction of foreign courts as to its sovereign or public
acts (jure imperii), but not as to those that are private or
commercial in character (jure gestionis). Verlinden B. v:
v. Central Bank of Nigeria, 461 U. S., at 487; Alfred Dunhill
of London, Inc. v. Republic of Cuba, 425 U. S. 682, 698
(1976) (plurality opinion); see 28 U. S. C. § 1602; see
also Dunhill, supra, at 711 (Appendix 2 to the opinion of the
Court) (Letter to the Attorney General from Jack B. Tate,
Acting Legal Adviser, Dept. of State, May 19, 1952); Hill, A
Policy Analysis of the American Law of Foreign State
Immunity, 50 Ford. L. Rev. 155, 168 (1981). We explained
in Weltover, supra, at 614 (quoting Dunhill, supra, at 704),
that a state engages in commercial activity under the
restrictive theory where it exercises" 'only those powers
that can also be exercised by private citizens,'" as distinct
from those" 'powers peculiar to sovereigns.''' Put differently,
a foreign state engages in commercial activity for purposes
of the restrictive theory only where it acts "in the manner of
a private player within" the market. 504 U. S., at 614; see
Restatement (Third) of the Foreign Relations Law of the
United States § 451 (1987) ("Under international law, a
state or state instrumentality is immune from the jurisdiction
of the courts of another state, except with respect to claims
arising out of activities of the kind that may be carried on by
private persons").
We emphasized in Weltover that whether a state acts "in
the manner of" a private party is a question of behavior, not
motivation:
"[B]ecause the Act provides that the commercial character
of an act is to be determined by reference to its 'nature'
rather than its 'purpose,' the question is not whether the
foreign government is acting with a profit motive or instead
with the aim of fulfilling uniquely sovereign objectives.
Rather, the issue is whether the particular actions that the
foreign state performs (whatever
361
the motive behind them) are the type of actions by which a
private party engages in 'trade and traffic or
commerce.'" Weltover, supra, at 614 (citations omitted)
(emphasis in original).
We did not ignore the difficulty of distinguishing" 'purpose'
(i. e., the reason why the foreign state engages in the
activity) from 'nature' (i. e., the outward form of the conduct
that the foreign state performs or agrees to perform)," but
recognized that the Act "unmistakably commands" us to
observe the distinction. 504 U. S., at 617 (emphasis in
original). Because Argentina had merely dealt in the bond
market in the manner of a private player, we held, its
refinancing of the bonds qualified as a commercial activity
for purposes of the Act despite the apparent governmental
motivation. Ibid.
Unlike Argentina's activities that we considered
in Weltover, the intentional conduct alleged here (the Saudi
Government's wrongful arrest, imprisonment, and torture of
Nelson) could not qualify as commercial under the
restrictive theory. The conduct boils down to abuse of the
power of its police by the Saudi Government, and however
monstrous such abuse undoubtedly may be, a foreign
state's exercise of the power of its police has long been
understood for purposes of the restrictive theory as
peculiarly sovereign in nature. See Arango v. Guzman
Travel Advisors Corp., 621 F. 2d 1371, 1379 (CA5
1980); Victory Transport Inc. v. Comisaria General de
Abastecimientos y Transportes, 336 F.2d 354, 360 (CA2
1964) (restrictive theory does extend immunity to a foreign
state's "internal administrative acts"), cert. denied, 381 U.
S. 934 (1965); Herbage v. Meese, 747 F. Supp. 60, 67 (DC
1990), affirmance order, 292 U. S. App. D. C. 84, 946 F.2d
1564 (1991); K. Randall, Federal Courts and the
International Human Rights Paradigm 93 (1990) (the Act's
commercial-activity exception is irrelevant to cases alleging
362
that a foreign state has violated human rights).5 Exercise
of the powers of police and penal officers is not the sort of
action by which private parties can engage in commerce.
"[S]uch acts as legislation, or the expulsion of an alien, or a
denial of justice, cannot be performed by an individual
acting in his own name. They can be performed only by the
state acting as such." Lauterpacht, The Problem of
Jurisdictional Immunities of Foreign States, 28 Brit. Y. B.
Int'l L. 220, 225 (1952); see also id., at 237.
The Nelsons and their amici urge us to give significance to
their assertion that the Saudi Government subjected
Nelson to the abuse alleged as retaliation for his
persistence in reporting hospital safety violations, and
argue that the character of the mistreatment was
consequently commercial. One amicus, indeed, goes so
far as to suggest that the Saudi Government "often uses
detention and torture to resolve commercial disputes." Brief
for Human Rights Watch as
5 The State Department's practice prior to the passage of
the Act supports this understanding. Prior to the Act's
passage, the State Department would determine in the first
instance whether a foreign state was entitled to immunity
and make an appropriate recommendation to the courts.
See Verlinden B. V. v. Central Bank of Nigeria, 461 U. S.
480, 486-488 (1983). A compilation of available materials
demonstrates that the Department recognized immunity
with respect to claims involving the exercise of the power
of the police or military of a foreign state. See Sovereign
Immunity Decisions of the Department of State, May 1952
to January 1977 (M. Sandler, D. Vagts, & B. Ristau eds.),
in 1977 Digest of United States Practice in International
Law 1017, 1045-1046 (claim that Cuban armed guard
seized cash from plaintiff at Havana airport); id., at 1053-
1054 (claim that Saudi militia fired on plaintiffs and caused
personal and property damage).
JUSTICE WHITE points to an episode in which the State
Department declined to recognize immunity with respect to
a claim by Jamaican nationals, working in the United
States, against the British West Indies Central Labour
Organization, a foreign governmental agency. See id.,
at 1062-1063; post, at 367-368, n. 3. In our view that
episode bears little relation to this case, for the Jamaican
nationals did not allege mistreatment by the police of a
foreign state.
363
Amicus Curiae 6. But this argument does not alter the fact
that the powers allegedly abused were those of police and
penal officers. In any event, the argument is off the point,
for it goes to purpose, the very fact the Act renders
irrelevant to the question of an activity's commercial
character. Whatever may have been the Saudi
Government's motivation for its allegedly abusive treatment
of Nelson, it remains the case that the Nelsons' action is
based upon a sovereign activity immune from the subject-
matter jurisdiction of United States courts under the Act.
In addition to the intentionally tortious conduct, the Nelsons
claim a separate basis for recovery in petitioners' failure to
warn Scott Nelson of the hidden dangers associated with
his employment. The Nelsons allege that, at the time
petitioners recruited Scott Nelson and thereafter, they failed
to warn him of the possibility of severe retaliatory action if
he attempted to disclose any safety hazards he might
discover on the job. See supra, at 354. In other words,
petitioners bore a duty to warn of their own propensity for
tortious conduct. But this is merely a semantic ploy. For
aught we can see, a plaintiff could recast virtually any claim
of intentional tort committed by sovereign act as a claim of
failure to warn, simply by charging the defendant with an
obligation to announce its own tortious propensity before
indulging it. To give jurisdictional significance to this feint of
language would effectively thwart the Act's manifest
purpose to codify the restrictive theory of foreign sovereign
immunity. Cf. United States v. Shearer, 473 U. S. 52, 54-55
(1985) (opinion of Burger, C. J.).
III
The Nelsons' action is not "based upon a commercial
activity" within the meaning of the first clause of §
1605(a)(2) of the Act, and the judgment of the Court of
Appeals is accordingly reversed.
It is so ordered.
364
WHITE, J., concurring in judgment
JUSTICE WHITE, with whom JUSTICE BLACKMUN joins,
concurring in the judgment.
According to respondents' complaint, Scott Nelson's
employer retaliated against him for reporting safety
problems by "summon[ing him] ... to the hospital's security
office from which he was transported to a jail cell." App. 5.
Once there, he allegedly was "shackled, tortured and
beaten by persons acting at the direction, instigation,
provocation, instruction or request of" petitioners-Saudi
Arabia, King Faisal Specialist Hospital, and Royspec. Id., at
5, 14, 18. The majority concludes that petitioners enjoy
sovereign immunity because respondents' action is not
"based upon a commercial activity." I disagree. I
nonetheless concur in the judgment because in my view the
commercial conduct upon which respondents base their
complaint was not "carried on in the United States."
IA
As the majority notes, the first step in the analysis is to
identify the conduct on which the action is based.
Respondents have pointed to two distinct possibilities. The
first, seemingly pressed at trial and on appeal, consists of
the recruiting and hiring activity in the United States. See
Brief for Appellant in No. 89-5981 (CAll), pp. 12-15.
Although this conduct would undoubtedly qualify as
"commercial," I agree with the majority that it is "not the
basis for the Nelsons' suit," ante, at 358, for it is unrelated
to the elements of respondents' complaint.
In a partial change of course, respondents suggest to this
Court both in their brief and at oral argument that we focus
on the hospital's commercial activity in Saudi Arabia, its
employment practices and disciplinary procedures. Under
this view, the Court would then work its way back to the
recruiting and hiring activity in order to establish that the
commercial conduct in fact had "substantial contact" with
the United
365
States. See Brief for Respondents 22, 24-25, 31; Tr. of Oral
Arg. 44-45. The majority never reaches this second stage,
finding instead that petitioners' conduct is not commercial
because it "is not the sort of action by which private parties
can engage in commerce." Ante, at 362. If by that the
majority means that it is not the manner in which private
parties ought to engage in commerce, I wholeheartedly
agree. That, however, is not the relevant inquiry. Rather,
the question we must ask is whether it is the manner in
which private parties at times do engage in commerce.
B
To run and operate a hospital, even a public hospital, is to
engage in a commercial enterprise. The majority never
concedes this point, but it does not deny it either, and to my
mind the matter is self-evident. By the same token, warning
an employee when he blows the whistle and taking
retaliatory action, such as harassment, involuntary transfer,
discharge, or other tortious behavior, although not
prototypical commercial acts, are certainly well within the
bounds of commercial activity. The House and Senate
Reports accompanying the legislation virtually compel this
conclusion, explaining as they do that "a foreign
government's ... employment or engagement of laborers,
clerical staff or marketing agents ... would be among those
included within" the definition of commercial activity. H. R.
Rep. No. 941487, p. 16 (1976) (House Report); S. Rep. No.
94-1310, p. 16 (1976) (Senate Report). Nelson alleges that
petitioners harmed him in the course of engaging in their
commercial enterprise, as a direct result of their
commercial acts. His claim, in other words, is "based upon
commercial activity."
Indeed, I am somewhat at a loss as to what exactly the
majority believes petitioners have done that a private
employer could not. As countless cases attest, retaliation
for
366
WHITE, J., concurring in judgment
whistle-blowing is not a practice foreign to the
marketplace.1 Congress passed a statute in response to
such behavior, see Whistleblower Protection Act of 1989, 5
U. S. C. § 1213 et seq. (1988 ed., Supp. III), as have
numerous States. On occasion, private employers also
have been known to retaliate by enlisting the help of police
officers to falsely arrest employees. See, e. g.,
Rosario v. Amalgamated Ladies Garment Cutters'
Union, 605 F.2d 1228, 1233, 1247-1248 (CA2 1979), cert.
denied, 446 U. S. 919 (1980). More generally, private
parties have been held liable for conspiring with public
authorities to effectuate an arrest, see, e. g., Adickes v.
S. H. Kress & Co., 398 U. S. 144 (1970), and for using
private security personnel for the same purposes,
see Albright v. Longview Police Dept., 884 F.2d 835, 841-
842 (CA5 1989).
Therefore, had the hospital retaliated against Nelson by
hiring thugs to do the job, I assume the majority-no longer
able to describe this conduct as "a foreign state's exercise
of the power of its police," ante, at 361-would consent to
calling it "commercial." For, in such circumstances, the
state-run hospital would be operating as any private
participant in the marketplace and respondents' action
would be based on the operation by Saudi Arabia's agents
of a commercial business.2
1 See, e. g., English v. General Electric Co., 496 U. S. 72,
75-76 (1990); Belline v. K-Mart Corp., 940 F.2d 184, 186-
189 (CA7 1991); White v. General Motors Corp., 908 F.2d
669, 671 (CAlO 1990), cert. denied, 498 U. S. 1069
(1991); Sanchez v. Unemployment Ins. Appeals Bd., 36
Cal. 3d 575, 685 P. 2d 61 (1984); Collier v. Superior Court
of Los Angeles County, 228 Cal. App. 3d 1117,279 Cal.
Rptr. 453 (1991).
2 "[W]hen the foreign state enters the marketplace or when
it acts as a private party, there is no justification in modern
international law for allowing the foreign state to avoid the
economic costs of ... the accidents which it may cause ....
The law should not permit the foreign state to shift these
everyday burdens of the marketplace onto the shoulders of
private parties." Testimony of Monroe Leigh, Legal Adviser,
Department of State, Hearings on H. R. 11315 before the
Subcommittee on Administrative Law and Governmental
Relations of the House Committee on the Judiciary, 94th
Cong., 2d Sess., 27 (1976).
367
At the heart of the majority's conclusion, in other words, is
the fact that the hospital in this case chose to call in
government security forces. See ante, at 362. I find this
fixation on the intervention of police officers, and the
ensuing characterization of the conduct as "peculiarly
sovereign in nature," ante, at 361, to be misguided. To
begin, it fails to capture respondents' complaint in full. Far
from being directed solely at the activities of the Saudi
police, it alleges that agents of the hospital summoned
Nelson to its security office because he reported safety
concerns and that the hospital played a part in the
subsequent beating and imprisonment. App. 5, 14. Without
more, that type of behavior hardly qualifies as sovereign.
Thus, even assuming for the sake of argument that the role
of the official police somehow affected the nature of
petitioners' conduct, the claim cannot be said to "res[t]
entirely upon activities sovereign in character." See ante, at
358, n. 4. At the very least it "consists of both commercial
and sovereign elements," thereby presenting the specific
question the majority chooses to elude. See ibid. The
majority's single-minded focus on the exercise of police
power, while certainly simplifying the case, thus hardly
does it justice.3
3 In contrast, the cases cited by the majority involve action
that did not take place in a commercial context and that
could be considered purely sovereign. For instance,
in Arango v. Guzman Travel Advisors Corp., 621 F.2d
1371 (CA5 1980), plaintiffs were expelled from the
Dominican Republic pursuant to a decision by immigration
officials that they were "'undesirable aliens.''' Id., at 1373.
As the Court of Appeals reasoned, the airline's actions
"were not commercial. [It] was impressed into service to
perform these functions ... by Dominican immigration
officials pursuant to that country's laws." Id., at 1379. Nor
was there a hint of commercial activity
in Herbage v. Meese, 747 F. Supp. 60 (DC 1990),
affirmance order, 292 U. S. App. D. C. 84, 946 F.2d
1564 (1991), an extradition case that did not so much as
mention the commercial activity exception.
Absence of a commercial context also distinguishes those
incidents relied on by the majority that predate passage of
the Foreign Sovereign Immunities Act. See ante, at 362, n.
5. Yet the majority gives short shrift to an occurrence that
most closely resembles the instant case and
368
WHITE, J., concurring in judgment
Reliance on the fact that Nelson's employer enlisted the
help of public rather than private security personnel is also
at odds with Congress' intent. The purpose of the
commercial exception being to prevent foreign states from
taking refuge behind their sovereignty when they act as
market participants, it seems to me that this is precisely the
type of distinction we should seek to avoid. Because both
the hospital and the police are agents of the state, the case
in my mind turns on whether the sovereign is acting in a
commercial capacity, not on whether it resorts to thugs or
government officers to carry on its business. That, when the
hospital calls in security to get even with a whistle-blower,
it comes clothed in police apparel says more about the
state-owned nature of the commercial enterprise than
about the noncommercial nature of its tortious conduct. I
had thought the
that suggests strongly that the hospital's enlistment of, and
cooperation with, the police should not entitle it to immunity.
The incident involved allegations that an agency of the
Jamaican Government conspired to have Jamaican
nationals working in the United States "falsely arrested,
imprisoned and blacklisted, and to deprive them of wages
and other employee rights." Sovereign Immunity Decisions
of the Department of State, May 1952 to January 1977 (M.
Sandler, D. Vagts, & B. Ristau eds.), in 1977 Digest of
United States Practice in International Law 1062.
Significantly, the State Department did not take refuge
behind the words "arres[t]" and "impriso[n]" and decide that
the actions were sovereign in nature. Rather, it declined to
recognize immunity, focusing on the fact that private parties
acting in an employment context could do exactly what the
Jamaican agency was alleged to have done: "[T]he
activities under consideration are of a private nature .... The
Department of State is impressed by the fact that the
activities of the British West Indies Central Labour
Organization ... are very much akin to those that might be
conducted by a labor union or by a private employment
agency-arranging and servicing an agreement between
private employers and employees. Although it may be
argued that some of the acts performed by the British West
Indies Central Labour Organization in this case are
consular in nature, the Department believes that they arise
from the involvement of the British West Indies Central
Labour Organization in the private employer-employee
contractual relationship rather than from a consular
responsibility, and cannot be separated therefrom." Id., at
1063.
369
issue put to rest some time ago when, in a slightly different
context, Chief Justice Marshall observed:
"It is, we think, a sound principle, that when a government
becomes a partner in any trading company, it devests itself,
so far as concerns the transactions of that company, of its
sovereign character, and takes that of a private citizen.
Instead of communicating to the company its privileges and
its prerogatives, it descends to a level with those with whom
it associates itself, and takes the character which belongs
to its associates, and to the business which is to be
transacted." Bank of United States v. Planters' Bank of
Georgia, 9 Wheat. 904, 907 (1824).
See also Alfred Dunhill of London, Inc. v. Republic of
Cuba, 425 U. S. 682, 695-696 (1976) (plurality opinion).
C
Contrary to the majority's suggestion, ante, at 363, this
conclusion does not involve inquiring into the purpose of
the conduct. Matters would be different, I suppose, if
Nelson had been recruited to work in the Saudi police force
and, having reported safety violations, suffered retributive
punishment, for there the Saudi authorities would be
engaged in distinctly sovereign activities. Cf. House Report,
at 16 ("Also public or governmental and not commercial in
nature, would be the employment of diplomatic, civil
service, or military personnel"); Senate Report, at 16. The
same would be true if Nelson was a mere tourist in Saudi
Arabia and had been summarily expelled by order of
immigration officials. See Arango v. Guzman Travel
Advisors Corp., 621 F.2d 1371 (CA5 1980). In this
instance, however, the state-owned hospital was engaged
in ordinary commercial business and "[i]n their commercial
capacities, foreign governments do not exercise powers
peculiar to sovereigns. Instead, they exercise only those
powers that can also be exercised by private
370
Opinion of KENNEDY, J.
citizens." Alfred Dunhill, supra, at 704 (plurality opinion). As
we recently stated, "when a foreign government acts, not
as regulator of a market, but in the manner of a private
player within it, the foreign sovereign's actions are
'commercial' within the meaning of the FSIA." Republic of
Argentina v. Weltover, Inc., 504 U. S. 607, 614 (1992).
That, I believe, is the case here.
II
Nevertheless, I reach the same conclusion as the majority
because petitioners' commercial activity was not "carried
on in the United States." The Act defines such conduct as
"commercial activity ... having substantial contact with the
United States." 28 U. S. C. § 1603(e). Respondents point
to the hospital's recruitment efforts in the United States,
including advertising in the American media, and the
signing of the employment contract in Miami. See Brief for
Respondents 43-45. As I earlier noted, while these may
very well qualify as commercial activity in the United States,
they do not constitute the commercial activity upon which
respondents' action is based. Conversely, petitioners'
commercial conduct in Saudi Arabia, though constituting
the basis of the Nelsons' suit, lacks a sufficient nexus to the
United States. Neither the hospital's employment practices,
nor its disciplinary procedures, has any apparent
connection to this country. On that basis, I agree that the
Act does not grant the Nelsons access to our courts.
JUSTICE KENNEDY, with whom JUSTICE BLACKMUN
and JUSTICE STEVENS join as to Parts I-B and II,
concurring in part and dissenting in part.
I join all of the Court's opinion except the last paragraph of
Part II, where, with almost no explanation, the Court rules
that, like the intentional tort claim, the claims based on
negligent failure to warn are outside the subject-matter
jurisdiction of the federal courts. These claims stand on a
much different footing from the intentional tort claims for
371
purposes of the Foreign Sovereign Immunities Act (FSIA).
In my view, they ought to be remanded to the District Court
for further consideration.
IA
I agree with the Court's holding that the Nelsons' claims of
intentional wrongdoing by the hospital and the Kingdom of
Saudi Arabia are based on sovereign, not commercial,
activity, and so fall outside the commercial activity
exception to the grant of foreign sovereign immunity
contained in 28 U. S. C. § 1604. The intentional tort counts
of the Nelsons' complaint recite the alleged unlawful arrest,
imprisonment, and torture of Mr. Nelson by the Saudi police
acting in their official capacities. These are not the sort of
activities by which a private party conducts its business
affairs; if we classified them as commercial, the commercial
activity exception would in large measure swallow the rule
of foreign sovereign immunity Congress enacted in the
FSIA.
B in Tennessee. After an interview in Saudi Arabia, Nelson
By the same token, however, the Nelsons' claims alleging
that the hospital, the Kingdom, and Royspec were negligent
in failing during their recruitment of Nelson to warn him of
foreseeable dangers are based upon commercial activity
having substantial contact with the United States. As such,
they are within the commercial activity exception and the
jurisdiction of the federal courts. Unlike the intentional tort
counts of the complaint, the failure to warn counts do not
complain of a police beating in Saudi Arabia; rather, they
complain of a negligent omission made during the recruiting
of a hospital employee in the United States. To obtain relief,
the Nelsons would be obliged to prove that the hospital's
recruiting agent did not tell Nelson about the foreseeable
hazards of his prospective employment in Saudi Arabia.
Under the Court's test, this omission is what the negligence
counts are "based upon." See ante, at 356.
372
Opinion of KENNEDY, J.
Omission of important information during employee
recruiting is commercial activity as we have described it.
See Republic of Argentina v. Weltover, Inc., 504 U. S.
607 (1992). It seems plain that recruiting employees is an
activity undertaken by private hospitals in the normal
course of business. Locating and hiring employees
implicates no power unique to the sovereign. In explaining
the terms and conditions of employment, including the risks
and rewards of a particular job, a governmental entity acts
in "the manner of a private player within" the commercial
marketplace. Id., at 614. Under the FSIA, as a result, it
must satisfy the same general duties of care that apply to
private actors under state law. If a private company with
operations in Saudi Arabia would be obliged in the course
of its recruiting activities subject to state law to tell a
prospective employee about the risk of arbitrary arrest and
torture by Saudi authorities, then so would King Faisal
Specialist Hospital.
The recruiting activity alleged in the failure to warn counts
of the complaint also satisfies the final requirement for
invoking the commercial activity exception: that the claims
be based upon commercial activity "having substantial
contact with the United States." 28 U. S. C. § 1603(e).
Nelson's recruitment was performed by Hospital
Corporation of America, Ltd. (HCA), a wholly owned
subsidiary of a United States corporation, which, for a
period of at least 16 years beginning in 1973, acted as the
Kingdom of Saudi Arabia's exclusive agent for recruiting
employees for the hospital. HCA in the regular course of its
business seeks employees for the hospital in the American
labor market. HCA advertised in an American magazine,
seeking applicants for the position Nelson later filled.
Nelson saw the ad in the United States and contacted HCA
returned to Florida, where he signed an employment
contract and underwent personnel processing and
application procedures. Before leaving to take his job at the
hospital, Nelson attended an
373
orientation session conducted by HCA in Tennessee for
new employees. These activities have more than
substantial contact with the United States; most of them
were "carried on in the United States." 28 U. S. C. §
1605(a)(2). In alleging that the petitioners neglected during
these activities to tell him what they were bound to under
state law, Nelson meets all of the statutory requirements for
invoking federal jurisdiction under the commercial activity
exception.
II
Having met the jurisdictional prerequisites of the FSIA, the
Nelsons' failure to warn claims should survive petitioners'
motion under Federal Rule of Civil Procedure 12(b)(1) to
dismiss for want of subject-matter jurisdiction. Yet instead
of remanding these claims to the District Court for further
proceedings, the majority dismisses them in a single short
paragraph. This is peculiar, since the Court suggests no
reason to question the conclusion that the failure to warn
claims are based on commercial activity having substantial
contact with the United States; indeed, the Court does not
purport to analyze these claims in light of the statutory
requirements for jurisdiction.
The Court's summary treatment may stem from doubts
about the underlying validity of the negligence cause of
action. The Court dismisses the claims because it fears that
if it did not, "a plaintiff could recast virtually any claim of
intentional tort committed by a sovereign act as a claim of
failure to warn, simply by charging the defendant with an
obligation to announce its own tortious propensity before
indulging it." Ante, at 363. In the majority's view, "[t]o give
jurisdictional significance to this feint of language would
effectively thwart the Act's manifest purpose to codify the
restrictive theory of foreign sovereign
immunity." Ibid. These doubts, however, are not relevant to
the analytical task at hand.
374
Opinion of KENNEDY, J.
The FSIA states that with respect to any claim against a
foreign sovereign that falls within the statutory exceptions
to immunity listed in § 1605, "the foreign state shall be liable
in the same manner and to the same extent as a private
individual under like circumstances." 28 U. S. C. § 1606.
The Act incorporates state law and "was not intended to
affect the substantive law determining the liability of a
foreign state." First Nat. City Bank v. Banco Para el
Comercio Exterior de Cuba, 462 U. S. 611, 620 (1983). If
the governing state law, which has not yet been
determined, would permit an injured person to plead and
prove a tortious wrong for failure to warn against a private
defendant under facts similar to those in this case, we have
no authority under the FSIA to ordain otherwise for those
suing a sovereign entity. "[W]here state law provides a rule
of liability governing private individuals, the FSIA requires
the application of that rule to foreign states in like
circumstances." Id., at 622,
The majority's citation of United States v. Shearer, 473 U.
S. 52, 54-55 (1985) (opinion of Burger, C. J.), see ante, at
363, provides no authority for dismissing the failure to warn
claims. Shearer refused to permit a plaintiff to recast in
negligence terms what was essentially an intentional tort
claim, but that case was decided under the doctrine
of Feres v. United States, 340 U. S. 135 (1950).
The Feres doctrine is a creature of federal common law
that allows the Court much greater latitude to make rules of
pleading than we have in the current case. Here, our only
task is to interpret the explicit terms of the FSIA. The
Court's conclusion in Shearer was also based upon the fact
that the intentional tort exception to the Federal Tort Claims
Act at issue there, 28 U. S. C. § 2680(h), precludes "[a]ny
claim arising out of" the specified intentional torts. This
language suggests that Congress intended immunity under
the FTCA to cover more than those claims which simply
sounded in intentional tort. There is no equivalent language
in the commercial activity
375
exception to the FSIA. It is also worth noting that the Court
has not adopted a uniform rule barring the recasting of
intentional tort claims as negligence claims under the
FTCA; under certain circumstances, we have permitted
recovery in that situation. See Sheridan v. United States,
487 U. S. 392 (1988).
As a matter of substantive tort law, it is not a novel
proposition or a play on words to describe with precision
the conduct upon which various causes of action are based
or to recognize that a single injury can arise from multiple
causes, each of which constitutes an actionable wrong.
See Restatement (Second) of Torts §§447-449
(1965); Sheridan, supra, at 405 (KENNEDY, J., concurring
in judgment); Wilson v. Garcia, 471 U. S. 261, 272 (1985).
In Sheridan, for example, this Court permitted an action for
negligent supervision to go forward under the FTCA when
a suit based upon the intentional tort that was the
immediate cause of injury was barred under the statute.
See 487 U. S., at 400. As the Court observed, "it is both
settled and undisputed that in at least some situations the
fact that an injury was directly caused by an assault or
battery will not preclude liability against the Government for
negligently allowing the assault to occur." Id., at 398.
We need not determine, however, that on remand the
Nelsons will succeed on their failure to warn claims. Quite
apart from potential problems of state tort law that might bar
recovery, the Nelsons appear to face an obstacle based
upon the former adjudication of their related lawsuit against
Saudi Arabia's recruiting agent, HCA. The District Court
dismissed that suit, which raised an identical failure to warn
claim, not only as time barred, but also on the merits.
See Nelson v. Hospital Corp. of America, No. 88-0484-
CIVNesbitt (SD Fla., Nov. 1, 1990). That decision was
affirmed on appeal, judgment order reported at 946 F.2d
1546 (CAll 1991), and may be entitled to preclusive effect
with respect to the Nelsons' similar claims against the
sovereign defend-
376
Opinion of BLACKMUN, J.
ants, whose recruitment of Nelson took place almost
entirely through HCA. See generally Montana v. United
States, 440 U. S. 147, 153 (1979) ("a final judgment on the
merits bars further claims by parties or their privies based
on the same cause of action"); Lawlor v. National Screen
Service Corp., 349 U. S. 322, 330 (1955) (defendants not
party to a prior suit may invoke res judicata if "their liability
was ... 'altogether dependent upon the culpability' of the
[prior] defendants") (quoting Bigelow v. Old Dominion
Copper Mining & Smelting Co., 225 U. S. 111, 127 (1912));
18 C. Wright, A. Miller, & E. Cooper, Federal Practice and
Procedure § 4463, p. 567 (1981) (recognizing general rule
that "judgment in an action against either party to a
vicarious liability relationship establishe[s] preclusion in
favor of the other"); Restatement (Second) of Judgments §
51 (1982).
But the question of claim preclusion, like the substantive
validity under state law of the Nelsons' negligence cause of
action, has not yet been litigated and is outside the proper
sphere of our review. "[I]t is not our practice to reexamine a
question of state law of [this] kind or, without good reason,
to pass upon it in the first instance." Sheridan, supra, at
401. That a remand to the District Court may be of no avail
to the Nelsons is irrelevant to our task here; if the
jurisdictional requirements of the FSIA are met, the case
must be remanded to the trial court for further proceedings.
In my view, the FSIA conferred subject-matter jurisdiction
on the District Court to entertain the failure to warn claims,
and with all respect, I dissent from the Court's refusal to
remand them.
JUSTICE BLACKMUN, concurring in the judgment in part
and dissenting in part.
I join JUSTICE WHITE'S opinion because it finds that
respondents' intentional tort claims are "based upon a
commercial activity" and that the commercial activity at
issue in those claims was not "carried on in the United
States." I
377
join JUSTICE KENNEDY'S opinion insofar as it concludes
that the "failure to warn" claims should be remanded.
JUSTICE STEVENS, dissenting.
Under the Foreign Sovereign Immunities Act of 1976
(FSIA), a foreign state is subject to the jurisdiction of
American courts if two conditions are met: The action must
be "based upon a commercial activity" and that activity
must have a "substantial contact with the United States." 1
These two conditions should be separately analyzed
because they serve two different purposes. The former
excludes commercial activity from the scope of the foreign
sovereign's immunity from suit; the second identifies the
contacts with the United States that support the assertion
of jurisdiction over the defendant.2
1 Section 4(a) of the FSIA provides:
"(a) A foreign state shall not be immune from the jurisdiction
of courts of the United States or of the States in any case-
"(2) in which the action is based upon a commercial activity
carried on in the United States by the foreign state." 28 U.
S. C. § 1605(a)(2).
The key terms of this provision are defined in § 1603.
Section 1603(e) defines "commercial activity carried on in
the United States by a foreign state" as "commercial activity
carried on by such state and having substantial contact with
the United States." Section 1603(d), in turn, defines
"commercial activity" as "either a regular course of
commercial conduct or a particular commercial transaction
or act." Thus, interpolating the definitions from § 1603 into
§ 1605(a)(2) produces this equivalence:
"A foreign state shall not be immune from the jurisdiction of
courts of the United States or of the States in any case in
which the action is based upon a regular course of
commercial conduct or a particular commercial transaction
carried on by such state and having substantial contact with
the United States."
2 See, e. g., Maritime International Nominees
Establishment v. Republic of Guinea, 224 U. S. App. D. C.
119, 130, n. 18, 693 F.2d 1094, 1105, n. 18 (1982) ("the
immunity determination involves considerations distinct
from the issue of personal jurisdiction, and the FSIA's particular commercial claims that have a substantial
interlocking provisions are most profitably analyzed when contact with the United States,3 petitioners' contacts with
these distinctions are kept in mind"). See also J. the United States in this case are, in my view, plainly
Dellapenna, Suing Foreign Governments and Their sufficient to subject petitioners to suit in this country on a
claim arising out of their nonimmune commercial activity
relating to respondent. If the same activities had been
performed by a private business, I have no doubt
378 jurisdiction would be upheld. And that, of course, should be
a touchstone of our inquiry; for as JUSTICE WHITE
In this case, as JUSTICE WHITE has demonstrated, explains, ante, at 366, n. 2, and 368-369, when a foreign
petitioner Kingdom of Saudi Arabia's operation of the nation sheds its uniquely sovereign status and seeks out
hospital and its employment practices and disciplinary the benefits of the private marketplace, it must, like any
procedures are "commercial activities" within the meaning private party, bear the burdens and responsibilities
of the statute, and respondent Scott Nelson's claim that he imposed by that marketplace. I would therefore affirm the
was punished for acts performed in the course of his judgment of the Court of Appeals.4
employment was unquestionably "based upon" those
activities. Thus, the first statutory condition is satisfied;
3 Though this case does not require resolution of that
petitioner is not entitled to immunity from the claims question (because petitioners' contacts with the United
asserted by respondent.
States satisfy, in my view, the more narrow requirements of
"specific" jurisdiction), I am inclined to agree with the view
Unlike JUSTICE WHITE, however, I am also convinced that expressed by Judge Higginbotham in his separate opinion
petitioner's commercial activities-whether defined as the
in Vencedora Oceanica Navigacion, S. A. v. Compagnie
regular course of conduct of operating a hospital or, more Nationale Algerienne de Navigation, 730 F.2d 195, 204-
specifically, as the commercial transaction of engaging
205 (1984) (concurring in part and dissenting in part), that
respondent "as an employee with specific responsibilities in the first clause of § 1605(a)(2), interpreted in light of the
that enterprise," Brief for Respondents 25-have sufficient
relevant legislative history and the second and third clauses
contact with the United States to justify the exercise of of the provision, does authorize "general" jurisdiction over
federal jurisdiction. Petitioner Royspec maintains an office
foreign entities that engage in substantial commercial
in Maryland and purchases hospital supplies and activities in the United States.
equipment in this country. For nearly two decades the
hospital's American agent has maintained an office in the 4 My affirmance would extend to respondents' failure to
United States and regularly engaged in the recruitment of warn claims. I am therefore in agreement with JUSTICE
personnel in this country. Respondent himself was KENNEDY'S analysis of that aspect of the case.
recruited in the United States and entered into his
employment contract with the hospital in the United States.
Before traveling to Saudi Arabia to assume his position at
the hospital, respondent attended an orientation program in
Tennessee. The position for which respondent was
recruited and ultimately hired was that of a monitoring
systems manager, a troubleshooter, and, taking
respondent's allegations as true, it was precisely
respondent's performance of those responsibilities that led
to the hospital's retaliatory actions against him.
Corporations 66, 144 (1988) ("The nexus rules must be
analyzed separately from the substantive immunity rules ...
x-------------------------------------------
in order to understand jurisdictional questions under the
- - - - - - - -x
Act" and because "the laws regulating ... jurisdiction ... and
immunity serve different purposes, and thus require THE PROVINCE OF NORTH COTABATO, ET AL. v. THE
different dispositions") (footnotes omitted). GOVERNMENT OF THE REPUBLIC OF THE
PHILIPPINES PEACE PANEL ON ANCESTRAL
DOMAIN (GRP), ET AL.
379
Whether the first clause of § 1605(a)(2) broadly authorizes
DECISION
"general" jurisdiction over foreign entities that engage in
substantial commercial activity in this country, or, more
narrowly, authorizes only "specific" jurisdiction over

CARPIO MORALES, J.:
Subject of these consolidated cases is the extent of the
powers of the President in pursuing the peace process. While the
facts surrounding this controversy center on the armed conflict in
Mindanao between the government and the Moro Islamic
Liberation Front (MILF), the legal issue involved has a bearing
on all areas in the country where there has been a long-standing
armed conflict. Yet again, the Court is tasked to perform a
delicate balancing act. It must uncompromisingly delineate the
bounds within which the President may lawfully exercise her
discretion, but it must do so in strict adherence to the
Constitution, lest its ruling unduly restricts the freedom of action
vested by that same Constitution in the Chief Executive precisely
to enable her to pursue the peace process effectively.
I. FACTUAL ANTECEDENTS OF THE PETITIONS
On August 5, 2008, the Government of the Republic of the
Philippines (GRP) and the MILF, through the Chairpersons of
their respective peace negotiating panels, were scheduled to sign
a Memorandum of Agreement on the Ancestral Domain (MOA-
AD) Aspect of the GRP-MILF Tripoli Agreement on Peace of
2001 in Kuala Lumpur, Malaysia.
The MILF is a rebel group which was established in March
1984 when, under the leadership of the late Salamat Hashim, it
splintered from the Moro National Liberation Front (MNLF) then
headed by Nur Misuari, on the ground, among others, of what
Salamat perceived to be the manipulation of the MNLF away
from an Islamic basis towards Marxist-Maoist orientations.[1][1]
The signing of the MOA-AD between the GRP and the
MILF was not to materialize, however, for upon motion of
petitioners, specifically those who filed their cases before the
scheduled signing of the MOA-AD, this Court issued a
Temporary Restraining Order enjoining the GRP from signing
the same.
The MOA-AD was preceded by a long process of
negotiation and the concluding of several prior agreements
between the two parties beginning in 1996, when the GRP-MILF
peace negotiations began. On July 18, 1997, the GRP and MILF
Peace Panels signed the Agreement on General Cessation of
Hostilities. The following year, they signed the General
Framework of Agreement of Intent on August 27, 1998.
The Solicitor General, who represents respondents,
summarizes the MOA-AD by stating that the same contained,
among others, the commitment of the parties to pursue peace
negotiations, protect and respect human rights, negotiate with
sincerity in the resolution and pacific settlement of the conflict,
and refrain from the use of threat or force to attain undue
advantage while the peace negotiations on the substantive agenda
are on-going.[2][2]
Early on, however, it was evident that there was not going
to be any smooth sailing in the GRP-MILF peace process.
Towards the end of 1999 up to early 2000, the MILF attacked a
number of municipalities in Central Mindanao and, in March
2000, it took control of the town hall of Kauswagan, Lanao del
Norte. [3][3]
In response, then President Joseph Estrada declared
and carried out an “all-out-war” against the MILF.
When President Gloria Macapagal-Arroyo assumed office,
the military offensive against the MILF was suspended and the
government sought a resumption of the peace talks. The MILF,
according to a leading MILF member, initially responded with
deep reservation, but when President Arroyo asked the
Government of Malaysia through Prime Minister Mahathir
Mohammad to help convince the MILF to return to the
negotiating table, the MILF convened its Central Committee to
seriously discuss the matter and, eventually, decided to meet with
the GRP.[4][4]
The parties met in Kuala Lumpur on March 24, 2001, with
the talks being facilitated by the Malaysian government, the
parties signing on the same date the Agreement on the General
Framework for the Resumption of Peace Talks Between the GRP
and the MILF. The MILF thereafter suspended all its military
actions.[5][5]
Formal peace talks between the parties were held in Tripoli,
Libya from June 20-22, 2001, the outcome of which was the
GRP-MILF Tripoli Agreement on Peace (Tripoli Agreement
2001) containing the basic principles and agenda on the following
aspects of the
negotiation: Security Aspect, Rehabilitation Aspect,
and Ancestral Domain Aspect. With regard to the Ancestral
Domain Aspect, the parties in Tripoli Agreement 2001 simply
agreed “that the same be discussed further by the Parties in their
next meeting.”
A second round of peace talks was held in Cyberjaya,
Malaysia on August 5-7, 2001 which ended with the signing of
the Implementing Guidelines on the Security Aspect of the
Tripoli Agreement 2001 leading to a ceasefire status between the
parties. This was followed by the Implementing Guidelines on
the Humanitarian Rehabilitation and Development Aspects of the
Tripoli Agreement 2001, which was signed on May 7, 2002 at
Putrajaya, Malaysia. Nonetheless, there were many incidence of
violence between government forces and the MILF from 2002 to
2003.
Meanwhile, then MILF Chairman Salamat Hashim passed
away on July 13, 2003 and he was replaced by Al Haj Murad,
who was then the chief peace negotiator of the MILF. Murad’s
position as chief peace negotiator was taken over by Mohagher
Iqbal.[6][6]
In 2005, several exploratory talks were held between the
parties in Kuala Lumpur, eventually leading to the crafting of the
draft MOA-AD in its final form, which, as mentioned, was set to
be signed last August 5, 2008.

II. STATEMENT OF THE PROCEEDINGS
Before the Court is what is perhaps the most contentious
“consensus” ever embodied in an instrument – the MOA-AD
which is assailed principally by the present petitions bearing
docket numbers 183591, 183752, 183893, 183951 and 183962.
Commonly impleaded as respondents are the GRP Peace
Panel on Ancestral Domain[7][7] and the Presidential Adviser on
the Peace Process (PAPP) Hermogenes Esperon, Jr.
On July 23, 2008, the Province of North Cotabato[8][8] and Vice-
Governor Emmanuel Piñol filed a petition, docketed as G.R. No.
183591, for Mandamus and Prohibition with Prayer for the
Issuance of Writ of Preliminary Injunction and Temporary
Restraining Order. [9][9]
Invoking the right to information on
matters of public concern, petitioners seek to compel respondents
to disclose and furnish them the complete and official copies of
the MOA-AD including its attachments, and to prohibit the slated
signing of the MOA-AD, pending the disclosure of the contents
of the MOA-AD and the holding of a public consultation thereon.
Supplementarily, petitioners pray that the MOA-AD be declared
unconstitutional.[10][10]
This initial petition was followed by another one, docketed
as G.R. No. 183752, also for Mandamus and
Prohibition[11][11] filed by the City of Zamboanga,[12][12] Mayor
Celso Lobregat, Rep. Ma. Isabelle Climaco and Rep. Erico
Basilio Fabian who likewise pray for similar injunctive reliefs.
Petitioners herein moreover pray that the City of Zamboanga be
excluded from the Bangsamoro Homeland and/or Bangsamoro
Juridical Entity and, in the alternative, that the MOA-AD be
declared null and void.
By Resolution of August 4, 2008, the Court issued a Temporary
Restraining Order commanding and directing public respondents
and their agents to cease and desist from formally signing the
MOA-AD.[13][13] The Court also required the Solicitor General to
submit to the Court and petitioners the official copy of the final
[14][14] [15][15]
draft of the MOA-AD, to which she complied.
Meanwhile, the City of Iligan[16][16] filed a petition for Injunction
and/or Declaratory Relief, docketed as G.R. No. 183893, praying
that respondents be enjoined from signing the MOA-AD or, if the
same had already been signed, from implementing the same, and
that the MOA-AD be declared unconstitutional. Petitioners
herein additionally implead Executive Secretary Eduardo Ermita
as respondent.
The Province of Zamboanga del Norte,[17][17] Governor Rolando
Yebes, Vice-Governor Francis Olvis, Rep. Cecilia Jalosjos-
Carreon, Rep. Cesar Jalosjos, and the members[18][18] of
the Sangguniang Panlalawigan of Zamboanga del Norte filed on
August 15, 2008 a petition for Certiorari, Mandamus and
Prohibition,[19][19] docketed as G.R. No. 183951. They pray, inter
alia, that the MOA-AD be declared null and void and without
operative effect, and that respondents be enjoined from executing
the MOA-AD.
On August 19, 2008, Ernesto Maceda, Jejomar Binay, and
Aquilino Pimentel III filed a petition for
[20][20]
Prohibition, docketed as G.R. No. 183962, praying for a
judgment prohibiting and permanently enjoining respondents
from formally signing and executing the MOA-AD and or any
other agreement derived therefrom or similar thereto, and
nullifying the MOA-AD for being unconstitutional and illegal.
Petitioners herein additionally implead as respondent the MILF
Peace Negotiating Panel represented by its Chairman Mohagher
Iqbal.
Various parties moved to intervene and were granted leave of
court to file their petitions-/comments-in-intervention.
Petitioners-in-Intervention include Senator Manuel A. Roxas,
former Senate President Franklin Drilon and Atty. Adel Tamano,
the City of Isabela[21][21] and Mayor Cherrylyn Santos-Akbar, the
Province of Sultan Kudarat[22][22] and Gov. Suharto
Mangudadatu, the Municipality of Linamon in Lanao del
Norte,[23][23] Ruy Elias Lopez of Davao City and of the Bagobo
tribe, Sangguniang Panlungsod member Marino Ridao and
businessman Kisin Buxani, both of Cotabato City; and lawyers
Carlo Gomez, Gerardo Dilig, Nesario Awat, Joselito Alisuag,
Richalex Jagmis, all of Palawan City. The Muslim Legal
Assistance Foundation, Inc. (Muslaf) and the Muslim Multi-
Sectoral Movement for Peace and Development (MMMPD) filed
their respective Comments-in-Intervention.
By subsequent Resolutions, the Court ordered the consolidation
of the petitions. Respondents filed Comments on the petitions,
while some of petitioners submitted their respective Replies.
Respondents, by Manifestation and Motion of August 19, 2008,
stated that the Executive Department shall thoroughly review the
MOA-AD and pursue further negotiations to address the issues
hurled against it, and thus moved to dismiss the cases. In the
succeeding exchange of pleadings, respondents’ motion was met
with vigorous opposition from petitioners.
The cases were heard on oral argument on August 15, 22 and 29,
2008 that tackled the following principal issues:
1. Whether the petitions have become moot and academic
(i) insofar as the mandamus aspect is concerned, in view of the
disclosure of official copies of the final draft of the Memorandum
of Agreement (MOA); and
(ii) insofar as the prohibition aspect involving the Local
Government Units is concerned, if it is considered that
consultation has become fait accompli with the finalization of the
draft;
2. Whether the constitutionality and the legality of the MOA is
ripe for adjudication;
3. Whether respondent Government of the Republic of the
Philippines Peace Panel committed grave abuse of discretion
amounting to lack or excess of jurisdiction when it negotiated and
initiated the MOA vis-à-vis ISSUES Nos. 4 and 5;
4. Whether there is a violation of the people’s right to
information on matters of public concern (1987 Constitution,
Article III, Sec. 7) under a state policy of full disclosure of all its
transactions involving public interest (1987 Constitution, Article
II, Sec. 28) including public consultation under Republic Act No.
7160 (LOCAL GOVERNMENT CODE OF 1991)[;]
If it is in the affirmative, whether prohibition under Rule 65 of
the 1997 Rules of Civil Procedure is an appropriate remedy;
5. Whether by signing the MOA, the Government of the
Republic of the Philippines would be BINDING itself
a) to create and recognize the Bangsamoro Juridical Entity
(BJE) as a separate state, or a juridical, territorial or political
subdivision not recognized by law;
b) to revise or amend the Constitution and existing laws to
conform to the MOA;
c) to concede to or recognize the claim of the Moro Islamic
Liberation Front for ancestral domain in violation of Republic
Act No. 8371 (THE INDIGENOUS PEOPLES RIGHTS ACT
OF 1997), particularly Section 3(g) & Chapter VII
(DELINEATION, RECOGNITION OF ANCESTRAL
DOMAINS)[;]
If in the affirmative, whether the Executive Branch has the
authority to so bind the Government of the Republic of the
Philippines;
6. Whether the inclusion/exclusion of the Province of North
Cotabato, Cities of Zamboanga, Iligan and Isabela, and the
Municipality of Linamon, Lanao del Norte in/from the areas
covered by the projected Bangsamoro Homeland is a justiciable
question; and
7. Whether desistance from signing the MOA derogates any
prior valid commitments of the Government of the Republic of
the Philippines.[24][24]
The Court, thereafter, ordered the parties to submit their
respective Memoranda. Most of the parties submitted their
memoranda on time.
III. OVERVIEW OF THE MOA-AD
As a necessary backdrop to the consideration of the
objections raised in the subject five petitions and six petitions-in-
intervention against the MOA-AD, as well as the two comments-
in-intervention in favor of the MOA-AD, the Court takes an
overview of the MOA.
The MOA-AD identifies the Parties to it as the GRP and the
MILF.
Under the heading “Terms of Reference” (TOR), the MOA-AD
includes not only four earlier agreements between the GRP and
MILF, but also two agreements between the GRP and the MNLF:
the 1976 Tripoli Agreement, and the Final Peace Agreement on
the Implementation of the 1976 Tripoli Agreement, signed on
September 2, 1996 during the administration of President Fidel
Ramos.
The MOA-AD also identifies as TOR two local statutes –
the organic act for the Autonomous Region in Muslim Mindanao
(ARMM) [25][25]
and the Indigenous Peoples Rights Act
(IPRA), [26][26]
and several international law instruments – the ILO
Convention No. 169 Concerning Indigenous and Tribal Peoples
in Independent Countries in relation to the UN Declaration on the
Rights of the Indigenous Peoples, and the UN Charter, among
others.
The MOA-AD includes as a final TOR the generic category
of “compact rights entrenchment emanating from the regime
of dar-ul-mua’hada (or territory under compact) and dar-ul-
sulh (or territory under peace agreement) that partakes the nature
of a treaty device.”
During the height of the Muslim Empire, early Muslim
jurists tended to see the world through a simple dichotomy: there
was the dar-ul-Islam (the Abode of Islam) and dar-ul-harb (the
Abode of War). The first referred to those lands where Islamic
laws held sway, while the second denoted those lands where
Muslims were persecuted or where Muslim laws were outlawed
or ineffective. [27][27]
This way of viewing the world, however,
became more complex through the centuries as the Islamic world
became part of the international community of nations.
As Muslim States entered into treaties with their neighbors,
even with distant States and inter-governmental organizations,
the classical division of the world into dar-ul-Islam and dar-ul-
harb eventually lost its meaning. New terms were drawn up to
describe novel ways of perceiving non-Muslim territories. For
instance, areas like dar-ul-mua’hada (land of compact) and dar-
ul-sulh (land of treaty) referred to countries which, though under
a secular regime, maintained peaceful and cooperative relations
with Muslim States, having been bound to each other by treaty or
agreement. Dar-ul-aman (land of order), on the other hand,
referred to countries which, though not bound by treaty with
Muslim States, maintained freedom of religion for Muslims.[28][28]
It thus appears that the “compact rights entrenchment”
emanating from the regime of dar-ul-mua’hada and dar-ul-
sulh simply refers to all other agreements between the MILF and
the Philippine government – the Philippines being the land of
compact and peace agreement – that partake of the nature of a
treaty device, “treaty” being broadly defined as “any solemn
agreement in writing that sets out understandings, obligations,
and benefits for both parties which provides for a framework that
elaborates the principles declared in the [MOA-AD].”[29][29]
The MOA-AD states that the Parties “HAVE AGREED
AND ACKNOWLEDGED AS FOLLOWS,” and starts with its
main body.
The main body of the MOA-AD is divided into four strands,
namely, Concepts and Principles, Territory, Resources, and
Governance.
A. CONCEPTS AND PRINCIPLES
This strand begins with the statement that it is “the
birthright of all Moros and all Indigenous peoples of Mindanao
to identify themselves and be accepted as ‘Bangsamoros.’” It
defines “Bangsamoro people” as the natives or original
inhabitants of Mindanao and its adjacent islands including
Palawan and the Sulu archipelago at the time of conquest or The MOA-AD thus grounds the right to self-governance of have “territorial waters,” which shall stretch beyond the BJE

colonization, and their descendants whether mixed or of full the Bangsamoro people on the past suzerain authority of the internal waters up to the baselines of the Republic of the
The territory of the Bangsamoro homeland is described as
blood, including their spouses.[30][30] sultanates. As gathered, the territory defined as the Bangsamoro Philippines (RP) south east and south west of mainland
the land mass as well as the maritime, terrestrial, fluvial and
homeland was ruled by several sultanates and, specifically in the Mindanao; and that within these territorial waters, the BJE and
alluvial domains, including the aerial domain and the
case of the Maranao, by the Pat a Pangampong ku Ranaw, a the “Central Government” (used interchangeably with RP) shall
atmospheric space above it, embracing the Mindanao-Sulu-
Thus, the concept of “Bangsamoro,” as defined in this confederation of independent principalities (pangampong) each exercise joint jurisdiction, authority and management over all
Palawan geographic region.[38][38]
strand of the MOA-AD, includes not only “Moros” as ruled by datus and sultans, none of whom was supreme over the natural resources.[43][43] Notably, the jurisdiction over
traditionally understood even by Muslims, [31][31]
but others. [35][35]
the internal waters is not similarly described as “joint.”
all indigenous peoples of Mindanao and its adjacent islands. The
More specifically, the core of the BJE is defined as the
MOA-AD adds that the freedom of choice of indigenous peoples
present geographic area of the ARMM – thus constituting the
shall be respected. What this freedom of choice consists in has The MOA-AD goes on to describe the Bangsamoro people The MOA-AD further provides for the sharing of minerals
following areas: Lanao del Sur, Maguindanao, Sulu, Tawi-Tawi,
not been specifically defined. as “the ‘First Nation’ with defined territory and with a system of on the territorial waters between the Central Government and the
Basilan, and Marawi City. Significantly, this core also includes
government having entered into treaties of amity and commerce BJE, in favor of the latter, through production sharing and
certain municipalities of Lanao del Norte that voted for inclusion
with foreign nations.” economic cooperation agreement.[44][44] The activities which the
in the ARMM in the 2001 plebiscite.[39][39]
The MOA-AD proceeds to refer to the “Bangsamoro Parties are allowed to conduct on the territorial waters are
The term “First Nation” is of Canadian origin referring to
homeland,” the ownership of which is vested exclusively in the enumerated, among which are the exploration and utilization of
the indigenous peoples of that territory, particularly those known
Bangsamoro people by virtue of their prior rights of natural resources, regulation of shipping and fishing activities,
as Indians. In Canada, each of these indigenous peoples is equally Outside of this core, the BJE is to cover other provinces, cities,
[32][32]
occupation. Both parties to the MOA-AD acknowledge and the enforcement of police and safety measures.[45][45] There is
entitled to be called “First Nation,” hence, all of them are usually municipalities and barangays, which are grouped into two
that ancestral domain does not form part of the public no similar provision on the sharing of minerals and allowed
described collectively by the plural “First Nations.”[36][36] To that categories, Category A and Category B. Each of these areas is to
domain.[33][33] activities with respect to the internal waters of the BJE.
extent, the MOA-AD, by identifying the Bangsamoro people as be subjected to a plebiscite to be held on different dates, years

“the First Nation” – suggesting its exclusive entitlement to that apart from each other. Thus, Category A areas are to be subjected

designation – departs from the Canadian usage of the term. to a plebiscite not later than twelve (12) months following the C. RESOURCES
The Bangsamoro people are acknowledged as having
[40][40]
signing of the MOA-AD. Category B areas, also called
the right to self-governance, which right is said to be rooted on
“Special Intervention Areas,” on the other hand, are to be
ancestral territoriality exercised originally under the suzerain The MOA-AD states that the BJE is free to enter into any
The MOA-AD then mentions for the first time the subjected to a plebiscite twenty-five (25) years from the signing
authority of their sultanates and the Pat a Pangampong ku economic cooperation and trade relations with foreign countries
“Bangsamoro Juridical Entity” (BJE) to which it grants the of a separate agreement – the Comprehensive Compact.[41][41]
Ranaw. The sultanates were described as states or and shall have the option to establish trade missions in those
authority and jurisdiction over the Ancestral Domain and
“karajaan/kadatuan” resembling a body politic endowed with all countries. Such relationships and understandings, however, are
Ancestral Lands of the Bangsamoro.[37][37]
the elements of a nation-state in the modern sense.[34][34] not to include aggression against the GRP. The BJE may also
The Parties to the MOA-AD stipulate that the BJE shall
enter into environmental cooperation agreements.[46][46]
have jurisdiction over all natural resources within its

“internal waters,” defined as extending fifteen (15) kilometers

B. TERRITORY from the coastline of the BJE area;[42][42] that the BJE shall also
 The external defense of the BJE is to remain the duty and
obligation of the Central Government. The Central Government
is also bound to “take necessary steps to ensure the BJE’s
participation in international meetings and events” like those of
the ASEAN and the specialized agencies of the UN. The BJE is
to be entitled to participate in Philippine official missions and
delegations for the negotiation of border agreements or protocols
for environmental protection and equitable sharing of incomes
and revenues involving the bodies of water adjacent to or between
the islands forming part of the ancestral domain.[47][47]
With regard to the right of exploring for, producing, and
obtaining all potential sources of energy, petroleum, fossil fuel,
mineral oil and natural gas, the jurisdiction and control thereon is
to be vested in the BJE “as the party having control within its
territorial jurisdiction.” This right carries the proviso that, “in
times of national emergency, when public interest so requires,”
the Central Government may, for a fixed period and under
reasonable terms as may be agreed upon by both Parties, assume
or direct the operation of such resources.[48][48]
The sharing between the Central Government and the BJE
of total production pertaining to natural resources is to be 75:25
[49][49]
in favor of the BJE.
The MOA-AD provides that legitimate grievances of the
Bangsamoro people arising from any unjust dispossession of
their territorial and proprietary rights, customary land tenures, or
their marginalization shall be acknowledged. Whenever
restoration is no longer possible, reparation is to be in such form
as mutually determined by the Parties.[50][50]
The BJE may modify or cancel the forest concessions,
timber licenses, contracts or agreements, mining concessions,
Mineral Production and Sharing Agreements (MPSA), Industrial
Forest Management Agreements (IFMA), and other land tenure
instruments granted by the Philippine Government, including
those issued by the present ARMM. [51][51]
D. GOVERNANCE
The MOA-AD binds the Parties to invite a multinational
third-party to observe and monitor the implementation of
the Comprehensive Compact. This compact is to embody the
“details for the effective enforcement” and “the mechanisms and
modalities for the actual implementation” of the MOA-AD. The
MOA-AD explicitly provides that the participation of the third
party shall not in any way affect the status of the relationship
between the Central Government and the BJE.[52][52]
The “associative” relationship
between the Central Government
and the BJE
The MOA-AD describes the relationship of the Central
Government and the BJE as “associative,” characterized by
shared authority and responsibility. And it states that the structure
of governance is to be based on executive, legislative, judicial,
and administrative institutions with defined powers and functions
in the Comprehensive Compact.
The MOA-AD provides that its provisions requiring
“amendments to the existing legal framework” shall take effect
upon signing of the Comprehensive Compact and upon effecting
the aforesaid amendments, with due regard to the non-
derogation of prior agreements and within the stipulated
timeframe to be contained in the Comprehensive Compact. As
will be discussed later, much of the present controversy hangs
on the legality of this provision.
The BJE is granted the power to build, develop and maintain its
own institutions inclusive of civil service, electoral, financial and
banking, education, legislation, legal, economic, police and
internal security force, judicial system and correctional
institutions, the details of which shall be discussed in the
negotiation of the comprehensive compact.
As stated early on, the MOA-AD was set to be signed on
August 5, 2008 by Rodolfo Garcia and Mohagher Iqbal,
Chairpersons of the Peace Negotiating Panels of the GRP and the
MILF, respectively. Notably, the penultimate paragraph of the
MOA-AD identifies the signatories as “the representatives of the
Parties,” meaning the GRP and MILF themselves, and not
merely of the negotiating panels. [53][53]
In addition, the signature
page of the MOA-AD states that it is “WITNESSED BY” Datuk
Othman Bin Abd Razak, Special Adviser to the Prime Minister
of Malaysia, “ENDORSED BY” Ambassador Sayed Elmasry,
Adviser to Organization of the Islamic Conference (OIC)
Secretary General and Special Envoy for Peace Process in
Southern Philippines, and SIGNED “IN THE PRESENCE OF”
Dr. Albert G. Romulo, Secretary of Foreign Affairs of RP and
Dato’ Seri Utama Dr. Rais Bin Yatim, Minister of Foreign
Affairs, Malaysia, all of whom were scheduled to sign the
Agreement last August 5, 2008.
Annexed to the MOA-AD are two documents containing the
respective lists cum maps of the provinces, municipalities, and
barangays under Categories A and B earlier mentioned in the
discussion on the strand on TERRITORY.
IV. PROCEDURAL ISSUES
A. RIPENESS
The power of judicial review is limited to actual cases or
controversies.[54][54] Courts decline to issue advisory opinions or
to resolve hypothetical or feigned problems, or mere academic
questions.[55][55] The limitation of the power of judicial review to
actual cases and controversies defines the role assigned to the
judiciary in a tripartite allocation of power, to assure that the
courts will not intrude into areas committed to the other branches
of government.[56][56]
An actual case or controversy involves a conflict of legal rights,
an assertion of opposite legal claims, susceptible of judicial
 xxxx
resolution as distinguished from a hypothetical or abstract
difference or dispute. There must be a contrariety of legal rights
In the cases at bar, it is respectfully submitted that this Honorable
that can be interpreted and enforced on the basis of existing law Court has no authority to pass upon issues based on hypothetical
or feigned constitutional problems or interests with no concrete
and jurisprudence. [57][57]
The Court can decide the
bases. Considering the preliminary character of the MOA-AD,
constitutionality of an act or treaty only when a proper case there are no concrete acts that could possibly violate petitioners’
and intervenors’ rights since the acts complained of are mere
between opposing parties is submitted for judicial contemplated steps toward the formulation of a final peace
agreement. Plainly, petitioners and intervenors’ perceived injury,
[58][58]
determination. if at all, is merely imaginary and illusory apart from being
unfounded and based on mere conjectures. (Underscoring
supplied)
Related to the requirement of an actual case or controversy is the
requirement of ripeness. A question is ripe for adjudication when
the act being challenged has had a direct adverse effect on the
The Solicitor General cites[63][63] the following provisions of the
[59][59]
individual challenging it. For a case to be considered ripe
MOA-AD:
for adjudication, it is a prerequisite that something had then been
accomplished or performed by either branch before a court may
TERRITORY
[60][60]
come into the picture, and the petitioner must allege the
existence of an immediate or threatened injury to itself as a result
xxxx
of the challenged action. [61][61]
He must show that he has sustained
or is immediately in danger of sustaining some direct injury as a
2. Toward this end, the Parties enter into the following
result of the act complained of.[62][62]
stipulations:
xxxx
The Solicitor General argues that there is no justiciable
d. Without derogating from the requirements of prior agreements,
controversy that is ripe for judicial review in the present petitions, the Government stipulates to conduct and deliver, using all
possible legal measures, within twelve (12) months following the
reasoning that signing of the MOA-AD, a plebiscite covering the areas as
enumerated in the list and depicted in the map as Category A
attached herein (the “Annex”). The Annex constitutes an integral
part of this framework agreement. Toward this end, the Parties
shall endeavor to complete the negotiations and resolve all
The unsigned MOA-AD is simply a list of consensus points outstanding issues on the Comprehensive Compact within fifteen
subject to further negotiations and legislative enactments as well (15) months from the signing of the MOA-AD.
as constitutional processes aimed at attaining a final peaceful
agreement. Simply put, the MOA-AD remains to be a proposal
that does not automatically create legally demandable rights and
obligations until the list of operative acts required have been duly xxxx
complied with. x x x
GOVERNANCE
xxxx
7. The Parties agree that mechanisms and modalities for the
actual implementation of this MOA-AD shall be spelt out in the
Comprehensive Compact to mutually take such steps to enable it
to occur effectively.
Any provisions of the MOA-AD requiring amendments to the
existing legal framework shall come into force upon the signing
of a Comprehensive Compact and upon effecting the necessary
changes to the legal framework with due regard to non-
derogation of prior agreements and within the stipulated
timeframe to be contained in the Comprehensive
Compact.[64][64] (Underscoring supplied)
The Solicitor General’s arguments fail to persuade.
Concrete acts under the MOA-AD are not necessary to render the
present controversy ripe. In Pimentel, Jr. v. Aguirre,[65][65] this
Court held:
x x x [B]y the mere enactment of the questioned law or the
approval of the challenged action, the dispute is said to have
ripened into a judicial controversy even without any other overt
act. Indeed, even a singular violation of the Constitution and/or
the law is enough to awaken judicial duty.
xxxx
By the same token, when an act of the President, who in our
constitutional scheme is a coequal of Congress, is seriously
alleged to have infringed the Constitution and the laws x x x
settling the dispute becomes the duty and the responsibility of the
courts.[66][66]
In Santa Fe Independent School District v. Doe,[67][67] the United
States Supreme Court held that the challenge to the
constitutionality of the school’s policy allowing student-led
prayers and speeches before games was ripe for adjudication,
even if no public prayer had yet been led under the policy,
because the policy was being challenged as unconstitutional on
its face.[68][68]
That the law or act in question is not yet effective does not negate
ripeness. For example, in New York v. United
[69][69]
States, decided in 1992, the United States Supreme Court
held that the action by the State of New York challenging the
provisions of the Low-Level Radioactive Waste Policy Act was
ripe for adjudication even if the questioned provision was not to
take effect until January 1, 1996, because the parties agreed that
New York had to take immediate action to avoid the provision's
consequences.[70][70]
The present petitions pray for Certiorari,[71][71] Prohibition, and
Mandamus. Certiorari and Prohibition are remedies granted by
law when any tribunal, board or officer has acted, in the case of
certiorari, or is proceeding, in the case of prohibition, without or
in excess of its jurisdiction or with grave abuse of discretion
amounting to lack or excess of jurisdiction.[72][72] Mandamus is a
remedy granted by law when any tribunal, corporation, board,
officer or person unlawfully neglects the performance of an act
which the law specifically enjoins as a duty resulting from an
office, trust, or station, or unlawfully excludes another from the
use or enjoyment of a right or office to which such other is
entitled.[73][73] Certiorari, Mandamus and Prohibition are authority. Again, these points will be discussed in more detail subjected to some burdens or penalties by reason of the statute or As regards a local government unit (LGU), it can seek relief

appropriate remedies to raise constitutional issues and to review later. act complained of.[80][80] When the issue concerns a public right, in order to protect or vindicate an interest of its own, and of the

and/or prohibit/nullify, when proper, acts of legislative and it is sufficient that the petitioner is a citizen and has an interest in other LGUs.[87][87]
As the petitions allege acts or omissions on the part of respondent
executive officials.[74][74] the execution of the laws.[81][81]
that exceed their authority, by violating their duties under E.O.

No. 3 and the provisions of the Constitution and statutes, the

Intervenors, meanwhile, may be given legal standing upon
petitions make a prima facie case for Certiorari, Prohibition, and
The authority of the GRP Negotiating Panel is defined by For a taxpayer, one is allowed to sue where there is an showing of facts that satisfy the requirements of the law
Mandamus, and an actual case or controversy ripe for
Executive Order No. 3 (E.O. No. 3), issued on February 28, assertion that public funds are illegally disbursed or deflected to authorizing intervention,[88][88] such as a legal interest in the
adjudication exists. When an act of a branch of government is
2001.[75][75] The said executive order requires that “[t]he an illegal purpose, or that there is a wastage of public funds matter in litigation, or in the success of either of the parties.
seriously alleged to have infringed the Constitution, it
government's policy framework for peace, including the through the enforcement of an invalid or unconstitutional
becomes not only the right but in fact the duty of the judiciary
systematic approach and the administrative structure for carrying law.[82][82] The Court retains discretion whether or not to allow a
to settle the dispute.[77][77]
out the comprehensive peace process x x x be governed by this taxpayer’s suit.[83][83] In any case, the Court has discretion to relax the procedural

Executive Order.”[76][76] technicality on locus standi, given the liberal attitude it has

B. LOCUS STANDI exercised, highlighted in the case of David v. Macapagal-

In the case of a legislator or member of Congress, an act of Arroyo,[89][89] where technicalities of procedure were brushed

The present petitions allege that respondents GRP Panel and the Executive that injures the institution of Congress causes a aside, the constitutional issues raised being of paramount public

PAPP Esperon drafted the terms of the MOA-AD without derivative but nonetheless substantial injury that can be interest or of transcendental importance deserving the attention
For a party to have locus standi, one must allege “such a
consulting the local government units or communities affected, questioned by legislators. A member of the House of of the Court in view of their seriousness, novelty and weight as
personal stake in the outcome of the controversy as to assure that
nor informing them of the proceedings. As will be discussed in Representatives has standing to maintain inviolate the precedents.[90][90] The Court’s forbearing stance on locus
concrete adverseness which sharpens the presentation of issues
greater detail later, such omission, by itself, constitutes a prerogatives, powers and privileges vested by the Constitution in standi on issues involving constitutional issues has for its purpose
upon which the court so largely depends for illumination of
departure by respondents from their mandate under E.O. No. 3. his office.[84][84] the protection of fundamental rights.
difficult constitutional questions.”[78][78]

Furthermore, the petitions allege that the provisions of the MOA- An organization may be granted standing to assert the In not a few cases, the Court, in keeping with its duty under
Because constitutional cases are often public actions in
AD violate the Constitution. The MOA-AD provides that “any rights of its members, [85][85]
but the mere invocation by the Constitution to determine whether the other branches of
which the relief sought is likely to affect other persons, a
provisions of the MOA-AD requiring amendments to the existing the Integrated Bar of the Philippines or any member of the legal government have kept themselves within the limits of the
preliminary question frequently arises as to this interest in the
legal framework shall come into force upon the signing of a profession of the duty to preserve the rule of law does not suffice Constitution and the laws and have not abused the discretion
constitutional question raised.[79][79] [86][86]
Comprehensive Compact and upon effecting the necessary to clothe it with standing. given them, has brushed aside technical rules of procedure.[91][91]

changes to the legal framework,” implying an amendment of the

Constitution to accommodate the MOA-AD. This stipulation, in

When suing as a citizen, the person complaining must
effect, guaranteed to the MILF the amendment of the In the petitions at bar, petitioners Province of North
allege that he has been or is about to be denied some right or
Constitution. Such act constitutes another violation of its Cotabato (G.R. No. 183591) Province of Zamboanga del
privilege to which he is lawfully entitled or that he is about to be
Norte (G.R. No. 183951), City of Iligan (G.R. No. 183893)
and City of Zamboanga (G.R. No. 183752) and petitioners-in-
intervention Province of Sultan Kudarat, City of
Isabela and Municipality of Linamon have locus standi in
view of the direct and substantial injury that they, as LGUs,
would suffer as their territories, whether in whole or in part, are
to be included in the intended domain of the BJE. These
petitioners allege that they did not vote for their inclusion in the
ARMM which would be expanded to form the BJE territory.
Petitioners’ legal standing is thus beyond doubt.
In G.R. No. 183962, petitioners Ernesto Maceda, Jejomar
Binay and Aquilino Pimentel III would have no standing as
citizens and taxpayers for their failure to specify that they would
be denied some right or privilege or there would be wastage of
public funds. The fact that they are a former Senator, an
incumbent mayor of Makati City, and a resident of Cagayan de
Oro, respectively, is of no consequence. Considering their
invocation of the transcendental importance of the issues at hand,
however, the Court grants them standing.
Intervenors Franklin Drilon and Adel Tamano, in
alleging their standing as taxpayers, assert that government funds
would be expended for the conduct of an illegal and
unconstitutional plebiscite to delineate the BJE territory. On that
score alone, they can be given legal standing. Their allegation that
the issues involved in these petitions are of “undeniable
transcendental importance” clothes them with added basis for
their personality to intervene in these petitions.
With regard to Senator Manuel Roxas, his standing is
premised on his being a member of the Senate and a citizen to
enforce compliance by respondents of the public’s constitutional
right to be informed of the MOA-AD, as well as on a genuine
legal interest in the matter in litigation, or in the success or failure
of either of the parties. He thus possesses the requisite standing
as an intervenor.
With respect to Intervenors Ruy Elias Lopez, as a former
congressman of the 3rd district of Davao City, a taxpayer and a
member of the Bagobo tribe; Carlo B. Gomez, et al., as
members of the IBP Palawan chapter, citizens and
taxpayers; Marino Ridao, as taxpayer, resident and member of
the Sangguniang Panlungsod of Cotabato City; and Kisin
Buxani, as taxpayer, they failed to allege any proper legal interest
in the present petitions. Just the same, the Court exercises its
discretion to relax the procedural technicality on locus
standi given the paramount public interest in the issues at hand.
Intervening respondents Muslim Multi-Sectoral
Movement for Peace and Development, an advocacy group for
justice and the attainment of peace and prosperity in Muslim
Mindanao; and Muslim Legal Assistance Foundation Inc., a
non-government organization of Muslim lawyers, allege that they
stand to be benefited or prejudiced, as the case may be, in the
resolution of the petitions concerning the MOA-AD, and prays
for the denial of the petitions on the grounds therein stated. Such
legal interest suffices to clothe them with standing.
B. MOOTNESS
Respondents insist that the present petitions have been
rendered moot with the satisfaction of all the reliefs prayed for by
petitioners and the subsequent pronouncement of the Executive
Secretary that “[n]o matter what the Supreme Court ultimately
decides[,] the government will not sign the MOA.”[92][92]
In lending credence to this policy decision, the Solicitor
General points out that the President had already disbanded the
[93][93]
GRP Peace Panel.
In David v. Macapagal-Arroyo,[94][94] this Court held that
the “moot and academic” principle not being a magical formula
that automatically dissuades courts in resolving a case, it will
decide cases, otherwise moot and academic, if it finds that (a)
there is a grave violation of the Constitution;[95][95] (b) the
situation is of exceptional character and paramount public
interest is involved;[96][96] (c) the constitutional issue raised
requires formulation of controlling principles to guide the bench,
the bar, and the public;[97][97] and (d) the case is capable of
repetition yet evading review.[98][98]
Another exclusionary circumstance that may be considered
is where there is a voluntary cessation of the activity complained
of by the defendant or doer. Thus, once a suit is filed and the doer
voluntarily ceases the challenged conduct, it does not
automatically deprive the tribunal of power to hear and determine
the case and does not render the case moot especially when the
plaintiff seeks damages or prays for injunctive relief against the
possible recurrence of the violation.[99][99]
The present petitions fall squarely into these exceptions to
thus thrust them into the domain of judicial review. The grounds
cited above in David are just as applicable in the present cases as
they were, not only in David, but also in Province of Batangas v.
Romulo[100][100] and Manalo v. Calderon[101][101] where the Court
similarly decided them on the merits, supervening events that
would ordinarily have rendered the same moot notwithstanding.
Petitions not mooted
Contrary then to the asseverations of respondents, the non-
signing of the MOA-AD and the eventual dissolution of the GRP
Peace Panel did not moot the present petitions. It bears emphasis
that the signing of the MOA-AD did not push through due to the
Court’s issuance of a Temporary Restraining Order.
Contrary too to respondents’ position, the MOA-AD cannot
be considered a mere “list of consensus points,” especially given
its nomenclature, the need to have it signed or initialed by all
the parties concerned on August 5, 2008, and the far-reaching
Constitutional implications of these “consensus
points,” foremost of which is the creation of the BJE.

In fact, as what will, in the main, be discussed, there is
a commitment on the part of respondents to amend and effect
necessary changes to the existing legal framework for certain
provisions of the MOA-AD to take effect. Consequently, the
present petitions are not confined to the terms and provisions of
the MOA-AD, but to other on-going and future negotiations and
agreements necessary for its realization. The petitions have not,
therefore, been rendered moot and academic simply by the public
disclosure of the MOA-AD,[102][102] the manifestation that it will
not be signed as well as the disbanding of the GRP Panel not
withstanding.
Petitions are imbued with paramount public interest
There is no gainsaying that the petitions are imbued with
paramount public interest, involving a significant part of the
country’s territory and the wide-ranging political modifications
of affected LGUs. The assertion that the MOA-AD is subject to
further legal enactments including possible Constitutional
amendments more than ever provides impetus for the Court
to formulate controlling principles to guide the bench, the
bar, the public and, in this case, the government and its
negotiating entity.
[103][103]
Respondents cite Suplico v. NEDA, et al. where the
Court did not “pontificat[e] on issues which no longer
legitimately constitute an actual case or controversy [as this] will
do more harm than good to the nation as a whole.”
The present petitions must be differentiated from Suplico.
Primarily, in Suplico, what was assailed and eventually cancelled
was a stand-alone government procurement contract for a
national broadband network involving a one-time contractual
relation between two parties—the government and a private
foreign corporation. As the issues therein involved specific
government procurement policies and standard principles on
contracts, the majority opinion in Suplico found nothing
exceptional therein, the factual circumstances being peculiar only
to the transactions and parties involved in the controversy.
The MOA-AD is part of a series of agreements
In the present controversy, the MOA-AD is a significant
part of a series of agreements necessary to carry out the Tripoli
Agreement 2001. The MOA-AD which dwells on the Ancestral
Domain Aspect of said Tripoli Agreement is the third such
component to be undertaken following the implementation of
the Security Aspect in August 2001 and the Humanitarian,
Rehabilitation and Development Aspect in May 2002.
Accordingly, even if the Executive Secretary, in his
Memorandum of August 28, 2008 to the Solicitor General, has
stated that “no matter what the Supreme Court ultimately
decides[,] the government will not sign the MOA[-
AD],” mootness will not set in in light of the terms of the Tripoli
Agreement 2001.
Need to formulate principles-guidelines
Surely, the present MOA-AD can be renegotiated or another one
will be drawn up to carry out the Ancestral Domain Aspect of
the Tripoli Agreement 2001, in another or in any form, which
could contain similar or significantly drastic provisions. While
the Court notes the word of the Executive Secretary that the
government “is committed to securing an agreement that is both
constitutional and equitable because that is the only way that
long-lasting peace can be assured,” it is minded to render
a decision on the merits in the present petitions to formulate
controlling principles to guide the bench, the bar, the public
and, most especially, the government in negotiating with the
MILF regarding Ancestral Domain.
Respondents invite the Court’s attention to the separate
opinion of then Chief Justice Artemio Panganiban in Sanlakas v.
Reyes [104][104]
in which he stated that the doctrine of “capable of
repetition yet evading review” can override mootness, “provided
the party raising it in a proper case has been and/or continue to
be prejudiced or damaged as a direct result of their issuance.”
They contend that the Court must have jurisdiction over the
subject matter for the doctrine to be invoked.
The present petitions all contain prayers for Prohibition over
which this Court exercises original jurisdiction. While G.R. No.
183893 (City of Iligan v. GRP) is a petition for Injunction and
Declaratory Relief, the Court will treat it as one for Prohibition
as it has far reaching implications and raises questions that need
to be resolved.[105][105] At all events, the Court has jurisdiction
over most if not the rest of the petitions.
Indeed, the present petitions afford a proper venue for the
Court to again apply the doctrine immediately referred to as what
it had done in a number of landmark cases. [106][106] There is
a reasonable expectation that petitioners, particularly the
Provinces of North Cotabato, Zamboanga del Norte and Sultan
Kudarat, the Cities of Zamboanga, Iligan and Isabela, and the
Municipality of Linamon, will again be subjected to the same
problem in the future as respondents’ actions are capable of
repetition, in another or any form.
It is with respect to the prayers for Mandamus that the
petitions have become moot, respondents having, by Compliance
of August 7, 2008, provided this Court and petitioners with
official copies of the final draft of the MOA-AD and its annexes.
Too, intervenors have been furnished, or have procured for
themselves, copies of the MOA-AD.
V. SUBSTANTIVE ISSUES
As culled from the Petitions and Petitions-in-Intervention,
there are basically two SUBSTANTIVE issues to be resolved,
one relating to the manner in which the MOA-AD was negotiated
and finalized, the other relating to its provisions, viz:

1. Did respondents violate constitutional and statutory
provisions on public consultation and the right to information
when they negotiated and later initialed the MOA-AD?
2. Do the contents of the MOA-AD violate the Constitution
and the laws?
ON THE FIRST SUBSTANTIVE ISSUE
Petitioners invoke their constitutional right to information on
matters of public concern, as provided in Section 7, Article III
on the Bill of Rights:
Sec. 7. The right of the people to information on matters of public
concern shall be recognized. Access to official records, and to
documents, and papers pertaining to official acts, transactions, or
decisions, as well as to government research data used as basis
for policy development, shall be afforded the citizen, subject to
such limitations as may be provided by law.[107][107]
As early as 1948, in Subido v. Ozaeta,[108][108] the Court has
recognized the statutory right to examine and inspect public
records, a right which was eventually accorded constitutional
status.
The right of access to public documents, as enshrined in
both the 1973 Constitution and the 1987 Constitution, has been
recognized as a self-executory constitutional right.[109][109]
In the 1976 case of Baldoza v. Hon. Judge
Dimaano,[110][110] the Court ruled that access to public records is
predicated on the right of the people to acquire information on
matters of public concern since, undoubtedly, in a democracy, the
pubic has a legitimate interest in matters of social and political
significance.
x x x The incorporation of this right in the Constitution is
a recognition of the fundamental role of free exchange of
information in a democracy. There can be no realistic perception
by the public of the nation’s problems, nor a meaningful
democratic decision-making if they are denied access to
information of general interest. Information is needed to enable
the members of society to cope with the exigencies of the times.
As has been aptly observed: “Maintaining the flow of such
information depends on protection for both its acquisition and its
dissemination since, if either process is interrupted, the flow
inevitably ceases.” x x x[111][111]
In the same way that free discussion enables members of
society to cope with the exigencies of their time, access to
information of general interest aids the people in democratic
decision-making by giving them a better perspective of the vital
issues confronting the nation[112][112] so that they may be able to
criticize and participate in the affairs of the government in a
responsible, reasonable and effective manner. It is by ensuring an
unfettered and uninhibited exchange of ideas among a well-
informed public that a government remains responsive to the
changes desired by the people.[113][113]
The MOA-AD is a matter of public concern
That the subject of the information sought in the present cases is
a matter of public concern[114][114] faces no serious challenge. In
fact, respondents admit that the MOA-AD is indeed of public
concern.[115][115] In previous cases, the Court found that the
regularity of real estate transactions entered in the Register of
Deeds,[116][116] the need for adequate notice to the public of the
various laws,[117][117] the civil service eligibility of a public
employee,[118][118] the proper management of GSIS funds
allegedly used to grant loans to public
officials,[119][119] the recovery of the Marcoses’ alleged ill-gotten
wealth,[120][120] and the identity of party-list
nominees,[121][121] among others, are matters of public concern.
Undoubtedly, the MOA-AD subject of the present cases is of
public concern, involving as it does the sovereignty and
territorial integrity of the State, which directly affects the lives
of the public at large.
Matters of public concern covered by the right to
information include steps and negotiations leading to the
consummation of the contract. In not distinguishing as to the
executory nature or commercial character of agreements, the
Court has categorically ruled:
x x x [T]he right to information “contemplates inclusion
of negotiations leading to the consummation of the
transaction.” Certainly, a consummated contract is not a
requirement for the exercise of the right to information.
Otherwise, the people can never exercise the right if no contract
is consummated, and if one is consummated, it may be too late
for the public to expose its defects.
Requiring a consummated contract will keep the public in
the dark until the contract, which may be grossly disadvantageous
to the government or even illegal, becomes fait accompli. This
negates the State policy of full transparency on matters of public
concern, a situation which the framers of the Constitution could
not have intended. Such a requirement will prevent the citizenry
from participating in the public discussion of
any proposed contract, effectively truncating a basic right
enshrined in the Bill of Rights. We can allow neither an
emasculation of a constitutional right, nor a retreat by the State
of its avowed “policy of full disclosure of all its transactions
involving public interest.”[122][122] (Emphasis and italics in the
original)
Intended as a “splendid symmetry”[123][123] to the right to
information under the Bill of Rights is the policy of
public disclosure under Section 28, Article II of the Constitution
reading:
Sec. 28. Subject to reasonable conditions prescribed by
law, the State adopts and implements a policy of full public
disclosure of all its transactions involving public interest.[124][124]
The policy of full public disclosure enunciated in above-
quoted Section 28 complements the right of access to information
on matters of public concern found in the Bill of Rights. The right
to information guarantees the right of the people to demand
information, while Section 28 recognizes the duty of officialdom
to give information even if nobody demands.[125][125]
The policy of public disclosure establishes a concrete
ethical principle for the conduct of public affairs in a genuinely
open democracy, with the people’s right to know as the
centerpiece. It is a mandate of the State to be accountable by

following such policy.[126][126] These provisions are vital to the
exercise of the freedom of expression and essential to hold public
officials at all times accountable to the people.[127][127]
Whether Section 28 is self-executory, the records of the
deliberations of the Constitutional Commission so disclose:
MR. SUAREZ. And since this is not self-executory, this policy
will not be enunciated or will not be in force and effect until after
Congress shall have provided it.
MR. OPLE. I expect it to influence the climate of public
ethics immediately but, of course, the implementing law will
have to be enacted by Congress, Mr. Presiding Officer.[128][128]
The following discourse, after Commissioner Hilario Davide, Jr.,
sought clarification on the issue, is enlightening.
MR. DAVIDE. I would like to get some clarifications on this. Mr.
Presiding Officer, did I get the Gentleman correctly as having
said that this is not a self-executing provision? It would require a
legislation by Congress to implement?
MR. OPLE. Yes. Originally, it was going to be self-executing,
but I accepted an amendment from Commissioner Regalado, so
that the safeguards on national interest are modified by the clause
“as may be provided by law”
MR. DAVIDE. But as worded, does it not mean that this will
immediately take effect and Congress may provide for
reasonable safeguards on the sole ground national interest?
MR. OPLE. Yes. I think so, Mr. Presiding Officer, I
said earlier that it should immediately influence the climate
of the conduct of public affairs but, of course, Congress here
may no longer pass a law revoking it, or if this is approved,
revoking this principle, which is inconsistent with this
policy.[129][129] (Emphasis supplied)
Indubitably, the effectivity of the policy of public
disclosure need not await the passing of a statute. As Congress
cannot revoke this principle, it is merely directed to provide for
“reasonable safeguards.” The complete and effective exercise of
the right to information necessitates that its complementary
provision on public disclosure derive the same self-executory
nature. Since both provisions go hand-in-hand, it is absurd to say
that the broader[130][130] right to information on matters of public
concern is already enforceable while the correlative duty of the
State to disclose its transactions involving public interest is not
enforceable until there is an enabling law. Respondents cannot
thus point to the absence of an implementing legislation as an
excuse in not effecting such policy.
An essential element of these freedoms is to keep open a
continuing dialogue or process of communication between the
government and the people. It is in the interest of the State that
the channels for free political discussion be maintained to the end
that the government may perceive and be responsive to the
people’s will.[131][131] Envisioned to be corollary to the twin rights
to information and disclosure is the design for feedback
mechanisms.
MS. ROSARIO BRAID. Yes. And lastly, Mr. Presiding
Officer, will the people be able to participate? Will the
government provide feedback mechanisms so that the people
can participate and can react where the existing media
facilities are not able to provide full feedback mechanisms to
the government? I suppose this will be part of the government
implementing operational mechanisms.
MR. OPLE. Yes. I think through their elected representatives and
that is how these courses take place. There is a message and a
feedback, both ways.
xxxx
MS. ROSARIO BRAID. Mr. Presiding Officer, may I just make
one last sentence?
I think when we talk about the feedback network, we are not
talking about public officials but also network of private
business o[r] community-based organizations that will be
reacting. As a matter of fact, we will put more credence or
credibility on the private network of volunteers and voluntary
community-based organizations. So I do not think we are afraid
that there will be another OMA in the making.[132][132] (Emphasis
supplied)
The imperative of a public consultation, as a species of the
right to information, is evident in the “marching orders” to
respondents. The mechanics for the duty to disclose information
and to conduct public consultation regarding the peace agenda
and process is manifestly provided by E.O. No. 3.[133][133] The
preambulatory clause of E.O. No. 3 declares that there is a need
to further enhance the contribution of civil society to the
comprehensive peace process by institutionalizing the people’s
participation.
One of the three underlying principles of the comprehensive
peace process is that it “should be community-based, reflecting
the sentiments, values and principles important to all Filipinos”
and “shall be defined not by the government alone, nor by the
different contending groups only, but by all Filipinos as one
community.”[134][134] Included as a component of the
comprehensive peace process is consensus-building and
empowerment for peace, which includes “continuing
consultations on both national and local levels to build consensus
for a peace agenda and process, and the mobilization and
facilitation of people’s participation in the peace process.”[135][135]
Clearly, E.O. No. 3 contemplates not just the conduct of
a plebiscite to effectuate “continuing” consultations, contrary
to respondents’ position that plebiscite is “more than
sufficient consultation.”[136][136]
Further, E.O. No. 3 enumerates the functions and
responsibilities of the PAPP, one of which is to
“[c]onduct regular dialogues with the National Peace Forum
(NPF) and other peace partners to seek relevant information,
comments, recommendations as well as to render appropriate and
timely reports on the progress of the comprehensive peace
process.”[137][137] E.O. No. 3 mandates the establishment of the
NPF to be “the principal forum for the PAPP to consult with and
seek advi[c]e from the peace advocates, peace partners and
concerned sectors of society on both national and local levels, on
the implementation of the comprehensive peace process, as well
as for government[-]civil society dialogue and consensus-
building on peace agenda and initiatives.”[138][138]

In fine, E.O. No. 3 establishes petitioners’ right to be
consulted on the peace agenda, as a corollary to the
constitutional right to information and disclosure.
PAPP Esperon committed grave abuse of discretion
The PAPP committed grave abuse of discretion when
he failed to carry out the pertinent consultation. The furtive
process by which the MOA-AD was designed and crafted runs
contrary to and in excess of the legal authority, and amounts
to a whimsical, capricious, oppressive, arbitrary and despotic
exercise thereof.
The Court may not, of course, require the PAPP to conduct
the consultation in a particular way or manner. It may, however,
require him to comply with the law and discharge the
functions within the authority granted by the President.[139][139]
Petitioners are not claiming a seat at the negotiating table,
contrary to respondents’ retort in justifying the denial of
petitioners’ right to be consulted. Respondents’ stance manifests
the manner by which they treat the salient provisions of E.O. No.
3 on people’s participation. Such disregard of the express
mandate of the President is not much different from superficial
conduct toward token provisos that border on classic lip
service. [140][140]
It illustrates a gross evasion of positive duty and a
virtual refusal to perform the duty enjoined.
As for respondents’ invocation of the doctrine of executive
privilege, it is not tenable under the premises. The argument
defies sound reason when contrasted with E.O. No. 3’s explicit
provisions on continuing consultation and dialogue on
both national and local levels. The executive order even
recognizes the exercise of the public’s right even before the
GRP makes its official recommendations or before the
government proffers its definite propositions.[141][141] It bear
emphasis that E.O. No. 3 seeks to elicit relevant advice,
information, comments and recommendations from the people
through dialogue.
AT ALL EVENTS, respondents effectively waived the
defense of executive privilege in view of their unqualified
disclosure of the official copies of the final draft of the MOA-
AD. By unconditionally complying with the Court’s August 4,
2008 Resolution, without a prayer for the document’s
disclosure in camera, or without a manifestation that it was
complying therewith ex abundante ad cautelam.
Petitioners’ assertion that the Local Government Code
(LGC) of 1991 declares it a State policy to “require all national
agencies and offices to conduct periodic consultations with
appropriate local government units, non-governmental and
people's organizations, and other concerned sectors of the
community before any project or program is implemented in their
respective jurisdictions”[142][142] is well-taken. The LGC chapter
on intergovernmental relations puts flesh into this avowed policy:
Prior Consultations Required. – No project or program
shall be implemented by government authorities unless the Act,[148][148] which entails, among other things, the observance of
consultations mentioned in Sections 2 (c) and 26 hereof are
complied with, and prior approval of the sanggunian concerned the free and prior informed consent of the ICCs/IPs.
is obtained: Provided, That occupants in areas where such
projects are to be implemented shall not be evicted unless Notably, the IPRA does not grant the Executive
appropriate relocation sites have been provided, in accordance
with the provisions of the Constitution.[143][143] (Italics and Department or any government agency the power to delineate and
underscoring supplied)
recognize an ancestral domain claim by mere agreement or
compromise. The recognition of the ancestral domain is
the raison d’etre of the MOA-AD, without which all other
stipulations or “consensus points” necessarily must fail. In
In Lina, Jr. v. Hon. Paño,[144][144] the Court held that the
proceeding to make a sweeping declaration on ancestral domain,
above-stated policy and above-quoted provision of the LGU
without complying with the IPRA, which is cited as one of the
apply only to national programs or projects which are to be
TOR of the MOA-AD, respondents clearly transcended the
implemented in a particular local community. Among the
boundaries of their authority. As it seems, even the heart of the
programs and projects covered are those that are critical to the
MOA-AD is still subject to necessary changes to the legal
environment and human ecology including those that may call for
framework. While paragraph 7 on Governance suspends the
the eviction of a particular group of people residing in the locality
effectivity of all provisions requiring changes to the legal
where these will be implemented.[145][145] The MOA-AD is one
framework, such clause is itself invalid, as will be discussed in
peculiar program that unequivocally and unilaterally vests
the following section.
ownership of a vast territory to the Bangsamoro
people,[146][146] which could pervasively and drastically result
to the diaspora or displacement of a great number of
Indeed, ours is an open society, with all the acts of the
inhabitants from their total environment.
government subject to public scrutiny and available always to
public cognizance. This has to be so if the country is to remain
democratic, with sovereignty residing in the people and all
With respect to the indigenous cultural
government authority emanating from them.[149][149]
communities/indigenous peoples (ICCs/IPs), whose interests are
represented herein by petitioner Lopez and are adversely affected
by the MOA-AD, the ICCs/IPs have, under the IPRA, the right to
participate fully at all levels of decision-making in matters which ON THE SECOND SUBSTANTIVE ISSUE
may affect their rights, lives and destinies. [147][147]
The MOA-AD,
an instrument recognizing ancestral domain, failed to justify its
non-compliance with the clear-cut mechanisms ordained in said
With regard to the provisions of the MOA-AD, there can be
no question that they cannot all be accommodated under the
present Constitution and laws. Respondents have admitted as
much in the oral arguments before this Court, and the MOA-AD
itself recognizes the need to amend the existing legal framework
to render effective at least some of its provisions. Respondents,
nonetheless, counter that the MOA-AD is free of any legal
infirmity because any provisions therein which are inconsistent
with the present legal framework will not be effective until the
necessary changes to that framework are made. The validity of
this argument will be considered later. For now, the Court shall
pass upon how
The MOA-AD is inconsistent with the Constitution and laws
as presently worded.
In general, the objections against the MOA-AD center on
the extent of the powers conceded therein to the BJE. Petitioners
assert that the powers granted to the BJE exceed those granted to
any local government under present laws, and even go beyond
those of the present ARMM. Before assessing some of the
specific powers that would have been vested in the BJE, however,
it would be useful to turn first to a general idea that serves as a
unifying link to the different provisions of the MOA-AD,
namely, the international law concept of association.
Significantly, the MOA-AD explicitly alludes to this concept,
indicating that the Parties actually framed its provisions with it in
mind.
Association is referred to in paragraph 3 on TERRITORY,
paragraph 11 on RESOURCES, and paragraph 4 on
GOVERNANCE. It is in the last mentioned provision, however,
that the MOA-AD most clearly uses it to describe the envisioned
relationship between the BJE and the Central Government.
4. The relationship between the Central Government and the
Bangsamoro juridical entity shall be associative
characterized by shared authority and responsibility with a
structure of governance based on executive, legislative, judicial
and administrative institutions with defined powers and functions
in the comprehensive compact. A period of transition shall be
established in a comprehensive peace compact specifying the
relationship between the Central Government and the BJE.
(Emphasis and underscoring supplied)
The nature of the “associative” relationship may have been
intended to be defined more precisely in the still to be forged
Comprehensive Compact. Nonetheless, given that there is a
concept of “association” in international law, and the MOA-AD
– by its inclusion of international law instruments in its TOR–
placed itself in an international legal context, that concept of
association may be brought to bear in understanding the use of
the term “associative” in the MOA-AD.
Keitner and Reisman state that
[a]n association is formed when two states of unequal power
voluntarily establish durable links. In the basic model, one state,
the associate, delegates certain responsibilities to the other,
the principal, while maintaining its international status as a
state. Free associations represent a middle ground between
integration and independence. x x x[150][150] (Emphasis and
underscoring supplied)
For purposes of illustration, the Republic of the Marshall
Islands and the Federated States of Micronesia (FSM), formerly
part of the U.S.-administered Trust Territory of the Pacific
Islands,[151][151] are associated states of the U.S. pursuant to a
Compact of Free Association. The currency in these countries is
the U.S. dollar, indicating their very close ties with the U.S., yet
they issue their own travel documents, which is a mark of their
statehood. Their international legal status as states was confirmed
by the UN Security Council and by their admission to UN
membership.
According to their compacts of free association, the
Marshall Islands and the FSM generally have the capacity to
conduct foreign affairs in their own name and right, such capacity
extending to matters such as the law of the sea, marine resources,
trade, banking, postal, civil aviation, and cultural relations. The
U.S. government, when conducting its foreign affairs, is
obligated to consult with the governments of the Marshall Islands
or the FSM on matters which it (U.S. government) regards as
relating to or affecting either government.
In the event of attacks or threats against the Marshall
Islands or the FSM, the U.S. government has the authority and
obligation to defend them as if they were part of U.S. territory.
The U.S. government, moreover, has the option of establishing
and using military areas and facilities within these associated
states and has the right to bar the military personnel of any third
country from having access to these territories for military
purposes.
It bears noting that in U.S. constitutional and international
practice, free association is understood as an international
association between sovereigns. The Compact of Free
Association is a treaty which is subordinate to the associated
nation’s national constitution, and each party may terminate the
association consistent with the right of independence. It has been
said that, with the admission of the U.S.-associated states to the
UN in 1990, the UN recognized that the American model of free
association is actually based on an underlying status of
independence.[152][152]
In international practice, the “associated state”
arrangement has usually been used as a transitional device of
former colonies on their way to full independence. Examples of
states that have passed through the status of associated states as a
transitional phase are Antigua, St. Kitts-Nevis-Anguilla,
Dominica, St. Lucia, St. Vincent and Grenada. All have since
become independent states.[153][153]
Back to the MOA-AD, it contains many provisions which
are consistent with the international legal concept of association,
specifically the following: the BJE’s capacity to enter into
economic and trade relations with foreign countries, the
commitment of the Central Government to ensure the BJE’s
participation in meetings and events in the ASEAN and the
specialized UN agencies, and the continuing responsibility of the
Central Government over external defense. Moreover, the BJE’s
right to participate in Philippine official missions bearing on
negotiation of border agreements, environmental protection, and
sharing of revenues pertaining to the bodies of water adjacent to
or between the islands forming part of the ancestral
domain, resembles the right of the governments of FSM and the
Marshall Islands to be consulted by the U.S. government on any
foreign affairs matter affecting them.
These provisions of the MOA indicate, among other things,
that the Parties aimed to vest in the BJE the status of
an associated state or, at any rate, a status closely
approximating it.
The concept of association is not recognized under the
present Constitution
No province, city, or municipality, not even the ARMM, is
recognized under our laws as having an “associative”
relationship with the national government. Indeed, the concept
implies powers that go beyond anything ever granted by the
Constitution to any local or regional government. It also implies
the recognition of the associated entity as a state. The
Constitution, however, does not contemplate any state in this
jurisdiction other than the Philippine State, much less does it
provide for a transitory status that aims to prepare any part of
Philippine territory for independence.
Even the mere concept animating many of the MOA-AD’s
provisions, therefore, already requires for its validity the
amendment of constitutional provisions, specifically the
following provisions of Article X:
SECTION 1. The territorial and political subdivisions of the
Republic of the Philippines are the provinces, cities,
municipalities, and barangays. There shall be autonomous
regions in Muslim Mindanao and the Cordilleras as hereinafter
provided.
SECTION 15. There shall be created autonomous regions in
Muslim Mindanao and in the Cordilleras consisting of provinces,
cities, municipalities, and geographical areas sharing common
and distinctive historical and cultural heritage, economic and
social structures, and other relevant characteristics within the
framework of this Constitution and the national sovereignty
as well as territorial integrity of the Republic of the
Philippines.
The BJE is a far more powerful
entity than the autonomous region
recognized in the Constitution
It is not merely an expanded version of the ARMM, the status of
its relationship with the national government being
fundamentally different from that of the ARMM. Indeed, BJE is
a state in all but name as it meets the criteria of a state laid
down in the Montevideo Convention,[154][154] namely,
a permanent population, a defined territory, a government, and
a capacity to enter into relations with other states.
Even assuming arguendo that the MOA-AD would
necessarily sever any portion of Philippine territory, the spirit
animating it – which has betrayed itself by its use of the concept
of association – runs counter to the national sovereignty and
territorial integrity of the Republic.
under the Constitution, precisely because what these areas voted
for then was their inclusion in the ARMM, not the BJE.
The defining concept underlying the relationship between the
national government and the BJE being itself contrary to the
present Constitution, it is not surprising that many of the
The MOA-AD, moreover, would not
specific provisions of the MOA-AD on the formation and
comply with Article X, Section 20 of
powers of the BJE are in conflict with the Constitution and
the Constitution
the laws.
Article X, Section 18 of the Constitution provides that since that provision defines the powers of autonomous regions as
“[t]he creation of the autonomous region shall be effective follows:
when approved by a majority of the votes cast by the constituent
units in a plebiscite called for the purpose, provided that only
SECTION 20. Within its territorial jurisdiction and subject to the
provinces, cities, and geographic areas voting favorably in provisions of this Constitution and national laws, the organic act
of autonomous regions shall provide for legislative powers over:
such plebiscite shall be included in the autonomous region.”
(Emphasis supplied)
(1) Administrative organization;
(2) Creation of sources of revenues;
As reflected above, the BJE is more of a state than an (3) Ancestral domain and natural resources;
autonomous region. But even assuming that it is covered by the (4) Personal, family, and property relations;
term “autonomous region” in the constitutional provision just (5) Regional urban and rural planning development;
quoted, the MOA-AD would still be in conflict with it. Under (6) Economic, social, and tourism development;
paragraph 2(c) on TERRITORY in relation to 2(d) and 2(e), the (7) Educational policies;
present geographic area of the ARMM and, in addition, the (8) Preservation and development of the cultural heritage;
and
municipalities of Lanao del Norte which voted for inclusion in
(9) Such other matters as may be authorized by law for the
the ARMM during the 2001 plebiscite – Baloi, Munai,
promotion of the general welfare of the people of the region.
Nunungan, Pantar, Tagoloan and Tangkal – are automatically (Underscoring supplied)
not
part of the BJE without need of another plebiscite, in contrast to
the areas under Categories A and B mentioned earlier in the
overview. That the present components of the ARMM and the
Again on the premise that the BJE may be regarded as an
above-mentioned municipalities voted for inclusion therein in
autonomous region, the MOA-AD would require an amendment
2001, however, does not render another plebiscite unnecessary

that would expand the above-quoted provision. The mere passage
of new legislation pursuant to sub-paragraph No. 9 of said
constitutional provision would not suffice, since any new law that
might vest in the BJE the powers found in the MOA-AD must,
itself, comply with other provisions of the Constitution. It would
not do, for instance, to merely pass legislation vesting the BJE
with treaty-making power in order to accommodate paragraph 4
of the strand on RESOURCES which states: “The BJE is free to
enter into any economic cooperation and trade relations with
foreign countries: provided, however, that such relationships and
understandings do not include aggression against the
Government of the Republic of the Philippines x x x.” Under our
constitutional system, it is only the President who has that
power. Pimentel v. Executive Secretary[155][155] instructs:
In our system of government, the President, being the
head of state, is regarded as the sole organ and authority in
external relations and is the country's sole representative
with foreign nations. As the chief architect of foreign policy, the
President acts as the country's mouthpiece with respect to
international affairs. Hence, the President is vested with the
authority to deal with foreign states and governments, extend or
withhold recognition, maintain diplomatic relations, enter into
treaties, and otherwise transact the business of foreign
relations. In the realm of treaty-making, the President has the
sole authority to negotiate with other states. (Emphasis and
underscoring supplied)
Article II, Section 22 of the Constitution must also be
amended if the scheme envisioned in the MOA-AD is to be
effected. That constitutional provision states: “The State
recognizes and promotes the rights of indigenous cultural
communities within the framework of national unity and
development.” (Underscoring
supplied) An associative arrangement does not uphold national
unity. While there may be a semblance of unity because of the
associative ties between the BJE and the national
government, the act of placing a portion of Philippine territory in
a status which, in international practice, has generally been
a preparation for independence, is certainly not conducive
to national unity.
Besides being irreconcilable with the Constitution, the MOA-AD
is also inconsistent with prevailing statutory law, among
which are R.A. No. 9054[156][156] or the Organic Act of the
ARMM, and the IPRA.[157][157]
Article X, Section 3 of the Organic Act of the ARMM is
a bar to the adoption of the definition of “Bangsamoro
people” used in the MOA-AD. Paragraph 1 on CONCEPTS
AND PRINCIPLES states:
1. It is the birthright of all Moros and all Indigenous peoples of
Mindanao to identify themselves and be accepted as
“Bangsamoros”. The Bangsamoro people refers to those who
are natives or original inhabitants of Mindanao and its
adjacent islands including Palawan and the Sulu archipelago at
the time of conquest or colonization of its descendants whether
mixed or of full blood. Spouses and their descendants are
classified as Bangsamoro. The freedom of choice of the
Indigenous people shall be respected. (Emphasis and
underscoring supplied)
This use of the term Bangsamoro sharply contrasts with
that found in the Article X, Section 3 of the Organic Act, which,
rather than lumping together the identities of the Bangsamoro and
other indigenous peoples living in Mindanao,
clearly distinguishes between Bangsamoro people and Tribal
peoples, as follows:
“As used in this Organic Act, the phrase “indigenous cultural
community” refers to Filipino citizens residing in the
autonomous region who are:
(a) Tribal peoples. These are citizens whose social, cultural and
economic conditions distinguish them from other sectors of the
national community; and
(b) Bangsa Moro people. These are citizens who are believers
in Islam and who have retained some or all of their own social,
economic, cultural, and political institutions.”
Respecting the IPRA, it lays down the prevailing procedure
for the delineation and recognition of ancestral domains. The
MOA-AD’s manner of delineating the ancestral domain of the
Bangsamoro people is a clear departure from that procedure. By
paragraph 1 of TERRITORY, the Parties simply agree that,
subject to the delimitations in the agreed Schedules, “[t]he
Bangsamoro homeland and historic territory refer to the land
mass as well as the maritime, terrestrial, fluvial and alluvial
domains, and the aerial domain, the atmospheric space above it,
embracing the Mindanao-Sulu-Palawan geographic region.”
Chapter VIII of the IPRA, on the other hand, lays down a
detailed procedure, as illustrated in the following provisions
thereof:
SECTION 52. Delineation Process. — The identification and
delineation of ancestral domains shall be done in accordance with
the following procedures:
xxxx
b) Petition for Delineation. — The process of delineating a
specific perimeter may be initiated by the NCIP with the consent
of the ICC/IP concerned, or through a Petition for Delineation
filed with the NCIP, by a majority of the members of the
ICCs/IPs;
c) Delineation Proper. — The official delineation of
ancestral domain boundaries including census of all community
members therein, shall be immediately undertaken by the
Ancestral Domains Office upon filing of the application by the
ICCs/IPs concerned. Delineation will be done in coordination
with the community concerned and shall at all times include
genuine involvement and participation by the members of the
communities concerned;
d) Proof Required. — Proof of Ancestral Domain Claims
shall include the testimony of elders or community under oath,
and other documents directly or indirectly attesting to the
possession or occupation of the area since time immemorial by
such ICCs/IPs in the concept of owners which shall be any one
(1) of the following authentic documents:
1) Written accounts of the ICCs/IPs customs and traditions;
2) Written accounts of the ICCs/IPs political structure and
institution;
3) Pictures showing long term occupation such as those of old
improvements, burial grounds, sacred places and old villages;
4) Historical accounts, including pacts and agreements
concerning boundaries entered into by the ICCs/IPs concerned
with other ICCs/IPs;
5) Survey plans and sketch maps;
6) Anthropological data;
7) Genealogical surveys;

8) Pictures and descriptive histories of traditional communal
forests and hunting grounds;
9) Pictures and descriptive histories of traditional landmarks
such as mountains, rivers, creeks, ridges, hills, terraces and the
like; and
10) Write-ups of names and places derived from the native dialect
of the community.
e) Preparation of Maps. — On the basis of such
investigation and the findings of fact based thereon, the Ancestral
Domains Office of the NCIP shall prepare a perimeter map,
complete with technical descriptions, and a description of the
natural features and landmarks embraced therein;
f) Report of Investigation and Other Documents. — A
complete copy of the preliminary census and a report of
investigation, shall be prepared by the Ancestral Domains Office
of the NCIP;
g) Notice and Publication. — A copy of each document,
including a translation in the native language of the ICCs/IPs
concerned shall be posted in a prominent place therein for at least
fifteen (15) days. A copy of the document shall also be posted at
the local, provincial and regional offices of the NCIP, and shall
be published in a newspaper of general circulation once a week
for two (2) consecutive weeks to allow other claimants to file
opposition thereto within fifteen (15) days from date of such
publication: Provided, That in areas where no such newspaper
exists, broadcasting in a radio station will be a valid substitute:
Provided, further, That mere posting shall be deemed sufficient
if both newspaper and radio station are not available;
h) Endorsement to NCIP. — Within fifteen (15) days from
publication, and of the inspection process, the Ancestral Domains
Office shall prepare a report to the NCIP endorsing a favorable
action upon a claim that is deemed to have sufficient proof.
However, if the proof is deemed insufficient, the Ancestral
Domains Office shall require the submission of additional
evidence: Provided, That the Ancestral Domains Office shall
reject any claim that is deemed patently false or fraudulent after
inspection and verification: Provided, further, That in case of
rejection, the Ancestral Domains Office shall give the applicant
due notice, copy furnished all concerned, containing the grounds
for denial. The denial shall be appealable to the NCIP: Provided,
furthermore, That in cases where there are conflicting claims
among ICCs/IPs on the boundaries of ancestral domain claims,
the Ancestral Domains Office shall cause the contending parties
to meet and assist them in coming up with a preliminary
resolution of the conflict, without prejudice to its full
adjudication according to the section below.
xxxx
To remove all doubts about the irreconcilability of the MOA-AD
with the present legal system, a discussion of not only the
Constitution and domestic statutes, but also of international law
is in order, for
Article II, Section 2 of the Constitution states that the
Philippines “adopts the generally accepted principles of
international law as part of the law of the land.”
Applying this provision of the Constitution, the Court, in Mejoff
v. Director of Prisons,[158][158] held that the Universal Declaration
of Human Rights is part of the law of the land on account of
which it ordered the release on bail of a detained alien of Russian
descent whose deportation order had not been executed even after
two years. Similarly, the Court in Agustin v. Edu[159][159] applied
the aforesaid constitutional provision to the 1968 Vienna
Convention on Road Signs and Signals.
International law has long recognized the right to self-
determination of “peoples,” understood not merely as the entire
population of a State but also a portion thereof. In considering the
question of whether the people of Quebec had a right to
unilaterally secede from Canada, the Canadian Supreme Court in
REFERENCE RE SECESSION OF QUEBEC[160][160] had
occasion to acknowledge that “the right of a people to self-
determination is now so widely recognized in international
conventions that the principle has acquired a status beyond
‘convention’ and is considered a general principle of
international law.”
Among the conventions referred to are the International
[161][161]
Covenant on Civil and Political Rights
International Covenant on Economic, Social and Cultural
Rights[162][162] which state, in Article 1 of both covenants, that all
peoples, by virtue of the right of self-determination, “freely
determine their political status and freely pursue their economic,
social, and cultural development.”
The people’s right to self-determination should not,
however, be understood as extending to a unilateral right of
secession. A distinction should be made between the right of
internal and external self-determination. REFERENCE RE
SECESSION OF QUEBEC is again instructive:
“(ii) Scope of the Right to Self-determination
126. The recognized sources of international law establish
that the right to self-determination of a people is normally
fulfilled through internal self-determination – a people’s
pursuit of its political, economic, social and cultural
development within the framework of an existing state. A
right to external self-determination (which in this case
potentially takes the form of the assertion of a right to
unilateral secession) arises in only the most extreme of cases
and, even then, under carefully defined circumstances. x x x
External self-determination can be defined as in the following
statement from the Declaration on Friendly Relations,
supra, as
The establishment of a sovereign and independent State, the
free association or integration with an independent State or
the emergence into any other political status freely
determined by a people constitute modes of implementing the
right of self-determination by that people. (Emphasis added)
127. The international law principle of self-
determination has evolved within a framework of respect for
and the the territorial integrity of existing states. The various
international documents that support the existence of a people’s
right to self-determination also contain parallel statements
supportive of the conclusion that the exercise of such a right must
be sufficiently limited to prevent threats to an existing state’s
territorial integrity or the stability of relations between sovereign
states.
x x x x (Emphasis, italics and underscoring supplied)
The Canadian Court went on to discuss the exceptional
cases in which the right to external self-determination can arise,
namely, where a people is under colonial rule, is subject to
foreign domination or exploitation outside a colonial context, and
– less definitely but asserted by a number of commentators – is
blocked from the meaningful exercise of its right to internal self-
determination. The Court ultimately held that the population of
Quebec had no right to secession, as the same is not under
colonial rule or foreign domination, nor is it being deprived of the
freedom to make political choices and pursue economic, social
and cultural development, citing that Quebec is equitably
represented in legislative, executive and judicial institutions
within Canada, even occupying prominent positions therein.

The exceptional nature of the right of secession is further
exemplified in the REPORT OF THE INTERNATIONAL
COMMITTEE OF JURISTS ON THE LEGAL ASPECTS OF
THE AALAND ISLANDS QUESTION.[163][163] There, Sweden
presented to the Council of the League of Nations the question of
whether the inhabitants of the Aaland Islands should be
authorized to determine by plebiscite if the archipelago should
remain under Finnish sovereignty or be incorporated in the
kingdom of Sweden. The Council, before resolving the question,
appointed an International Committee composed of three jurists
to submit an opinion on the preliminary issue of whether the
dispute should, based on international law, be entirely left to the
domestic jurisdiction of Finland. The Committee stated the rule
as follows:
x x x [I]n the absence of express provisions in
international treaties, the right of disposing of national
territory is essentially an attribute of the sovereignty of every
State. Positive International Law does not recognize the right
of national groups, as such, to separate themselves from the
State of which they form part by the simple expression of a
wish, any more than it recognizes the right of other States to
claim such a separation. Generally speaking, the grant or
refusal of the right to a portion of its population of
determining its own political fate by plebiscite or by some
other method, is, exclusively, an attribute of the sovereignty
of every State which is definitively constituted. A dispute
between two States concerning such a question, under normal
conditions therefore, bears upon a question which International
Law leaves entirely to the domestic jurisdiction of one of the
States concerned. Any other solution would amount to an
infringement of sovereign rights of a State and would involve the
risk of creating difficulties and a lack of stability which would
not only be contrary to the very idea embodied in term “State,”
but would also endanger the interests of the international
community. If this right is not possessed by a large or small
section of a nation, neither can it be held by the State to which
the national group wishes to be attached, nor by any other State.
(Emphasis and underscoring supplied)
The Committee held that the dispute concerning the Aaland
Islands did not refer to a question which is left by international
law to the domestic jurisdiction of Finland, thereby applying the
exception rather than the rule elucidated above. Its ground for
departing from the general rule, however, was a very narrow one,
namely, the Aaland Islands agitation originated at a time when
Finland was undergoing drastic political transformation. The
internal situation of Finland was, according to the Committee, so
abnormal that, for a considerable time, the conditions required for
the formation of a sovereign State did not exist. In the midst of
revolution, anarchy, and civil war, the legitimacy of the Finnish
national government was disputed by a large section of the
people, and it had, in fact, been chased from the capital and
forcibly prevented from carrying out its duties. The armed camps
and the police were divided into two opposing forces. In light of
these circumstances, Finland was not, during the relevant time
period, a “definitively constituted” sovereign state. The
Committee, therefore, found that Finland did not possess the right
to withhold from a portion of its population the option to separate
itself – a right which sovereign nations generally have with
respect to their own populations.
Turning now to the more specific category
of indigenous peoples, this term has been used, in scholarship as
well as international, regional, and state practices, to refer to
groups with distinct cultures, histories, and connections to land
(spiritual and otherwise) that have been forcibly incorporated into
a larger governing society. These groups are regarded as
“indigenous” since they are the living descendants of pre-
invasion inhabitants of lands now dominated by others.
Otherwise stated, indigenous peoples, nations, or communities
are culturally distinctive groups that find themselves engulfed by
settler societies born of the forces of empire and
conquest.[164][164] Examples of groups who have been regarded as
indigenous peoples are the Maori of New Zealand and the
aboriginal peoples of Canada.
As with the broader category of “peoples,” indigenous
peoples situated within states do not have a general right to
independence or secession from those states under international
law,[165][165] but they do have rights amounting to what was
discussed above as the right to internal self-determination.
In a historic development last September 13, 2007, the UN
General Assembly adopted the United Nations Declaration on the
Rights of Indigenous Peoples (UN DRIP) through General
Assembly Resolution 61/295. The vote was 143 to 4, the
Philippines being included among those in favor, and the four
voting against being Australia, Canada, New Zealand, and the
U.S. The Declaration clearly recognized the right of indigenous
peoples to self-determination, encompassing the right to
autonomy or self-government, to wit:
Article 3
Indigenous peoples have the right to self-determination. By
virtue of that right they freely determine their political status and
freely pursue their economic, social and cultural development.
Article 4
Indigenous peoples, in exercising their right to self-
determination, have the right to autonomy or self-
government in matters relating to their internal and local
affairs, as well as ways and means for financing their
autonomous functions.
Article 5
Indigenous peoples have the right to maintain and strengthen
their distinct political, legal, economic, social and cultural
institutions, while retaining their right to participate fully, if they
so choose, in the political, economic, social and cultural life of
the State.
Self-government, as used in international legal discourse
pertaining to indigenous peoples, has been understood as
equivalent to “internal self-determination.”[166][166] The extent of
self-determination provided for in the UN DRIP is more
particularly defined in its subsequent articles, some of which are
quoted hereunder:
Article 8
1. Indigenous peoples and individuals have the right not to be
subjected to forced assimilation or destruction of their culture.
2. States shall provide effective mechanisms for prevention
of, and redress for:
(a) Any action which has the aim or effect of depriving
them of their integrity as distinct peoples, or of their cultural
values or ethnic identities;
(b) Any action which has the aim or effect of dispossessing
them of their lands, territories or resources;
(c) Any form of forced population transfer which has the
aim or effect of violating or undermining any of their rights;
(d) Any form of forced assimilation or integration;
(e) Any form of propaganda designed to promote or incite
racial or ethnic discrimination directed against them.
Article 21
1. Indigenous peoples have the right, without discrimination,
to the improvement of their economic and social conditions,
including, inter alia, in the areas of education, employment,
vocational training and retraining, housing, sanitation, health and
social security.
2. States shall take effective measures and, where appropriate,
special measures to ensure continuing improvement of their
economic and social conditions. Particular attention shall be paid
to the rights and special needs of indigenous elders, women,
youth, children and persons with disabilities.
Article 26
1. Indigenous peoples have the right to the lands,
territories and resources which they have traditionally
owned, occupied or otherwise used or acquired.
2. Indigenous peoples have the right to own, use, develop and
control the lands, territories and resources that they possess by
reason of traditional ownership or other traditional occupation or
use, as well as those which they have otherwise acquired.
3. States shall give legal recognition and protection to these
lands, territories and resources. Such recognition shall be
conducted with due respect to the customs, traditions and land
tenure systems of the indigenous peoples concerned.
Article 30
1. Military activities shall not take place in the lands or
territories of indigenous peoples, unless justified by a relevant
public interest or otherwise freely agreed with or requested by the
indigenous peoples concerned.
2. States shall undertake effective consultations with the
indigenous peoples concerned, through appropriate procedures
and in particular through their representative institutions, prior to
using their lands or territories for military activities.
Article 32
1. Indigenous peoples have the right to determine and develop
priorities and strategies for the development or use of their lands
or territories and other resources.
2. States shall consult and cooperate in good faith with the
indigenous peoples concerned through their own representative
institutions in order to obtain their free and informed consent
prior to the approval of any project affecting their lands or
territories and other resources, particularly in connection with the
development, utilization or exploitation of mineral, water or other
resources.
3. States shall provide effective mechanisms for just and fair
redress for any such activities, and appropriate measures shall be
taken to mitigate adverse environmental, economic, social,
cultural or spiritual impact.
Article 37
1. Indigenous peoples have the right to the recognition,
observance and enforcement of treaties, agreements and other
constructive arrangements concluded with States or their
successors and to have States honour and respect such treaties,
agreements and other constructive arrangements.
2. Nothing in this Declaration may be interpreted as
diminishing or eliminating the rights of indigenous peoples
contained in treaties, agreements and other constructive
arrangements.
Article 38
States in consultation and cooperation with indigenous peoples,
shall take the appropriate measures, including legislative
measures, to achieve the ends of this Declaration.
Assuming that the UN DRIP, like the Universal Declaration
on Human Rights, must now be regarded as embodying
customary international law – a question which the Court need
not definitively resolve here – the obligations enumerated therein
do not strictly require the Republic to grant the Bangsamoro
people, through the instrumentality of the BJE, the particular
rights and powers provided for in the MOA-AD. Even the more
specific provisions of the UN DRIP are general in scope,
allowing for flexibility in its application by the different States.
There is, for instance, no requirement in the UN DRIP that States
now guarantee indigenous peoples their own police and internal
security force. Indeed, Article 8 presupposes that it is the State
which will provide protection for indigenous peoples against acts
like the forced dispossession of their lands – a function that is
normally performed by police officers. If the protection of a right
so essential to indigenous people’s identity is acknowledged to
be the responsibility of the State, then surely the protection of
rights less significant to them as such peoples would also be the
duty of States. Nor is there in the UN DRIP an acknowledgement
of the right of indigenous peoples to the aerial domain and
atmospheric space. What it upholds, in Article 26 thereof, is the
right of indigenous peoples to the lands, territories and resources
which they have traditionally owned, occupied or otherwise used
or acquired.
Moreover, the UN DRIP, while upholding the right of
indigenous peoples to autonomy, does not obligate States to grant
indigenous peoples the near-independent status of an associated
state. All the rights recognized in that document are qualified in
Article 46 as follows:
1. Nothing in this Declaration may be interpreted as
implying for any State, people, group or person any right to
engage in any activity or to perform any act contrary to the
Charter of the United Nations or construed as authorizing or
encouraging any action which would dismember or
impair, totally or in part, the territorial integrity or political
unity of sovereign and independent States.
Even if the UN DRIP were considered as part of the law of
the land pursuant to Article II, Section 2 of the Constitution, it
would not suffice to uphold the validity of the MOA-AD so as to
render its compliance with other laws unnecessary.
It is, therefore, clear that the MOA-AD contains
numerous provisions that cannot be reconciled with the
Constitution and the laws as presently worded. Respondents
proffer, however, that the signing of the MOA-AD alone would
not have entailed any violation of law or grave abuse of discretion
on their part, precisely because it stipulates that the provisions
thereof inconsistent with the laws shall not take effect until these
laws are amended. They cite paragraph 7 of the MOA-AD strand
on GOVERNANCE quoted earlier, but which is reproduced
below for convenience:
7. The Parties agree that the mechanisms and modalities for the
actual implementation of this MOA-AD shall be spelt out in the
Comprehensive Compact to mutually take such steps to enable it
to occur effectively.
Any provisions of the MOA-AD requiring amendments to the
existing legal framework shall come into force upon signing of a
Comprehensive Compact and upon effecting the necessary
changes to the legal framework with due regard to non derogation
of prior agreements and within the stipulated timeframe to be
contained in the Comprehensive Compact.
Indeed, the foregoing stipulation keeps many controversial
provisions of the MOA-AD from coming into force until the
necessary changes to the legal framework are effected. While the
word “Constitution” is not mentioned in the provision now
under consideration or anywhere else in the MOA-AD, the
term “legal framework” is certainly broad enough to include
the Constitution.
Notwithstanding the suspensive clause, however, respondents, by
their mere act of incorporating in the MOA-AD the provisions
thereof regarding the associative relationship between the BJE
and the Central Government, have already violated the
Memorandum of Instructions From The President dated March 1,
2001, which states that the “negotiations shall be conducted in
accordance with x x x the principles of the sovereignty
and territorial integrity of the Republic of the Philippines.”
(Emphasis supplied) Establishing an associative relationship
between the BJE and the Central Government is, for the reasons
already discussed, a preparation for independence, or worse, an
implicit acknowledgment of an independent status already
prevailing.
Even apart from the above-mentioned Memorandum, however,
the MOA-AD is defective because the suspensive clause is
invalid, as discussed below.
The authority of the GRP Peace Negotiating Panel to
negotiate with the MILF is founded on E.O. No. 3, Section 5(c),
which states that there shall be established Government Peace
Negotiating Panels for negotiations with different rebel groups to
be “appointed by the President as her official emissaries to
conduct negotiations, dialogues, and face-to-face discussions
with rebel groups.” These negotiating panels are to report to the
President, through the PAPP on the conduct and progress of the
negotiations.
It bears noting that the GRP Peace Panel, in exploring lasting
solutions to the Moro Problem through its negotiations with the
MILF, was not restricted by E.O. No. 3 only to those options
available under the laws as they presently stand. One of the
components of a comprehensive peace process, which E.O. No.
3 collectively refers to as the “Paths to Peace,” is the pursuit of
social, economic, and political reforms which may require new
legislation or even constitutional amendments. Sec. 4(a) of E.O.
No. 3, which reiterates Section 3(a), of E.O.
[167][167]
125, states:
SECTION 4. The Six Paths to Peace. – The components of the
comprehensive peace process comprise the processes known as
the “Paths to Peace”. These component processes are interrelated
and not mutually exclusive, and must therefore be pursued
simultaneously in a coordinated and integrated fashion. They
shall include, but may not be limited to, the following:
a. PURSUIT OF SOCIAL, ECONOMIC AND POLITICAL
REFORMS. This component involves the vigorous
implementation of various policies, reforms, programs and
projects aimed at addressing the root causes of internal
armed conflicts and social unrest. This may require
administrative action, new legislation or even constitutional
amendments.
x x x x (Emphasis supplied)
The MOA-AD, therefore, may reasonably be perceived as an
attempt of respondents to address, pursuant to this provision of
E.O. No. 3, the root causes of the armed conflict in Mindanao.
The E.O. authorized them to “think outside the box,” so to speak.
Hence, they negotiated and were set on signing the MOA-AD that
included various social, economic, and political reforms which
cannot, however, all be accommodated within the present legal
framework, and which thus would require new legislation and
constitutional amendments.
The inquiry on the legality of the “suspensive clause,”
however, cannot stop here, because it must be asked
No. whether the President herself may exercise the power
delegated to the GRP Peace Panel under E.O. No. 3, Sec. 4(a).
The President cannot delegate a power that she herself does not
possess. May the President, in the course of peace negotiations,
agree to pursue reforms that would require new legislation and
constitutional amendments, or should the reforms be restricted
only to those solutions which the present laws allow? The answer
to this question requires a discussion of
the extent of the President’s power to conduct peace
negotiations.
That the authority of the President to conduct peace
negotiations with rebel groups is not explicitly mentioned in the
Constitution does not mean that she has no such authority.
In Sanlakas v. Executive Secretary,[168][168] in issue was the
authority of the President to declare a state of rebellion – an
authority which is not expressly provided for in the Constitution.
The Court held thus:
“In her ponencia in Marcos v. Manglapus, Justice Cortes
put her thesis into jurisprudence. There, the Court, by a slim 8-7
margin, upheld the President's power to forbid the return of her
exiled predecessor. The rationale for the majority's ruling rested
on the President's
. . . unstated residual powers which are implied from
the grant of executive power and which are necessary for her
to comply with her duties under the Constitution. The powers
of the President are not limited to what are expressly
enumerated in the article on the Executive Department and
in scattered provisions of the Constitution. This is so,
notwithstanding the avowed intent of the members of the
Constitutional Commission of 1986 to limit the powers of the
President as a reaction to the abuses under the regime of Mr.
Marcos, for the result was a limitation of specific powers of the
President, particularly those relating to the commander-in-chief
clause, but not a diminution of the general grant of executive
power.
Thus, the President's authority to declare a state of
rebellion springs in the main from her powers as chief
executive and, at the same time, draws strength from her
Commander-in-Chief powers. x x x (Emphasis and
underscoring supplied)
Similarly, the President’s power to conduct peace negotiations is
implicitly included in her powers as Chief Executive and
Commander-in-Chief. As Chief Executive, the President has the
general responsibility to promote public peace, and as
Commander-in-Chief, she has the more specific duty to prevent
and suppress rebellion and lawless violence.[169][169]
As the experience of nations which have similarly gone
through internal armed conflict will show, however, peace is
rarely attained by simply pursuing a military solution.
Oftentimes, changes as far-reaching as a fundamental
reconfiguration of the nation’s constitutional structure is
required. The observations of Dr. Kirsti Samuels are
enlightening, to wit:
x x x [T]he fact remains that a successful political and governance
transition must form the core of any post-conflict peace-building
mission. As we have observed in Liberia and Haiti over the last
ten years, conflict cessation without modification of the political
environment, even where state-building is undertaken through
technical electoral assistance and institution- or capacity-
building, is unlikely to succeed. On average, more than 50
percent of states emerging from conflict return to
conflict. Moreover, a substantial proportion of transitions have
resulted in weak or limited democracies.
The design of a constitution and its constitution-making process
can play an important role in the political and governance
transition. Constitution-making after conflict is an opportunity to
create a common vision of the future of a state and a road map on
how to get there. The constitution can be partly a peace agreement
and partly a framework setting up the rules by which the new
democracy will operate.[170][170]
In the same vein, Professor Christine Bell, in her article on
the nature and legal status of peace agreements, observed that the
typical way that peace agreements establish or confirm
mechanisms for demilitarization and demobilization is by linking
them to new constitutional structures addressing governance,
elections, and legal and human rights institutions.[171][171]
In the Philippine experience, the link between peace agreements
and constitution-making has been recognized by no less than the
framers of the Constitution. Behind the provisions of the
Constitution on autonomous regions[172][172] is the framers’
intention to implement a particular peace agreement, namely, the
Tripoli Agreement of 1976 between the GRP and the MNLF,
signed by then Undersecretary of National Defense Carmelo Z.
Barbero and then MNLF Chairman Nur Misuari.
MR. ROMULO. There are other speakers; so, although I have
some more questions, I will reserve my right to ask them if they
are not covered by the other speakers. I have only two questions.
I heard one of the Commissioners say that local autonomy
already exists in the Muslim region; it is working very well; it
has, in fact, diminished a great deal of the problems. So, my
question is: since that already exists, why do we have to go into
something new?
MR. OPLE. May I answer that on behalf of Chairman Nolledo.
Commissioner Yusup Abubakar is right that certain definite
steps have been taken to implement the provisions of the
Tripoli Agreement with respect to an autonomous region in
Mindanao. This is a good first step, but there is no question
that this is merely a partial response to the Tripoli Agreement
itself and to the fuller standard of regional autonomy
contemplated in that agreement, and now by state
policy.[173][173] (Emphasis supplied)
The constitutional provisions on autonomy and the statutes
enacted pursuant to them have, to the credit of their drafters, been
partly successful. Nonetheless, the Filipino people are still faced
with the reality of an on-going conflict between the Government
and the MILF. If the President is to be expected to find means for
bringing this conflict to an end and to achieve lasting peace in
Mindanao, then she must be given the leeway to explore, in the
course of peace negotiations, solutions that may require changes
to the Constitution for their implementation. Being uniquely
vested with the power to conduct peace negotiations with rebel
groups, the President is in a singular position to know the precise
nature of their grievances which, if resolved, may bring an end to
hostilities.
The President may not, of course, unilaterally implement the
solutions that she considers viable, but she may not be prevented
from submitting them as recommendations to Congress, which
could then, if it is minded, act upon them pursuant to the legal
procedures for constitutional amendment and revision. In
particular, Congress would have the option, pursuant to Article
XVII, Sections 1 and 3 of the Constitution, to propose the
recommended amendments or revision to the people, call a
constitutional convention, or submit to the electorate the question
of calling such a convention.
While the President does not possess constituent powers –
as those powers may be exercised only by Congress, a
Constitutional Convention, or the people through initiative and
referendum – she may submit proposals for constitutional change
to Congress in a manner that does not involve the arrogation of
constituent powers.
In Sanidad v. COMELEC,[174][174] in issue was the legality
of then President Marcos’ act of directly submitting proposals for
constitutional amendments to a referendum, bypassing the
interim National Assembly which was the body vested by the
1973 Constitution with the power to propose such amendments.
President Marcos, it will be recalled, never convened the interim
National Assembly. The majority upheld the President’s act,
holding that “the urges of absolute necessity” compelled the
President as the agent of the people to act as he did, there being
no interim National Assembly to propose constitutional
amendments. Against this ruling, Justices Teehankee and Muñoz
Palma vigorously dissented. The Court’s concern at present,
however, is not with regard to the point on which it was then
divided in that controversial case, but on that which was not
disputed by either side.
Justice Teehankee’s dissent,[175][175] in particular, bears noting.
While he disagreed that the President may directly submit
proposed constitutional amendments to a referendum, implicit in
his opinion is a recognition that he would have upheld the
President’s action along with the majority had the President
convened the interim National Assembly and coursed his
proposals through it. Thus Justice Teehankee opined:
“Since the Constitution provides for the organization of
the essential departments of government, defines and delimits the
powers of each and prescribes the manner of the exercise of such
powers, and the constituent power has not been granted to but has
been withheld from the President or Prime Minister, it follows
that the President’s questioned decrees proposing and submitting
constitutional amendments directly to the people (without the
intervention of the interim National Assembly in whom the
power is expressly vested) are devoid of constitutional and legal
basis.”[176][176] (Emphasis supplied)
From the foregoing discussion, the principle may be
inferred that the President – in the course of conducting peace
negotiations – may validly consider implementing even those
policies that require changes to the Constitution, but she
may not unilaterally implement them without the intervention
of Congress, or act in any way as if the assent of that body
were assumed as a certainty.
Since, under the present Constitution, the people also have
the power to directly propose amendments through initiative and
referendum, the President may also submit her recommendations
to the people, not as a formal proposal to be voted on in a
plebiscite similar to what President Marcos did in Sanidad, but
for their independent consideration of whether these
recommendations merit being formally proposed through
initiative.
These recommendations, however, may amount to nothing
more than the President’s suggestions to the people, for any
further involvement in the process of initiative by the Chief
Executive may vitiate its character as a genuine
“people’s initiative.” The only initiative recognized by the
Constitution is that which truly proceeds from the people. As the
Court stated in Lambino v. COMELEC:[177][177]
“The Lambino Group claims that their initiative is the ‘people's
voice.’ However, the Lambino Group unabashedly states in
ULAP Resolution No. 2006-02, in the verification of their
petition with the COMELEC, that ‘ULAP maintains its
unqualified support to the agenda of Her Excellency President
Gloria Macapagal-Arroyo for constitutional reforms.’ The
Lambino Group thus admits that their ‘people's’ initiative is an
‘unqualified support to the agenda’ of the incumbent President
to change the Constitution. This forewarns the Court to be wary
of incantations of ‘people's voice’ or ‘sovereign will’ in the
present initiative.”
It will be observed that the President has authority, as stated in
her oath of office,[178][178] only to preserve and defend the
Constitution. Such presidential power does not, however, extend
to allowing her to change the Constitution, but simply to
recommend proposed amendments or revision. As long as she
limits herself to recommending these changes and submits to the
proper procedure for constitutional amendments and revision, her
mere recommendation need not be construed as an
unconstitutional act.
The foregoing discussion focused on the President’s authority to
propose constitutional amendments, since her authority to
propose new legislation is not in controversy. It has been an
accepted practice for Presidents in this jurisdiction to propose
new legislation. One of the more prominent instances the practice
is usually done is in the yearly State of the Nation Address of the
President to Congress. Moreover, the annual general
appropriations bill has always been based on the budget prepared
by the President, which – for all intents and purposes – is a
proposal for new legislation coming from the President.[179][179]
The “suspensive clause” in the MOA-AD viewed in light of
the above-discussed standards
Given the limited nature of the President’s authority to propose
constitutional amendments, she cannot guarantee to any third
party that the required amendments will eventually be put in
place, nor even be submitted to a plebiscite. The most she could
do is submit these proposals as recommendations either to
Congress or the people, in whom constituent powers are vested.
Paragraph 7 on Governance of the MOA-AD states, however,
that all provisions thereof which cannot be reconciled with the
present Constitution and laws “shall come into force upon signing
of a Comprehensive Compact and upon effecting the necessary
changes to the legal framework.” This stipulation does not bear
the marks of a suspensive condition – defined in civil law as a
future and uncertain event – but of a term. It is not a question
of whether the necessary changes to the legal framework will be
effected, but when. That there is no uncertainty being
contemplated is plain from what follows, for the paragraph goes
on to state that the contemplated changes shall be “with due
regard to non derogation of prior agreements and within the
stipulated timeframe to be contained in the Comprehensive
Compact.”
Pursuant to this stipulation, therefore, it is mandatory for the
GRP to effect the changes to the legal framework contemplated
in the MOA-AD – which changes would include constitutional
amendments, as discussed earlier. It bears noting that By the time
these changes are put in place, the MOA-AD itself would be
counted among the “prior agreements” from which there
could be no derogation.
What remains for discussion in the Comprehensive Compact
would merely be the implementing details for these “consensus
points” and, notably, the deadline for effecting the contemplated
changes to the legal framework.
Plainly, stipulation-paragraph 7 on GOVERNANCE
is inconsistent with the limits of the President’s authority to
propose constitutional amendments, it being a virtual
guarantee that the Constitution and the laws of the Republic of
the Philippines will certainly be adjusted to conform to all the
“consensus points” found in the MOA-AD. Hence, it must be
struck down as unconstitutional.
A comparison between the “suspensive clause” of the MOA-AD
with a similar provision appearing in the 1996 final peace
agreement between the MNLF and the GRP is most instructive.
As a backdrop, the parties to the 1996 Agreement stipulated that
it would be implemented in two phases. Phase I covered a three-
year transitional period involving the putting up of new
administrative structures through Executive Order, such as the
Special Zone of Peace and Development (SZOPAD) and the
Southern Philippines Council for Peace and Development
(SPCPD), while Phase II covered the establishment of the new
regional autonomous government through amendment or repeal
of R.A. No. 6734, which was then the Organic Act of the ARMM.
The stipulations on Phase II consisted of specific agreements on
the structure of the expanded autonomous region envisioned by
the parties. To that extent, they are similar to the provisions of the
MOA-AD. There is, however, a crucial difference between the
two agreements. While the MOA-AD virtually guarantees that
the “necessary changes to the legal framework” will be put in
place, the GRP-MNLF final peace agreement states thus:

“Accordingly, these provisions [on Phase II] shall
be recommended by the GRP to Congress for incorporation in
the amendatory or repealing law.”
Concerns have been raised that the MOA-AD would have
given rise to a binding international law obligation on the part of
the Philippines to change its Constitution in conformity thereto,
on the ground that it may be considered either as a binding
agreement under international law, or a unilateral declaration of
the Philippine government to the international community that it
would grant to the Bangsamoro people all the concessions therein
stated. Neither ground finds sufficient support in international
law, however.
The MOA-AD, as earlier mentioned in the overview thereof,
would have included foreign dignitaries as signatories. In
addition, representatives of other nations were invited to witness
its signing in Kuala Lumpur. These circumstances readily lead
one to surmise that the MOA-AD would have had the status of a
binding international agreement had it been signed. An
examination of the prevailing principles in international law,
however, leads to the contrary conclusion.
The Decision on CHALLENGE TO JURISDICTION: LOMÉ
[180][180]
ACCORD AMNESTY (the Lomé Accord case) of the
Special Court of Sierra Leone is enlightening. The Lomé Accord
was a peace agreement signed on July 7, 1999 between the
Government of Sierra Leone and the Revolutionary United Front
(RUF), a rebel group with which the Sierra Leone Government
had been in armed conflict for around eight years at the time of
signing. There were non-contracting signatories to the agreement,
among which were the Government of the Togolese Republic,
the Economic Community of West African States, and the UN.
On January 16, 2002, after a successful negotiation between the
UN Secretary-General and the Sierra Leone Government, another
agreement was entered into by the UN and that Government
whereby the Special Court of Sierra Leone was established. The
sole purpose of the Special Court, an international court, was to
try persons who bore the greatest responsibility for serious
violations of international humanitarian law and Sierra Leonean
law committed in the territory of Sierra Leone since November
30, 1996.
Among the stipulations of the Lomé Accord was a provision for
the full pardon of the members of the RUF with respect to
anything done by them in pursuit of their objectives as members
of that organization since the conflict began.
In the Lomé Accord case, the Defence argued that the Accord
created an internationally binding obligation not to prosecute
the beneficiaries of the amnesty provided therein, citing, among
other things, the participation of foreign dignitaries and
international organizations in the finalization of that agreement.
The Special Court, however, rejected this argument, ruling that
the Lome Accord is not a treaty and that it can only create
binding obligations and rights between the parties in municipal
law, not in international law. Hence, the Special Court held, it is
ineffective in depriving an international court like it of
jurisdiction.
“37. In regard to the nature of a negotiated settlement of
an internal armed conflict it is easy to assume and to argue with
some degree of plausibility, as Defence counsel for the
defendants seem to have done, that the mere fact that in
addition to the parties to the conflict, the document
formalizing the settlement is signed by foreign heads of state
or their representatives and representatives of international
organizations, means the agreement of the parties is
internationalized so as to create obligations in international
law.
xxxx
40. Almost every conflict resolution will involve the parties to
the conflict and the mediator or facilitator of the settlement, or
persons or bodies under whose auspices the settlement took place
but who are not at all parties to the conflict, are not contracting
parties and who do not claim any obligation from the contracting
parties or incur any obligation from the settlement.
41. In this case, the parties to the conflict are the lawful
authority of the State and the RUF which has no status of
statehood and is to all intents and purposes a faction within
the state. The non-contracting signatories of the Lomé
Agreement were moral guarantors of the principle that, in
the terms of Article XXXIV of the Agreement, “this peace
agreement is implemented with integrity and in good faith by
both parties”. The moral guarantors assumed no legal
obligation. It is recalled that the UN by its representative
appended, presumably for avoidance of doubt, an understanding
of the extent of the agreement to be implemented as not including
certain international crimes.
42. An international agreement in the nature of a treaty must
create rights and obligations regulated by international law so that
a breach of its terms will be a breach determined under
international law which will also provide principle means of
enforcement. The Lomé Agreement created neither rights nor
obligations capable of being regulated by international
law. An agreement such as the Lomé Agreement which
brings to an end an internal armed conflict no doubt creates
a factual situation of restoration of peace that the
international community acting through the Security Council
may take note of. That, however, will not convert it to an
international agreement which creates an obligation
enforceable in international, as distinguished from municipal,
law. A breach of the terms of such a peace agreement resulting in
resumption of internal armed conflict or creating a threat to peace
in the determination of the Security Council may indicate a
reversal of the factual situation of peace to be visited with
possible legal consequences arising from the new situation of
conflict created. Such consequences such as action by the
Security Council pursuant to Chapter VII arise from the situation
and not from the agreement, nor from the obligation imposed by
it. Such action cannot be regarded as a remedy for the breach. A
peace agreement which settles an internal armed conflict
cannot be ascribed the same status as one which settles an
international armed conflict which, essentially, must be
between two or more warring States. The Lomé Agreement
cannot be characterised as an international instrument. x x
x” (Emphasis, italics and underscoring supplied)
Similarly, that the MOA-AD would have been signed by
representatives of States and international organizations not
parties to the Agreement would not have sufficed to vest in it a
binding character under international law.
In another vein, concern has been raised that the MOA-AD would
amount to a unilateral declaration of the Philippine State, binding
under international law, that it would comply with all the
stipulations stated therein, with the result that it would have to
amend its Constitution accordingly regardless of the true will of
the people. Cited as authority for this view is Australia v.
France,[181][181] also known as the Nuclear Tests Case, decided by
the International Court of Justice (ICJ).
In the Nuclear Tests Case, Australia challenged before the ICJ
the legality of France’s nuclear tests in the South Pacific. France
refused to appear in the case, but public statements from its
President, and similar statements from other French officials
including its Minister of Defence, that its 1974 series of

atmospheric tests would be its last, persuaded the ICJ to dismiss
the case.[182][182] Those statements, the ICJ held, amounted to a
legal undertaking addressed to the international community,
which required no acceptance from other States for it to become
effective.
Essential to the ICJ ruling is its finding that the French
government intended to be bound to the international
community in issuing its public statements, viz:
43. It is well recognized that declarations made by way
of unilateral acts, concerning legal or factual situations, may have
the effect of creating legal obligations. Declarations of this kind
may be, and often are, very specific. When it is the intention of
the State making the declaration that it should become bound
according to its terms, that intention confers on the
declaration the character of a legal undertaking, the State
being thenceforth legally required to follow a course of
conduct consistent with the declaration. An undertaking of this
kind, if given publicly, and with an intent to be bound, even
though not made within the context of international negotiations,
is binding. In these circumstances, nothing in the nature of a quid
pro quo nor any subsequent acceptance of the declaration, nor
even any reply or reaction from other States, is required for the
declaration to take effect, since such a requirement would be
inconsistent with the strictly unilateral nature of the juridical act
by which the pronouncement by the State was made.
44. Of course, not all unilateral acts imply obligation; but a
State may choose to take up a certain position in relation to a
particular matter with the intention of being bound–the
intention is to be ascertained by interpretation of the
act. When States make statements by which their freedom of
action is to be limited, a restrictive interpretation is called for.
xxxx
51. In announcing that the 1974 series of atmospheric tests
would be the last, the French Government conveyed to the
world at large, including the Applicant, its intention
effectively to terminate these tests. It was bound to assume
that other States might take note of these statements and rely
on their being effective. The validity of these statements and
their legal consequences must be considered within the
general framework of the security of international
intercourse, and the confidence and trust which are so essential
in the relations among States. It is from the actual substance of
these statements, and from the circumstances attending their
making, that the legal implications of the unilateral act must
be deduced. The objects of these statements are clear and
they were addressed to the international community as a
whole, and the Court holds that they constitute an
undertaking possessing legal effect. The Court
considers *270 that the President of the Republic, in deciding
upon the effective cessation of atmospheric tests, gave an
undertaking to the international community to which his words
were addressed. x x x (Emphasis and underscoring supplied)
As gathered from the above-quoted ruling of the ICJ, public
statements of a state representative may be construed as
a unilateral declaration only when the following conditions are
present: the statements were clearly addressed to the international
community, the state intended to be bound to that community by
its statements, and that not to give legal effect to those statements
would be detrimental to the security of international intercourse.
Plainly, unilateral declarations arise only in peculiar
circumstances.
The limited applicability of the Nuclear Tests Case ruling
was recognized in a later case decided by the ICJ entitled Burkina
Faso v. Mali,[183][183] also known as the Case Concerning the
Frontier Dispute. The public declaration subject of that case was
a statement made by the President of Mali, in an interview by a
foreign press agency, that Mali would abide by the decision to be
issued by a commission of the Organization of African Unity on
a frontier dispute then pending between Mali and Burkina Faso.
Unlike in the Nuclear Tests Case, the ICJ held that the statement
of Mali’s President was not a unilateral act with legal
implications. It clarified that its ruling in the Nuclear Tests case In one important respect, the circumstances surrounding the
rested on the peculiar circumstances surrounding the French MOA-AD are closer to that of Burkina Faso wherein, as already
declaration subject thereof, to wit: discussed, the Mali President’s statement was not held to be a
40. In order to assess the intentions of the author of a unilateral binding unilateral declaration by the ICJ. As in that case, there
act, account must be taken of all the factual circumstances in
which the act occurred. For example, in the Nuclear Tests cases, was also nothing to hinder the Philippine panel, had it really been
the Court took the view that since the applicant States were
its intention to be bound to other States, to manifest that intention
not the only ones concerned at the possible continuance of
atmospheric testing by the French Government, that by formal agreement. Here, that formal agreement would have
Government's unilateral declarations had ‘conveyed to the
world at large, including the Applicant, its intention come about by the inclusion in the MOA-AD of a clear
effectively to terminate these tests‘ (I.C.J. Reports 1974, p. 269,
para. 51; p. 474, para. 53). In the particular circumstances of commitment to be legally bound to the international community,
those cases, the French Government could not express an
intention to be bound otherwise than by unilateral not just the MILF, and by an equally clear indication that the
declarations. It is difficult to see how it could have accepted
signatures of the participating states-representatives would
the terms of a negotiated solution with each of the applicants
without thereby jeopardizing its contention that its conduct constitute an acceptance of that commitment. Entering into such
was lawful. The circumstances of the present case are
radically different. Here, there was nothing to hinder the a formal agreement would not have resulted in a loss of face for
Parties from manifesting an intention to accept the binding
character of the conclusions of the Organization of African the Philippine government before the international community,
Unity Mediation Commission by the normal method: a
which was one of the difficulties that prevented the French
formal agreement on the basis of reciprocity. Since no
agreement of this kind was concluded between the Parties, the
Government from entering into a formal agreement with other
Chamber finds that there are no grounds to interpret the
declaration made by Mali's head of State on 11 April 1975 as a countries. That the Philippine panel did not enter into such a
unilateral act with legal implications in regard to the present case.
(Emphasis and underscoring supplied) formal agreement suggests that it had no intention to be bound to
Assessing the MOA-AD in light of the above criteria, it would the international community. On that ground, the MOA-AD
not have amounted to a unilateral declaration on the part of the
Philippine State to the international community. The Philippine may not be considered a unilateral declaration under
panel did not draft the same with the clear intention of being
international law.
bound thereby to the international community as a whole or to
any State, but only to the MILF. While there were States and
international organizations involved, one way or another, in the The MOA-AD not being a document that can bind the
negotiation and projected signing of the MOA-AD, they
participated merely as witnesses or, in the case of Malaysia, as Philippines under international law notwithstanding,
facilitator. As held in the Lomé Accord case, the mere fact that in
addition to the parties to the conflict, the peace settlement is respondents’ almost consummated act of guaranteeing
signed by representatives of states and international organizations
does not mean that the agreement is internationalized so as to amendments to the legal framework is, by itself, sufficient to
create obligations in international law. constitute grave abuse of discretion. The grave abuse lies not
in the fact that they considered, as a solution to the Moro
Since the commitments in the MOA-AD were not addressed to
Problem, the creation of a state within a state, but in their
States, not to give legal effect to such commitments would not be
brazen willingness to guarantee that Congress and the
detrimental to the security of international intercourse – to the
sovereign Filipino people would give their imprimatur to
trust and confidence essential in the relations among States.
their solution. Upholding such an act would amount to
authorizing a usurpation of the constituent powers vested only in
Congress, a Constitutional Convention, or the people themselves
through the process of initiative, for the only way that the
Executive can ensure the outcome of the amendment process is
through an undue influence or interference with that process.
The sovereign people may, if it so desired, go to the extent of
giving up a portion of its own territory to the Moros for the sake
of peace, for it can change the Constitution in any it wants, so
long as the change is not inconsistent with what, in international
[184][184]
law, is known as Jus Cogens. Respondents, however, may
not preempt it in that decision.
SUMMARY
The petitions are ripe for adjudication. The failure of respondents
to consult the local government units or communities affected
constitutes a departure by respondents from their mandate under
E.O. No. 3. Moreover, respondents exceeded their authority by
the mere act of guaranteeing amendments to the Constitution.
Any alleged violation of the Constitution by any branch of
government is a proper matter for judicial review.
As the petitions involve constitutional issues which are of
paramount public interest or of transcendental importance, the
Court grants the petitioners, petitioners-in-intervention and
intervening respondents the requisite locus standi in keeping
with the liberal stance adopted in David v. Macapagal-Arroyo.
Contrary to the assertion of respondents that the non-
signing of the MOA-AD and the eventual dissolution of the GRP
Peace Panel mooted the present petitions, the Court finds that the
present petitions provide an exception to the “moot and
academic” principle in view of (a) the grave violation of the
Constitution involved; (b) the exceptional character of the
situation and paramount public interest; (c) the need to formulate
controlling principles to guide the bench, the bar, and the public;
and (d) the fact that the case is capable of repetition yet evading
review.
The MOA-AD is a significant part of a series of agreements
necessary to carry out the GRP-MILF Tripoli Agreement on
Peace signed by the government and the MILF back in June 2001.
Hence, the present MOA-AD can be renegotiated or another one
drawn up that could contain similar or significantly dissimilar
provisions compared to the original.
The Court, however, finds that the prayers for mandamus
have been rendered moot in view of the respondents’ action in
providing the Court and the petitioners with the official copy of
the final draft of the MOA-AD and its annexes.
The people’s right to information on matters of public
concern under Sec. 7, Article III of the Constitution is in splendid
symmetry with the state policy of full public disclosure of all its
transactions involving public interest under Sec. 28, Article II of
the Constitution. The right to information guarantees the right of
the people to demand information, while Section 28 recognizes
the duty of officialdom to give information even if nobody
demands. The complete and effective exercise of the right to
information necessitates that its complementary provision on
public disclosure derive the same self-executory nature, subject
only to reasonable safeguards or limitations as may be provided
by law
The contents of the MOA-AD is a matter of paramount
public concern involving public interest in the highest order. In
declaring that the right to information contemplates steps and
negotiations leading to the consummation of the contract,
jurisprudence finds no distinction as to the executory nature or
commercial character of the agreement.
An essential element of these twin freedoms is to keep a
continuing dialogue or process of communication between the
government and the people. Corollary to these twin rights is the
design for feedback mechanisms. The right to public consultation
was envisioned to be a species of these public rights.
At least three pertinent laws animate these constitutional
imperatives and justify the exercise of the people’s right to be
consulted on relevant matters relating to the peace agenda.
One, E.O. No. 3 itself is replete with mechanics for
continuing consultations on both national and local levels and for
a principal forum for consensus-building. In fact, it is the duty of
the Presidential Adviser on the Peace Process to conduct regular
dialogues to seek relevant information, comments, advice, and
recommendations from peace partners and concerned sectors of
society.
Two, Republic Act No. 7160 or the Local Government
Code of 1991 requires all national offices to conduct
consultations before any project or program critical to the
environment and human ecology including those that may call for
the eviction of a particular group of people residing in such
locality, is implemented therein. The MOA-AD is one peculiar
program that unequivocally and unilaterally vests ownership of a
vast territory to the Bangsamoro people, which could pervasively
and drastically result to the diaspora or displacement of a great
number of inhabitants from their total environment.
Three, Republic Act No. 8371 or the Indigenous Peoples
Rights Act of 1997 provides for clear-cut procedure for the
recognition and delineation of ancestral domain, which entails,
among other things, the observance of the free and prior informed
consent of the Indigenous Cultural Communities/Indigenous
Peoples. Notably, the statute does not grant the Executive
Department or any government agency the power to delineate
and recognize an ancestral domain claim by mere agreement or
compromise.
The invocation of the doctrine of executive privilege as a
defense to the general right to information or the specific right to
consultation is untenable. The various explicit legal provisions
fly in the face of executive secrecy. In any event, respondents
effectively waived such defense after it unconditionally disclosed
the official copies of the final draft of the MOA-AD, for judicial
compliance and public scrutiny.
IN SUM, the Presidential Adviser on the Peace Process
committed grave abuse of discretion when he failed to carry out
the pertinent consultation process, as mandated by E.O. No. 3,
Republic Act No. 7160, and Republic Act No. 8371. The furtive
process by which the MOA-AD was designed and crafted runs
contrary to and in excess of the legal authority, and amounts to a
whimsical, capricious, oppressive, arbitrary and despotic exercise
thereof. It illustrates a gross evasion of positive duty and a virtual
refusal to perform the duty enjoined.
The MOA-AD cannot be reconciled with the present
Constitution and laws. Not only its specific provisions but the
very concept underlying them, namely, the associative
relationship envisioned between the GRP and the
BJE, are unconstitutional, for the concept presupposes that the
associated entity is a state and implies that the same is on its way
to independence.
While there is a clause in the MOA-AD stating that the
provisions thereof inconsistent with the present legal framework
will not be effective until that framework is amended, the same
does not cure its defect. The inclusion of provisions in the MOA-
AD establishing an associative relationship between the BJE and
the Central Government is, itself, a violation of the Memorandum

of Instructions From The President dated March 1, 2001,

addressed to the government peace panel. Moreover, as the clause

is worded, it virtually guarantees that the necessary amendments

to the Constitution and the laws will eventually be put in place.

Neither the GRP Peace Panel nor the President herself is

authorized to make such a guarantee. Upholding such an act

would amount to authorizing a usurpation of the constituent

powers vested only in Congress, a Constitutional Convention, or

the people themselves through the process of initiative, for the

only way that the Executive can ensure the outcome of the

amendment process is through an undue influence or interference

with that process.

While the MOA-AD would not amount to an international

agreement or unilateral declaration binding on the Philippines

under international law, respondents’ act of guaranteeing

amendments is, by itself, already a constitutional violation that

renders the MOA-AD fatally defective

WHEREFORE, respondents’ motion to dismiss is DENIED.

The main and intervening petitions are GIVEN DUE COURSE

and hereby GRANTED

The Memorandum of Agreement on the Ancestral Domain

Aspect of the GRP-MILF Tripoli Agreement on Peace of 2001 is

declared CONTRARY TO LAW AND THE

CONSTITUTION SO ORDERED.