Public International Law: Chapter IX ー Jurisdiction of States

Jurisdiction

  • the authority to affect legal interests.
  • Corresponding to the powers of government, jurisdiction can be: 

  1. jurisdiction to prescribe norms of conduct (legislative jurisdiction),
  2. jurisdiction to enforce the norms prescribed (executive jurisdiction), and
  3. jurisdiction to adjudicate (judicial jurisdiction)
  • The scope of a state’s jurisdiction over a person, thing, or event depends on the interest of the state in affecting the subject in question. 
    • Where there are competing interests among various states, there may be a need to establish priorities on the basis of the quality and quantity of the linkages the various states have. For that matter, it is possible for more than one sovereignty to have jurisdiction over the same subject matter. 
  • International law limits itself to criminal rather than civil jurisdiction.
    • Civil jurisdiction is a subject for private international law or conflicts of law. 
  • Writers have come up with five principles as follows:
  1. the territoriality principle; 
  2. the nationality principle; 
  3. the protective principle; 
  4. the universality principle; and 
  5. the passive personality principle
    • The first three are generally supported in customary law; 
    • The fourth finds application in special circumstances; 
    • The fifth does not enjoy wide acceptance. 


The Territoriality Principle
  • The fundamental source of jurisdiction is sovereignty over territory. 
  • A state has absolute, but not necessarily exclusive, power to prescribe, adjudicate and enforce rules for conduct that occurs within its territory. For this reason, it is necessary that boundaries be determined. 
  • The Third Restatement summarizes the rules on boundaries where states are not islands but parts of a larger land mass thus: 
  1. The boundary separating the land areas of two states is determined by acts of the states expressing their consent to its location. 
  2. Unless a consent to a different rule has been expressed, 
    1. when the boundary between two states is a navigable river, its location is the middle of the channel of naviga tion (Thalweg doctrine)
    2. when the boundary between two states is a non-navigable river or a lake, its location is the middle of the river or lake. 
  • In this regard it is important to recall what was said in the Las Palmas case: to have jurisdiction, occupation is not enough; control must also be established. 
  • The Philippines has no problem with surface land boundaries because we have no contiguous neighbors. 
    • However, because we are very close to other Asian states, knowing where our boundaries end may be necessary for purposes of determining our exclusive economic zone, treated earlier in Chapter 9. 
Effects Doctrine 
  • An aspect of the territoriality principle is the effects doctrine.
  • A state also has jurisdiction over acts occurring outside its territory but having effects within it. 
  • This was enunciated in the Lotus case, an early case dealing with territorial jurisdiction. 
  • The effects doctrine itself consists of two principle:
  1. There is the subjective territorial principle which says that a state has jurisdiction to prosecute and punish for crime commenced within the state but completed or consummated abroad.
  2. The objective territorial principle which says that a state has jurisdiction to prosecute and punish for crime commenced without the state but consummated within its territory. 
  • See the Trail Smelter Arbitration.
  • Facts: 
    • French mail steamer Lotus collides with the Turkish cutter Boz-Kourt on the high seas, resulting in the sinking of Boz-Kourt and the loss of eight Turkish sailors.
    • Turkish authorities arrest Lieutenant Demons (from Lotus) and Hassan Bey (captain of Boz-Kourt), charging them with manslaughter.
    • Both individuals are tried in Turkish courts, with Lieutenant Demons arguing against Turkish jurisdiction.
  • Issue:
    • Whether Turkey's prosecution of Lieutenant Demons violated international law by exercising jurisdiction over an incident involving two vessels of different flags on the high seas
  • Ruling:
    • The Court determined that no rule of international law exclusively granted jurisdiction to the state of the vessel's flag in collision cases.
    • Given the inseparability of the offense, an act of negligence or imprudence, between the two vessels, both states had a legitimate claim for concurrent jurisdiction to protect their interests and deliver justice effectively.
Jurisdiction over foreign vessels in Philippine Territory 
  • 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. (Syllabus, People v. Wong Cheng, 46 Phil 729 [1922])
  • The Philippines adhere with the English Rule.
  • Facts: 
    • United States and Canada argues over fumes discharged by the Trail smelter in British Columbia causing damage in the State of Washington.
  • Issue:
    • Whether the Trail Smelter caused damage in Washington State, the amount of indemnity, and the extent of measures needed to prevent future damage.
  • Ruling:
    • “A State owes at all times a duty to protect other States against injurious acts by individuals from within its jurisdiction.” 
    • The Tribunal holds that the Dominion of Canada is responsible in international law for the conduct of the Trail Smelter.... It is, therefore, the duty of the government of the Dominion of Canada to see to it that this conduct should be in conformity with the obligation of the Dominion under international law as herein determined. 
    • So long as the present conditions in the Columbia River Valley prevail, the Trail Smelter shall be required to refrain from causing any damage through fumes in the State of Washington.

The Nationality Principle
  • The nationality principle says that every state has jurisdiction over its nationals even when those nationals are outside the state. 
  • Blackmer v. United States is illustrative of this principle.
  • Facts: 
    • Harry M. Blackmer, a U.S. citizen residing in Paris, France, was found guilty of contempt by the Supreme Court of the District of Columbia for failing to respond to subpoenas served on him in France, summoning him as a witness in a U.S. criminal trial.
    • The subpoenas were issued under the Act of July 3, 1926, allowing subpoenas for U.S. citizens abroad to appear as witnesses in U.S. criminal trials, served through U.S. consuls abroad.
  • Issue:
    • Whether the ‘Congress has no power to authorize United States consuls to serve process except as permitted by treaty.’
    • Whether the act does not provide ‘a valid method of acquiring judicial jurisdiction to render personal judgment against defendant and judgment against his property.’
  • Ruling:
    • Despite residing abroad, Blackmer remained a U.S. citizen, subject to U.S. laws and obligations. The U.S. retained authority over him, and he was bound by its laws even while residing in a foreign country. Blackmer had a duty to support the administration of justice by attending U.S. courts and giving testimony upon proper summons.
    • The Court held that the legislation applied to citizens abroad regarding their duties to their own government. The U.S. possesses the power to demand the return of a citizen residing elsewhere, penalizing refusal when deemed in the public interest.
    • The Act of 1926 allowing subpoenas for U.S. citizens abroad to testify in U.S. criminal trials was constitutional and fell within the powers of Congress to regulate the duties of U.S. citizens, regardless of their residency.
  • Each state has the right to decide who are its nationals using either the principle of jus sanguinis or jus soli or naturalization laws. 
  • However, for a state to claim a person as a national, the state must have reasonable connection or an “effective link” with that person. 
  • The consent of the individual alone is not enough for him to be recognized by other states as a national of the state to which he claims to belong. 
  • The Nottebohm case (Liechtenstein v. Guatemala) is illustrative.

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. 
  • The doctrine is found in the Nottebohm case
  • Facts: 
    • Friedrich Nottebohm, a German national, resided in Guatemala, maintained business there, and occasionally visited Germany and Liechtenstein.
    • In October 1939, after World War II broke out, he applied for Liechtenstein citizenship, obtaining it quickly without fulfilling the residency requirement. He then returned to Guatemala. 
    • Later, both the U.S. and Guatemala were at war with Germany.
    • In 1943, Guatemala arrested and deported Nottebohm to the U.S., where he was interned until 1946. Guatemala confiscated his property in 1949.
    • Liechtenstein filed a case against Guatemala, claiming Guatemala's actions breached international law, seeking reparation for Nottebohm's arrest, expulsion, and property seizure.
  • Issue:
    • Whether the claim was inadmissible due to the nationality of the claimant.
  • Ruling:
    • Instances of dual nationality have been addressed in international practice, where arbitrators and courts prefer the "real and effective" nationality, considering various factors such as habitual residence, family ties, public life participation, and attachment to a specific country.
    • International law recognizes the character of nationality based on genuine connections and reciprocal rights and duties, emphasizing that a state can exercise protection only if the individual's connection justifies it.  
      • Nottebohm had been a German national since birth and maintained connections with family and business in Germany. His settlement in Guatemala for 34 years was characterized by business activities, familial connections, and a stable lifestyle.
      • In contrast, his ties to Liechtenstein were superficial, involving only brief visits without any intention of settling or establishing long-term connections. His naturalization in Liechtenstein lacked genuine prior connection, did not alter his lifestyle, and was pursued primarily to change his nationality from a belligerent state to that of a neutral state for protection purposes.
    • The naturalization was granted hastily, without consideration for genuine nationality concepts in international relations, merely to seek protection from Liechtenstein without any intention to adopt its traditions or obligations.
    • Guatemala is not obligated to recognize such nationality obtained in these circumstances, and therefore, Liechtenstein's claim against Guatemala is deemed inadmissible.

  • As to corporations
    • A state has jurisdiction over corporations organized under its laws. 
    • Many states assert jurisdiction over corporations whose principal place of business or registered office is located in their territories. 
    • States have also sought to regulate corporations organized or having their principal place of business abroad when these corporations are owned or controlled by nationals. This last is controversial. 
    • More controversial still are multi-national corporations which register various addresses for different purposes. 
      • Thus, for instance, executive offices, sales operations, manufacturing and distribution facilities may each be located in different localities. These problems, however, are more properly under the domain of conflict of law.
  • For maritime vessels
    • A state has jurisdiction over vessels flying its flag. (See Lotus case.) 
    • Each state determines requirements for registration. 
    • But flags of convenience might be challenged on the ground of lack of sufficient link. 
    • The same principle is generally applicable to aircraft and spacecraft.

Stateless persons
  • Stateless persons are those who do not have a nationality. 
  • They are either de jure or de facto stateless. 
    • De jure stateless persons 
      • are those who have lost their nationality, if they had one, and have not acquired a new one. 
    • De facto stateless persons 
      • are those who have a nationality but to whom protection is denied by their state when out of the state. 
      • This is the situation of many refugees. 
Since they do not enjoy protection by any state, how are they protected against violations of their human rights such as by deportation to parts unknown? 
The following case offers an answer.

  • Facts: 
    • Boris Mejoff, an alien of Russian descent, was brought to the Philippines by Japanese forces during their occupation.
    • He was arrested as a Japanese spy, handed over to the Commonwealth Government for processing under Commonwealth Act No. 682, and subsequently ordered for deportation due to illegal entry into the Philippines.
    • Over the years, efforts to deport him failed and he remained in detention at Bilibid Prison.
  • Issue:
    • Whether Mejoff, despite illegal entry, could be indefinitely detained if deportation was not possible.
  • Ruling:
    • Aliens illegally staying in the Philippines have no right of asylum therein, even if they are “stateless,” which the petitioner claims to be. However, the protection against deprivation of liberty without due process of law and except for crimes committed against the laws of the land is not limited to Philippine citizens but extends to all residents, except enemy aliens, regardless of nationality. 
    • The petitioner’s entry into the Philippines was not unlawful; he was brought by the armed and belligerent forces of a de facto government whose decrees were law during the occupation.
    • The Philippines, by its Constitution, adopts the generally accepted principles of international law as part of the law of Nation and supports human rights as proclaimed in the Universal Declaration of Human Rights.
    • In a similar case in the US (Staniszewski vs. Watkins), a stateless person was released on his own recognizance due to the inability to deport him. Despite not being a binding precedent, the reasoning from the US case is adopted, providing a sensible solution within the Philippine law.
    • The Court issued the petitioner's release under surveillance by immigration authorities, subject to reasonable terms and a bond of P5,000, ensuring availability for deportation.


The Protective Principle
  • This principle says that a state may exercise jurisdiction over conduct outside its territory that threatens its security, as long as that conduct is generally recognized as criminal by states in the international community. (Restatement 402[3]) 
  • This conditional clause excludes acts committed in exercise of the liberty guaranteed an alien by the law of the place where the act was committed. 
  • The examples given of acts covered by the protective principle are:
    • plots to overthrow the government
    • forging its currency, and 
    • plot to break its immigration regulations. 
  • A sample case of this is that of “Lord Haw Haw,” an American citizen who broadcast messages from Germany seeking to persuade the Allies to surrender. 
    • Until 1940, he held a British passport. 
    • After the war, he was convicted of high treason in the United Kingdom.
    • In upholding the principle, Lord Jowwit of the House of Lords said: “No principle of comity demands that a state should ignore the crime of treason committed against it outside its territory. On the contrary, a proper regard for its own security requires that all those who commit that crime, whether they commit it within or without the realm should be amenable to its laws.”
  • The limitations on the protective principle are found in United States v. Yunis:
    • “Because this principle gives states wide latitude in defining the parameters of their jurisdiction, the international community has strictly construed the reach of this doctrine to those offenses posing a direct, specific threat to national security. Recently, some academicians have urged a more liberal interpretation of the protective principle when applied to terroristic activities. Given “the increase in the number of terroristic threats against United States nationals abroad, there can be no doubt that the United States has significant security and protective interests at stake.” 
    • In this case, the hijackers never made any demands upon the United States government nor directly threatened its security.
    • Indeed, it was almost happenstance that three American nationals were on board the aircraft. Given the regional focus of the hijacking, a court would have to adopt an expansive view of the principle to assert jurisdiction over Yunis. Since jurisdiction is available under the universality and passive personality principle, there is no reason to reach out and rely on the protective principle as well.


The Universality Principle
  • The universality principle recognizes that certain activities, universally dangerous to states and their subjects, require authority in all community members to punish such acts wherever they may occur, even absent a link between the state and the parties or the acts in question
  • This principle started with piracy.
    • Piracy in international law means any illegal act of violence or depredation committed for private ends on the high seas or outside the territorial control of any state. 
  • Now the principle covers not just piracy but also:
    • genocide
    • crimes against humanity
    • war crimes
    • aircraft piracy and
    • terrorism. 
  • There is also a growing support for universal jurisdiction over crimes against human rights. The Statute of the new International Criminal Court defines these crimes, thus:
Article 6. Genocide 
  • For the purpose of this Statute, “genocide" means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: 
    1. Killing members of the group; 
    2. Causing serious bodily or mental harm to members of the group;
    3. Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; 
    4. Imposing measures intended to prevent births within the group; 
    5. Forcibly transferring children of the group to another group.
Article 7. Crimes against humanity
  • For the purpose of this Statute, “crime against humanity” means any of the following acts when committed as part of a wide-spread or systematic attack directed against any civilian population, with knowledge of the attack:
    1. Murder;
    2. Extermination;
    3. Enslavement; 
    4. Deportation or forcible transfer of population;
    5. Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law; 
    6. Torture; 
    7. Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity; 
    8. Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court;
    9. Enforced disappearance of persons; 
    10. The crime of apartheid; 
    11. Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.
  • For the purpose of paragraph 1:
    • “Attack directed against any civilian population”
      • means a course of conduct involving the multiple commission of acts referred to in paragraph 1 against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such attack; 
    • “Extermination” 
      • includes the intentional infliction of conditions of life, inter alia the deprivation of access to food and medicine, calculated to bring about the destruction of part of a population; 
    • “Enslavement” 
      • means the exercise of any or all of the powers attaching to the right of ownership over a person and includes the exercise of such power in the course of trafficking in persons, in particular women and children; 
    •  “Deportation or forcible transfer of population”
      • means forced displacement of the persons concerned by expulsion or other coercive acts from the area in which they are lawfully present, without grounds permitted under international law; 
    • “Torture” 
      • means the intentional infliction of severe pain or suffering, whether physical or mental, upon a person in the custody or under the control of the accused; except that torture shall not include pain or suffering arising only from, inherent in or incidental to, lawful sanctions; 
    • “Forced pregnancy” 
      • means the unlawful confinement of a woman forcibly made pregnant, with the intent of affecting the ethnic composition of any population or carrying out other grave violations of international law. This definition shall not in any way be interpreted as affecting national laws relating to pregnancy; 
    • “Persecution” 
      • means the intentional and severe deprivation of fundamental rights contrary to international law by reason of the identity of the group or collectivity; 
    • “The crime of apartheid” 
      • means inhumane acts of a character similar to those referred to in paragraph 1, committed in the context of an institutionalized regime of systematic oppression and domination by one racial group over any other racial group or groups and committed with the intention of maintaining that regime; 
    • “Enforced disappearance of persons” 
      • means the arrest, detention or abduction of persons by, or with the authorization, support or acquiescence of, a State or a political organization, followed by a refusal to acknowledge that deprivation of freedom or to give information on the fate or whereabouts of those persons, with the intention of removing them from the protection of the law for a prolonged period of time.
  • For the purpose of this Statute, it is understood that the term “gender” refers to the two sexes, male and female, within the context of society. The term “gender” does not indicate any meaning different from the above.
Article 8. War Crimes
  • The Court shall have jurisdiction in respect of war crimes in particular when committed as part of a plan or policy or as part of a large-scale commission of such crimes.
  • For the purpose of this Statute, “war crimes” means: 
    • (a) Grave breaches of the Geneva Conventions of 12 August 1949, namely, any of the following acts against persons or property protected under the provisions of the relevant Geneva Convention...

  • Article 8 enumerates in detail the war crimes under the Geneva Convention. 
  • The following are a number of cases illustrative of the universality principle:
  • Facts: 
    • Two Paraguayan nationals, father and sister of the victim, alleged a 17-year-old was tortured to death by Pena-Irala, then Inspector-General of Paraguay's police.
    • Jurisdiction based on the Alien Tort Statute (28 U.S.C. & 1350).
  • Ruling:
    • The international consensus surrounding torture has found expression in numerous international treaties and accords.... The substance of these international agreements is reflected in modem municipal — i.e., national — law as well. Although torture was once a routine concomitant with criminal interrogations in many nations, during the modem and hopefully more enlightened era it has been universally renounced. According to one survey, torture is prohibited, expressly or implicitly, by the constitutions of over fifty-five nations, including both the United States and Paraguay.

  • Facts: 
    • Adolf Eichmann, a high-ranking SS officer, played a significant role in planning and executing the persecution of Jews across multiple countries during World War II.
    • After the war, he fled to Argentina under an alias but was kidnapped by Israeli agents in May 1960.
    • Argentina protested to the Security Council about the violation of its sovereignty, and though not demanding Eichmann's return, requested Israel to provide appropriate reparation.
    • Eichmann was tried in Israel under the Nazi Collaborators Law and found guilty. His conviction was upheld by the Supreme Court of Israel, leading to his execution on May 31, 1962.
  • Issue:
    • Whether the prosecution of the accused in Israel following his  abduction from a foreign country conflicts with international law and exceeds the jurisdiction of the Court.
  • Defense:
    • From the point of view of international law, the power of the State of Israel to enact the Law in question or Israel’s “right to punish” is based, with respect to the offences in question, on a dual foundation: 
      • the universal character of the crimes in question, and 
      • their specific character as intended to exterminate the Jewish people.
    • Delicta juris gentium
      • crimes struck at the whole of mankind and shocked the conscience of nations, which are grave offenses against the law of nations itself.
  • Ruling:    
    • International crimes involve acts damaging vital international interests, violating universal moral values, and humanitarian principles, holding individuals accountable under international law.
    • Despite the absence of an international criminal court, nations are authorized to enforce provisions against international crimes through their domestic legislation.
    • Acts constituting international crimes extend beyond a single state's borders, affecting the international community's stability, warranting punishment irrespective of the perpetrator's nationality or the state's tolerance.
    • The universal character of these crimes empowers every state to try and punish those involved in their preparation, invoking the principle of universality beyond territorial limits, applicable in certain cases such as piracy jure gentium.


The Passive Personality Principle
  • The Comment on § 402 of Third Restatement says: The passive personality principle asserts that a state may apply law — particularly criminal law — to an act committed outside its territory by a person not its national where the victim of the act was its national. 
  • The principle has not been ordinarily accepted for ordinary torts or crimes, but it is increasingly accepted as applied to:
    • terrorist and other organized attacks on a state’s nationals by reason of their nationality, or 
    • assassination of a state’s diplomatic representatives or other officials.

  • Facts: 
    • ALIA Flight 402, a Jordanian civil aircraft, was hijacked on June 11 and 12, 1985.
    • The only connection to the United States was the presence of American nationals among the passengers; however, the plane never landed on U.S. soil or flew over U.S. airspace.
    • After crisscrossing the Mediterranean for over 30 hours, the plane returned to Beirut, where the hijackers allowed the hostages to disembark, held a press conference, and then blew up the aircraft.
    • ALIA Flight 402 never entered or flew over U.S. territory during the incident, remaining within the Mediterranean region.
    • Yunis argues for the dismissal of the indictment, citing lack of U.S. jurisdiction to prosecute a foreign national for crimes committed outside U.S. territory and airspace, despite the presence of American nationals onboard.
  • Issue:
    • Whether there is a basis for jurisdiction under international law.
  • Analysis:
  • Jurisdiction Under International Law
    • The parties agree that there are five traditional bases of jurisdiction over extraterritorial crimes under international law: 
      1. Territorial, wherein jurisdiction is based on the place where the offense is committed; 
      2. National, wherein jurisdiction is based on the nationality of the offender; 
      3. Protective, wherein jurisdiction is based on whether the national interest is injured; 
      4. Universal, wherein jurisdiction is conferred in any forum that obtains physical custody of the perpetuator of certain offenses considered particularly heinous and harmful to humanity. 
      5. Passive personal, wherein jurisdiction is based on the nationality of the victim. 
    • These general principles were developed in 1935 by a Harvard Research Project in an effort to codify principles of jurisdiction under international law. 
    • The Universal and the Passive Personal principle appear to offer potential bases for asserting jurisdiction over the hostage-taking and aircraft piracy charges against Yunis. 
      • However, his counsel argues that the Universal principle is not applicable because neither hostage-taking nor aircraft piracy are heinous crimes encompassed by the doctrine. He urges further, that the United States does not recognize Passive Personal as a legitimate source of jurisdiction. The government flatly disagrees and maintains that jurisdiction is appropriate under both.
  • Universal Principle
    • The Universal principle recognizes that certain offenses are so heinous and so widely condemned that “any state if it captures the offender may prosecute and punish that person on behalf of the world community regardless of the nationality of the offender or victim or where the crime was committed.”
    • Those crimes that are condemned by the world community and subject to prosecution under the Universal principal are often a matter of international conventions or treaties.
      • A majority of states in the world community including Lebanon, have signed three treaties condemning aircraft piracy: The Tokyo Convention, The Hague Convention, and The Montreal Convention.
        • These demonstrate the international community’s strong commitment to punish aircraft hijackers irrespective of where the hijacking occurred.
      • The global community has also joined together and adopted the International Convention for the Taking of Hostages, an agreement which condemns and criminalizes the offense of hostage taking. 
    • In light of the global efforts to punish aircraft piracy and hostage taking, international legal scholars unanimously agree that these crimes fit within the category of heinous crimes for purposes of asserting universal jurisdiction. Therefore, under recognized principles of international law, and the law of this Circuit, there is clear authority to assert jurisdiction over Yunis for the offenses of aircraft piracy and hostage taking.
  • Passive Personality Principle
    • This principle authorizes states to assert jurisdiction over offenses committed against their citizens abroad. 
      • It recognizes that each state has a legitimate interest in protecting the safety of its citizens when they journey outside national boundaries. 
      • Because American nationals were on board the Jordanian aircraft, the government contends that the Court may exercise jurisdiction over Yunis under this principle.
    • Although many international legal scholars agree that the principle is the most controversial of the five sources of jurisdiction, they also agree that the international community recognizes its legitimacy.
      • In the most recent draft of the Restatement, the authors noted that the theory “has been increasingly accepted when applied to terrorist and other organized attacks on a state’s nationals by reason of their nationality, or to assassinations of a state’s ambassadors, or government officials.”
    • Finally, this case does not present the first time that the United States has invoked the principle to assert jurisdiction over a hijacker who seized an American hostage on foreign soil.
      • The government relied on this very principle when it sought extradition of Muhammed Abbas Zaiden, the leader of the terrorists who hijacked the Achillo Lauro vessel in Egyptian waters and subsequently killed Leon Klinghoffer, an American citizen. As here, the only connection to the United States was Klinghoffer’s American citizenship. Based on that link, an arrest warrant was issued charging Abbas with hostage taking, conspiracy and piracy.
  • Thus, the Universal and Passive Personality principles, together, provide ample grounds for this Court to assert jurisdiction over Yunis. In fact, reliance on both strengthens the basis for asserting jurisdiction. Not only is the United States acting on behalf of the world community to punish alleged offenders of crimes that threaten the very foundations of world order, but the United States has its own interest in protecting its nationals.

Conflicts of Jurisdiction
  • Since there are various accepted principles for assuming jurisdiction, more than one state may have a valid claim to jurisdiction.
  • U.S. courts have attempted to develop more sophisticated modes of resolving conflict of jurisdiction. Three modes are given below. 
    • The Balancing Test
    • International Comity
    • Forum non conveniens

The Balancing Test 
  • In Timberlane Lumber Co. v. Bank of America, the question was whether to assume jurisdiction in a Sherman Act case involving acts emanating from Honduras. 
  • The court employed a tripartite analysis to determine whether to assume jurisdiction or not. 
    1. Was there an actual or intended effect on American foreign commerce?
    2. Is the effect sufficiently large to present a cognizable injury to the plaintiffs and, therefore, a civil violation of the anti-trust laws?
    3. Are the interests of, and link to, the United States . . . including effects on American foreign commerce sufficiently strong, vis-d-vis those of other nations, to justify an assertion of extraordinary authority?
  • If the answer is yes to all these, then the court will assume jurisdiction.

International Comity 
  • Even when a state has basis for exercising jurisdiction, it will refrain from doing so if its exercise will be unreasonable.
  • This is treated in Hartford Fire Insurance Co. v. California, but the principle involved is summed up in Third Restatement §§ 403. 
  • Unreasonableness is determined by evaluating various factors, such as:
    • the link of the activity to the territory of the regulating state, 
    • the connection, such as nationality, residence, or economic activity, between the regulating state and the person principally responsible for the activity to be regulated, 
    • the character of the activity to be regulated, 
    • the existence of justified expectations that might be protected or hurt by the regulation, 
    • the likelihood of conflict with regulation by another state.
Forum non conveniens 
  • The principle of forum non conveniens is well-stated in the following excerpt from a Scottish decision: If in the whole circumstances of the case it be discovered that there is a real unfairness to one of the suitors in permitting the choice of a forum which is not the natural or proper forum, either on the ground of convenience of trial or the residence or domicile of parties or of its being the locus contractus, or locus solutionis, then the doctrine of forum non conveniens is properly applied.
  • The application is discretionary with the court. 
    • Some of the interests which the court needs to weigh are divided into private interest factors and public interest factors. 
    • Private interest factors are:
      • access to sources of proof, 
      • availability of compulsory process for unwilling witnesses and 
      • other personal problems which make trial easy, expeditious and inexpensive. 
    • Public interest factors 
      • include congestion, 
      • desire to settle local controversies at home, and 
      • having the case tried in a forum at home with the applicable law. 
  • Forum non conveniens presumption is with the plaintiff. Piper Aircraft Co. v. Reyno, is a leading application of the principle.

Extradition
  • Extradition is the surrender of an individual by the state within whose territory he is found to the state under whose laws he is alleged to have committed a crime or to have been convicted of a crime.
  • It is a process that is governed by treaty. 
    • The legal right to demand extradition and the correlative duty to surrender a fugitive exist only when created by treaty. 
  • A treaty may cover specific crimes only or all offenses considered criminal by both states. 
  • Today most treaties exclude religious and political offenses, although political offenses have never been precisely defined. But a state may surrender a fugitive if surrendering him is not contrary to the state’s constitution.
  • The following principles govern extradition: 
  1. No state is obliged to extradite unless there is a treaty;
  2. Differences in legal system can be an obstacle to interpretation of what the crime is; 
  3. Religious and political offenses are not extraditable.
  • The procedure for extradition is normally through diplomatic channels. 
  • The following case of United States v. Alvarez-Chain is an example of how extradition rules can be bypassed.

United States v. Alvarez-Machain  504 UJS 655 (1992)
  • Facts:
    • A criminal defendant abducted from a nation with which the United States has an extradition treaty. 
    • The defendant was indicted for involvement in the kidnap and murder of a DEA agent and a Mexican pilot. 
    • He was forcibly abducted from Mexico to Texas by DEA officials, leading to objections regarding jurisdiction and violation of the extradition treaty.
    • District Court: Discharged the defendant, ruling that his abduction violated the Extradition Treaty.
    • Court of Appeals: Affirmed.
  • Issue:
    • Whether such an abduction grants the defendant immunity from trial in the U.S.
  • Ruling:
    • Legal precedents (Ker v. Illinois and Frisbie v. Collins) have established that forcible abduction is not sufficient reason to deny a trial when a defendant is within a court's jurisdiction.
    • Analyzing the Extradition Treaty between the U.S. and Mexico, the court found no provisions addressing abductions outside the treaty’s terms or prohibiting such actions.
    • The defendant argued that international abductions violate general international law principles, suggesting the treaty should be interpreted in line with these principles. However, the court reasoned that the treaty's terms did not specifically prohibit obtaining an individual's presence through means outside treaty procedures.
    • Despite acknowledging that the abduction might contravene general international law principles, the court concluded that it did not violate the U.S.-Mexico Extradition Treaty, thus not barring the defendant's trial in the United States for alleged criminal offenses.
    • The judgment of the Court of Appeals was reversed, allowing the case to proceed for further proceedings consistent with the court's opinion.

Secretary of Justice v. Hon. Ralph Lantion G.R. No. 139465. October 17,2000
  • Facts:
    • The RP-US Extradition Treaty and P.D. No. 1069, implementing the treaty, provide the procedure and timing for furnishing the accused with the petition for extradition and its supporting documents.
    • There is no explicit provision granting the extraditee the right to demand the extradition request and its documents for comment during the evaluation stage.
  • Issues:
    • Whether the private respondent has the right to notice and a hearing during the evaluation stage of the extradition process.
  • Ruling:
    • The court holds that the private respondent does not possess the right to notice and hearing during the evaluation stage of the extradition process.
    • Extradition proceedings differ significantly from criminal proceedings; therefore, the constitutional rights relevant to determining guilt or innocence do not necessarily apply to an extraditee.
    • Procedural due process in extradition matters should begin with a precise determination of the nature of the government function involved and the private interest affected.
    • The urgency of the private respondent's right to notice and hearing is challenged by provisions allowing provisional arrest, which only apply pending receipt of the extradition request.
    • The court weighs the private respondent's plea for due process against the government's interest in honoring extradition treaties, promoting foreign relations, and suppressing crimes, leaning towards the latter.
    • The decision asserts that the temporary hold on the extraditee's privilege of notice and hearing is a soft restraint on due process and ensures fundamental fairness without denying due process rights.
    • The Urgent Motion for Reconsideration is granted, reversing the previous decision.
Bail in extradition cases
  • If after his arrest and if the trial court finds that an extraditee is not a flight risk, the court may grant him bail.
    • (In this case the grant of bail presupposed that a co-petitioner, the wife, had already presented evidence to prove her right to be on bail, that she was no flight risk, and the trial court had already exercised its sound discretion and had already determined that under the Constitution and laws in force, co- petitioner was entitled to provisional release.) 
  • The Court emphasized that bail may be granted to a possible extraditee only upon a clear and convincing showing:
    1. that he will not be a flight risk or a danger to the community, and 
    2. that there exist special, humanitarian and compelling circumstances.
  • In a later case, the Court said that it could not ignore the following trends in international law: 
    1. the growing importance of the individual person in public international law who, in the 20th century, has gradually attained global recognition;
    2. the higher value now being given to human rights in the international sphere; 
    3. the corresponding duty of countries to observe these universal human rights in fulfilling their treaty obligations; and 
    4. the duty of the Court to balance the rights of the individual under our fundamental law, on one hand, and the law on extradition, on the other. 
  • It added, “If bail can be granted in deportation cases, we see no justification why it should not also be allowed in extradition cases. After all, both are administrative proceedings where the innocence or guilt of the person detained is not in issue.” Gov’t of Hongkong v. Olalia, GR 153675, April 19,2007.
    • The decision departs from the earlier case of Mark Jimenez (US v. Judge Puruganan, September 24, 2002) which said that bail is not available in extradition cases.


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