Regina v.

Bartle and Commissioner of

Police, Ex parte Pinochet
FACTS: Pinochet (D), the former head of state of Chile, was
considered by the House of Lords (P) to have contravened the
provisions of the Torture Convention. This convention became
law on the 8th of December 1988 and Chile, Spain and the
United Kingdom were all parties to it. But Pinochet (D), siting
the fact that he was a former head of state, he was immune
under the principle of international law.
On 11 September 1973, General Augusto Pinochet Ugarte
assumed power in Chile as a result of a military coup that
overthrew the then government of President Allende. Pinochet
was the Commander in Chief of the Chilean Army until 1974
when he assumed the title of President of the Republic. His
presidency lasted until 1990 and his role as Commander in
Chief until 1998. His regime was known for its systematic and
widespread violations of human rights, with allegations of
murder, torture and hostage taking of political opponents.
In 1998, during a visit to the United Kingdom for medical
treatment, Pinochet was arrested by the English authorities
with a view to extraditing him to Spain where a Spanish judge
had issued an international arrest warrant. His extradition was,
however, not to proceed smoothly as Pinochet applied to have
the arrest warrant quashed on the grounds that as a former
Head of State he enjoyed immunity from criminal proceedings.
By a decision of 25 November 1998, the House of Lords in a
3:2 majority held that Pinochet was not entitled to immunity
from criminal proceedings and could therefore be extradited.
Issue. Is the provision of the Torture Convention consistent
with the notion of continued immunity for former head of
states?
Held. Yes. The provision of the Torture Convention is not
consistent with the notion of continued immunity for former
head of states. Pinochet (D) was not acting in any capacity
that gives rise to immunity if as alleged; he masterminded and
authorized torture after the 8th of December 1988 because
these acts clearly contravene international law. Hence, the
torture proceedings brought against the defendant should only
continue on the allegation that torture in pursuance of a
conspiracy to commit torture was being committed by the
defendant after he lost his immunity in December 1988.

Discussion. Under common law, a former head of state

enjoys immunity for official acts done while in office, this
implies that the court also took cognizance of common law in
this case. Ensuring that no safe haven is available to torturers
is the primary aim of the Torture Convention.

The Schooner Exchange v. McFaddon

Synopsis of Rule of Law. National ships of war are viewed as
been exempted by consent of the power of the friendly
jurisdiction whose port the ship enters.
Facts. Two Americans (P) claimed they owned and were
entitled to the schooner Exchange they seized on the high
seas. The claim which the United States Attorney (D) put
forward for the prevention of the ship leaving was that, the ship
which was owned by the Emperor of France had been forced
to enter the port of Philadelphia due to bad weather conditions.
At this point in time, the U.S and France were on friendly
terms. The United States (D) request for the dismissal of
ownership and release of the ship was granted by the district
court. However, this judgment was reversed by the circuit court
and this did not prevent the United States (D) from appealing
to the U.S. Supreme Court.
Issue. Are National ships of war viewed as been exempted by
the consent of the power of the friendly jurisdiction whose port
the ship enters?
Held. (Marshall, C.J.) Yes. National ships of war are viewed as
been exempted by consent of the power of the friendly
jurisdiction whose port the ship enters. A nations jurisdiction
within its sovereign territory is exclusive and absolute.The
Exchange been a public armed ship, currently under the
control and supervision of a foreign power, who at the time of
the ships entry into the United States territory, was at peace
with the United States, must be viewed as having entered the
states territory under an implied promise that while in such
environment, would be exempt from the jurisdiction of the
country. Reversed.
Discussion. The absolute form of sovereign immunity from
judicial jurisdiction was implicated in this case. Three

principles were brought forward by the court in this case; the

immunity that all civilized nations allow to foreign ministers; the
exemption of the person of the sovereign from arrest or
imprisonment within a foreign country; and when a sovereign
permits troops of a foreign prince to pass through his territory,
such sovereign is understood to mean he has ceded a portion
of his territorial jurisdiction.

U.S. vs RUIZ
United States of America had a naval base in Subic,
Zambales. The base was one of those provided in the Military
Bases Agreement between the Philippines and the United
States.
United States invited the submission of bids for the following
projects:
1. Repair offender system, Alava Wharf at the U.S. Naval
Station Subic Bay, Philippines.
2. Repair typhoon damage to NAS Cubi shoreline; repair
typhoon damage to shoreline revetment, NAVBASE Subic;
and repair to Leyte Wharf approach, NAVBASE Subic Bay,
Philippines.
Eligio de Guzman & Co., Inc. responded to the invitation and
submitted bids. Subsequent thereto, the company received
from the United States two telegrams requesting it to confirm
its price proposals and for the name of its bonding company.
The company complied with the requests.
In June, 1972, the company received a letter which was
signed by Wilham I. Collins, Director, Contracts Division, Naval
Facilities Engineering Command. The letter 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 for the sea wall at the boat landings of the U.S.
Naval Station in Subic Bay. The letter further said that the
projects had been awarded to third parties. Company sued the
United States of America and Messrs. James E. Galloway,
William I. Collins and Robert Gohier all members of the
Engineering Command of the U.S. Navy. The complaint is to
order the defendants to allow the plaintiff to perform the work
on the projects and, in the event that specific performance was
no longer possible, to order the defendants to pay damages.

The company also asked for the issuance of a writ of

preliminary injunction to restrain the defendants from entering
into contracts with third parties for work on the projects.

U.S. vs REYES

The defendants entered their special appearance for the

purpose only of questioning the jurisdiction of this court over
the subject matter of the complaint and the persons of
defendants, the subject matter of the complaint being acts and
omissions of the individual defendants as agents of defendant
United States of America, a foreign sovereign which has not
given her consent to this suit or any other suit for the causes of
action asserted in the complaint."

Private respondent, hereinafter referred to as Montoya, is an

American citizen who, at the time material to this case, was
employed as an identification (I.D.) checker at the U.S. Navy
Exchange (NEX) at the Joint United States Military Assistance
Group (JUSMAG).

Subsequently the defendants filed a motion to dismiss the

complaint. The trial court denied the motion and issued the
writ.
The traditional rule of 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 principles
of independence and equality of States. However, the rules of
International Law are not petrified; they are constantly
developing and evolving. And because the activities of states
have multiplied, it has been necessary to distinguish thembetween sovereign and governmental acts (jure imperii) and
private, commercial and proprietary acts (jure gestionis). The
result is that State immunity now extends only to acts jure
imperii.
The restrictive application of State immunity is proper only
when the proceedings arise out of commercial transactions of
the foreign sovereign, its commercial activities or economic
affairs. Stated differently, a State may be said to have
descended to the level of an individual and can thus be
deemed to have tacitly given its consent to be sued only when
it enters into business contracts. It does not apply where the
contract relates to the exercise of its sovereign functions. In
this case the projects are an integral part of the naval base
which is devoted to the defense of both the United States and
the Philippines, indisputably a function of the government of
the highest order; they are not utilized for nor dedicated to
commercial or business purposes.

FACTS:

. Petitioner Maxine Bradford, hereinafter referred to as

Bradford, is likewise an American citizen who was the activity
exchange manager at the said JUSMAG Headquarters.
As a consequence of an incident which occurred on 22
January 1987 whereby her body and belongings were
searched after she had bought some items from the retail
store of the NEX JUSMAG, where she had purchasing
privileges, and while she was already at the parking area,
Montoya filed on 7 May 1987 a complaint with the RTC of her
place of residence Cavite against Bradford for damages
due to the oppressive and discriminatory acts committed by
the latter in excess of her authority as store manager of the
NEX JUSMAG.
She then prayed for judgment ordering Bradford to pay her
P500,000.00 as moral damages, P100,000.00 as exemplary
damages and reasonable attorney's fees plus the costs of the
suit.
Summons and a copy of the complaint were served on
Bradford. In response thereto, she filed two (2) motions for
extension of time to file her Answer which were both granted
by the trial court. Instead of filing an answer, however, she,
together with the government of the United States of America
(hereinafter referred to as the public petitioner), filed on 25
June 1987, also through the law firm of Luna, Sison and
Manas, a Motion to Dismiss:
1) (This) action is in effect a suit against the United States of
America, a foreign sovereign immune from suit without its
consent for the cause of action pleaded in the complaint; and
2) Defendant, Maxine Bradford, as manager of the US Navy
Exchange Branch at JUSMAG, Quezon City, is immune from
suit for act(s) done by her in the performance of her official
functions under the Philippines-United States Military
Assistance Agreement of 1947 and Military Bases Agreement
of 1947, as amended.

In support of the motion, the petitioners claimed that JUSMAG,

composed of an Army, Navy and Air Group, had been
established under the Philippine-United States Military
Assistance Agreement entered into on 21 March 1947 to
implement the United States' program of rendering military
assistance to the Philippines.
They further claimed that the Navy Exchange (NAVEX), an
instrumentality of the U.S. Government, is considered
essential for the performance of governmental functions. Its
mission is to provide a convenient and reliable source, at the
lowest practicable cost, of articles and services required for
the well-being of Navy personnel, and of funds to be used for
the latter's welfare and recreation.
Montoya filed her opposition to the motion to dismiss alleging
therein that the grounds proffered in the latter are bereft of
merit because (a) Bradford, in ordering the search upon her
person and belongings outside the NEX JUSMAG store in the
presence of onlookers, had committed an improper, unlawful
and highly discriminatory act against a Filipino employee and
had exceeded the scope of her authority; (b) having exceeded
her authority, Bradford cannot rely on the sovereign immunity
of the public petitioner because her liability is personal; (c)
Philippine courts are vested with jurisdiction over the case
because Bradford is a civilian employee who had committed
the challenged act outside the U.S. Military Bases; such act is
not one of those exempted from the jurisdiction of Philippine
courts; and (d) Philippine courts can inquire into the factual
circumstances of the case to determine whether or not
Bradford had acted within or outside the scope of her
authority.
The doctrine of state immunity and the exceptions thereto are
summarized in Shauf vs. Court of Appeals, thus:
I. The rule that a state may not be sued without its consent,
now expressed in Article XVI Section 3, of the 1987
Constitution, is one of the generally accepted principles of
international law that we have adopted as part of the law of our
land under Article II, Section 2. This latter provision merely
reiterates a policy earlier embodied in the 1935 and 1973
Constitutions and also intended to manifest our resolve to
abide by the rules of the international community.
While the doctrine appears to prohibit only suits against the
state without its consent, it is also applicable to complaints
filed against officials of the state for acts allegedly performed

by them in the discharge of their duties. The rule is that if the

judgment against such officials will require the state itself to
perform an affirmative act to satisfy the same, such as the
appropriation of the amount needed to pay the damages
awarded against them, the suit must be regarded as against
the state itself although it has not been formally impleaded. It
must be noted, however, that the rule is not so allencompassing as to be applicable under all circumstances.
It is a different matter where the public official is made to
account in his capacity as such for acts contrary to law and
injurious to the rights of plaintiff. "Inasmuch as the State
authorizes only legal acts by its officers, unauthorized acts of
government officials or officers are not acts of the State, and
an action against the officials or officers by one whose rights
have been invaded or 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. In the same tenor, it has been
said that an action at law or suit in equity against a State
officer or the director of a State department on the ground that,
while claiming to act or the State, he violates or invades the
personal and property rights of the plaintiff, under an
unconstitutional act or under an assumption of authority which
he does not have, is not a suit against the State within
the constitutional provision that the State may not be sued
without its consent." The rationale for this ruling is that the
doctrinaire of state immunity cannot be used as an instrument
for perpetrating an injustice.
The aforecited authorities are clear on the matter. They state
that the doctrine of immunity from suit will not apply and may
not be invoked where the public official is being sued in his
private and personal capacity as an ordinary citizen. The cloak
of protection afforded the officers and agents of the
government is removed the moment they are sued in their
individual capacity. This situation usually arises where the
public official acts without authority or in excess of the powers
vested in him. It is a well-settled principle of law that a public
official may be liable in his personal private capacity for
whatever damage he may have caused by his act done with
malice and in bad faith, or beyond the scope of his authority or
jurisdiction.
Since it is apparent from the complaint that Bradford was sued
in her private or personal capacity for acts allegedly done
beyond the scope and even beyond her place of official
functions, said complaint is not then vulnerable to a motion to
dismiss based on the grounds relied upon by the petitioners

because as a consequence of the hypothetical admission of

the truth of the allegations therein, the case falls within the
exception to the doctrine of state immunity.

UNDERHILL vs HERNANDEZ
FACTS:
George F. Underhill was a citizen of the United States, who
had constructed a waterworks system for the City of Bolivar
under a contract with the government, and was engaged in
supplying the place with water, and he also carried on a
machinery repair business.

Every sovereign state is bound to respect the independence of

every other sovereign state, and the courts of one country will
not sit in judgment on the acts of the government of another,
done within its own territory.
The cause was tried in the Circuit Court of the United States
for the Eastern District of New York, and on the conclusion of
plaintiff's case, the circuit court ruled that, upon the facts,
plaintiff was not entitled to recover, and directed a verdict for
defendant on the ground that "because the acts of defendant
were those of a military commander, representing a de
facto government in the prosecution of a war, he was not
civilly responsible therefor."
Judgment having been rendered for defendant, the case was
taken to the circuit court of appeals, and by that court affirmed
upon the ground "that the acts of the defendant were the acts
of the government of Venezuela, and as such are not properly
the subject of adjudication in the courts of another
government."

Hernandez was in command of a revolutionary army in

Venezuela. The revolutionary government under which
Hernandez was acting was recognized by the United States as
the legitimate government of Venezuela.
Underhill applied for a passport to leave the city, which was
refused by Hernandez with a view to coerce him to operate his
waterworks and his repair works for the benefit of the
community and the revolutionary forces. Subsequently a
passport was given him.

Underhill v. Hernandez - which established the doctrine. In

Underhill v. Hernandez, the Supreme Court held that a citizen
of the United States was not entitled to recover damages in a
United States court from a Venezuelan Military General who
refused to issue a passport to him because the acts of the
General were held to be acts of the Venezuelan government.

Subsequently Underhill sued Hernandez in .the Circuit Court

for the Second Circuit to recover damages caused by the
refusal to grant the passport, for alleged confinement of him to
his own house, and for alleged assaults and affronts by
Hernandez' soldiers.

The decision in Underhill v. Hernandez strongly indicates that

the doctrine had its origins in notions of sovereign equality and
was based on the view that international law imposed limits on
the ability of States to exercise jurisdiction over other States.

Judgment being rendered for defendant, the case was taken to

the circuit court of appeals, where the judgment was affirmed,
the court holding "that the acts of the defendant were the acts
of Venezuela, and as such are not properly the subject of
adjudication in the courts of another government."
Held that the circuit court of appeals was justified in that
conclusion.

BANCO NACIONAL de CUBA vs

SABBATINO
FACTS:
Respondent American commodity broker contracted with a
Cuban corporation largely owned by United States residents to
buy Cuban sugar. Thereafter, subsequent to the United States
Government's reduction of the Cuban sugar quota, the Cuban
Government expropriated the corporation's property and
rights. To secure consent for shipment of the sugar, the broker,
by a new contract, agreed to make payment for the sugar to a
Cuban instrumentality which thereafter assigned the bills of
lading to petitioner, another Cuban instrumentality, and
petitioner instructed its agent in New York to deliver to the
broker the bills of lading and sight draft in return for payment.
The broker accepted the documents, received payment for the
sugar from its customer, but refused to deliver the proceeds to
petitioner's agent. Petitioner brought this action for conversion
of the bills of lading to recover payment from the broker and to
enjoin from exercising dominion over the proceeds. The
District Court concluded that the corporation's property interest
in the sugar was subject to Cuba's territorial jurisdiction, and
acknowledged the "act of state" doctrine, which precludes
judicial inquiry in this country respecting the public acts of a
recognized foreign sovereign power committed within its own
territory.
This suit is not uncognizable in American courts as being one
to enforce the "public" acts of a foreign state, since the
expropriation law here involved had been fully executed within
Cuba.
The case arose when Cuba nationalized its sugar industry,
taking control of sugar refineries and other companies in the
wake of the Cuban revolution. The case involved a claim by
Cuba for the purchase price of a cargo of sugar which had
been expropriated by the Cuban government, and then, sold to
a US commodity broker (Farr, Whitlock & Co.). In addition to
the Cuban claim, Farr was faced with a claim from the
receivers of the original owner (Sabbatino) who argued that
the Cuban expropriation was contrary to international law.
Both the District Court and the Court of Appeals found for
Sabbatino, holding that the Act of State doctrine was
inapplicable where the relevant foreign act was in violation of
international law. However, the Supreme Court reversed this
decision. Justice Harlan applied the Act of State doctrine and

held that US courts could not question the validity of the

Cuban expropriations even if the plaintiff alleged a violation of
international law.
In Sabbatino, the court held that If a transaction takes place in
one jurisdiction and the forum is in another, the court merely
declines to adjudicate or makes applicable its own law to
parties or property before it. The refusal of one country to
enforce the penal laws of another is a typical example of an
instance when a court will not entertain a cause of action
arising in another jurisdiction. The court further held that one
nation must recognize the act of the sovereign power of
another, so long as it has jurisdiction under international law,
even if it is improper according to the internal law of the latter
state. The court held that the justification for applying the
doctrine would be weaker in cases where the relevant rules of
international law are clear or where the government which
performed the act is no longer in existence. Therefore, the
court further held that:
Rather than laying down or reaffirming an inflexible and allencompassing rule in this case, we decide only that the
Judicial Branch will not examine the validity of a taking of
property within its own territory by a foreign sovereign
government, extant and recognized by this country at the time
of suit, in the absence of a treaty or other unambiguous
agreement regarding controlling legal principles, even if the
complaint alleges that the taking violates customary
international law.

KIRKPATRICK Co. vs ENVIRONMENTAL

TECTONICS CORP.
According to respondent's complaint, petitioners obtained a
construction contract from the Nigerian Government by bribing
Nigerian officials. Nigerian law prohibits both the payment and
the receipt of such bribes. Respondent, an unsuccessful
bidder for the contract, filed an action for damages against
petitioners and others under various federal and state statutes.
The District Court ruled that the suit was barred by the act of
state doctrine, which, in its view, precluded judicial inquiry into
the motivation of a sovereign act that would result in
embarrassment to the sovereign, or constitute interference
with the conduct of United States foreign policy. The court
granted summary judgment for petitioners because resolution
of the case in favor of respondent would require imputing to
foreign officials an unlawful motivation (the obtaining of
bribes), and accordingly might embarrass the Executive
Branch in its conduct of foreign relations. The Court of Appeals
reversed and remanded the case for trial, holding that on the
facts of this case the doctrine of sovereign immunity did not
apply because no embarrassment of the Executive in its
conduct of foreign affairs was evident.
Held: The act of state doctrine does not apply because
nothing in the present suit requires a court to declare invalid
the official act of a foreign sovereign. It does not suffice that
the facts necessary to establish respondent's claim will also
establish that the Nigerian contract was unlawful, since the
contract's legality is simply not a question that the District
Court must decide. Nor does it suffice that judgment in favor
of respondents will require the court to impute to foreign
officials improper motivation in the performance of official acts.
To say that international comity, respect for the sovereignty of
foreign nations, and the avoidance of embarrassment to the
Executive Branch in its conduct of foreign relations are the
policies underlying the act of state doctrine is not to say that
the doctrine is applicable whenever those policies are
implicated. The doctrine is not a rule of abstention which
prohibits courts from deciding properly presented cases or
controversies simply because the Executive's conduct of
foreign relations may be adversely affected; it is a rule of
decision which requires that, in the process of deciding, the
acts of foreign sovereigns taken within their own jurisdictions
be deemed valid.