Lotus Case FACTS In 1926, a French steamboat, the S.S. Lotus, collided with a Turkish steamboat, the Botz-Kourt.

This resulted in the sinking of the Turkish boat and the death of eight Turkish nationals. Turkish authorities (plaintiffs) instituted criminal proceedings against the French officer on duty aboard the S.S. Lotus at the time of the collision, Lieutenant Demons (defendant). Demons objected on the ground that Turkey had no jurisdiction to bring charges. The Turkish court overruled this objection and sentenced Demons to a fine and imprisonment. The French government challenged the Turkish courts action as a violation of international law. The two countries submitted their dispute to the Permanent Court of International Justice. The crux of the dispute was whether, under principles of international law, Turkey had jurisdiction to prosecute the case against Demons. This was based on Article 15 of the Convention of Lausanne of 1923, which provides that all questions of jurisdiction as between Turkey and the other contracting parties shall be decided in accordance with the principles of international law. (France v. Turkey) (1927) P.C.I.J., Ser. A, No. 10. By the special agreement of 12 October 1926, the parties requested a decision from the P.C.I.J. as to (1) whether Turkey had, contrary to art. 15 of the Convention of Lausanne of 24 July 1923 (28 L.N.T.S. 152) respecting conditions of residence and jurisdiction, acted in conflict with the principles of international lawand if so what principlesby instituting, following the collision on the high seas between the French steamer Lotus and the Turkish steamer Boz-Kourt and upon the arrival of the French steamer at Constantinopleas well as against the captain of the Turkish steamshipjoint criminal proceedings against M. Demons, officer of the watch on board the Lotus [and (2), if yes] what pecuniary reparation is due to M. Demons, provided, according to the principles of international law, reparation should be made in similar cases? On 7September 1927, the Court held (6 to 6, by the President's casting vote), as to (1), in the negative, ((2) in consequence not arising): there is no rule of international law in regard to collision cases to the effect that criminal proceedings are exclusively within the jurisdiction of the State whose flag is flown. On the contrary, there is concurrent jurisdiction where, as here, the offence consists in an act originating on board a vessel under one flag and whose effects make themselves felt on another vessel under another flag: p. 30. The decision is said to constitute the high-water mark of the positivist and contractual view of international law: International law governs the relations between independent States. The rules of law binding upon States therefore emanate from their own free will as expressed in conventions or by usages generally accepted as expressing principles of law. Restrictions upon the independence of States cannot therefore be presumed: at 18. The decision has been much criticized and a contrary rule was adopted in the Brussels Convention relating to Penal Jurisdiction in Matters of Collision or other Accidents of Navigation of 10 May 1952 (439 U.N.T.S. 234), in art. 11 of the Geneva Convention on the High Seas of 29 April 1958 (450 U.N.T.S 82), and art. 97(1) of the U.N. Convention on the Law of the Sea of 10 December 1982 (1833 U.N.T.S. 3). US VS CANADA FACTS

From 1925 to 1937, a corporation of Canada (defendant) owned a smelter plant which emitted noxious fumes that caused damage in Washington State in the United States (plaintiff). The United States sought injunctive and declaratory relief, as well as damages for air pollution from Canada based on the fumes. A Special Arbitral Tribunal (Tribunal) considered the case. The Trail Smelter Case1 arose in the field of late 1950's and came up with the issue of International Environmental Law. In this case it was damage caused by one State to the environment of the other that triggered the legal claim. Legally the issue was not viewed as different from damage caused to the public or private property, for instance by the inadvertent penetration of a foreign State's territory by armed forces. For the first time an International Tribunal propounded the principle that as State may not use, or allow its national's to use, its own territory in such a manner as to cause injury to a neighboring country'2. The facts of the case are lead below :The Columbia River rises in Canada and flows past a lead and zinc smelter located at Trail, in British Columbia (Canada). The smelter company was alleged to cause damage to trees, crops and land in the American States of Washington.3 The climate from beyond Trail on the United States boundary is dry, but not arid. The smelter was built under U.S. auspices, but had been taken over. In 1906, the Consolidated Mining and Smelting Company of Canada, Limited acquired the smelter plant at Trail. Since that time, the Canadian company, without interruption, has operated the Smelter, and from time to time has greatly added to the plant until it has become one of the best and largest equipped smelting plants on the American continent.4 In 1925 and 1927, stacks, 409 feet high, were erected and the smelter increased its output, resulting in more sulphur dioxide fumes. The higher stacks increased the area of damage in the United States. From 1925 to 1931, damage had been caused in the State of Washington by the sulphur dioxide coming from the Trail Smelter, and the International Joint Commission recommended payment of $350,000 in respect of damage to 1 January, 1932. The United States informed Canada that the conditions were still unsatisfactory and an Arbikal Tribunal was set up to "finally decide" whether further damage had been caused in Washington and the indemnity due, whether the smelter should be required to. BLACKMER VS US FACTS Harry M. Blackmer (defendant) is a United States citizen but a resident of Paris, France. The United States government (plaintiff) issued two subpoenas requesting Blackmer appear as a witness on its behalf at a criminal trial. Blackmer failed to appear, and two separate contempt actions were instituted against him in the Supreme Court of the District of Columbia. The contempt actions were based on a United States statute which provides that whenever the attendance at the trial of a criminal action of a witness abroad, who is a citizen of the United States or domiciled therein, is desired by the Attorney General, or any assistant or district attorney acting under him, the judge of the court in which the action is pending may order a subpoena to issue, to be addressed to a consul of the United States and to be served by him personally upon the witness with a tender of traveling expenses. Additionally, upon issuance of the subpoena and failure of the witness to appear, the court may issue an order requiring the witness to show cause why he should not be punished for contempt. Once the order is issued, the court may seize the property of the witness to be held by the United States to satisfy any judgment which might be rendered against the witness in the proceeding. Service is affected through both personal service on the witness and through publication in a newspaper of general circulation in the district where the court is sitting. If, after a hearing, the charge against the witness is sustained, the court may find the witness guilty of contempt and impose upon him a fine to be satisfied by the seized property. Blackmer was found guilty of contempt

on both counts, and a fine of $30,000 was imposed in both cases. The fine was to be satisfied out of Blackmers property which had been seized by the court. On appeal, Blackmer objected to the statute supporting his contempt convictions on the ground that it violated the Fifth Amendment to the United States Constitution. Blackmer stated five arguments in support of this contention. Most notably, he argued that the statute did not comply with due process requirements under the United States Constitution. The court of appeals affirmed the contempt decrees, and the United States Supreme Court granted certiorari.

NOTTEBOHM CASE (SECOND PHASE) Judgment of 6 April 1955 The Nottebohm case had been brought to the Court by an Application by the Principality of Liechtenstein against the Republic of Guatemala. Liechtenstein claimed restitution and compensation on the ground that the Government of Guatemala had acted towards Mr. Friedrich Nottebohm, a citizen of Liechtenstein, in a manner contrary to international law. Guatemala, for its part, contended that the claim was inadmissible on a number of grounds, one of which related to the nationality of Nottebohm, for whose protection Liechtenstein had seised the Court. In its Judgment the Court accepted this latter plea in bar and in consequence held Liechtenstein's claim to be inadmissible. The Judgment was given by eleven votes to three. Judges Klaestad and Read, and M. Guggenheim, Judge ad hoc, appended to the Judgment statements of their dissenting opinions. * ** In its Judgment the Court affirmed the fundamental importance of the plea in bar referred to above. In putting forward this plea, Guatemala referred to the well-established principle that it is the bond of nationality between the State and the individual which alone confers upon the State the right of diplomatic protection. Liechtenstein considered itself to be acting in conformity with this principle and contended that Nottebohm was, in fact, its national by virtue of the naturalization conferred upon him. The Court then considered the facts. Nottebohm, born at Hamburg, was still a German national when, in October 1939, he applied for naturalization in Liechtenstein. In 1905 he went to Guatemala, which he made the centre of his business activities, which increased and prospered. He sometimes went to Germany on business and to other countries for holidays, and also paid a few visits to Liechtenstein, where one of his brothers had lived since 1931; but he continued to have his fixed abode in Guatemala until 1943, that is to say, until the events which constituted the basis of the present dispute. In 1939 he left Guatemala at approximately the end of March; he seems to have gone to Hamburg and to have paid a few brief visits to Liechtenstein, where he was at the beginning of October 1939. It was then, on 9th October, 1939, a little more than a month after the opening of

the Second World War, marked by Germany's attack on Poland, that he applied for naturalization in Liechtenstein. The necessary conditions for the naturalization of foreigners in Liechtenstein are laid down by the Liechtenstein Law of 4th January, 1934. This Law requires among other things: that the applicant for naturalization must prove that acceptance into the Home Corporation (Heimat verband) of a Liechtenstein commune has been promised to him in case of acquisition of the nationality of the State; that, subject to waiver of this requirement under stated conditions, he must prove that he will lose his former nationality as the result of naturalization; that he has been resident in the Principality for at least three years, although this requirement can be dispensed with in circumstances deserving special consideration and by way of exception; that he has concluded an agreement concerning liability to taxation with the competent authorities and has paid a naturalization fee. The Law reveals concern that naturalization should only be granted with full knowledge of all the pertinent facts and adds that the grant of nationality is barred where circumstances are such as to cause apprehension that prejudice may enure to the State of Liechtenstein. As regards the procedure to be followed, the Government examines the application, obtains information concerning the applicant, submits the application to the Diet, and, if this application is approved, submits a request to the Reigning Prince who alone is entitled to confer nationality. In his application for naturalization Nottebohm also applied for the previous conferment of citizenship of Mauren, a commune of Liechtenstein. He sought dispensation from the condition of three years' prior residence, without indicating the special circumstances warranting such a waiver. He undertook to pay (in Swiss francs) 25,000 francs to the Commune and 12,500 francs to the State, the costs of the proceedings, and an annual naturalization tax of 1,000 francs - subject to the proviso that the payment of these taxes was to be set off against ordinary taxes which would fall due if the applicant took up residence in Liechtenstein - and to deposit as security the sum of 30,000 Swiss francs. A Document dated 15th October, 1939 certifies that on that date the citizenship of Mauren had been conferred upon him. A Certificate of 17th October, 1939 evidences the payment of the taxes required to be paid. On 20th October Nottebohm took the oath of allegiance and on 23rd October an arrangement concerning liability to taxation was concluded. A Certificate of Nationality was also produced to the effect that Nottebohm had been naturalized by a Supreme Resolution of the Prince of 13th October, 1939. Nottebohm then obtained a Liechtenstein passport and had it visa-ed by the Consul General of Guatemala in Zurich on 1st December, 1939, and returned to Guatemala at the beginning of 1940, where he resumed his former business activities. These being the facts, the Court considered whether the naturalization thus granted could be validly invoked against Guatemala, whether it bestowed upon Liechtenstein a sufficient title to exercise protection in respect of Nottebohm as against Guatemala and therefore entitled it to seise the Court of a claim relating to him. The Court did not propose to go beyond the limited scope of this question. In order to establish that the Application must be held admissible, Liechtenstein argued that Guatemala had formerly recognized the naturalization which it now challenged. Examining Guatemala's attitude towards Nottebohm since his naturalization, the Court considered that Guatemala had not recognized Liechtenstein's title to exercise protection in respect to Nottebohm. It then considered whether the granting of nationality by Liechtenstein directly entailed an obligation on the part of Guatemala to recognize its effect, in other words, whether that unilateral act by Liechtenstein was one which could be relied upon against Guatemala in regard to the exercise of protection. The Court dealt with this question without considering that of the validity of Nottebohm's naturalization according to the Law of Liechtenstein.

Nationality is within the domestic jurisdiction of the State, which settles, by its own legislation, the rules relating to the acquisition of its nationality. But the issue which the Court must decide is not one which pertains to the legal system of Liechtenstein; to exercise protection is to place oneself on the plane of international law. International practice provides many examples of acts performed by States in the exercise of their domestic jurisdiction which do not necessarily or automatically have international effect. When two States have conferred their nationality upon the same individual and this situation is no longer confined within the limits of the domestic jurisdiction of one of these States but extends to the international field, international arbitrators or the Courts of third States which are called upon to deal with this situation would allow the contradiction to subsist if they confined themselves to the view that nationality is exclusively within the domestic jurisdiction of the State. In order to resolve the conflict they have, on the contrary, sought to ascertain whether nationality has been conferred in circumstances such as to give rise to an obligation on the part of the respondent State to recognize the effect of that nationality. In order to decide this question, they have evolved certain criteria. They have given their preference to the real and effective nationality, that which accorded with the facts, that based on stronger factual ties between the person concerned and one of these States whose nationality is involved. Different factors are taken into consideration, and their importance will vary from one case to the next: there is the habitual residence of the individual concerned but also the centre of his interests, his family ties, his participation in public life, attachment shown by him for a given country and inculcated in his children, etc. The same tendency prevails among writers. Moreover, the practice of certain States, which refrain from exercising protection in favour of a naturalized person when the latter has in fact severed his links with what is no longer for him anything but his nominal country, manifests the view that, in order to be invoked against another State, nationality must correspond with a factual situation. The character thus recognized on the international level as pertaining to nationality is in no way inconsistent with the fact that international law leaves it to each State to lay down the rules governing the grant of its own nationality. This is so failing any general agreement on the rules relating to nationality. It has been considered that the best way of making such rules accord with the varying demographic conditions in different countries is to leave the fixing of such rules to the competence of each State. But, on the other hand, a State cannot claim that the rules it has laid down are entitled to recognition by another State unless it has acted in conformity with this general aim of making the nationality granted accord with an effective link between the State and the individual. According to the practice of States, nationality constitutes the juridical expression of the fact that an individual is more closely connected with the population of a particular State. Conferred by a State, it only entitles that State to exercise protection if it constitutes a translation into juridical terms of the individual's connection with that State. Is this the case as regards Mr. Nottebohm? At the time of his naturalization, does Nottebohm appear to have been more closely attached by his tradition, his establishment, his interests, his activities, his family ties, his intentions for the near future, to Liechtenstein than to any other State? In this connection the Court stated the essential facts of the case and pointed out that Nottebohm always retained his family and business connections with Germany and that there is nothing to indicate that his application for naturalization in Liechtenstein was motivated by any desire to dissociate himself from the Government of his country. On the other hand, he had been settled for 34 years in Guatemala, which was the centre of his interests and his business activities. He stayed there until his removal as a result of war measures in 1943, and complains of Guatemala's refusal to

readmit him. Members of Nottebohm's family had, moreover, asserted his desire to spend his old age in Guatemala. In contrast, his actual connections with Liechtenstein were extremely tenuous. If Nottebohm went to chat country in 1946, this was because of the refusal of Guatemala to admit him. There is thus the absence of any bond of attachment with Liechtenstein, but there is a long-standing and close connection between him and Guatemala, a link which his naturalization in no way weakened. That naturalization was not based on any real prior connection with Liechtenstein, nor did it in any way alter the manner of life of the person upon whom it was conferred in exceptional circumstances of speed and accommodation. In both respects, it was lacking in the genuineness requisite to an act of such importance, if it is to be enticed to be respected by a State in the position of Guatemala. It was granted without regard to the concept of nationality adopted in international relations. Naturalization was asked for not so much for the purpose of obtaining a legal recognition of Nottebohm's membership in fact in the population of Liechtenstein, as it was to enable him to substitute for his status as a national of a belligerent State that of the subject of a neutral State, with the sole aim of thus coming within the protection of Liechtenstein but not of becoming wedded to its traditions, its interests, its way of life or of assuming the obligations - other than fiscal obligations and exercising the rights pertaining to the status thus acquired. For these reasons the Court held the claim of Liechtenstein to be inadmissible. Nottebohm, born September 16, 1881 in Hamburg, Germany, possessed German citizenship. Although he lived in Guatemala from 1905 until 1943 he never became a citizen of Guatemala. On October 9, 1939, Nottebohm applied to become a naturalized citizen of Liechtenstein. The application was approved under exceptional circumstances[clarification needed] and he became a citizen of Liechtenstein. He then returned to Guatemala on his Liechtenstein passport and informed the local government of his change of nationality. When he tried to return to Guatemala once again in 1943 he was refused entry as an enemy alien since the Guatemalan authorities did not recognise his naturalisation and regarded him as still German. It has been suggested that the timing of the event was due to the recent entry of the United States and Guatemala into the Second World War. He was later extradited to the U.S., where he was held at an internment camp until the end of the war. All his possessions in Guatemala were confiscated. After his release, he lived out the rest of his life in Liechtenstein. The Government of Liechtenstein granted Nottebohm protection against unjust treatment by the government of Guatemala and petitioned the International Court of Justice. However, the government of Guatemala argued that Nottebohm did not gain Liechtenstein citizenship for the purposes of international law. The court agreed and thus stopped the case from continuing. Decision Although the Court stated that it is the sovereign right of all states to determine its own citizens and criteria for becoming one in municipal law, such a process would have to be scrutinized on the international plane where the question is of diplomatic protection. The Court upheld the principle of effective nationality, (the Nottebohm principle) where the national must prove a meaningful connection to the state in question. This principle was previously applied only in cases of dual nationality to determine which nationality should be used in a given case. However Nottebohm had forfeited his German nationality and thus only had the nationality of Liechtenstein. The question arises, who then had the power to grant Nottebohm diplomatic protection?

The Nottebohm case was subsequently cited in many definitions of nationality. FACTS Nottebohm was born a German national in 1881. He received citizenship through naturalization from Liechtenstein (plaintiff) in 1939. Prior to this date, in 1905, Nottebohm lived and performed substantial business dealings in Guatemala (defendant), and returned frequently to Germany to visit family. Once Nottebohm received his citizenship from Liechtenstein, he returned to Guatemala and Guatemalan authorities updated his nationality in the Register of Aliens. On July 17, 1941, the United States blacklisted Nottebohm and froze all his assets which were located in the United States. War broke out between the United States and Germany, and between Guatemala and Germany, on December 11, 1941. Nottebohm was arrested in Guatemala in 1943 and deported to the United States, where he was held until 1946 as an enemy alien. Once released, Nottebohm applied for readmission to Guatemala, but his application was refused. Nottebohm moved his residence to Liechtenstein (where he was a citizen), but Guatemala had already taken steps to confiscate Nottebohms property in Liechtenstein. Guatemala succeeded in 1949. Liechtenstein instituted legal proceedings against Guatemala in the International Court of Justice (ICJ), requesting the court declare Guatemala had violated international law in arresting, detaining, expelling and refusing to readmit Mr. Nottebohm and in seizing and retaining his property. Additionally, Liechtenstein requested the ICJ to order Guatemala to pay compensation as reparation. Guatemala defended by contesting Nottebohms Liechtenstein nationality. Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-2855 July 30, 1949

BORIS MEJOFF, petitioner, vs. DIRECTOR OF PRISONS, respondent. BENGZON, J.: The petitioner Boris Mejoff is an alien of Russian descent who was brought to this country from Shanghai as a secret operative by the Japanese forces during the latter's regime in these Islands. Upon liberation he was arrested aa a Japanese spy, by U. S. Army Counter Intelligence Corps. Later he was handed to the Commonwealth Government for disposition in accordance with Commonwealth Act No. 682. Thereafter the People's Court ordered his release. But the deportation board taking his case up, found that having no travel documents Mejoff was illegally in this country, and consequently refferd the matter to the immigration authorities. After the corresponding investigation, the Board oF Commissioners of Immigration on April 5, 1948, declared that Mejoff had entered the Philippines illegally in 1944, withoutinspection and admission by the immigration officials at a designated port of entry and, therefore, it ordered that he be deported on the first available transportation to Russia. The petitioner was then under custody, he having been arrested on March 18, 1948. In May, 1948, he was transferred to the Cebu Provincial Jail together with three other Russians to await the arrival of some Russian vessels. In July and in August of that year two boats of Russian nationality called at the Cebu Port. But their masters refused to take petitioner and his companions alleging lack of

authority to do so. In October, 1948, after repeated failures to ship this deportee abroad, the authorities removed him to Bilibid Prison at Muntinglupa where he has been confined up to the present time, inasmuch as the Commissioner of Immigration believes it is for the best interest of the country to keep him under detention while arrangements for his deportation are being made. It is contended on behalf of petitioner that having been brought to the Philippines legally by the Japanese forces, he may not now be deported. It is enough to say that the argument would deny to this Government the power and the authority to eject from the Islands any and all of that members of the Nipponese Army of occupation who may still be found hiding in remote places. Which is absurd. Petitioner likewise contends that he may not be deported because the statutory period to do that under the laws has long expired. The proposition has no basis. Under section 37 of the Philippine Immigration Act of 1940 any alien who enters this country "without inspection and admission by the immigration authorities at a designated point of entry" is subject to deportation within five years. In a recent decision of a similar litigation (Borovsky vs. Commissioner of Immigration) we denied the request for habeas corpus, saying: "It must be admitted that temporary detention is a necessary step in the process of exclusion or expulsion of undesirable aliens and that pending arrangements for his deportation, the Government has the right to hold the undesirable alien under confinement for a reasonable lenght of time. However, under established precedents, too long a detention may justify the issuance of a writ of habeas corpus.1 "The meaning of "reasonable time" depends upon the circumstances, specially the difficulties of obtaining a passport, the availability of transfortation, the diplomatic arrangements concerned and the efforts displayed to send the deportee away.2 Considering that this Government desires to expel the alien, and does not relish keeping him at the people's expense, we must presume it is making efforts to carry out the decree of exclusion by the highest officer of the land. On top of this presumption assurances were made during the oral argument that the Government is really trying to expedite the expulsion of this petitioner. On the other hand, the record fails to show how long he has been under confinement since the last time he was apprehended. Neither does he indicate neglected opportunities to send him abroad. And unless it is shown that the deportee is being indefinitely imprisoned under the pretense of awaiting a chance for deportation 3 or unless the Government admits that itcan not deport him4 or unless the detainee is being held for too long a period our courts will not interfere. "In the United States there were at least two instances in which courts fixed a time limit within which the imprisoned aliens should be deported5 otherwise their release would be ordered by writ of habeas corpus. Nevertheless, supposing such precedents apply in this jurisdiction, still we have no sufficient data fairly to fix a definite deadline." The difference between this and the Borovsky case lies in the fact that the record shows this petitioner has been detained since March, 1948. However, considering that in the United States (where transportation facilities are much greater and diplomatic arrangements are easier to make) a delay of twenty months in carrying out an order of deportation has not been held sufficient to justify the issuance of the writ of habeas corpus,6 this petition must be, and it is hereby denied. So ordered. Separate Opinions

PERFECTO, J., dissenting: To continue keeping petitioner under confinement is a thing that shocks conscience. Under the circumstances, petitioner is entitled to be released from confinement. He has not been convicted for any offense for which he may be imprisoned. Government's inability to deport him no pretext to keep him imprisoned for an indefinite length of time. The constitutional guarantee that no person shall be deprived of liberty without due process of law has been intended to protect all inhabitants or residents who may happen to be under the shadows of Philippine flag. Our vote is the same as one we cast when the case of Borovsky vs. Commissioner of Immigration, L2852, was submitted for decision although, for some misunderstanding, our vote was overlooked at the time of the decision was promulgated. Our vote is to grant the petition and to order the immediate release of petitioner, without prejudice for the government to deport him as soon as the government could have the means to do so. In the meantime, petitioner is entitled to live a normal life in a peaceful country, ruled by the principles of law and justice. Tuason, J., I dissent on the same ground stated in my dissent in case No. L-2852. Mejoff vs. Director of Prisons Facts: The petitioner Boris Mejoff is an alien of Russian descent who was brought to this country from Shanghai as a secret operative by the Japanese forces during the latter's regime in the Philippines. Upon liberation, he was arrested as a Japanese spy by US Army Counter Intelligence Corps. The People's Court ordered his release but the Deportation Board taking his case found that having no travel documents, Mejoff was an illegal alien in this country and must referred the matter to the immigration authorities. After corresponding investigation, the Immigration Board of Commissioners declared that Mejoff entered the Philippine illegally and therefore must be deported on the first available transportation to Russia. The petitioner was then under custody. After repeated failures to ship this deportee abroad, the authorities moved him to Bilibid Prison at Muntinlupa where he has been confined up to the present time. Two years had elapsed but the Government has not found ways and means of removing the petitioner out of the country although it should be said in fairness to the deportation authorities that it was through no fault of theirs that no ship or country would take the petitioner. Issue: WON Held: The Philippines adopts the Universal Declaration of Human Rights since it is a generally accepted principle of international law. It should be applied also to illegal aliens like Mejoff so that it would be a violation of the said international law to detain him for an unreasonable length of time since no vessel from his country is willing to take him. Considering that the Government desires to expel the alien and does not relish keeping him at the people's expense, we must presume it is making efforts to carry out the decree of exclusion by the highest officer of the land. On top of the presumption, assurances were made during the oral argument that the Government is really trying to expedite the expulsion of Mejoff. The petitioner can be released if there is a record shown that the deportee is being imprisoned under the pretense of awaiting a chance for deportation or unless the Government admit that it can not deport him or he is being held for too long a period our courts will Mejoff should be released from prison pending his deportation.

not interfere. Article 2 of the Philippine Constitution states that, "The Philippines renounces war as instrument of national policy, adopts the generally accepted principles of international law as part of the law of the land and adheres to the policy of peace, equality, justice, freedom, cooperation, and amity with all nations. The protection against deprivation of liberty without due process of law, and except for crimes committed against the laws of the land, is not limited to Philippine citizens but extends to all residents, except enemy aliens, regardless of nationality. Facts Boris Mejoff, a Russian, was captured as a Japanese spy by the US Army Counter Intelligence Corps on March 18, 1948. He was turned over to the Phil Commonwealth Government for appropriate disposition. His case was decided on by the Board of Commissioners of Immigration who declared him as an illegal alien. The Board ordered his immediate deportation. In the meantime, we was placed in prison awaiting the ship that will take him back home to Russia. Two Russian boats have been requested to bring him back to Russia but the masters refused as they had no authority to do so. Two years passed and Mejoff is still under detention awaiting the ship that will take him home. This case is a petition for habeas corpus. However, the respondent held that the Mejoff should stay in temporary detention as it is a necessary step in the process of exclusion or expulsion of undesirable aliens. It further states that is has the right to do so for a reasonable length of time. Issue Whether or not Mejoff should be released from prison awaiting his deportation. Ruling The Supreme Court decided that Mejoff be released from custody but be placed under reasonable surveillance of the immigration authorities to insure that he keep peace and be available when the Government is ready to deport him. In the doctrine of incorporation, the Philippines in its constitution adops the generally accepted principles of international law as part of the law of Nations. Also, the Philippines has joined the United Nations in its Resolution entitled Universal Declaration of Human Rights in proclaiming that life and liberty and all other fundamental rights shall be applied to all human beings. The contention that he remains a threat of to the security of the country is unfounded as Japan and the US or the Phils are no longer at war. FACTS: Herein petitioner, an alien illegally in this country was kept under prolonged detention while arrangements for his departure are being made filed a petition for habeas corpus. For two years, the Government has not found ways and means of deporting the petitioner because no ship nor country would take the latter. It is insinuated that the petitioner might join or aid the disloyal elements if allowed to be at large. ISSUE: Whether or not an alien, not enemy, against whom no charge has been made other than that their permission to stay has expired, may be detained indefinitely for as long as the Government is unable to deport him. HELD: No, a foreign national, not enemy, against whom no criminal charges have been formally made or judicial order issued, may not indefinitely be kept in detention. He also has the right to life and liberty and all other fundamental rights as applied to human beings. Petitioner is ordered to be released upon the condition of being under surveillance and exact bail in a reasonable amount with

sufficient sureties. The possibility that he might join or aid disloyal elements if turned out at large does not justify prolonged detentio Filartiga vs Pena Irala Description On April 6, 1979, in the U.S. District Court for the Eastern District of New York, Filrtiga v. PeaIrala was filed on behalf of Dr. Joel Filrtiga and Dolly Filrtiga charging former Paraguayan official Americo Pea-Irala with the wrongful death of Joelito Filrtiga. The suit was filed under a previously little-used 1789 federal statute, the Alien Tort Claims Act, which gives foreign nationals the right to sue for wrongful actions that violate international law. Dolly Fitrtiga and her younger brother Joelito lived in Asuncion, Paraguay, with their mother and father, Dr. Joel Filrtiga, a well-known physician, painter, and opponent of Latin Americas most durable dictator, General Alfredo Stroessner. In 1976, 17-year-old Joelito was abducted and later tortured to death by Americo Norberto Pea-Irala, the inspector general in the Department of Investigation for the Police of Asunsion. Dolly Filrtiga was forced out of her house in the middle of the night to view her brothers mutilated body. Although the district court initially stayed Peas deportation, it ultimately granted Peas motion to dismiss the complaint and allowed his return to Paraguay, ruling that, although the proscription of torture had become a norm of customary international law, the court was bound to follow appellate precedents which narrowly limited the function of international law only to relations between states. On appeal, the circuit reversed, recognizing that foreign nationals who are victims of international human rights violations may sue their malfeasors in federal court for civil redress, even for acts which occurred abroad, so long as the court has personal jurisdiction over the defendant. The court ruled that freedom from torture is guaranteed under customary international law. This decision provides a critical forum for human rights violations. The Center for Constitutional Rights (CCR) attorneys had briefed the meaning of international law in view of the post-Nuremberg emergence of an international law of human rights applicable to individuals as well as states. CCR explored the origin of the act as a source of federal judicial power over matters of international dimension and its purpose in preventing the sanctuary this country offers to the persecuted from immunizing international criminals. Todays torturers, CCR argued, are like eighteenth century piratesenemies of all humanity (hostes humani generis)and should pay for their crimes wherever they are found. Asked by the court to submit an amicus brief, the State Department, influenced perhaps by the Iran hostage crisis, supported plaintiffs view of international law and the scope of the acts jurisdiction. The circuit court completely rejected its earlier narrow interpretation of international law and opened the door of the federal courts to civil actions by aliens and citizens alike for damages for human rights violations. The decision was a precedent for claims involving an increasing number of internationally recognized rights, including freedom from torture, slavery, genocide, and cruel and inhuman treatment. It was been hailed by international human rights experts in this country and abroad. Upon remand by the circuit in June 1980, the district court granted plaintiffs motion for a default judgment against Pea for failure to answer the complaint and referred the case to a magistrate for determination of the damages due the Filrtiga family. The magistrate awarded the Filrtigas over $10 million in damages. CCR attorneys continued to investigate ways to enforce the award.

Filartiga v. Pena-Irala 630 F.2d 876 (1980)

The Alien Tort Statute (ATS) (28 U.S.C. 1350) provides that the "district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or of a treaty of the United States."
o

This law was almost never used between the time it was enacted in 1789, and the 1980s.

Filartiga was a Paraguayan dissident. His son was tortured and murdered by a Paraguayan official named Pena-Irala in Paraguay.
o o

It was a politically-motivated killing. Filartigia tried to get justice in Paraguay, but was unsuccessful.

Pena-Irala happened to come to the US on a vacation, and was sued by Filartiga (who was living in the US) under the ATS. The Trial Court dismissed the claim. Filartiga appealed.
o

The Trial Court found that the "law of nations" as used in the ATS does not govern a State's treatment of its own citizens.

Basically, the Court was saying that they didn't have jurisdiction over what Paraguayan officials did to Paraguayan citizens on Paraguayan soil.

The Appellate Court reversed.

o

The Appellate Court looked to The Paquette Habana (175 U.S. 677 (1900)), and found that "the law of nations" should be interpreted as customary international law. The Court found that under customary international law, there is a set of "human rights and fundamental freedoms."

The Court noted that the extent of those rights and freedoms is debatable, but surely includes the right not to be tortured and killed. Therefore, official torture is prohibited by the law of nations.

The Court found that Filartigia had a claim under the ATS since Pena-Iralia was accused of violating the law of nations.

ATTORNEY GENERAL OF THE GOVT ISRAEL VS. EICHMANN 1961 Principle: If were crimes , crimes against humanity & crimes against peace is committed by any state at any time each & every state has universal jurisdiction to try that offence & in this case Israel Invoked universal jurisdiction. Facts of the case:

The accused that had German nationality was the head of the jurys office of the German Gestapo .He was the administer in charge of the final situation the policy that led to the extermination of between 4,200,000 & 4,600,000 jeers in Europe. Eichman was found in Argentina in 1960 by person who were probably agents of the Israel Govt. &abducted to Israel without the knowledge of the Argentinean Govt. there he was prosecuted under the Israeli Naji&Naji collaborators (punishment) law of 1951 for war crimes, crimes against the jurist people, the definition of which was modeled upon thedefinition of genocide in the genocide convention 1949 & crimes against humanity. Issue: 1. Whether the law of 1951 was contrary to the general principle of international law. 2. Whether Israel had the jurisdiction to try according to the general principle & punish Eichmann. 3. Whether Eichmann is guilty of the offence alleged. Decision: He was convicted & sentenced to death .His appeal to the supreme court of Israel was dismissed. Reasoning: War crimes were punishable under the acts if done during the period of the second world war in an enemy country. Others crimes within the act were punishable if done during the period of Nazi Regime in an enemy country. The law in force in England & in Israel is in no way contrary to the international law. The jurisdiction to this court is based on the law of 1951 & on the principle of universal state jurisdiction. In the support of this view the court quoted from a number of authors, who take the view. That war crimes in particular gives rise to universal jurisdiction. United States v. Alvarez-Machain & Sosa v. Alvarez-Machain These related cases grow out of events that are nearly twenty years old, yet they pose questions that have become extraordinarily timely in the post September 11, 2001 war on terrorism environment. In 1985, a DEA agent in Mexico was captured and tortured to death by members of a drug cartel. Subsequently, U.S. agents with the help of Mexican nationals snatched Dr. Alvarez-Machain in Mexico and delivered him to the United States for trial as a participant in the torture and murder. Alvarez-Machain was acquitted, but before that happened, he had taken to the Supreme Court a claim that the United States violated a Mexico-US extradition treaty and international law in his capture. The Supreme Court rejected his claims.United States v. Alvarez-Machain , 504 U.S. 655 (1992). Alvarez-Machain then brought civil tort actions in U.S. federal court against the United States and Jose Sosa, a Mexican national who participated in the snatch. The United States is being sued under the Federal Torts Claim Act and Sosa under the Alien Tort Statute (ATS). The claim against the United States is that the authority given to DEA agents to enforce U.S. laws did not apply extraterritorially, that the arrest was therefore a false or tortious arrest under California law (the parties stipulated that California law would apply), and that the claim did not come within the FTCA exclusion of claims arising in a foreign country because it was attributable to decisions made at DEA headquarters in the U.S. The claim against Sosa proceeds on the theory that the ATS creates a cause of action in addition to granting jurisdiction to federal courts for violations of the law of nations, and that international law recognizes a rule prohibiting arbitrary arrests, which encompass arrests not authorized under either Mexican or American law.

The Ninth Circuit resolved each dispute in favor of Alvarez-Machain, 6-5. The dissenters made clear the importance of the claim against the United States for purposes of the war on terrorism, pursuant to which one might well anticipate similar snatches performed by U.S. operatives, perhaps most particularly in countries where the national government had reason not to cooperate with U.S. antiterrorism efforts. Sosa's claim, on the other hand, provides the Supreme Court with a clear opportunity to resolve the question of whether the ATS confers jurisdiction only or also creates a cause of action, a question that has divided the circuits. Questions Presented: United States v. Alvarez-Machain: 1. Whether federal law enforcement officers, and agents of the Drug Enforcement Administration in particular, have authority to enforce a federal criminal statute that applies to acts perpetrated against a United States official in a foreign country by arresting an indicted criminal suspect on probable cause in a foreign country. 2. Whether an individual arrested in a foreign country may bring an action under the Federal Tort Claims Act (FTCA), 28 U.S.C. 1346(b), 2671 et seq., for false arrest, notwithstanding the FTCA's exclusion of "[a]ny claim arising in a foreign country," 28 U.S.C. 2680(k), because the arrest was planned in the United States. Sosa v. Alvarez-Machain : 1. Whether the Alien Tort Statute (ATS), 28 U.S.C. 1250, creates a private cause of action for aliens for torts committed anywhere in violation of the law of nations or treaties of the United States or, instead, is a jurisdiction-granting provision that does not establish private rights of action; 2. Whether, if the ATS does provide a cause of action, it does so only for violations of jus cogens e.g. non-derogable - norms; and 3. Whether a detention that lasts less than 24 hours, results in no physical harm to the detainee, and is undertaken by a private individual under instructions from senior United States law enforcement officials constitutes a violation of the law of nations and is therefore actionable under the ATS.