25. Nottebohn Case (Liechtenstein v.

Guatemala) Nationality Principle

https://www.icj-cij.org/public/files/case-related/18/2676.pdf

Effective Nationality Link The doctrine on effective nationality link is used to determine which of two
states of which a person is a national will be recognized as having the right to give diplomatic protection
to the holder of dual nationality.

FACTS: In this case, Liechtenstein claimed restitution and compensation from the Government of
Guatemala on the ground that the latter had acted towards Friedrich Nottebohm, a citizen of
Liechtenstein, in a manner contrary to international law. Guatemala objected to the Court’s jurisdiction
but the Court overruled this objection in a Judgment of 18 November 1953. In a second Judgment, of 6
April 1955, the Court held that Liechtenstein’s claim was inadmissible on grounds relating to Mr.
Nottebohm’s nationality. It was the bond of nationality between a State and an individual which alone
conferred upon the State the right to put forward an international claim on his behalf. Mr. Nottebohm,
who was then a German national, had settled in Guatemala in 1905 and continued to reside there. In
October 1939 — after the beginning of the Second World War — while on a visit to Europe, he obtained
Liechtenstein nationality and returned to Guatemala in 1940, where he resumed his former business
activities until his removal as a result of war measures in 1943. On the international plane, the grant of
nationality is entitled to recognition by other States only if it represents a genuine connection between
the individual and the State granting its nationality. Mr. Nottebohm’s nationality, however, was not
based on any genuine prior link with Liechtenstein and the sole object of his naturalization was to
enable him to acquire the status of a neutral national in time of war. For these reasons, Liechtenstein
was not entitled to take up his case and put forward an international claim on his behalf against
Guatemala.

ISSUE: Whether theLiechtenstein naturalization can be validly invoked against Guatemala (as sufficient
title to exercise protection in respect of Nottebohn as against Guatemala)

HELD:

26. Attorney General V. Adolf Eichmann Universality Principle

Eichmann was an important Nazi bureaucrat who oversaw the Final Solution. He was a high-ranking SS
officer who played a central role in the planning and implementation of the persecution of Jews in
several countries before/during World War II. At the end of the war he escaped capture as a war
criminal. He fled to Argentina where he lived and worked under an alias. He was eventually tracked
down by Israeli intelligence agents. Israel doubted that Argentina would cooperate in the extradition of
Eichmann, so he was kidnapped (drugged_ and taken secretly to Israel for prosecution. The Eichmann
trial heard scores of witness about the Nazi atrocities. Eichmann was later convicted, executed,
cremated and his ashes scattered on the Mediterranean so as not to create a shrine for his perverse
admirers upon orders of the Israeli Supreme Court.
Eichmann – Israel exceeded its jurisdiction when he was abducted and brought before Israeli’s courts.
He is immune from suit since he acted in behalf of his state. He cannot be punished under a retroactive
criminal law (Nazi Collaborators Act) since Israel was not yet a state when the alleged offences were
committed.

Israel had jurisdiction as crimes against humanity are subject to universal jurisdiction.

The State of Israel was entitled, pursuant to the principle of universal jurisdiction and acting in the
capacity of guardian of international law and agent for its enforcement, to try the appellant. Israel also
acquired the right to try Eichmann upon being a member of the United Nations so that it is immaterial
that the State of Israel did not exist at the time the offenses were committed. It was also held that
Eichmann’s abduction did not have any bearing on the jurisdiction of the Israeli Court to hear the case.
Ultimately, there is an absence of immunity for crimes against humanity.

FACTS:

ISSUE: Whether Israel has jurisdiction to try Eichmann

HELD: The power is vested in every state regardless of the fact that the offence was committed outside
its territory by a person who did not belong to it, provided he is in custody at the time he is brought to
trial.

One view holds that it cannot be applied to any other offence (piracy), lest this entail excessive
interference with the competence of the State in which the offence was commited.

27. George L. Tubb v. Thomas L. Griess, GR No. L-1325, Apr 07, 1947

A foreign army allowed to march through a friendly country or to be stationed in it, by

permission of its government or sovereign, is exempt from the civil and criminal
jurisdiction of the place.

Petitioners (citizens of the US but residents of the Philippines) were under a written contract of
employment with the Army of the US. They were serving as civilian employees in the US Army Depot in
Manila when they were apprehended by the authorities of the US Army and had been held in army
custody. They were formally charged with violations of Articles of War regarding misappropriation of US
Government property destined for military use, said acts having been committed within premises
occupied by the US Army under lease contracts. Thus they filed this petition for habeas corpus.

Petitioners – Philippine courts have exclusive jurisdiction over their arrest, confinement and
imprisonment because they are civilians not subject of military laws and martial law is no longer
enforced.
Philippine courts have no jurisdiction over the case. Not only did they agree in their contracts that they
submit themselves to US military law, they are also likened to military personnel who are exempt from
the civil and criminal jurisdiction of the foreign state they are assigned to.

FACTS: Petitioners are US citizens residing in the Philippines employed by the US army.

ISSUE: Whether the agreement for the stationing of the US Army in the RP implies a waiver of

jurisdiction over their troops during the time covered by such agreement

HELD: In the contract of employment entered into by petitioners with the United States
Army, they voluntarily submitted themselves to United States military law while serving
said contract, thereby submitting themselves to the full extent of the authority of the
United States Army in this area. This, coupled with the fact that petitioners are
American citizens, makes their position during the subsistence of said contract no
different from that of enlisted men, enlistment after all being nothing more than a
contract of voluntary service in the armed forces of one’s country. Petitioners then, in
relation to the United States Army in the Philippines and during the subsistence of their
employment contract, can be deemed to possess the status of military personnel.

Justice Perfecto: misapplication of quoted authors: civilians are not troops. And international law

cannot trample fundamental rights.

28. World Health Organization vs. Aquino, G.R. No. L-35131, November 29, 1972, 48 SCRA 243

FACTS: The World Health case was an original action for certiorari and prohibition to set aside
respondent judge’s refusal to quash a search warrant issued by him at the instance of Constabulary
officers for the search and seizure of the personal effects of an official of the World Health Organization.

Courts are bound to respect executive determination through the DFA of eligibility to immunity.

Petitioner’s personal effects contained in 12 crates entered the Philippines, they were directly stored at
a warehouse pending his relocation into permanent quarters. Upon application of respondents COSAC
officers, respondent judge issued a search warrant pursuant to RA 4712. Accordingly, bringing into the
Philippines of large quantities of dutiable goods beyond his official needs is equivalent to unlawful
importation. Trial Court judge upheld the search order notwithstanding the state of Secretary of Foreign
Affairs to said judge advising that petitioner is entitled to diplomatic immunity pursuant to the Host
Agreement and requesting suspension of the search warrant order. WHO joined in the opposition.

WHO – he is entitled to all privileges and immunities, exemptions and facilities accorded to diplomatic
envoys in accordance with international law under section 24 of the Host agreement.
ISSUE: Whether courts are bound to the determinations made by the executive branch as to the grant of

diplomatic immunity

HELD: When the executive branch affirmed petitioner’s diplomatic immunity, it was the duty of the
court to accept such claim to avoid embarrassing the executive branch in conducting foreign relations.
Diplomatic immunity is essentially a political question and courts should refuse to look beyond a
determination of the executive branch.

This case shows the process by which immunity should be invoked:

First request from DFA a certification of your official/diplomatic status and entitlement to immunity

Second, present the certification to the Court.

Note, the DFA certification is not conclusive as to immunity. Such executive determination is subject to
judicial review.

29. Island of Palmas Case (United States v. The Netherlands) Modes of Acquisition of Sovereignty over
Territory

Discovery alone merely gives rise to a mere inchoate right. Effective occupation must be proven.

US could have won the case if they had shown that at that time there was no separation of church and
state. By showing that there were priests, civil registrar, collection of tribunes, etc., they would have
been able to show Spanish occupation of the island.

Also, this case is disturbing because the US lost something that they did not have. By December 1989,
Filipinos were already in control of the state.

FACTS: Las Palmas is a single, isolated island in the middle of Mindanao and East Indies (controlled by
Netherlands). Both the US and the Netherlands claim that the island should belong to their respective
territories. The matter was submitted to arbitration with Swiss Max Huber as arbitrator.

US – the island was discovered by Spain. The treaty of Munster to which both Spain and Netherlands
were parties placed the latter in estoppel because said treaty kept Spain’s title over the are in dispute
intact. The Treaty of Paris made US the successor of Spain, giving it constructive possession of the island
pursuant to the principle of contiguity in that the island forms a geographical part of the Philippines and
therefore is under the power exercising sovereignty over the Philippines.

Netherlands – discovery/acquisition over the disputed territory has not been adequately proven.
Assuming arguendo that Spain has title, it has lost such title thru acquiescence because it did not
exercise sovereignty over the disputed territory. Netherlands possessed exercised sovereignty over Las
Palmas from 1648 onwards, through the East India Company. Contracts of Suzerainty wherein it
established conventions with natives which show Netherland’s exercise of sovereignty.

ISSUE: Whether Spain’s discovery of terra nullius is enough to establish US’ sovereignty as the successor

HELD: No. Netherlands has a stronger claim over Las Palmas by virtue of effective occupation.
Sovereignty in the relations between states signifies independence which is the right to exercise the
functions of a state over one’s territory to the exclusion of all others. In case of dispute, the test is
whether there is acquisition of territory coupled with continuous and peaceful display of sovereignty.

Treaty of Paris

(Critical period technique).

While Spain ceded its territory to the US, it could not transfer to the latter rights that it did not have. It
was not proven that Spain indeed had possession and exercised sovereignty therefore the US cannot
claim Las Palmas as successor to Spain. The fact that in the 16 th century, international law allowed f or
“seeing”, without occupation as equivalent to discovery, this should be subjected to the concept of
intertemporal law which provides that while the act that creates a right is subjected to the law in force
at the time it arises, its continued existence must follow the conditions required by the evolution of the
law. Therefore, said 16 th century law is qualified by 19 th century international law which requires not
only discovery but also effective occupation. Spain’s discovery merely created an inchoate title and
without any external manifestation, said title was not perfected.

US’ claim of contiguity rejected. Inapplicable in cases of territorial sovereignty due to imprecision and
possible arbitrary results. US’ inchoate title cannot prevail over Netherlands open and public display of
sovereignty.

Intertemporal law – where different legal rules existed over a period of time, both the rule at the
creation of the right and rule at time of its existence should be applied.

Jessup’s criticism => intertemporal law non-sequitur and without precedent. Retroactive effect of law
would be highly disturbing. constructive v effective possession. State should not have to physically
occupy every portion to prove occupation. Also, principle of contiguity should not have been rejected as
it is recognized in international law.

30. Eastern Greenland Case

Effective control, however, is relative and may depend on the nature of the case — e.g., whether the
territory is inhabited or not and how fierce the occupants are. Where there are two or more claimants
to a territory, effective control is also relative to the strength of claims

Principle of Congruity is recognized in international law and prominently practiced during time of Palmas
Case.

If the area is thinly populated or unsettled, little actual exercise of sovereign rights is sufficient. Although
both sides were able to present evidence establishing their sovereignty over the area, what won it for
Denmark was the estoppel or acquiescence in the part of Norway because of the Ihlen Declaration.
Although acquiescence is not a means of acquiring title, it is a proof of a better claim. Also, this case was
decided five years after the Las Palmas case by the PCIJ still headed by Max Huber, wherein he applied
the concept of effective occupation as compared to constructive occupation in this case.

FACTS: Norway issued a Royal Resolution declaring that it is taking possession of certain territory (Elrik
Raudes Land) of Eastern Greenland. Denmark opposed this and the matter as to who had titled overt the
area in dispute was submitted to the ICJ.

Denmark – effective occupation or the continuous and peaceful occupation of the area which has
existed for a long time before the dispute.

Norway – eastern Greenland was terra nullius and it was the first to exercise sovereignty over said area.

Both presented evidence to support their claims but the most noteworthy is the Ihlen Declaration
presented by Denmark which stated that Norway (Norwegian Minister of FA speaking in behalf of
government) stating that Norway would not make it difficult for Denmark to settle in Easter Greenland.

ISSUE:

HELD: Denmark had a stronger claim. A claim to sovereignty based upon continued display of authority
has two elements: intention and will to act as a sovereign & some actual exercise or display of such
authority. Denmark met the requirements. Before Norway issued its 1931 declaration, no other power
disputed Danish sovereignty over the area.

Norway’s claim that Denmark only possessed the western coast => Denmark had constructive
possession over Greenland regardless of assertions that the former’s legislative and administrative acts
only concerned Danish colonies (located on the western coast) because the word Greenland in these
acts should be given their ordinary meaning as encompassing the whole of Greendland. Norway failed to
prove otherwise.

Norway has acquiesced and is in estoppel. Prior to the dispute, Norway had on many occasions
recognized Denmark as the sovereign over Greenland, prime example of which is the Ihlen Declaration.

31. Libya vs Chad (1994)

FACTS: A treaty was concluded between France and Libya. France was previously the colonial power
exercising sovereignty over Chad, while Libya was a former colony of Italy and had just gained
independence when it entered into a treaty with France. The treaty states that the frontiers of the two
territories are those that result from international instruments in force on the date of constitution of
Libya. A territorial dispute erupted between the parties, thus they agreed to submit the matter to the ICJ
to decide upon the limits of the territories of the respective parties in accordance with the rules of
international law.

Libya – there is no border because the treaty already expired. The case concerns a dispute regarding
attribution of territory. Court must fix the boundaries on the basis of effective occupation.
Chad – Libya is bound by the treaty. Court needs only to locate where the boundaries are, applying the
uti possidetis juris principle.

ISSUE:

HELD: terms of the treaty signified recognition of frontier between territories. No subsequent
agreement between France/Chad and Libya. Libya never challenged the territorial dimensions of Chad
as setout by France which is reflect in UN publications.

Establishment of boundary = has legal life of its own, independent of the treaty. Once agreed, the
boundary stands else vitiation stability of boundaries.

Successor states must respect the colonial boundaries of colonial rulers, and such boundaries would
survive after independence. With respect to the fact that the treaty itself specified that it has a life of
only 20 years, the Court applied the theory of auto-limitation – which provides that boundaries have a
life of its own, separate from the treaty itself. A boundary established by treaty achieves permanence
which the treaty itself does not necessarily enjoy.

32. Joyce v. Director of Public Prosecution, House of Lords, December 18, 1945

FACTS: The appellant, Mr Joyce was an American citizen born in the United States of America in 1906. At
about three years of age, He was brought to Ireland. In 1921, he came to England where he stayed until
1939. On 4 July 1933, he applied for a British passport describing himself as a British subject by birth,
born in Galway. He asked for the passport for the purpose of holiday touring in Belgium, France,
Germany, Switzerland, Italy and Austria. He was granted the passport for a period of five years. On its
expiry, again describing himself as a British subject. He obtained renewals on 26 September 1938 and on
24 August 1939 each for a period of one year.

On some day after 24 August 1939, the appellant left the realm. On his arrest in 1945, it was proved that
he had been employed by the German radio company of Berlin as an announcer of English news from 18
September 1939 and that he had broadcast propaganda on behalf of the enemy. The passport was not
found in his possession when he was arrested. He was charged with High Treason by adhering to the
King’s enemies elsewhere than in the King’s Realm, to wit, in the German Realm, contrary to the Treason
Act 1351. Having been convicted of high treason, he appealed.

ISSUE: Whether an alien can be convicted of high treason-act committed outside the United Kingdom.

DECISION: The appeal was dismissed. An alien abroad holding a British passport enjoys the protection of
the Crown and if he is adherent to the King’s enemies he is guilty of treason. So long as has not
renounced that portion.
REASONING: The capability of a state to prosecute and punish its nationals on the sole basis of their
nationality is based upon the loyalty which the person charged with the crime owes to the State of
which he is a national. It is now generally accepted that a state may prosecute its nationals for crimes
committed anywhere in the world.

Also, in this case, the protective principle was accepted by the House as providing can substitute basis
for jurisdiction.

33. US vs. Look Chaw, 18 Phil 573

Mere possession of opium – not triable.

That, although the mere possession of a thing of prohibited use in

these Islands, aboard a foreign vessel in transit, in any of their ports,
does not, as a general rule, constitute a crime triable by the courts of
this country, on account of such vessel being considered as an
extension of its own nationality, the same rule does not apply when
the article, whose use is prohibited within the Philippine Islands, in the
present case a can of opium, is landed from the vessel upon Philippine
soil, thus committing an open violation of the laws of the land, with
respect to which, as it is a violation of the penal law in force at the
place of the commission of the crime, only the court established in that
said place itself had competent jurisdiction, in the absence of an
agreement under an international treaty. 34. People vs Wong Cheng, 46 Phil 729
Use of Opium.

Regarding crimes committed on foreign vessels within Philippine territory, the Supreme Court had this
to say: There are two fundamental rules on this particular matter in connection with international law;
to wit, the French rule, according to which crimes committed aboard a foreign merchant vessel should
not be prosecuted in the courts of the country within whose territorial jurisdiction they were committed
unless their commission affects the peace and security of the territory; and the English rule, based on
the territorial principle and followed in the United States, according to which, crimes perpetrated under
such circumstances are in general triable in the courts of the country within whose territory they were
committed. Of these two rules, it is the last one that obtains in this jurisdiction, because at present the
theories and jurisprudence prevailing in the United States on the matter are authority in the Philippines
which is now a territory of the United States.

35. Lotus Case, Ct. Rep. 20 Territoriality Principle

This case has already been overturned by the UNCLOS in Article 97 [1], which provides for concurrent
jurisdiction of the flag state and the state of the person’s nationality in such instances.
FACTS: A collision occurred at the high seas between a French mail steamer with and a Turkish collier
Boz Kourt. The Boz Court split in half and it eventually sank, resulting to the death of 8 Turkish nationals.
The officer on board Lotus was the French Lt. Demons. Lt. Demons was requested by Turkish authorities
to go ashore 3 days after the incident to give evidence regarding the matter. He was then arrested by
Turkish authorities without notice to France to ensure his criminal prosecution for manslaughter under
Turkish law. He was convicted. The French government eventually protested the actions of the Turkish
authorities and demanded the release of Lt. Demons. Upon failure to settle the matter, they submitted
the issue to the PCIJ.

France – in case of breach of navigation regulations, exclusive jurisdiction lies with the flag state under
whose flag the vessel sails. Invoked Treaty of Lausanne which states that all questions regarding
jurisdiction between Turkey and other contracting states must be governed by the principles of
international law.

Turkey – Article 6 of its Penal Code which provides that any foreigner who commits an offense abroad to
a prejudice of Turkey or Turkish national shall be punished in accordance with the Turkey Penal Code
provided that he is arrested in Turkey.

ISSUE: Whether Turkey acted contrary to international law

HELD: Turkey did not act contrary to International law.

There is no principle of international law that prohibits turkey from exercising jurisdiction over Demons
and that there was no presumption of restriction against its acts. Rejected France’s contention =>
territoriality of criminal laws prohibits the exercise of power outside one’s territory without a permissive
rule of convention or international custom

There is also no general prohibition on a state to extend the application of their law outside of their
territory. This is because the territoriality of criminal law is not an absolute principle of international law
and by no means coincides with territorial sovereignty.

International law prohibition of proceedings by states as to offenses committed by foreigners based only
on the nationality of the victim = no basis. It’s not the only criterion on which Turkey’s jurisdiction is
based. Jurisdiction could also be based on the collision affected Turkey’s vessel.

Even states which strictly apply the territoriality of criminal laws concede that if one of the elements of
an offense has taken place in their national territory, the crime is to be regarded as having been
committed there despite the fact that the author of the crime was in the territory of another state at the
time of the commission of the act.

The court also rejected the exclusive jurisdiction of the flag state in this case because such principle is
not universally accepted leaving the states a free hand.

36. JUSMAG Phil. V. NLRC 239 SCRA 224

This case enunciated the “purpose test” – immunity can only be applied in cases involving sovereign
purposes
FACTS: Sacramento was a security assistance support personnel working at JUSMAG, and an incumbent
president of a labor organization. He was dismissed due to his position being allegedly abolished. Before
termination, he was advised that he was under administrative leave although the same was not charged.
He filed a complaint before DOLE for illegal suspension and dismissal which eventually reached the
NRLC.

JUSMAG – it had immunity from suit since it’s a US agency

NLRC – JUSMAG has waived its right to immunity from suit when it hired the services of Sacramento

ISSUE:

HELD: JUSMAG has immunity. A suit against such a US agency is a suit against the US government, albeit
the latter was not impleaded. Considering that the US has not waived or consented to the suit, the
complaint against JUSMAG cannot prosper. The doctrine of immunity is restricted to sovereign or
governmental activities and cannot be extended to commercial, private and proprietary acts. The
contract was entered into in the discharge of its governmental functions, the sovereign state cannot be
deemed to have waived its immunity from suit.

37. US vs. Reyes, G.R. No. 79253, March 1, 1993

No functional immunity with respect to acts outside official duties. The purposes test was useless
heregiven the facts of the case because Bradford’s actions were deemed ultra vires (beyond her
powers).

FACTS: After her duty as an ID checker at the US Navy Exchange, Montaya went shopping at
NEXJUSMAG. On to her car after shopping, she was approached by another ID checker saying that the
lotter needed to search her and her belongings following instructions from Bradford (manager of NEX
JUSMAG). The search was conducted in front of many onlookers. Nothing irregular was found in
Montoya and her belongings. She later found that she was the only one subjected to search, contrary to
Bradford’s statement that all employees were required to be searched that day. Montoya filed a
complaint against Bradford for discriminatory acts.

Bradford: She had functional immunity for acts done in the exercise of her official functions as employee
of a US agency. The suit should also be considered as in effect being against the US government which
did not waive its sovereign immunity.

Bradford was sued in her private or personal capacity for acts allegedly done beyond the scope and even
beyond her place of official functions.

ISSUE: Whether Bradford has immunity as she was sued in her private or personal capacity

HELD: No, the case falls within the exception to the doctrine of state immunity. Unauthorized acts of
government officials are not acts of the State, and an action against the officials by one whose rights
have been violated by such acts, for the protection of his rights, is not a suit against the State within the
rule of immunity of the State from suit. A public official may be liable in his personal private capacity for
whatever damage he may have caused by his act done with malice and in bad faith, or beyond the scope
of his authority or jurisdiction, for example, under Art. 31 of the Vienna Convention on Diplomatic

Relations which admits of exceptions of the general rule of a diplomatic agent’s immunity from criminal
jurisdiction of the receiving state as in the instant case.

38. US vs RUIZ, G.R. No. L-35645 May 22, 1985

FACTS: The US held a bidding for some naval repair projects. Eligio de Guzman and Co., Inc submitted
bids. Subsequently, the company received from the US two telegrams requesting it to confirm its price
prpsoals and for the name of its bonding company. The company then received a letter which said that
the company did not qualify to receive an award for the projects because of its previous unsatisfactory
performance rating on a repair contract with the US. The letter further said that the projects had been
awarded to third parties. The company sued the US to allow them to perform the work on the projects.

US – Philippine Courts do not have jurisdiction over it since it is a foreign sovereign which had not given
its consent to the suit

ISSUE:

HELD: US is entitled to immunity since sovereign immunity is not lost when a state enters into contracts
related to its sovereign functions State immunity exempts a State from being sued in the courts of
another State without its consent or waiver. This rule is a necessary consequence of the principle of
independence and equality of States.

Though, it has been necessary to distinguish between sovereign acts and proprietary acts. State
immunity extends only to the former. However, the restrictive application of State immunity is proper
only when the proceedings arise out of commercial transactions of the foreign sovereign, its commercial
affairs. In this case the projects are an integral part of the naval base which is devoted to the defense of
both the US and the RP, indisputably a function of the government; they are not utilized for commercial
purposes. The correct test for the application is not the conclusion of a contract by a state but the legal
nature of the act.

39. Minucher vs CA, G.R. No. 142396, February 11, 2003

FACTS: Minucher, an Iranian Labor Attache, filed a case for damages on account of what he claimedto
have been trumped-up charges of drug trafficking made by Scalzo a US Drug Enforcement Agency agent.
Trial Court ruled for petitioner. While trial court gave credence to the claim of the US agent that he was
a diplomatic agent and the acts complained of by Minucher were performed within official functions, it
ruled that he, nevertheless, should be held accountable for the acts complained of committed outside
his official duties. The CA dismissed the charges against Scalzo upon presentation of Diplomatic Note
which was authenticated by the DFA confirming Scalzo’s diplomatic agent status.

ISSUE:
HELD: Scalzo was not able to sufficiently establish that he is entitled to diplomatic immunity. However,
the court ruled that as a DEA agent allowed by the RP to conduct activities in the country, he is entitled
to state immunity from suit. The diplomatic immunity of Scalzo under the Vienna Convention was not
sufficiently established as the test is whether he performs duties of diplomatic nature.

However, it was sufficiently established that, indeed, he worked for the US DEA. A foreign agent,
operating within a territory, can be cloaked with immunity from suit but only as long as it can be
established that he is acting within the directives of the sending state. The consent of the host state is an
indispensable requirement of basic courtesy between the two sovereigns.

The grant of immunity in this case was inconsistent with the Vienna Convention. Scalzo was not a
diplomatic agent entitled to such immunity.

40. Dickinson v. Del Solar, 1 K.B. 376

International Law—Diplomatic Privilege—Secretary to Foreign Legation—Waiver of Privilege—

Minister’s Instructions—Legal Liability—Third Parties

Diplomatic privilege does not impart immunity from legal liability, but only exemption from local
jurisdiction. The privilege is the privilege of the Sovereign by whom the diplomatic agent is accredited, and it
may be waived with the sanction of the Sovereign or of the official superior of the agent.

The following statement of the facts of the case and of the correspondence between the parties
before the hearing is taken from the judgment of Lord Hewart C.J.:—

"This was an action in which the plaintiff, Mr. Robert Edmund Dickinson, sought to recover
damages again8t the defendant, Emilio Del Solar, for injuries to the plaintiff caused b~ the negligent driving
of a motor car by the defendant or his servant. That action was tried before me with a special jury on July 9
last, and in the result the jury awarded 8561. damages to the plaintiff. Judgment was entered accordingly
with costs against the defendant, Emilio Del Solar. That defendant however had a policy of insurance with
the third parties, the Mobile and General Insurance Company, Ld., and he claims against those third parties
a declaration that he is entitled to be indemnified against any amount that he might be adjudged and
ordered to pay to the plaintiff by way of damages in the action. The third party, the insurance company, in
their defence, alleged that 'It was an express term of the said policy that the third party should, subject to
the exceptions and conditions contained therein or endorsed thereon, indemnify the defendant (inter alia)
against legal liability to members of the pubic in respect of accidental personal injury sustained or caused
through the driving and/or management of the insured vehicle.’ The third party alleged further that if the
plaintiff in the action was injured, nevertheless the defendant was under no legal liability to the plaintiff by
reason of the fact that the defendant was at all material times First Secretary of the Peruvian Legation and
immune from civil process; alternatively, the third party relied upon certain alleged breaches of conditions.

It is not necessary to refer again to the policy of insurance, but it may be well to mention one or two of the
letters which passed. The writ in the action was not issued until December 27, 1928; the accident, as it is
called, had occurred on October 15, 1929. In the meantime, on November 9, the managing director had
written to Mr. Emilio Del Solar saying 'This matter is now in the hands of our assessor, to whom we are
handing these papers, and you may rest assured that they will take the matter up immediately with the
third party so that you will not be troubled further.' That third party was not, of course, the insurance
company, it was the defendant in the action. On November 29, the managing director of the insurance
company wrote to the defendant in the action: ' the above case has now become rather more serious than
we at first anticipated, and we shall be grateful if you will grant our representative another interview.' And
on November 30 the defendant replied: ' I beg to inform you that I regret to be unable to see your
representative, because I pay a premium to be insured, in order not to be troubled, and besides I have told
him I cannot plead any diplomatic immunity.’

There followed correspondence ; the representative of the insurance company was seen again by the
defendant and it was made quite clear that the Minister of the Peruvian Legation had intervened and had
forbidden the defendant to rely upon diplomatic immunity, inasmuch as the collision had taken place when
the car was being used not for official but for private purposes. In the meantime certain steps had been
taken in the action; an appearance had been entered by the insurance company for the defendant, other
steps had been taken, and finally, when it was made abundantly clear that diplomatic privilege was not to
be pleaded, this letter of March 5, 1929, was written by Mr. Del Solar's solicitors to the solicitors to the
insurance company: ‘We have seen His Excellency the Peruvian Minister personally on this matter, and he
has definitely repeated the instructions he has already given to his first secretary, Mr. Del Solar, to the effect
that diplomatic privilege is not to be pleaded in this action; in our submission, therefore, the effect is that,
s0 far at any rate as this claim is concerned, Mr. Del Solar has not and never did have any diplomatic
privilege at all, so that it is impossible for him to claim it even if he wished to do so.'

After a further explanation that in the opinion of the Peruvian Minister diplomatic immunity should only
cover official acts, the solicitors to the insurance company wrote On March 18, 1929, to the solicitors for Mr.
Del Solar: 'We now have definite instructions from the Mobile and General Insurance Co., Ld., that they
insist on having absolute control of all negotiations and proceedings in this claim under the conditions of
their policy. Since your client will not allow them to have this absolute control he has broken the conditions
under which the policy was issued to him. We therefore hand you over at your request as his solicitor the
papers in this action—namely, the writ, appearance, summonses and statement of claim. It will be
necessary to apply at the Court tomorrow for a summons for further time to deliver the defence. Will you
let us know by telephone today whether we shall apply for this summons or whether you will? We have
written to the plaintiff's solicitors to day for further time to deliver the defence, and explaining to them that
we have handed over the papers to you at your request.’”

Bens1ey Wells (S.J.R. Bucknill with him) for Mr. Del Solar. Diplomatic immunity is a privilege which is
possessed by foreign sovereign but which he may waive. Diplomatic agents enjoy no higher immunity than
their sovereign. Here the agent has submitted to the jurisdiction by entering appearance, and he has so
acted on the instructions of his superior, the Peruvian Minister. The company cannot therefore now ask the
defendant to adopt a different attitude: Taylor v. Best.1 That case was followed in In re Suarez2, where the
Court of Appeal held that an Ambassador can with consent of his Government waive his privilege, and that
his immunity will then cease.
1
2
[They cited also In re Republic of Bolivia Exploration Syndicate3 and Duff Development Co. v. Government of
Kelantan.4

Tristram Beresford for the company. Waiver of diplomatic privilege by the defendant Del Solar is
not sufficient to render the company liable on the policy. Under the terms of the policy the defendant must
not act "in any way to the detriment or prejudice of the company's interests," and " the company is entitled
to take absolute control of all negotiations and proceedings." He must afford the company every assistance
in his power. This refusal to do so is a breach of the conditions of the policy, The defendant by virtue of his
privilege is not liable for any act for which a British subject reading here would be liable. There has been no
effective waiver. Any rights held by the defendant passed to the company under the policy, and they alone
can consent to waive the plea of diplomatic privilege.

As to enforcing a judgment against the defendant execution cannot issue against him by virtue of his
privilege. The case differs from The Newbattle5, where the foreign sovereign was the plaintiff and had
invoked the jurisdiction of the Court.

July 31. LORD HEWART C.J. [after making the above statement of facts, continued :] Diplomatic
agents are not, in virtue of their privileges as such, immune from legal liability for any wrongful acts. The
accurate statement is that they are not liable to be sued in the English Courts unless they submit to the
jurisdiction. Diplomatic privilege does not import immunity from legal liability, but only exemption from
local jurisdiction. The privilege is the privilege of the Sovereign by whom the diplomatic agent is accredited,
and it may be waived with the sanction of the Sovereign or of the official superior of the agent: Taylor v.
Best1; In re Suarez.2 In the present case the privilege was waived and jurisdiction was submitted to by the
entry of appearance: In re Suarez2 Duff Development Co. v. Government of Kelantan 3, and as Mr. Del Solar
had so submitted to the jurisdiction it was no longer open to him to set up privilege. If privilege had been
pleaded as a defence, the defence could, in the circumstances, have been struck out. Mr. Del Solar was
bound to obey the direction of his Minister in the matter. In these circumstances it does not appear to me
that there has been, on the part of Mr. Del Solar, any breach of the conditions of the policy, and the
judgment clearly creates a legal liability against which the insurance company have agreed to indemnify
him. It has been argued that by reason of the privilege execution cannot issue against Mr. Del Solar on the
judgment. That is perhaps an open question: Duff Development Co. v. Government of Kelantan.3 But in my
opinion it is not necessary to decide it. Even if execution could not issue in this country while Mr. Del Solar
remains a diplomatic agent, presumably it might issue if he ceased to be a privileged person, and the

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5
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2
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3
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judgment might also be the foundation of proceedings against him in Peru at any time. I hold therefore that
the third parties here are liable.

41. Liang vs. People, G.R. No. 125865. March 26, 2001

Certification made by the DFA that an individual is entitled to immunity is NOT conclusive.
Determinations made by the executive as to the grant of immunity are thus subject to judicial review.

This is a departure from the WHO v. Aquino case that courts are bound to respect executive
determination through the DFA of eligibility to immunity.

The case involved a criminal complaint against Jeffrey Liang, an ADB official, for grave oral defamation.
Appeal was made to the political character of Jeffrey Liang as an agent of international organization. But
the Court ruled that the immunity granted to officers and staff of the ADB was not absolute; but limited
to acts performed in an official capacity and could not cover the commission of a crime such as slander
or oral defamation in the name of official duty.

FACTS: Information for grave oral defamation were filed against Liang, an ADB economist who was a
Chinese national. On separate occasions, Liang accordingly uttered defamatory words to Joyce Cabal, an
ADB clerical staff. The MeTC judge received an office of protocol from the DFA stating Liang is covered
by immunity from legal processes under Sec. 45 of the Agreement between ADB and the Philippines.
Judge dismissed the cases without notice to the prosecution.

ISSUE:

HELD: Liang was not entitled to immunity. The statements allegedly made by petitioner were not
uttered in the performance of his official functions. SC disregarded the office protocol from the DFA
stating that Liang is covered by immunity from legal process under Section 45 of the Agreement
between the ADB and RP regarding the Headquarters of the ADB in the RP. The subsequent MR focused
on the diplomatic immunity of ADB officials from legal processes in the Philippines and the
constitutional and political basis of that immunity. It should be made clear that nowhere in the assailed
decision is diplomatic immunity denied, even remotely.

Accordingly, courts cannot blindly adhere and take on its face the communication from the DFA that
Liang is covered by any immunity. In receiving ex-parte the DFA’s advice and in motu proprio dismissing
the criminal cases without notice to the prosecution, the latter’s right to due process was violated. It
has been ruled that the mere invocation of immunity clause does not ipso facto result in the dropping of
the charges.

The immunity mentioned is not absolute, but subject to the exception that the act was done in an
official capacity. Philippine law = public official may be liable in his personal capacity for damages done
with malice or bad faith.

Under the Vienna Convention, a diplomatic agent, assuming Liang is such, enjoys immunity from
criminal jurisdiction of the receiving state except in case of an action relating to any professional or
commercial activity exercised by the diplomatic agent in the receiving state outside his official functions.
42. De Perio-Santos v. Macaraig, GR No. 94070, April 10, 1992

FACTS:

ISSUE:

HELD