TRAIL SMELTER CASE

FACTS:
The parties to the case are: the president of the US, the King of Great Britain, Emperor of India and
Canada.

The US has complained to the Government of Canada that fumes discharged from the smelter of the
Consolidated Mining and Smelting Company at Trail, British Columbia have been causing damage in the
State of Washington. Furthermore, the International Joint Commission investigated problems arising
from the operation of the smelter at Trail.

The parties recognized that there is a necessity of effecting a permanent settlement, thus, they decided
to conclude a convention. It was settled that:
a. Canada will pay the US within three months of ratification, 350k dollars in payment of all
damage which occurred in the US as a result of the operation of the Trail Smelter;
b. A tribunal shall be constituted for the purpose of deciding questions. It shall be headed by a
chairman who shall neither be a subject of Britain nor the US. He shall be chosen by the
governments/President of the Permanent Administrative Council of the PCA.
c. The tribunal shall decide questions, namely:
-whether damage caused by the TS in the WSH has occurred since the first day of January 1932
and if so, what indemnity should be paid therefore;
-if the answer to the first is in the affirmative, whether TS should be required to refrain from
causing damage in the WSH and if so, up to what extent?
-what measures should be adopted by TS?
-what indemnity or compensation should be paid on account of the decision rendered by the
Tribunal?

The tribunal traveled to the SWH and inspected the smelter plant of the Consolidated Mining and
Smelting Co of Canada in BC. ART IV stated that the tribunal shall apply the law and practice followed in
dealing with cognate questions in the USA.

The controversy is between two governments involving damage occurring in the territory of one of the
them and alleged to be due to an agency situated in the territory of the other, for which damage the
latter has assumed by the convention to be an international responsibility.

STATEMENT OF FACTS:
- The Columbia River has its source in the Dominion of Canada. At a place in BC named Trail, it
flows past a smelter located in a gorge where zinc and lead are smelted in large quantities. From
Trail, its course is easterly and then south, with a distance of seven miles to the boundary lune,
following the course of the river.
- In the course of the river there are places wherein the governments have installed automatic
sulphur dioxide recorders. In 1906, the CMSC was incorporated under the laws of Canada. Since
then, the Smelter operated and became one of the largest in the continent. The increased
production resulted in more sulphur dioxide fumes and higher concentrations being emitted
into the air and the US claimed that it increased the area of damage in the US, particularly to the
farms of the WSH.
- It has been contended that either by virtue of the Constitution of the WSH or of a statute, the
Smelter was unable to acquire ownership or smoke easements over real estate.
 - The US government proposed to Canada that problems arising out of Smelter should be referred
to the International Joint Commission for investigation and report.
- The IJC ruled that Smelter should compensate the US for 350k.

RULING:
- When a state espouses a private claim on behalf of one of its nationals, expenses which the
latter may have incurred in prosecuting the claim are included.
- They are costs, incidental to damage, incurred by the national in seeking local redress or
remedy, as it is, as a rule, his duty to do, if on account of some injurt suffered abroad, he wants
to avail himself of the diplomatic protection of his state.
- In reaching its conclusion as regards to to the questions, the tribunal has given consideration to
the desire of the high contracting parties to reach a solution just to all parties concerned.
- A state owes at all times a duty to protect other states against injurious act by individuals within
its jurisdiction.
- Before a court can be move to exercise jurisdiction to contro the conduct of one state at the suit
of another, the threatened invasion of rights must be of serious magnitude and it must be
established by clear and convincing evidence.
- It is the state that has the last say whether or not it will permit exploitation and pollution.
- It is fair and reasonable demand on the part of the sovereign that the air over its territory should
not be polluted on a great scale, and whatever domestic destruction they have suffered, should
not be further destroyed or threatened by the act of persons beyond its control.
- The tribunal concluded that no state has the right to use or permit the use of its territory in such
a manner as to cause injury by fumes or to the territory of another, when the case is of serious
consequence and of clear and convincing evidence.
- The tribunal holds that the Dominion of Canada is responsible in international law for the
conduct of Trail Smelter. It is the duty of Canada to see to it that this conduct should be in
conformity with the obligation of the dominion under international law as determined.
- So long as the present conditions in the Columbia river prevail, TMS shall be required to refrain
from causing any damage through the fumes in the state of Washington.

BLACKMER VS US

FACTS:
The petitioner, Henry M. Blacker, a citizen of the US resident in Paris, France, was adjuged guilty of
contempt of the SC of the district of Columbia for failure to respond to subpoenas served upon him in
France and requiring him to appear as witness on behalf of the US at a criminal trial in court.

The act provided that whenever attendance at the trial of a criminal action of a witness abroad, who is a
citizen of the US or domiciled therein is desired, the judge of the court in wc the action is pending may
order a subpoena to issue to be addressed to the consul of the US and to be served by him personally
upon the witness of travelling expenses. If the witness failed to appear, a show cause order may be
made and that the court may direct that property belonging to the witness and within the US may be
seized and held to satisfy any judgment which may be rendered against him the proceeding.

The constitutionality of the statute on the ground that:

a. The congress has no power to authorize consuls to serve process except as permitted by treaty;
 b. That the act does not provide a valid method of acquiring jurisdiction to render personal
judgment against the defendant and judgment against his property;
c. The act does not require actual or any other notice to defendant of the offense or of the gov’t
claim against his property;
d. Hearing and judgment in the entire absence of the accused and without his consent are invalid

RULING:
a. While it appears that petitioner removed his residence to France in 1924, he continued to be a
US citizen. He continued to owe allegiance to the US.
b. By virtue of the obligations of citizenship, the US retained its authority over him, and he was
bound by its laws made applicable to him in a foreign country.
c. Although resident abroad, the petitioner remained subject to the taxing power of the US.
d. For disobedience to its laws through conduct abroad, he was subject to punishment in the court
of the US.
e. While the legislation of the Congress, until the contrary intention appears, is construed to apply
only within the territorial jurisdiction of the US, the question of its application, so far as US
citizens abroad are concerned, is one of construction and not of legislative power.
f. The US possesses the power inherent in sovereignty, to require the return to this country of a
citizen, resident elsewhere, whenever public interest requires it, and to penalize him in case of
refusal.
g. It is beyond controversy that one of the duties which the citizen owes to his government is to
support the administration of justice by attending its courts and giving his testimony when he is
properly summoned.
h. The jurisdiction of the US over its absent citizen, so far as the binding effect of its legislation is
concerned, is a jurisdiction in personam, as he is personally bound to take notice of the laws
that are applicable to him, and to obey them.
i. The exercise of jurisdiction however, still requires due process. The authority to require the
absent citizen to return and testify necessarily implies to give him notice.
j. The mere giving of such notice to the citizen in the foreign country of the requirement is in no
sense an invasion of any right of the foreign government , while consular privileges are provided
for in treaties, it does not follow that every act should be in a provision of a treaty.
k. The consul was not directed to perform any function involving consular services but to simply
act as any designated person might act for the government in conveying the notice.

NOTTEBOHM CASE

FACTS:

It was alleged that Guatemala, in arresting, detaining, expelling and refusing to admit Nottebohm and its
seizing of his property breached international law. Liechtenstein alleged that Nottebohm should be
restored to his property and pay the Liectenstein government for damages.

Liectenstein further asserted that Nottebohm was divested with his German nationality when he was
naturalized. Guatemala on the other hand, asked the court to declare the claim of Principality of
Liechtenstein to be inadmissible as Nottebohm failed to acquire nationality in accordance with this
principle.
Guatemala sided with the Allies and declared war on Germany. In spite of his actual citizenship,
Guatemala treated Nottebohm as a German. He was arrested as an enemy alien, handed over to the US.
His properties were confiscated. Liechtenstein, on behalf of Nottebohm, brought a suit against
Guatemala in the ICJ where it argued that Nottebohm was unjustly treated.

Nottebohm was born at Hamburg in 1881. He was German by birth, and still possessed German
nationality when, in 1939, he applied for naturalization in Liechtenstein.

In 1905, he went to Guatemala. He took up desidence there and made the country as headquarters of
his business activities – commerce, banking and plantations. He founded firm there and was made had.
After 1905, he sometimes went to Germany on business and other countries for holidays. He continued
to have business connections in Germany. He paid a few visits to a brother who had lived in Liechenstein
since 1931. Some of his brothers, relatives and friends were in Germany and Guatemala. He continued
to stay in Guatemala until 1943.

In 1939, after having granted a SPA by the firm, he left the country at a date fixed by the counsel of
Liechtenstein when he seems to have gone to Hamburg and Vaduz. After the outbreak of WWII, his
counsel, Dr. Marxer submitted an application for naturalization on behalf of Nottebohm. The conditions
are:
a. That the acceptance of a Liechtenstein commune has been promised to him in case of
acquisition of the nationality of the state;
b. He will lose his former nationality;
c. Residence of at least three years in the territory of principality

It further required for an enquiry into the relations of the applicant with the country of his former
nationality, and that the grant of nationality is barred when these relations are such as to cause
prejudice of any kind to the state by reason of admission to nationality. The state may withdraw the
citizenship on the ground of fraud or withdraw the same within a period of five years on the ground of
ineligibility.

Nottebohm submitted his application, declaring Guatemala as his previous country of residence and
sought to waive the three-year residency requirement. In 1939, the Commune of Mauren conferred
citizenship upon Nottebohm. Upon obtaining passport in 1939, he returned to Guuatemala where he
resumed his former business.

Liechtenstein sought the court to declare that naturalization of Nottebohm was not contrary to
international law. Guatemala, on the other hand, request that the claim of Liechtenstein be declared as
inadmissible.

WON NOTTEBOHM having acquired the nationality of Liechtenstein, that acquisition of nationality is one
which must be recognized by other states.

Liechtenstein contended that Guatemala formerly recognized naturalization which it now challenges
and cannot contend the same. This is evidenced by the fact that in 1939, the Consul of Guatemala
entered a visa for Nottebohm for its return to Guatemala.
-the act just referred to proceeded on the basis of the statements made to them by the person
concerned. The only purpose was to make possible or facilitate entry into Guatemala. It constitutes a
legal presumption that the alien possesses the nationality attributed but evidence to the contrary may
be shown. ALL OF THESE ACTS HAVE REFERENCE TO THE CONTROL OF ALIENS IN GUATEMALA AND NOT
TO THE EXERCISE OF DIPLOMATIC PROTECTION. When Nottebohm presented himself before
Guatemalan authrorities, he was a private individual and thus did not come into being any relationship
between governments.

The court must then consider whether such act of granting nationality to Liechtenstein directly entails
an obligation on the part of Guatemala to recognize its effect, namely, Liechtenstein’s right to exercise
protection.

It is for Liechtenstein, as it is for every Sovereign state, to settle its own legislation relating to the
acquisition of nationality. Furthermore, nationality has its most immediate, its effects within the legal
system of the state conferring it. Nationality serves above all to determine that the person upon whom
it is conferred enjoys the rights and is bound by its obligations which the law of the state in question
grants to or imposes on its national. It is implied that the nationality is within the domestic jurisdiction of
the state.

It is international law which determines whether a state is entitled to exercise protection and to seise
the court. The naturalization of Nottebohm was an act performed by Liechtenstein in the exercise of its
domestic jurisdiction. The question to be decided is whether that act has international effect. In the
present case it is necessary to determine whether the naturalization conferred on Nottebohm can be
successfully invoked against Guatemala.

When one state conferred nationality upon an individual and another does the same, it may occur that
the states are merely exercising its powers within its domestic jurisdiction. In most cases, arbitrators
have not had to decide a conflict of nationality as between states, but rather to determine whether the
nationality invoked by the applicant state was one which could be relied as against the respondent state
– whether it entitled the applicant state to exercise protection.

Different circumstances were used by the arbitrators in arriving in such conclusions. They have given
their preference to the real and effective nationality, based on strong factual ties between the person
concerned and one of the states whose nationality is involved. Different factors were taken into
consideration: habitual residence of the individual, centre of interest, family ties, participation in public
life, etc. Furthermore, nationality laws are dependent on conditions dependent in the existence of a link.

This is why certain states refrain fro exercising protection in favor of a naturalized person when the
latter by, his prolonged absence, severed his links with what is no longer for him anything but his
nominal country. It manifests that in order for state to be capable of being invoked against another
state, nationality must correspond with the factual situation.

While a state is left with the discretion of fixing naturalization laws, it cannot claim recognition by
another state unless it has acted in conformity with the general aim of making the legal bnd of
nationality accord with the individual’s genuine connection with the state. Nationality is a legal bond
having its basis a social fact of attachment, a genuine connection of existence, interest and sentiments,
along with the existence of reciprocal rights and duties.

By taking up the case of one of its subject and by resorting to diplomatic action or international
proceedings on his behalf, a state is in reality asserting its own rights.
At the date when Nottebohm applied for naturalization, he had been a German national from the time
of his birth. He had always retained his connections with his family who had remained in Germany.
There is nothing in the records which would show that Nottebohm desired to disassociate himself with
Germany at the time of the war. He had settled in Guatemala for 34 years. He stayed there until his
removal as a result of war measure in 1943. He attempted to return but was refused entry. In contrast,
he had no strong connections with Liechtenstein. He had no abode, his prolonged absence, he declared
transient character of his visit. There was no intention of settling there as he returned to Guatemala
after his naturalization. He only returned to Liechtenstein because Guatemala refused to admit him. This
shows lack of connection with Liechtenstein and strong connections with Guatemala.

Nottebohm only asked for naturalization as it was to enable him to substitute his status as a national of
a belligerent state that of a national of a neutral state, with the sole aim of coming within the protection
of Liechtenstein but not to be wedded with its traditions.

Guatemala is under no obligation to recognize the nationality in such circumstances. Likewise,

Liectenstein is not entitled to extend its protection to Nottebohm.

MEJOFF VS DIRECTOR OF PRISONS

FACTS:
The case is a petition for habeas corpus by Boris Mejoff. He is an alien of Russian descent who was
brought to the country from Shanghai as a secret operative by the Japanese forces during the latter’s
regime in the islands. Upon liberation he was arrested as a Japanese spy. He was handed to the
Commonwealth gov’t, when the people’s court ordered his release.

However, Mejoff had no travel documents with him, thus, he was declared to be an illegal alien. He was
ordered to be deported to Russia. He was then under custody. They were refused to be transferred by
the Russian vessel for alleging lack of authority to do so. Because of this, he remained to be confined in
the Bilibid Prison.

The court held that the detention was only temporary as the gov’t has the right to hold the undesirable
alien under confinement for a reasonable length of time. Over two years have elapsed since the
decision, the gov’t has not yet found ways to remove petitioner. The gov’t maintained that they have no
fault as no vessel would take him in.

RULING:
- Aliens illegally staying in the PH have no right of asylum therein even if they are stateless.
However, foreign nationals wc are not enemies, against whom no charge has been made other
than their permission to stay had expired, may not be kept indefinitely in detention.
- This protection to liberty and due process is not limited to PH citizens but also to aliens,
regardless of nationality.
- Even the UNDHR mandates that the right to life and liberty should be applied to all human
beings without regard to race, etc. everyone has the right to an effective remedy by the
competent national tribunals for acts violating his rights. No one shall be subjected to arbitrary
arrest, detention and exile.
 - The court has the power to release from custody an alien who has been detained an
unreasonably long period of time after it has become apparent that his deportation cannot be
effected.
- This fact becomes functus officio and the alien is held without authority of law
- US jurisprudence would suggest that the country should arrange with another state who will
receive the alien as its citizen.
- The tendency of hostile acts to be done by the petitioner is remote, since the war is no longer
present.
- The detention is still unwarranted if the only purpose of the detention is to eliminate danger
that is by no means actual, present or uncontrollable.
- The right to bail pending appeal depends upon the discretion of the court, whereas the right to
be enlarged before formal chargers are instituted is absolute. Not only there are no charges
pending against him, but the prospect of bringing against him are slim and remote.

US VS YUNIS

FACTS:

Fawaz Yunis is a citizen of Lebanon. In Sept 1987, the FBI arrested Yunis in international waters off the
coast of Cyprus for having allegedly led the 1985 hijacking of a Royal Jordanian Airlines jet in Beirut.
American citizens were among the passengers on board the plane, and thus violated the American law.

Five men board the Royal Jordanian Airlines shortly before its scheduled departure from Lebanon. The
hijackers ordered the pilot to fly to Tunus, where conference of the Arab League was underway. They
sought to secure the removal of all Palestinians from Lebanon. Tunisian officials however, refused to
allow the plane to land. They were forced to stop in Sicily and Cyprus. After 30 hours they returned to
Beirut. They allowed the passengers to disembark and held a press conference in the Tarmac. Shortly,
the plane was blown up.

An operation was held for the arrest of Yunis. He was lured into the international waters when he
boarded a yacht manned by FBI agents in the guise of a drug transaction. He was brought to the US
where he filed a motion to dismiss, where he challenged the jurisdiction of the US courts to him, a non
resident alien on a foreign soil. It was predicated on the ground that Jordanian aircraft never flew over
the US airspace and had no contact with the US territory.

RULING:
- The court concluded that there are sufficient grounds for asserting both subject matter and
personal jurisdiction.
- The universal and passive personal principle appear to offer potential bases for asserting
jurisdiction over the hostage taking and aircraft piracy charges against Yunis.
- UNIVERSAL PRINCIPLE. Those crimes that are condemned by the world community and subject
to prosecution under the universal principle are often a matter of international conventions or
treaties.
- A majority of states, including Lebanon, have signed treaties condemning aircraft piracy: Tokyo
convention, Hague and Montreal. The latter rely on the principle of universal jurisdiction in
 mandating that states take such measures as may be necessary to establish its jurisdiction over
the offences where the alleged offender is present its territory.
- Furthermore, those treaties shall direct all contracting parties of which the alleged offender is
found, WITHOUT EXCEPTION OR WON THE OFFENSE WAS COMMITTED IN ITS TERRITORY, to
submit the case to its competent authorities for the purpose of prosecution. These two
provisions together demonstrate the international community’s strong commitment to punish
aircraft hijackers irrespective of where the hijacking occurred.
- International Convention for the Taking of Hostages – requires signatory states to prosecute any
alleged offenders present in its territory.
- In the light of the global efforts to punish aircraft piracy and hostage taking, international legal
scholars unanimously agreed that these crimes fit within the category of heinous crimes for the
purposes of asserting universal jurisdiction.
- The premise of universal jurisdiction is that a state may exercise jurisdiction to define and
punish certain crimes recognized by the community of nations as of universal concern, even
where no recognized basis of jurisdiction is present.
- PASSIVE PERSONALITY PRINCIPLE – authorizes states to assert jurisdiction over offenses
committed against their citizens abroad. Recognizes that each state has a legitimate interest in
protecting the safety of its citizens when they journey outside of its national boundaries.
- The international community explicitly approved the principle as a basis for asserting jurisdiction
over hostage takers. It also gave states the discretion to exercise extra territoriality when the
offense was committed with respect to a hostage who is a national of that state when
considered appropriate.
- In the past, US protested ay assertion of such jurisdiction for fear that it could lead to indefinite
criminal liability for its own citizens. It was based on the belief that foreigners visiting the US
should comply with the laws and should not be permitted to carry their laws with them.
Otherwise, Americans would face criminal prosecutions unknown to them as illegal.
- However, the principle gained acceptance when applied to terrorist or other organized attacks
on a state’s nationals by reason of their nationality, or to assassinations of a state’s ambassadors
or government officials.
- Not only is the US acting on behalf of the international community but the US has its own
interest in protecting its nationals.
- The hostage convention was even incorporated in US laws to manifest the efforts of the US
against this crime.

PEOPLE VS LO-LO AND SARAW

FACTS:
In 1920, two boats left Matuta, a Dutch possession, for Peta. In one of the boats was a Dutch, and in the
other boar eleven men, women and children. The second boat arrived in the Dutch East Indies. There
the boat was surrounded by six vintas manned by 24 moros. The Moros asked for food, but later on
attacked some of the men, and violated two women. After 11 days of hardship and privation, the Moros
finally arrived at Maruro, a Dutch colony. Two of the Moros were Lo-lo and Saraw.

The two returned to their home in Tawi-Tawi. There they were arrested and were charged in the CFI of
Sulu with the crime of Piracy. A demurrer was filed based on the grounds that the offense charged was
not within the jurisdiction of the CFI nor any court of PH, and that the facts did not constitute a public
offense under the laws of PH.

RULING:
- Piracy is robbery or forcible depredation in the high seas, without lawful authority, and in the
spirt and intention of universal hostility.
- Pirates are in law hostes humani generis. Piracy is not a crime against any particular state but
against all mankind. It may be punished in the competent tribunal of any country where the
offender may be found or into which he may be carried.
- The jurisdiction of piracy unlike all other crimes has no territorial limits. As it is against all so may
it be punished by all. Nor does it matter that the crime was committed within the 3-mile
jurisdictional limit of a foreign state, for those limits, though neutral to war, are not neutral to
crimes.
- Laws subsisting at the time of the transfer, designed to secure good order and peace in the
community, which are strictly of municipal character, continue by direction of the new
government until they are altered or repealed.
EXTRADITION CASES

US VS ALVAREZ MACHAIN

FACTS:
ISSUE: Whether a criminal defendant, abducted to the US from a nation with which it has an extradition
treaty, thereby acquires a defense to the jurisdiction of the country’s courts.

Humberto Alvarez-Machain is a citizen and resident of Mexico. He was indicted for participating in the
kidnap and murder of the US Drug Enforcement Administration special agent and a Mexican pilot. The
DEA believes that the respondent, a medical doctor, participated in the murder by prolonging the
agent’s life so that the others could further torture and interrogate him.

Respondent was forcibly kidnapped from his medical office in Mexico and flown to Texas where he was
arrested. Respondent moved to dismiss the indictment, claiming that his abduction constituted
outrageous governmental conduct, and the court lacked jurisdiction to try him because he was abducted
in violation of the extradition treaty between the US and Mexico. The District court and appellate court
upheld the contention, as the treaty, although does not expressly prohibit the abduction, the purpose of
the treaty was violated by forcible abduction.

RULING:
- Doctrine of specialty = prohibits the prosecution of a defendant for a crime other than the one
he was extradited
- A person who has been brought within the jurisdiction of the court by virtue of proceedings
under an extradition treaty, can only be tried for one of the offences described under the treaty
and for the offense with which he is charged in the proceedings for his extradition.
- The treaty says nothing about the obligations of the US and Mexico to refrain from forcible
abductions of people from the territory of the other nation, or the consequences under the
treaty if such an abduction occurs.
- The treaty provides that:
a. Neither contracting party shall be bound to deliver up its own nationals, but the executive
authority of the requested party shall, if not prevented by the laws of that party, have the
power to deliver them up if, in its discretion, it be deemed proper to do so.
b. If extradition is not granted, the requested party shall submit the case to its competent
authorities for the purpose of prosecution, provided that they have jurisdiction over the
case.
- Art 9 does not purport to specify the only way in wc one country may gain custody of national of
the other country for the purposes of prosecution.
- The history of negotiations and practice under the treaty also fails to show that abductions
outside the treaty constitute a violation of the treaty.
- The treaty does not attempt to establish a rule that would in any way curtail the effect of Ker
doctrine.
- The respondent contends that in exercising jurisdiction, no state shall prosecute or punish any
person who has been brought within its territory by recourse to measures in violation of
international law without first obtaining the consent of the offended state. However, in order to
invoke this, it is essential that the offended state objects to the same. Thus, the extradition
treaty only prohibits gaining the defendant’s presence by means other than those set fort in the
 treaty when the nation from which the defendant was abducted objects. = = = there are many
actions which could be taken by a nation that would violate the principle of police power, but it
cannot seriously be contended that an invasion would violate the terms of the extradition
treaty. Furthermore, this may show practice of states under customary international law but are
of little aid in construing the terms of a treaty.
- Most international agreements have the common purpose of safeguarding the sovereignty of
signatory nations, but this does not mean that the violation of any principle of international law
constitutes a violation of a particular treaty.
- Ker vs Illinois doctrine may be applied since forcible abduction does not constitue a violation of
the extradition treaty. The treaty does not specifically define forcible abduction as a violation,
despite knowledge of the Ker doctrine.
- While exercising power in another state may violate international law, it does not violate
extradition treaty.

RODRIGUEZ VS PRESIDING JUDGE OF RTC

FACTS:
The case stemmed from the petition of extradition filed by the US Government through the DOJ against
the petitioners. After their arrest, petitioners applied for bail which the TC granted. (1M each) the US
government moved for reconsideration of the grant of bail which was denied by the TC. The US Gov filed
a petition for certiorari with the court. In turn, the TC, without prior notice and hearing, cancelled the
bail bond of the petitioners and ordered for the issuance of the warrant of arrest. This is in line with the
ruling of the SC in US vs Purungan, where it held that extradites are not entitled to bail while extradition
proceedings are on going.

ISSUE:
1. In extradition case, is prior notice and hearing required before bail is cancelled?
2. What constitutes a “special circumstance: to be exempt from the no-bail rule in extradition
cases? (petitioners contend that they were willing to go on voluntary extradition, a special
circumstance; moreover, one of the accused is already in the US and their passports were
already confiscated; there was also a hold-departure order against them)

RULING:
- The issue of prior notice and hearing in extradition case is not new.
- (SOJ vs Lantion) notice and hearing should be afforded the extradite even when a possible
extradition is still being evaluated. Prospective extraditees are entitled to notice and hearing
only when the case is filed in court and not during the process of evaluation.
- (Purangan) a possible extradite is not entitled to notice and hearing before the issuance of
warrant of arrest because notifying him before his arrest only tips him of his pending arrest.

- WON A PROSPECTIVE EXTRADITEE IS ENTITLED TO NOTICE AND HEARING BEFORE THE

CANCELLATION OF HIS BAIL
a. Eduardo Rodriguez – moot and academic since he is already in the US facing charges
 b. the court granted to restore her bail. The case of Purangan does not apply since the case was
for the issuance of a warrant of arrest and not for cancellation of bail after determination that
the extradite is a no-flight risk.
c. The grant of bail presupposes that the accused was already arrested, and that he/she already
showed the burden of proof that he/ she is not a flight risk. The court already exercised its
sound discretion to determine the provisional release.
d. the court held that bail should not be cancelled without due notice and hearing. The
petitioner already offered to go on voluntary extradition, the passports were confiscated and
that there is a hold-departure order against them. She is also already on her sixties and sickly,
under medical treatment.
e. a grant of bail may be granted to a possible extradite only upon a clear and convincing
showing that:
- he will not be a flight risk or danger to the community
- there exist a special, humanitarian and compelling circumstances.
f. the cancellation of her bail without due notice and hearing violated her right to due process.

SOJ VS LANTION

FACTS:
Pres Marco issued PD 1069 (Prescribing the procedure for the extradition of persons who have
committed crimes in a foreign country) Subsequently, Drilon, representing the PH, signed in Manila the
Extradition Treaty between PH and US. The DOJ then received from DFA a note verbale containing a
request for the extradition of private respondent Mark Jimenez to the US. It contained a warrant of
arrest for conspiracy to commit offense or to defraud the US, defeat tax, among others.

Pending the evaluation of the extradition docs, private respondent wrote a letter to petitioner
requesting copies of the official extradition request from the US and to give him ample time to
comment. The government contended that the furnishing of the documents were premature pending
evaluation. Furthermore, they contended that the evaluation of the docs is not a PI of criminal cases.
Therefore, the constitutional rights of an accused cannot be accorded.

Jimenez filed a petition for mandamus to compel the SOJ to furnish him docs of extradition
requirements.

RULING:
- The private respondent is bereft of the right to notice and hearing during the evaluation state of
the extradition process.
1. First, PD 1069 which implements the RP-US Extradition treaty provides the time when an
extradite shall be furnished with the copy of the extradition as well as its supporting papers.
It is after the filing of the petition of extradition in the extradition court. There is no
provision in the RP-US treaty and the PD which gives him the right to demand the
extradition request and to comment thereon while the request is still undergoing
evaluation. The court cannot add to the provisions of the treaty.
 2. Second, treaties should be interpreted in the light of their intent and purpose. Extradition
treaties provide for the assurance that the punishment of these crimes shall not be
frustrated by the frontiers of territorial sovereignty. This calls for an interpretation that will
minimize if not prevent the escape of extradites from the long arm of law and expedite their
trial.
3. The rule is that while courts are given the power to interpret treaties, the meaning given
them by the departments of the gov’t charged with their negotiations are given great
weight. The fear of the SOJ that the notice is tantamount to a notice to flee is given a
substantial weight.
4. An extradition proceeding is sui generis. It is not a criminal proceeding that will call into the
operation of all the rights of an accused as guaranteed by the bill of rights. To begin with,
the process of extradition does not involve the determination of guilt or innocence of the
accused, which shall be later on adjudged by the court of the state where he will be
extradited. Extradition treaty is summary in nature, while criminal proceedings involve a full-
blown trial. The rules of evidence are also different. In criminal proceedings, PBRD is
required, while in extradition, only a showing of a prima facie case. Finally, in criminal
proceedings, the decision becomes executory once it becomes final, unlike in extradition
where the president has the final say whether or not the respondent should be extradited.
5. Private respondent’s plea for due process collides with important state interest which
cannot be ignored.
6. Considering that in the case at bar, the extradition proceeding is only in its evaluation stage,
the nature of the right claimed by private respondent is nebulous and the degree of the
prejudice he will suffer is weak. Furthermore, the US has not yet requested for the
provisional arrest of the respondent. Hence, the threat to his liberty is more imagined than
real. Furthermore, the warrant of arrest for temporary detention of the accused pending
extradition hearing may only be issued upon filing of the petition for extradition.

GOVERNMENT OF US VS PURGANAN

FACTS:
Pursuant to the RP-US Extradition treaty, the US Gov sent a note verbale to the PH requesting the
extradition of Mark Jimenez. The DFA transmitted the same to the DOJ for appropriate action pursuant
to PD 1069.

Upon learning of the request for his extradition, Jimenez sought and was granted to TRO prohibiting the
filing of the petition for extradition. After the case of SOJ vs Lantian, the US gov;t represented by the DOJ
filed the appropriate petition for extradition, alleging that Jimenez was subject of a WOA issued by the
US court. Before the RTC could act on the petition, respondent filed for a hearing before an issuance of a
warrant of arrest. However, petitioner assailed the order in allowing Jimenez to be heard prior to the
issuance of a warrant.

WON JIMENEZ IS ENTITLED TO NOTICE AND HEARING BEFORE A WOA MAY BE ISSUED;

RULING:
 Postulates of extradition:
1. Extradition treaties are entered into for the purpose of suppressing crime by facilitating the
arrest and the custodial transfer of a fugitive from one state to another. It is an instrument
of international cooperation in the suppression of crime.
2. The requesting state will accord due process to the accused. An extradition treaty
presupposes that both parties thereto have examined, and both accept and trust, each
other’s legal system and judicial process.
3. Proceedings are sui generis; they are not criminal in nature. The ultimate purpose of
extradition proceedings in court is only to determine whether the extradition request
complies with the extradition treaty, and whether the person is extraditable.
4. Compliance should be in good faith (pacta sunt servanda)
5. There is underlying risk of flight – persons to be extradited are presumed to be flight risk.

-the respondent perfectly manifested his tendency to be a flight risk when he fled after he
was charged in the US

- The word “immediate” under extradition law pertains to the arrest of the accused. The
qualification would be rendered nugatory by setting the hearing for the issuance of WOA. It
entails sending notices to the opposing parties, submission of their arguments, giving them time
to prepare, etc. Arrest subsequent to a hearing can no longer be considered “immediate.”
- The phrase “if it appears” means that the TC is not expected to make an exhaustive
determination to ferret out the true and actual situation immediately upon filing the petition.
The court is merely expected to make a first impression (prima facie finding) sufficient to make a
speedy initial determination as regards to the arrest and detention of the accused.
- The receipt of the judge of the corresponding docs is already sufficient if there is prima facie
case against the accused. The respondent judge committed grave abuse of discretion when he
set the matter for hearing.
- Moreover, the absence of the word “hearing” in the provision manifests that the holding of the
hearing is not required at the stage. Extradition proceedings are summary in nature.
- Sending persons sought to be extradited a notice of the request for their arrest and setting the
hearing at some future time would give them an ample opportunity to escape.
- Based on the constitution, the determination of PC only requires the examination of the
complainant and the witnesses he may produce. Notice to the accused prior to the issuance of a
warrant is not required. Only the probability and not the certainty of the guilt of the accused is
determined by the judge.
- It can also be argued that the accused may present everything in his defense already at this
stage that may negate a prima facie finding

ON BAIL
-Jimenez is not entitled to bail. The word “conviction” applies only when a person has been arrested or
detained for violation of the criminal laws. It does not apply to extradition proceedings since the courts
do not render judgments of conviction or acquittal. Furthermore, presumption of innocence is not an
issue in extradition proceedings.

ON DUE PROCESS
- Detention prior to his extradition is not a violation of the due process clause. The opportunity to
be heard does not always call for a prior opportunity. Even a subsequent opportunity is already
 enough. In the case, he will be given a subsequent opportunity when the extradition court calls
for the hearing.
- But the law admits of exception only when:
a. The accused will not be a flight risk or a danger to the community; and
b. There exist a special, humanitarian, and compelling circumstances, including, as a matter of
reciprocity, those cited by the highest court in the requesting state when it grants
provisional liberty in extradition cases therein.

ON HIS ELECTION AS A MEMBER OF THE HOR:

- Not sufficient and not a disenfranchisement, as the people who elected him are presumed to
know of the consequences of the extradition case;
- The fact that he has not yet fled from the PH cannot be taken to mean that he will stay

GOVERNMENT OF HK VS OLALIA

FACTS:
In 1995, the RP and HK signed an agreement for the surrender of accused and convicted persons. Private
respondent Munoz was charged before the HK court with three counts of bribery and conspiracy to
defraud. WOAs were issued against him.

The DOJ received from the HK DOJ a request for the provisional arrest of the private respondent. The
NBI then filed an application before the RTC for the provisional arrest of the private respondent. The
latter filed a petition for certiorari and writ of HC questioning the validity of the WOA. The court
sustained the validity of the arrest. Subsequently, HK filed a petition for the extradition of the
respondent. The latter meanwhile, filed a petition for bail. The respondent judge granted the petition.

RULING:
The court cannot ignore the ff trends of international law:
a. The growing importance of the individual person in PIL who attained global recognition;
b. Higher value now being given to human rightsl
c. Corresponding duty to states to observe these human rights in fulfilling their treaty obligations;
d. The duty of the court to balance the rights of an individual under the fundamental law and the
law on extradition on the other.
- placed on the worth of the individual person and the sanctity of human rights
-the UNDHR, while not a treaty, is now regarded as customarily binding upon the members of the
international community.
-the PH has a responsibility of protecting and promoting the right of every person to liberty and due
process.
-the PH authorities are under obligation to make available to every person remedies which
safeguard their fundamental right to liberty. This includes the right to bail.

1. The exercise of the state’s power to deprive an individual of his liberty is not necessarily limited
to criminal proceedings. Respondents in admin proceedings (deportation and quarantine) have
likewise been detained.
 2. To limit bail to criminal proceedings would be to close our eyes to jurisprudential history. We
have not limited bail to criminal proceedings only. Bail has been allowed to persons in detention
during the pendency of admin proceedings.

If bail can be granted in deportation proceedings, we see no justification why it should not be
allowed in extradition cases. Likewise the UNDHR applies to deportation cases, there is no reason
why it cannot be invoked extradition cases.
-notwithstanding the principle of pacta sunt servanda, the PH should not diminish a potential
extraditees’s rights to life, liberty and due process.

SOJ VS MUNOZ

FACTS:

Facts: On August 23, 1997, the Hong Kong Magistrates Court at Eastern Magistracy issued a warrant for
the arrest of respondent (JUAN ANTONIO MUOZ) for seven (7) counts of accepting an advantage as an
agent contrary to Section 9(1)(a) of the Prevention of Bribery Ordinance, Cap. 201 of Hong Kong, and
seven (7) counts of conspiracy to defraud, contrary to the common law of Hong Kong

On September 13, 1999, the Philippine Department of Justice (hereafter, Philippine DOJ)
received a request for the provisional arrest of the respondent from the Mutual Legal Assistance Unit,
International Law Division of the Hong Kong Department of Justice (hereafter, Hong Kong DOJ) pursuant
to Article 11(1) of the Agreement Between The Government Of The Republic Of The Philippines And The
Government Of Hong Kong For The Surrender Of Accused And Convicted Persons (hereafter, RP-Hong
Kong Extradition Agreement).

The Philippine DOJ forwarded the request for provisional arrest to the Anti-Graft Division of the
National Bureau of Investigation (NBI). Thus, for and in behalf of the government of Hong Kong, the NBI
filed an application for the provisional arrest of respondent with the Regional Trial Court (RTC) of
Manila, which was granted. Thereafter respondent was arrested pursuant to the said order.

Respondent filed with the Court of Appeals, a petition for certiorari, prohibition and mandamus with
application for preliminary mandatory injunction and/or writ of habeas corpus assailing the validity of
the Order of Arrest.

The Court of Appeals rendered a decision declaring the Order of Arrest null and void on the
following grounds:
(1)     that there was no urgency to warrant the request for provisional arrest under Article 11(1) of
the RP-Hong Kong Extradition Agreement;
(2)     that the request for provisional arrest and the accompanying warrant of arrest and summary of
facts were unauthenticated and mere facsimile copies which are insufficient to form a basis for the
issuance of the Order of Arrest;
(3)     that the twenty (20) day period for provisional arrest under Section 20(d) of Presidential Decree
No. 1069 otherwise known as the Philippine Extradition Law, was not amended by Article 11(3) of the
RP-Hong Kong Extradition Agreement which provides for a forty-five (45) day period for provisional
arrest;
(4)     that the Order of Arrest was issued without the Judge having personally determined the
existence of probable cause; and
(5)     that the requirement of dual criminality under Section 3(a) of P.D. No. 1069 has not been
satisfied as the crimes for which respondent is wanted in Hong Kong, namely accepting an advantage as
an agent and conspiracy to commit fraud, are not punishable by Philippine laws
Thus, petitioner Justice Serafin R. Cuevas, in his capacity as the Secretary of the Department of Justice,
lost no time in filing the instant petition

Petitioner imputes the following errors in the subject Decision of the Court of Appeals, to wit:
The Court of Appeals gravely erred in holding that:
A.      there was no urgency for the provisional arrest of respondent;
B.      the municipal law (P.D. No. 1069) subordinates an international agreement (RP-Hongkong
Agreement);
C.      the supporting documents for a request for provisional arrest have to be authenticated;
D.      there was lack of factual and legal bases in the determination of probable cause; and

ISSUE: Whether or not CA erred in declaring that the Order of Arrest null and void

Held: Yes

First. There was urgency for the provisional arrest of the respondent.
Nothing in existing treaties or Philippine legislation defines the meaning of urgency as used in
the context of a request for provisional arrest. Using reasonable standards of interpretation, however,
we believe that urgency connotes such conditions relating to the nature of the offense charged and the
personality of the prospective extraditee which would make him susceptible to the inclination to flee or
escape from the jurisdiction if he were to learn about the impending request for his extradition and/or
likely to destroy the evidence pertinent to the said request or his eventual prosecution and without
which the latter could not proceed. We find that such conditions exist in respondents case.

Second. Twelve (12) days after respondent was provisionally arrested, the Philippine DOJ received from
the Hong Kong DOJ, a request for the surrender or extradition of respondent.

Petitioner contends that Article 11(3) of the RP-Hong Kong Extradition Agreement which allows
a period of forty-five (45) days for provisional arrest absent a formal request for extradition has
amended Section 20(d) of P.D. No. 1069 which provides only a twenty (20) day period for the same
Petitioners argument on this point, however, has been rendered moot and academic by the fact that as
early as November 5, 1999 or twelve (12) days after respondents arrest on September 23, 1999, the
Philippine DOJ already received from the Hong Kong DOJ, a request for the surrender of respondent.

Third. The request for provisional arrest of respondent and its accompanying documents are valid
despite lack of authentication.

Section 20(b) of P.D. No. 1069 reads as follows:

(b)     A request for provisional arrest shall be sent to the Director of the National Bureau of
Investigation, Manila, either through the diplomatic channels or direct by post or telegraph.
and Article 11(1) of the RP-Hong Kong Extradition Agreement provides in part that:
 x x x. The application for provisional arrest shall contain an indication of intention to request the
surrender of the person sought and the text of a warrant of arrest or a judgment of conviction
against that person, a statement of the penalty for that offense, and such further information, if
any, as would be necessary to justify the issue of a warrant of arrest had the offense been
committed, or the person convicted, within the jurisdiction of the requested Party.

The language of the abovequoted provisions is clear. There is no requirement for the
authentication of a request for provisional arrest and its accompanying documents.

Last. There was sufficient factual and legal basis for the determination of probable cause as a requisite
for the issuance of the Order of Arrest

In the case of Allado v. Diokno, we stated that personal determination by the Judge of the
existence of probable cause means that he -
(a) shall personally evaluate the report and the supporting documents submitted by the fiscal regarding
the existence of probable cause and, on the basis thereof, issue a warrant of arrest; or, (b) if on the basis
thereof he finds no probable cause, may disregard the fiscals report and require the submission of
supporting affidavits of witnesses to aid him in arriving at a conclusion on the existence of probable
cause.
The Judge cannot, therefore, merely rely on the certification issued by the prosecutor. He is, however,
not required to personally examine ipso facto the complainant and his witnesses. He sufficiently
complies with the requirement of personal determination if he reviews the information and the
documents attached thereto, and on the basis thereof forms a belief that the accused is probably guilty
of the crime with which he is being charged