* bok * cj * tiff * gem * tin * I am a submarine!! 3. Jurisdiction and Immunities ! additional cases. Other cases to follow.

Jeffrey Liang (Huefeng), petitioner v. People, respondent (March 26, 2001) Ynares-Santiao, J. CRIMINAL INFORMATIONS FILED AGAINST PETITIONER. Liang, a Chinese national is an economist in the ADB was alleged to have uttered defamatory words to one Joyce Cabal, a member of the ADB clerical staff. MTC DISMISSED INFORMATION. It acted pursuant to an advice from the DFA that Liang enjoyed immunity from legal processes. RTC ANNULLED THE MTC ORDER. So Liang brought the case to the SC, which dismissed the same (January 28, decision) and ruled that the immunity of officers and staff of the ADB is not absolute but limited to acts done in official capacity. Also, the SC added that this does not cover the commission of a crime. PETITIONER FILED MfR based on the following arguments: a) DFA's determination of immunity is a political question to be made by executive branch and conclusive upon courts b) Immunity of International Organizations is absolute. c) That immunity extends to all staff of the Asian Development Bank (ADB) d) Due process was fully afforded to complainant to rebut the DFA protocol. e) The January 28, 2000 decision erroneously made a finding of fact on the merits (that the slandering of a person) which prejudged petitioner's criminal case before the MTC. f) The Vienna Convention on Diplomatic relations is not applicable here. DFA MOVED TO INTERVENE. Issue: WON the statenebts allegedly made by Liang were uttered while in the performance of his official functions as to fall under Sec. 45 (a) of the "Agreement Between the ADB and the Government of the Republic of the Philippines Regarding the Headquarters of the Asian Development Bank"? Held: NO. IMMUNITY NOT DENIED. The petitioner's MfR focused on the diplomatic immunity of officials and staff of ADB from legal and juridical 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. THE AGREEMENT: Officers and staff of the Bank, including for the purpose of this Article experts and consultants performing missions for the Bank, shall enjoy the following privileges and immunities: (a) Immunity from legal process with respect to acts performed by them in their official capacity except when the Bank waives the immunity. THE DECISION. The SC finds no cogent reason to disturb the former decision. It reiterated its statement therein that, the slander of a person, by any stretch, cannot be considered as falling within the purview of the immunity granted to ADB officers and personnel.

public international law

UPLAW 2009 B

DID THE SC DECISION PREJUDGE THE CRIMINAL CASE AGAINST HIM? It did not. What was merely stated therein is that slander, in general, cannot be considered as an act performed in an official capacity. The issue of whether or not petitioner's utterances constituted oral defamation is still for the trial court to determine. Separate Opion: Puno, J., concurring JANUARY 28, DECISION: the DFA protocol communication stating that Liang is covered by immunity is only preliminary and has no binding effect in courts; the immunity provided for under Sec. 45(a) of the Headquarters Agreement is subject to the condition that the act be done in an "official capacity"; slandering a person cannot be said to have been done in an "official capacity", hence, it is not covered by the immunity agreement; Vienna Convention on Diplomatic Relations: a diplomatic agent (assuming petitioner is such) enjoys immunity from criminal jurisdiction of the receiving state except in the case of an action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving state outside his official functions; commission of a crime is not part of official duty; and that a preliminary investigation is not a matter of right in cases cognizable by the MTC 1. PETITIONER'S CONTENTIONS: AS TO PURPOSE OF IMMUNITY: It is designed to safeguard the autonomy and independence of international organizations against interference from any authority external to the organizations. It is necessary to allow such organizations to discharge their entrusted functions effectively. The only exception to this immunity is when there is an implied or express waiver or when the immunity is expressly limited by statute. The exception allegedly has no application to the case at bar. DETERMINATION OF WHAT IS OFFICIAL ACTS UPON ADB ONLY. The same cannot be subject to different interpretations by the member states. The Headquarters Agreement provides for remedies to check abuses against the exercise of the immunity. Hence, Sec. 49 states: "Bank shall waive the immunity accorded to any person if, in its opinion, such immunity would impede the course of justice and the waiver would not prejudice the purposes for which the immunities are accorded." Section 51 allows for consultation between the government and the Bank should the government consider that an abuse has occurred. The same section provides the mechanism for a dispute settlement regarding, among others, issues of interpretation or application of the agreement. WHO, et al. vs. Aquino: This case involved the search and seizure of personal effects of a WHO official who happened to be certified to be entitled to diplomatic immunity pursuant to the Host Agreement between Philippines and WHO. The SC stated that diplomatic immnity is essentially a political question (based on international law principle and principle of
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separation of powers). Where the plea of diplomatic immunity is recognized and affirmed by the executive branch of the government, it is the duty of the courts to accept the claim of immunity upon appropriate suggestion by the principal law officer of the government (in this WHO case, the Sol. Gen.). In adherence to the settled principle that courts may not exercise their jurisdiction by seizure and detention of property, as to embarrass the executive arm of the government in conducting foreign relations, it is accepted doctrine that in such cases the judicial department of the government follows the action of the political branch and will not embarrass the latter by assuming an antagonistic jurisdiction. ICMC vs. Calleja: This was a petition for certification election filed against ICMC and IRRIinternational organizations enjoying immunity. The exercise of jurisdiction of the Department of Labor would defeat the very purpose of immunity, which is to shield the affairs of international organizations from political pressure or control by the host country and to ensure the unhampered performance of their functions. Holy See v. Rosario, Jr.: This was an action for annulment of sale of land against the Holy See. The defense of sovereign immunity was upheld. Where a diplomatic envoy is granted immunity from the civil and administrative jurisdiction of the receiving state over any real action relating to private immovable property situated in the territory of the receiving state, which the envoy holds on behalf of the sending state for the purposes of the mission, with all the more reason should immunity be recognized as regards the sovereign itself, which in that case is the Holy See. Lasco vs. United Nations: UN Revolving Fund for Natural Resources Exploration was sued before the NLRC for illegal dismissal; SC again upheld the doctrine of diplomatic immunity invoked by the Fund. DFA v. NLRC: This was an illegal dismissal case filed against the ADB. Pursuant to its Charter and the Headquarters Agreement, the diplomatic immunity was recognized. Petitioner asserts that he is entitled to the same diplomatic immunity and he cannot be prosecuted for acts allegedly done in the exercise of his official functions. 2. DEFINITION OF TERMS: International Organization - the term generally used to describe an organization set up by agreement between two or more states. Under contemporary international law, such organizations are endowed with some degree of international legal personality such that they are capable of exercising specific rights, duties and powers. They are organized mainly as a means for conducting general international business in which the member states have an interest. International public officials - persons who, on the basis of an international treaty constituting a particular international community, are appointed by this international community, or by an organ of it, and are under its control to exercise, in a continuous way, functions in the interest of this particular international community, and who are subject to a particular personal status." Specialized agencies - international organizations having functions in particular fields, such as posts, telecommunications, railways, canals, rivers, sea transport, civil aviation, meteorology, atomic energy, finance, trade, education and culture, health and refugees.

3.

NATURE AND DEGREE OF IMMUNITY VARY depending on who the recipient is as can be seen from a perusal of the immunities provisions in various international conventions and agreements1

1. Charter of the United Nations Article 105 (1): The Organization shall enjoy in the territory of each of its Members such privileges and immunities as are necessary for the fulfillment of its purposes. Article 105 (2): Representatives of the Members of the United Nations and officials of the Organization shall similarly enjoy such privileges and immunities as are necessary for the independent exercise of their functions in connection with the Organization. 2. Convention on the Privileges and Immunities of the United Nations Section 2: The United Nations, its property and assets wherever located and by whomsoever held, shall enjoy immunity from every form of legal process except insofar as in any particular case it has expressly waived its immunity. It is, however, understood that no waiver of immunity shall extend to any measure of execution. Section 11 (a): Representatives of Members to the principal and subsidiary organs of the United Nations . . shall . . . enjoy . . . immunity from personal arrest or detention and from seizure of their personal baggage, and, in respect of words spoken or written and all acts done by them in their capacity as representatives, immunity from legal process of every kind. Section 14: Privileges and immunities are accorded to the representatives of Members not for the personal benefit of the individuals themselves, but in order to safeguard the independent exercise of their functions in connection with the United Nations. Consequently, a Member not only has the right but is under a duty to waive the immunity of its representative in any case where in the opinion of the Member the immunity would impede the course of justice, and it can be waived without prejudice to the purpose for which the immunity is accorded. Section 18 (a): Officials of the United Nations shall be immune from legal process in respect of words spoken or written and all acts performed by them in their official capacity. Section 19: In addition to the immunities and privileges specified in Section 18, the SecretaryGeneral and all Assistant Secretaries-General shall be accorded in respect of themselves, their spouses and minor children, the privileges and immunities, exemptions and facilities accorded to diplomatic envoys, in accordance with international law. Section 20: Privileges and immunities are granted to officials in the interest of the United Nations and not for the personal benefit of the individuals themselves. The Secretary-General shall have the right and the duty to waive the immunity of any official in any case where, in his opinion, the immunity would impede the course of justice and can be waived without prejudice to the interests of the United Nations. Section 22: Experts . . . performing missions for the United Nations . . . shall be accorded: (a) immunity from personal arrest or detention and from seizure of their personal baggage; (b) in respect of words spoken or written and acts done by them in the course of the performance of their mission, immunity from legal process of every kind. 3. Vienna Convention on Diplomatic Relations Article 29: The person of a diplomatic agent shall be inviolable. He shall not be liable to any form of arrest or detention. The receiving State shall treat him with due respect and shall take all appropriate steps to prevent any attack on his person, freedom, or dignity. Article 31 (1): A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State. He shall also enjoy immunity from its civil and administrative jurisdiction, except in certain cases. Article 38 (1): Except in so far as additional privileges and immunities may be granted by the receiving State, a diplomatic agent who is a national of or permanently a resident in that State shall enjoy only immunity from jurisdiction, and inviolability, in respect of official acts performed in the exercise of his functions. 4. Vienna Convention on Consular Relations Article 41 (1): Consular officials shall not be liable to arrest or detention pending trial, except in the case of a grave crime and pursuant to a decision by the competent judicial authority. Always will B

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Article 43 (1): Consular officers and consular employees shall not be amenable to the jurisdiction of the judicial or administrative authorities of the receiving State in respect of acts performed in the exercise of consular functions. Article 43 (2): The provisions of paragraph 1 of this Article shall not, however, apply in respect of a civil action either: (a) arising out of a contract concluded by a consular officer or a consular employee in which he did not contract expressly or impliedly as an agent of the sending State; or (b) by a third party for damage arising from an accident in the receiving State caused by a vehicle, vessel or aircraft." 5. Convention on the Privileges and Immunities of the Specialized Agencies Section 4: The specialized agencies, their property and assets, wherever located and by whomsoever held, shall enjoy immunity from every form of legal process except in so far as in any particular case they have expressly waived their immunity. It is, however, understood that no waiver of immunity shall extend to any measure of execution. Section 13 (a): Representatives of members at meetings convened by a specialized agency shall, while exercising their functions and during their journeys to and from the place of meeting, enjoy immunity from personal arrest or detention and from seizure of their personal baggage, and in respect of words spoken or written and all acts done by them in their official capacity, immunity from legal process of every kind. Section 19 (a): Officials of the specialized agencies shall be immune from legal process in respect of words spoken or written and all acts performed by them in their official capacity. Section 21: In addition to the immunities and privileges specified in sections 19 and 20, the executive head of each specialized agency, including a any official acting on his behalf during his absence from duty, shall be accorded in respect of himself, his spouse and minor children, the privileges and immunities, exemptions and facilities accorded to diplomatic envoys, in accordance with international law." 6. Charter of the ADB Article 50 (1): The Bank shall enjoy immunity from every form of legal process, except in cases arising out of or in connection with the exercise of its powers to borrow money, to guarantee obligations, or to buy and sell or underwrite the sale of securities, in which cases actions may be brought against the Bank in a court of competent jurisdiction in the territory of a country in which the Bank has its principal or a branch office, or has appointed an agent for the purpose of accepting service or notice of process, or has issued or guaranteed securities. Article 55 (i): All Governors, Directors, alternates, officers and employees of the Bank, including experts performing missions for the Bank shall be immune from legal process with respect to acts performed by them in their official capacity, except when the Bank waives the immunity. 7. ADB Headquarters Agreement Section 5: The Bank shall enjoy immunity from every form of legal process, except in cases arising out of or in connection with the exercise of its powers to borrow money, to guarantee obligations, or to buy and sell or underwrite the sale of securities, in which cases actions may be brought against the Bank in a court of competent jurisdiction in the Republic of the Philippines. Section 44: Governors, other representatives of Members, Directors, the President, VicePresident and executive officers as may be agreed upon between the Government and the Bank shall enjoy, during their stay in the Republic of the Philippines in connection with their official duties with the Bank: (a) immunity from personal arrest or detention and from seizure of their personal baggage; (b) immunity from legal process of every kind in respect of words spoken or written and all acts done by them in their official capacity; and (c) in respect of other matters not covered in (a) and (b) above, such other immunities, exemptions, privileges and facilities as are enjoyed by members of diplomatic missions of comparable rank, subject to corresponding conditions and obligations. Section 45 (a): Officers and staff of the Bank, including for the purposes of this Article experts and consultants performing missions for the Bank, shall enjoy . . . immunity from legal process

a.

b.

c.

DIFFERENCES BETWEEN DIPLOMATIC AND INTERNATIONAL IMMUNITIES: one of the recognized limitations of diplomatic immunity is that members of the diplomatic staff of a mission may be appointed from among the nationals of the receiving State only with the express consent of that State; apart from inviolability and immunity from jurisdiction in respect of official acts performed in the exercise of their functions, nationals enjoy only such privileges and immunities as may be granted by the receiving State. International immunities may be especially important in relation to the State of which the official is a national. the immunity of a diplomatic agent from the jurisdiction of the receiving State does not exempt him from the jurisdiction of the sending State; in the case of international immunities there is no sending State and an equivalent for the jurisdiction of the Sending State therefore has to be found either in waiver of immunity or in some international disciplinary or judicial procedure. the effective sanctions which secure respect for diplomatic immunity are the principle of reciprocity and the danger of retaliation by the aggrieved State; international immunities enjoy no similar protection.

4.

5. BASIC PRINCIPLES OF INTERNATIONAL IMMUNITIES (ILO Memorandum): (1) international institutions should have a status which protects them against control or interference by any one government in the performance of functions for the effective discharge of which they are responsible to democratically constituted international bodies in which all the nations concerned are represented; (2) no country should derive any financial advantage by levying fiscal charges on common international funds; and (3) the international organization should, as a collectivity of States Members, be accorded the facilities for the conduct of its official business customarily extended to each other by its individual member States. The thinking underlying these propositions is essentially institutional in character. It is not concerned with the status, dignity or privileges of individuals, but with the elements of functional independence necessary to free international institutions from national control and to enable them to discharge their responsibilities impartially on behalf of all their members. 3 METHODS OF GRANTING IMMUNITIES TO INTERNATIONAL ORGANIZATIONS PERSONNEL (Positive international law): simple conventional stipulationthe Hague Conventions of 1899 and 1907. internal legislationthe government of a state, upon whose territory the international organization is to carry out its functions, recognizes the international character of the organization and grants, by unilateral measures, certain privileges and immunities to better assure the successful functioning of the organization and its personnel. In this situation, treaty obligation for the state in question to grant concessions is lacking. (Central Commission of the Rhine at Strasbourg and the International Institute of Agriculture at Rome.) combination of the first twoone finds a conventional obligation to recognize a certain status of an international organization and its personnel, but the status 6.

a. b.

c.

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is described in broad and general terms. The specific definition and application of those general terms are determined by an accord between the organization itself and the state wherein it is located. (League of Nations, the Permanent Court of Justice, and the United Nations) ADB UNDER THIRD CATEGORY. 7. CONNECTION BETWEEN DIPLOMATIC PRIVILEGES AND IMMUNITIES AND THOSE EXTENDED TO INTERNATIONAL OFFICIALS: The connection consists in the granting, by contractual provisions, of the relatively wellestablished body of diplomatic privileges and immunities to international functionaries. This connection is purely historical. Both types of officials find the basis of their special status in the necessity of retaining functional independence and freedom from interference by the state of residence. However, the legal relationship between an ambassador and the state to which he is accredited is entirely different from the relationship between the international official and those states upon whose territory he might carry out his functions. PRIVILEGES AND IMMUNITIES OF DIPLOMATS AND THOSE OF INTERNATIONAL OFFICIALS REST UPON DIFFERENT LEGAL FOUNDATIONS: Those immunities awarded to diplomatic agents are a right of the sending state based on customary international law, those granted to international officials are based on treaty or conventional law. Customary international law places no obligation on a state to recognize a special status of an international official or to grant him jurisdictional immunities. Such an obligation can only result from specific treaty provisions. The special status of the diplomatic envoy is regulated by the principle of reciprocity by which a state is free to treat the envoy of another state as its envoys are treated by that state. The juridical basis of the diplomat's position is firmly established in customary international law. The diplomatic envoy is appointed by the sending State but it has to make certain that the agreement of the receiving State has been given for the person it proposes to accredit as head of the mission to that State. 8. THE STAFF PERSONNEL OF AN INTERNATIONAL ORGANIZATION THE INTERNATIONAL OFFICIALS ASSUME A DIFFERENT POSITION AS REGARDS THEIR SPECIAL STATUS. They are appointed or elected to their position by the organization itself, or by a competent organ of it; they are responsible to the organization and their official acts are imputed to it. The juridical basis of their special position is found in conventional law, since there is no established basis of usage or custom in the case of the international official. Moreover, the relationship between an international organization and a member-state does not admit of the principle of reciprocity, for it is contradictory to the basic principle of equality of states. An international organization carries out functions in the interest of every member state equally. The international official does not carry out his functions in the interest of any state, but in serving the organization he serves, indirectly, each state equally. He cannot be, legally, the object of the operation of the principle of reciprocity between states under such circumstances. It is contrary to the principle of equality of states for one state member of an international organization to assert a capacity to extract special privileges for its nationals from other member states on the basis of a status awarded by it to an international organization. It is upon this principle of sovereign equality that international organizations are built.

It follows from this same legal circumstance that a state called upon to admit an official of an international organization does not have a capacity to declare him persona non grata. 9. FUNCTIONS OF THE DIPLOMAT AND THOSE OF THE INTERNATIONAL OFFICIAL: Those of the diplomat are functions in the national interest. The task of the ambassador is to represent his state, and its specific interest, at the capital of another state. The functions of the international official are carried out in the international interest. He does not represent a state or the interest of any specific state. He does not usually "represent" the organization in the true sense of that term. His functions normally are administrative, although they may be judicial or executive, but they are rarely political or functions of representation, such as those of the diplomat. There is a difference of degree as well as of kind. The interruption of the activities of a diplomatic agent is likely to produce serious harm to the purposes for which his immunities were granted. But the interruption of the activities of the international official does not, usually, cause serious dislocation of the functions of an international secretariat. On the other hand, they are similar in the sense that acts performed in an official capacity by either a diplomatic envoy or an international official are not attributable to him as an individual but are imputed to the entity he represents, the state in the case of the diplomat, and the organization in the case of the international official. 10. HISTORY: Looking back over 150 years of privileges and immunities granted to the personnel of international organizations, they were accorded a wide scope of protection in the exercise of their functions The Rhine Treaty of 1804 between the German Empire and France which provided "all the rights of neutrality" to persons employed in regulating navigation in the international interest; The Treaty of Berlin of 1878 which granted the European Commission of the Danube "complete independence of territorial authorities" in the exercise of its functions; The Covenant of the League which granted "diplomatic immunities and privileges." 11. UN AGE FINDS THE SCOPE OF PROTECTION NARROWED: The current tendency is to reduce privileges and immunities of personnel of international organizations to a minimum. The tendency cannot be considered as a lowering of the standard but rather as a recognition that the problem on the privileges and immunities of international officials is new. The solution to the problem presented by the extension of diplomatic prerogatives to international functionaries lies in the general reduction of the special position of both types of agents in that the special status of each agent is granted in the interest of function. The wide grant of diplomatic prerogatives was curtailed because of practical necessity and because the proper functioning of the organization did not require such extensive immunity for its officials. While the current direction of the law seems to be to narrow the prerogatives of the personnel of international organizations, the reverse is true with respect to the prerogatives of the organizations themselves, considered as legal entities. Historically, states have been more generous in granting privileges and immunities to organizations than they have to the personnel of these organizations. Sec. 2 of the General Convention on the Privileges and Immunities of the United Nations states that the UN shall enjoy immunity from every form of legal process except insofar as in any particular case it has expressly waived its immunity.
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Sec. 4 of the Convention on the Privileges and Immunities of the Specialized Agencies likewise provides that the specialized agencies shall enjoy immunity from every form of legal process subject to the same exception. Art. 50(1) of the ADB Charter and Sec. 5 of the Headquarters Agreement similarly provide that the bank shall enjoy immunity from every form of legal process, except in cases arising out of or in connection with the exercise of its powers to borrow money, to guarantee obligations, or to buy and sell or underwrite the sale of securities. 12. "IMMUNITY FROM EVERY FORM OF LEGAL PROCESS" as used in the UN General Convention has been interpreted to mean absolute immunity from a state's jurisdiction to adjudicate or enforce its law by legal process, and it is said that states have not sought to restrict that immunity of the United Nations by interpretation or amendment. Similar provisions are contained in the Special Agencies Convention as well as in the ADB Charter and Headquarters Agreement. These organizations were accorded privileges and immunities in their charters by language similar to that applicable to the United Nations. It is clear therefore that these organizations were intended to have similar privileges and immunities. From this, it can be easily deduced that international organizations enjoy absolute immunity similar to the diplomatic prerogatives granted to diplomatic envoys. 13. MOST IMPORTANT IMMUNITY TO AN INTERNATIONAL OFFICIAL, IN THE DISCHARGE OF HIS INTERNATIONAL FUNCTIONS, IS IMMUNITY FROM LOCAL JURISDICTION. There is no argument in doctrine or practice with the principle that an international official is independent of the jurisdiction of the local authorities for his official acts. Those acts are not his, but are imputed to the organization, and without waiver the local courts cannot hold him liable for them. In strict law, it would seem that even the organization itself could have no right to waive an official's immunity for his official acts. This permits local authorities to assume jurisdiction over an individual for an act which is not, in the wider sense of the term, his act at all. It is the organization itself, as a juristic person, which should waive its own immunity and appear in court, not the individual, except insofar as he appears in the name of the organization. What then is the status of the international official with respect to his private acts? Sec. 18 (a) of the General Convention has been interpreted to mean that officials of the specified categories are denied immunity from local jurisdiction for acts of their private life and empowers local courts to assume jurisdiction in such cases without the necessity of waiver. It has earlier been mentioned that historically, international officials were granted diplomatic privileges and immunities and were thus considered immune for both private and official acts. In practice, this wide grant of diplomatic prerogatives was curtailed because of practical necessity and because the proper functioning of the organization did not require such extensive immunity for its officials. Thus, the current status of the law does not maintain that states grant jurisdictional immunity to international officials for acts of their private lives. 29 This much is explicit from the Charter and Headquarters Agreement of the ADB which contain substantially similar provisions to that of the General Convention. Who is competent to determine whether a given act is private or official?

In connection with this question, the current tendency to narrow the scope of privileges and immunities of international officials and representatives is most apparent. Prior to the regime of the United Nations, the determination of this question rested with the organization and its decision was final. By the new formula, the state itself tends to assume this competence. If the organization is dissatisfied with the decision, under the provisions of the General Convention of the United States, or the Special Convention for Specialized Agencies, the Swiss Arrangement, and other current dominant instruments, it may appeal to an international tribunal by procedures outlined in those instruments. Thus, the state assumes this competence in the first instance. It means that, if a local court assumes jurisdiction over an act without the necessity of waiver from the organization, the determination of the nature of the act is made at the national level. The inclination is to place the competence to determine the nature of an act as private or official in the courts of the state concerned. That the prevalent notion seems to be to leave to the local courts determination of whether or not a given act is official or private does not necessarily mean that such determination is final. If the United Nations questions the decision of the Court, it may invoke proceedings for settlement of disputes between the organization and the member states as provided in Sec. 30 of the General Convention. Thus, the decision as to whether a given act is official or private is made by the national courts in the first instance, but it may be subjected to review in the international level if questioned by the UN. Under the Third Restatement of the Law, it is suggested that since an international official does not enjoy personal inviolability from arrest or detention and has immunity only with respect to official acts, he is subject to judicial or administrative process and must claim his immunity in the proceedings by showing that the act in question was an official act. Whether an act was performed in the individual's official capacity is a question for the court in which a proceeding is brought, but if the international organization disputes the court's finding, the dispute between the organization and the state of the forum is to be resolved by negotiation, by an agreed mode of settlement or by advisory opinion of the International Court of Justice. Recognizing the difficulty that by reason of the right of a national court to assume jurisdiction over private acts without a waiver of immunity, the determination of the official or private character of a particular act may pass from international to national control, Jenks proposes three ways of avoiding difficulty in the matter. The first would be for a municipal court before which a question of the official or private character of a particular act arose to accept as conclusive in the matter any claim by the international organization that the act was official in character, such a claim being regarded as equivalent to a governmental claim that a particular act is an act of State. Such a claim would be in effect a claim by the organization that the proceedings against the official were a violation of the jurisdictional immunity of the organization itself which is unqualified and therefore not subject to delimitation in the discretion of the municipal court. The second would be for a court to accept as conclusive in the matter a statement by the executive government of the country where the matter arises certifying the official character of the act. The third would be to have recourse to the procedure of international arbitration. Jenks opines that it is possible that none of these three solutions would be applicable in all cases; the first might be readily acceptable only in the clearest cases and the second is available only if the executive government of the country where the matter arises concurs in the view of the international organization concerning the official character of the act. However, he surmises that taken in combination, these various possibilities may afford the elements of a solution to the problem. The international official's immunity for official acts may be likened to a consular official's immunity from arrest, detention, and criminal or civil process which is not
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absolute but applies only to acts or omissions in the performance of his official functions, in the absence of special agreement. Since a consular officer is not immune from all legal process, he must respond to any process and plead and prove immunity on the ground that the act or omission underlying the process was in the performance of his official functions. The issue has not been authoritatively determined, but apparently the burden is on the consular officer to prove his status as well as his exemption in the circumstances. In the United States, the US Department of State generally has left it to the courts to determine whether a particular act was within a consular officer's official duties. CONCLUSIONS: 1. petitioner Liang, a bank official of ADB, is not entitled to diplomatic immunity and hence his immunity is not absolute. Under the Vienna Convention on Diplomatic Relations, a diplomatic envoy is immune from criminal jurisdiction of the receiving State for all acts, whether private or official, and hence he cannot be arrested, prosecuted and punished for any offense he may commit, unless his diplomatic immunity is waived. On the other hand, officials of international organizations enjoy "functional" immunities, that is, only those necessary for the exercise of the functions of the organization and the fulfillment of its purposes. This is the reason why the ADB Charter and Headquarters Agreement explicitly grant immunity from legal process to bank officers and employees only with respect to acts performed by them in their official capacity, except when the Bank waives immunity. In other words, officials and employees of the ADB are subject to the jurisdiction of the local courts for their private acts, notwithstanding the absence of a waiver of immunity. Petitioner cannot also seek relief under the mantle of "immunity from every form of legal process" accorded to ADB as an international organization. The immunity of ADB is absolute whereas the immunity of its officials and employees is restricted only to official acts. This is in consonance with the current trend in international law which seeks to narrow the scope of protection and reduce the privileges and immunities granted to personnel of international organizations, while at the same time aims to increase the prerogatives of international organizations. 2. Considering that bank officials and employees are covered by immunity only for their official acts, the necessary inference is that the authority of the Department of Affairs, or even of the ADB for that matter, to certify that they are entitled to immunity is limited only to acts done in their official capacity. It is not within the power of the DFA, as the agency in charge of the executive department's foreign relations, nor the ADB, as the international organization vested with the right to waive immunity, to invoke immunity for private acts of bank officials and employees, since no such prerogative exists in the first place. If the immunity does not exist, there is nothing to certify. ADB cannot even claim to have the right to waive immunity for private acts of its officials and employees. The Charter and the Headquarters Agreement are clear that the immunity can be waived only with respect to official acts because this is only the extent to which the privilege has been granted. One cannot waive the right to a privilege which has never been granted or acquired. 3. It is the local courts which have jurisdiction to determine whether or not a given act is official or private. While there is a dearth of cases on the matter under Philippine jurisprudence, the issue is not entirely novel. M.H. Wylie, et al. vs. Rarang, et al: concerns the extent of immunity from suit of the officials of a United States Naval Base inside the Philippine territory. Although a motion

to dismiss was filed by the defendants therein invoking their immunity from suit pursuant to the RP-US Military Bases Agreement, the trial court denied the same and, after trial, rendered a decision declaring that the defendants are not entitled to immunity because the latter acted beyond the scope of their official duties. The SC applied this in Chavez vs. Sandiganbayan to the effect that a mere invocation of the immunity clause does not ipso facto result in the charges being automatically dropped. While it is true that the Chavez case involved a public official, the Court did not find any substantial reason why the same rule cannot be made to apply to a US official assigned at the US Naval Station located in the Philippines. In this case, it was the local courts which ascertained whether the acts complained of were done in an official or personal capacity. 4. The records show that petitioner is a senior economist at ADB and as such he makes country project profiles which will help the bank in deciding whether to lend money or support a particular project to a particular country. Petitioner stands charged of grave slander for allegedly uttering defamatory remarks against his secretary, the private complainant herein. Considering that the immunity accorded to petitioner is limited only to acts performed in his official capacity, it becomes necessary to make a factual determination of whether or not the defamatory utterances were made pursuant and in relation to his official functions as a senior economist. KER v ILLINOIS (6 Dec. 1886) Ponente: Miller, J. REQUEST FOR EXTRADITION. Frederick M. Ker, allegedly after committing some offenses (larceny and embezzlement), went to Lima, Peru, from which he claims he was kidnapped and brought to the US. After the injured parties made an application, Illinois Gov. Hamilton made his requisition, in writing, to the US Secretary of State for a warrant requesting Kers extradition from Peru to Cook County. A warrant was issued by the US President, and Henry Julian2 was directed to receive Ker from the Peruvian authorities, upon a charge of larceny, in compliance with the extradition treaty between US and Peru. KIDNAPPED. Julian3 arrived in Peru but, without presenting the papers to any Peruvian officer or making a demand on the government to surrender Ker, he forcibly and violently arrested Ker. Ker was placed on board the US vessel Essex, where he was kept a close prisoner until arrival at Honolulu. He was transferred to the City of Sydney, and then transferred to San Francisco. TRANSFER TO COOK COUNTY. Before his transfer to San Francisco, Gov. Hamilton made a requisition on the California governor for Kers delivery as a fugitive from justice, who had escaped to California on account of larceny. The California governor made his order for Kers surrender to Frank Warner4 on June 25, 1883. When he arrived in San Francisco, Ker was immediately placed in Warners custody, and then transferred to Cook County where he was indicted for larceny and embezzlement, tried, and convicted.

2 3

As messenger. Who had all the necessary papers. 4 The person appointed by Gov. Hamilton. Always will B

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KERS AVERMENTS: from his arrest in Lima until his delivery to the Cook County authorities, he wasnt allowed to communicate with any person or seek advice or assistance in order to procure his release by legal process or otherwise. Also this proceeding violated the provisions of the treaty between US5 and Peru. ISSUE: WON Ker was deprived of due process of law6. HELD: NO. Due process of law is complied with when the party is regularly indicted by the proper grand jury in the state court, has a trial according to the forms and modes prescribed for such trials, and when in that trial and proceedings he isnt deprived of rights to which he is lawfully entitled. For mere irregularities in the manner in which he was brought into the custody of the law, he isnt entitled to say that he shouldnt be tried at all for the crime with which he is charged in a regular indictment. He may be arrested without a warrant for a heinous offense, or without a previous complaint, and brought before a proper officer, and this may be said to be without due process. But it cant be claimed that, after the case had been investigated and the defendant held by the proper authorities to answer for the crime, he could plead that he was first arrested without due process of law. Unless there was some positive provision of the constitution or of the laws of this country violated in bringing him into court, it isnt easy to see how he can say that he was deprived of due process. ISSUE: The proceedings between the two governors violated the Act of Congress on that subject.7 HELD: NO. When the governor of one state voluntarily surrenders a fugitive of another state to answer for his alleged offenses, it isnt proper to examine the details of the proceedings by which the demand was made by one state, and the manner in which it was responded to by the other. The fact that the papers under which he was taken into custody in California were prepared and ready for him on his arrival from Peru shows that there is no sufficient reason for an abatement of the indictment against him in Cook county, or why he should be discharged from custody without a trial. ISSUE: WON by virtue of the treaty of extradition with Peru, Ker by his residence in Peru had a right of asylum8 which he can assert in the US courts in all cases9. (WON he was denied a right conferred by the treaty.) HELD: NO. Ker failed to establish the existence of any right under the treaty. PERU COULDVE VALIDLY SURRENDERED KER. This treaty, or any other treaty, doesnt provide that a party fleeing from the US to escape punishment for crime becomes thereby entitled to an asylum in the country to which he has fled. It isnt contended that Peru couldnt have ordered Ker out of the country on his arrival, or at any
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period of his residence there. Nor can it be doubted that Peru could, of its own accord, without any demand from the US, have surrendered Ker to an agent of Illinois, and this surrender wouldve been valid within the dominions of Peru. It cant be claimed that, either by express terms of by implication, a fugitive from justice is given, in other countries, a right to remain and reside therein. If the right of asylum means anything, it must mean this. RESTRICTED RIGHT TO PROTECT. The right of the Peruvian government to voluntarily give a party, in Kers condition10, an asylum in that country is quite a different thing from his right to demand and insist upon security in such an asylum. The treaty, so far as it regulates the right of asylum, is intended to limit this right in the case of one who is proved to be a criminal fleeing from justice; so that, on proper demand and proceedings had therein, the government of the country of the asylum shall deliver him up to the country where the crime was committed. And to this extent, the treaty does regulate or impose a restriction upon the right of the government of the country of the asylum to protect the criminal from removal. TREATY NOT RELIED UPON. In this case, the treaty wasnt called into operation or relied upon. The facts11 show that this involves a clear case of kidnapping, without any pretense of authority under the treaty or from the US government. EFFECT OF EXTRADITION PROCEEDINGS UNDER A TREATY12 . When a party was duly surrendered, by proper proceedings under the treaty, he came to this country clothed with the protection which the nature of such proceedings and the true construction of the treaty gave him. One right of that party, both in regard to himself and in good faith to the country which had sent him here, was that he should be tried for no other offense than the one for which he was delivered under the extradition proceedings. If Ker had been brought to the US by proceedings under the Treaty of 1870-74 with Peru, he might have successfully pleaded that he was extradited for larceny, and convicted of embezzlement. But this case is different, given the manner in which he was brought here, clothed with no rights which a proceeding under the treaty couldve given him, and the US doesnt owe a duty to Peru or to Ker under the treaty. Thus, in alleging he was denied a right conferred on him by a US treaty, he has failed to establish the existence of any such right. WRT HIS FORCIBLE SEIZURE IN PERU & TRANSFER BY VIOLENCE, FORCE, OR FRAUD TO THE US, there are authorities which hold that such forcible abduction is no sufficient reason why he shouldnt answer when brought within the jurisdiction of the court which has the right to try him for such an offense, and presents no valid objection to his trial in such court. However Ker, and Peru, still has remedies for his unauthorized seizure. Even the treaty provides for the extradition of persons charged with kidnapping and, on Perus demand, Julian could be surrendered and tried in Peruvian courts for this violation of its laws. Ker could sue Julian in an action of trespass and false imprisonment. JUDGMENT AFFIRMED.
A fugitive from justice. Though Julian had the necessary papers to procure Kers extradition under the treaty, these werent used nor were steps taken under them. And when Julian took Ker , he didnt act nor profess to act under the treaty. 12 As held in US v. Rauscher, which involved the Treaty of 1842 with Great Britain. Always will B
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Negotiated in 1870 and ratified and proclaimed by the US president on July 27, 1874. This refers to that clause of Art. 14 of the amendments to the constitution of the US which declares that no state shall deprive any person of life, liberty, or property without due process of law. 7 Since at the time the papers and warrants were issued from the two governors, Ker wasnt within California and wasnt there a fugitive from justice. 8 A right to be free from molestation for the crime committed in Illinois, a positive right in him that he should only be forcibly removed from Peru to Illinois in accordance with the treaty provisions. 9 In all cases, whether the removal took place under proceedings sanctioned by the treaty, or under proceedings which disregarded the treaty and amounting to unlawful and unauthorized kidnapping.

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UNOCAL CASE: DECISION BY THE CALIFORNIA CENTRAL DISTRICT COURT. (March 25, 1997) Plaintiffs: JOHN DOE I, et al.. (Burmese nationals) Defendants: UNOCAL CORP., et al., OPINION: ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT UNOCAL'S MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION, FAILURE TO JOIN A PARTY UNDER RULE 19, AND FAILURE TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED 1. ACTION FOR COMPENSATORY & DECLERATORY RELIEF FOR INTL HUMAN RIGHTS VIOLATIONS. Doe plaintiffs, farmers representing a class numbering in the tens of thousands and consisting of all residents of the Tenasserim region of Burma, bring this class action against defendants Unocal Corp. ("Unocal"), Total S.A. ("Total"), the Myanma Oil and Gas Enterprise ("MOGE") - state-owned company controlled by SLORC that produces and sells energy products, the State Law and Order Restoration Council ("SLORC") - a military junta that seized control in Burma and individuals John Imle, President of Unocal, and Roger C. Beach Chairman and Chief Executive Officer of Unocal. Plaintiffs seek injunctive, declaratory and compensatory relief for alleged international human rights violations perpetrated by defendants in furtherance of defendants Unocal, Total and MOGE's joint venture, the Yadana gas pipeline project. 2. ALLEGED VIOLATIONS OF INTL HUMAN RIGHTS. Defendants are building offshore drilling stations to extract natural gas from the Andaman Sea and a port and pipeline to transport the gas through the Tenasserim region of Burma and into Thailand. Plaintiffs allege that defendants, through the SLORC military, intelligence and/or police forces, have used and continue to use violence and intimidation to relocate whole villages, enslave farmers living in the area of the proposed pipeline, and steal farmers' property for the benefit of the pipeline. Plaintiffs allege defendants' conduct has caused plaintiffs to suffer death of family members, assault, rape and other torture, forced labor, and the loss of their homes and property, in violation of state law, federal law and customary international law. Plaintiffs allege the defendant corporations knew that SLORC committed human rights abuses, including forced labor and forced relocation, in connection with the Yadana gas pipeline project. 3. UNOCALs MOTION TO DISMISS. Pending before the Court is defendant Unocal's Motion to Dismiss for Lack of Subject Matter Jurisdiction, Failure to Join a Party under Rule 19, and Failure to State a Claim upon which Relief Can Be Granted ("Motion"). 4. BACKGROUNDER: RISE OF THE MILITARY JUNTA IN BURMA/MYANMAR. The ruling military elite in Burma created the State Law and Order Restoration Council ("SLORC"). SLORC imposed martial law on Burma and renamed it "Myanmar" in 1988. SLORC held multi-party elections in which the opposition party, the National League for Democracy ("NLD"), founded by Tin Oo and 1991 Nobel Peace Laureate Aung San Suu Kui, captured 82% of the parliamentary seats. SLORC promptly arrested NLD leaders and intensified its campaign of repression against the pro-democracy movement throughout the country. SLORC has been widely condemned for its 1988 crackdown and for its subsequent practices. According to plaintiffs, "there is no functioning judiciary in Burma and any suit against defendants would have been and would still be futile and would result in serious reprisals. There is a pervasive atmosphere of terror and repression throughout the country."

6. JOINT VENTURE AGREEMENT. On or before 1991, several international oil companies, including Unocal and Total, began negotiating with SLORC regarding oil and gas exploration in Burma. As a result of these negotiations, the Yadana gas pipeline project was established to obtain natural gas and oil from the Andaman Sea and transport it, via a pipeline, across the Tenasserim region of Burma. In July of 1992, Total and MOGE signed a production-sharing contract for a joint venture gas drilling project in the Yadana natural gas field. In early 1993, Unocal formally agreed to participate in the joint venture drilling project. SLORC, acting as an agent for the joint venture, would clear forest, level ground, and provide labor, materials and security for the Yadana pipeline project. Unocal and Total subsidized SLORC activities in the region, and that numerous acts in furtherance of the joint venture were and continue to be taken in California, including (1) provision of funds and other resources to the project; (2) decision-making regarding assignment of personnel and technology to the project; (3) monitoring, determining and auditing the activities of the project, and (4) decision-making regarding labor relations on the project. ISSUE 1: WON THE FOREIGN SOVEREIGN IMMUNITIES ACT APPLIES TO THE DEFENDANTS. HELD: YES AS TO SLORC & MOGE. 7. UNOCAL ASSERTS THE APPLICABILITY OF FSIA. Unocal contends that this Court lacks subject matter jurisdiction over plaintiffs' claims against SLORC and MOGE. "The Foreign Sovereign Immunities Act provides the sole basis for obtaining jurisdiction over a foreign state in the courts of this country." Under the FSIA, a foreign state is immune from suit, and federal courts lack subject matter jurisdiction over claims against the foreign state, unless one of the enumerated exceptions applies. Consequently, whenever an action is brought in district court against a foreign state, "the court must satisfy itself that one of the FSIA exceptions applies ... even if the foreign state does not enter an appearance to assert an immunity defense." 8. BURDEN OF ESTABLISHING IMMUNITY WITH THE DEFENDANT. The defendant asserting immunity "bears the burden of establishing its immunity, including the burden of proof that no exception applies." It is the burden of the foreign sovereign in each case to establish its immunity by demonstrating that none of the exceptions is applicable.". Initially, the defendant must present a prima facie case that it is a sovereign state. Once the defendant establishes a prima facie case, "the burden of production shifts to the plaintiff to offer evidence that an exception applies." If the plaintiffs' allegations bring the claim within a FSIA exception, the burden then shifts to the party claiming immunity to prove by a preponderance of the evidence that the exception does not apply. If the substantive requirements of the FSIA are met, "a foreign plaintiff [may] sue a foreign sovereign in the courts of the United States." 9. SLORC AND MOGE ARE PRESUMPTIVELY ENTITLED TO SOVEREIGN IMMUNITY. Here, plaintiffs do not dispute that SLORC and MOGE are foreign sovereigns. Accordingly, defendants have established a prima facie case under the FSIA and SLORC and MOGE are presumptively entitled to sovereign immunity. Although the burden of proof remains with Unocal, plaintiffs bear the initial burden of producing evidence that an exception applies. Plaintiffs request an opportunity to engage in jurisdictional discovery; however, as the following discussion demonstrates, plaintiffs' allegations regarding SLORC and MOGE's human rights violations perpetrated in connection with the Yadana gas pipeline project are insufficient to invoke the commercial
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activity exception. Consequently, there is no need for jurisdictional discovery to resolve Unocal's motion to dismiss plaintiffs' claims against SLORC and MOGE. 10. EXCEPTIONS TO IMMUNITY. Plaintiffs contend that the FSIA's commercial activity exception exposes SLORC and MOGE to suit in the United States courts. "Under international law, states are not immune from jurisdiction of foreign courts insofar as their commercial activities are concerned. The FSIA provides a general exception to jurisdictional immunity where [1] the action is based upon a commercial activity carried on in the United States by the foreign state; or [2] upon an act performed in the United States in connection with a commercial activity of the foreign state elsewhere; or [3] upon an act outside the territory of the United States in connection with a commercial activity of the foreign state elsewhere and that act causes a direct effect in the United States. Plaintiffs contend that SLORC and MOGE are not entitled to immunity because this case falls within clauses two and three of the commercial activity exception. 11. CLAUSE 2 N/A: ACTS COMMITTED IN BURMA. Clause two applies only to claims that are based upon acts performed in the United States. "A plaintiff's claim is 'based upon' those activities that are elements of the claim that would entitle the plaintiff to relief." Here, plaintiffs' human rights claims are based upon acts of SLORC and MOGE allegedly committed in Burma, not upon acts allegedly performed in the United States. While the commercial negotiations and decision-making that allegedly occurred in the United States may suffice to establish that defendants were joint actors, they are not "elements" of plaintiffs' claims against the foreign state defendants. Thus, clause two does not apply to plaintiffs' claims against SLORC and MOGE. 12. CLAUSE 3 N/A: ACTS, NOT COMMERCIAL. Although plaintiffs' claims initially appear to fall within the statutory language of clause three of the exception because they are based on acts outside the United States (human rights violations allegedly committed by SLORC and MOGE) in connection with commercial activity of the foreign state outside the United States (the installation of the Yadana pipeline), controlling authority precludes such an interpretation. The FSIA defines "commercial activity" as either a regular course of commercial conduct or a particular commercial transaction or act. The commercial character of an activity shall be determined by reference to the nature of the course of conduct or particular transaction or act, rather than by reference to its purpose. The Supreme Court has elaborated upon the meaning of "commercial activity," relying on the meaning "generally attached to that term under the 'restrictive' theory [of foreign sovereign immunity] at the time the statute was enacted." Thus, "when a foreign government acts, not as regulator of a market, but in the manner of a private player within it, the foreign sovereign's actions are 'commercial' within the meaning of the FSIA." Instead of asking whether the foreign state is seeking to profit from its activities, "the issue is whether the particular actions that the foreign state performs (whatever the motive behind them) are the type of actions by which a private party engages in 'trade and traffic or commerce.'" In essence, "a state engages in commercial activity under the restrictive theory where it exercises only those powers that can also be exercised by private citizens, as distinct from those powers peculiar to sovereigns." 12. ACTS WERE SOVEREIGN IN NATURE. Here, SLORC and MOGE engaged in commerce in the same manner as a private citizen might do when they allegedly entered into the Yadana gas pipeline project. In addition, they engaged in the acts upon which the claims are based "in connection with" that commercial activity. Nonetheless, SLORC and MOGE's alleged violations of plaintiffs' human rights, allegedly committed in

connection with the Yadana gas pipeline project, do not fall within the ambit of the commercial activity exception to the FSIA, as it has been interpreted by the Supreme Court and the Ninth Circuit. Plaintiffs claim that defendants, through the SLORC military, intelligence and/or police forces, have used and continue to use violence and intimidation to relocate whole villages, enslave farmers living in the area of the proposed pipeline, and steal farmers' property for the benefit of the pipeline. Because plaintiffs essentially allege that SLORC and MOGE abused their police power, the foreign sovereign defendants' acts that form the basis of plaintiffs' claims are "peculiarly sovereign in nature" and do not come within the commercial activity exception to the FSIA. 13. DID NOT SHOW DIRECT EFFECT OF ACTS TO THE US. Furthermore, plaintiffs cannot demonstrate that SLORC and MOGE's alleged acts of torture and expropriation have a direct effect in the United States within the meaning of the FSIA. "An effect is 'direct' for purposes of the commercial activity exception if it follows as an 'immediate consequence' of the defendant's activity." Plaintiffs contend that (1) the use of forced labor and forced relocation, allegedly obtained by recourse to battery, rape, killing and other forms of torture, (2) reduced the cost of the Yadana pipeline project and decreased defendants' labor and operational costs, which (3) provided defendants with an unfair competitive advantage in the United States gas market. However, mere financial loss by a person--individual or corporate-in the U.S. is not, in itself, sufficient to constitute a 'direct effect.' Rather, courts often look to the place where legally significant acts giving rise to the claim occurred in determining the place where a direct effect may be said to be located. The legally significant acts giving rise to plaintiffs' claims occurred in Burma, not in the United States. Accordingly, plaintiffs cannot satisfy the direct effects requirement of the commercial activity exception, and SLORC and MOGE are entitled to sovereign immunity from plaintiffs' suit. ISSUE 2: WON SLORCE & MOGE ARE INDISPENSABLE PARTIES. HELD: NO. 14. 2-STEP INQUIRY. To determine whether an action should be dismissed under Rule 19 of the Federal Rules of Civil Procedure, courts engage in a two-step inquiry. First, the court must determine whether the absent party is necessary and cannot be joined. The Rules provide that a person is a necessary party if (1) in the person's absence complete relief cannot be accorded among those already parties, or (2) the person claims an interest relating to the subject of the action. If the court concludes that a party is necessary but cannot be joined, the court must then determine "whether in equity and good conscience the action should proceed among the parties before it, or should be dismissed." In so doing, courts are generally directed to balance the following factors: (1) prejudice to any party or to the absent party; (2) whether relief can be shaped to lessen prejudice; (3) whether an adequate remedy, even if not complete, can be awarded without the absent party; and (4) whether there exists an alternative forum. However, where the necessary party is immune from suit, balancing may not be necessary because immunity itself may be a compelling factor. 15. ABSENCE OF SLORC & MOGE WILL NOT DEPRIVE PLAINTIFFS WITH COMPLETE RELIEF. Unocal argues that complete relief cannot be accorded among the remaining parties if SLORC and MOGE are dismissed. However, Unocal bases this argument on its inexplicable contention that plaintiffs allege only vicarious and not joint tortfeasor liability. Assuming that plaintiffs are able to prove that the defendants are joint
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tortfeasors, there is no reason complete compensatory relief may not be accorded among the remaining parties. A joint tortfeasor is not a 'necessary' party within the meaning of Rule 19. In addition, were plaintiffs to prevail, SLORC and MOGE's absence would not impede them from obtaining the core injunctive and declaratory relief they seek. Plaintiffs here request "an order directing defendants to cease payment to SLORC, and an order directing defendants to cease their participation in the joint enterprise until the resulting human rights violations in the Tenasserim region cease." In these circumstances, even though plaintiffs will be limited to obtaining injunctive and declaratory relief from defendants other than SLORC and MOGE, if plaintiffs prevail, they may still obtain complete relief from the remaining defendants. Similarly, injunctive relief against the remaining defendants will not burden them any more than such relief would burden them if SLORC and MOGE were subject to suit. Thus, SLORC and MOGE are not necessary parties, and the Court need not consider whether they are indispensable parties. ISSUE 2: WON THE COURT HAS SUBJECT MATTER JURISDICTION FOR CLAIMS AGAINST UNOCAL, A PRIVATE ENTERPISE. HELD: YES. BASIS IS THE ATCA. 16. APPLICATION OF ALIEN TORT CLAIMS ACT. Jurisdiction against the remaining defendants may be premised on the Alien Tort Claims Act ("ATCA") which provides that the district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States. Thus, the ATCA requires (1) a claim by an alien, (2) alleging a tort, and (3) a violation of international law. Here, plaintiffs are aliens, and they assert tort claims. However, the parties dispute whether plaintiffs may assert claims based on violations of international law against the private defendants. 17. ATCA WRT VIOLATIONS OF INTERNATIONAL LAW. First, "it is well settled that the law of nations is part of federal common law." In re Estate of Ferdinand E. Marcos Human Rights Litigation, the Court held that Section 1350 does not require that the action 'arise under' the laws of the United States, but only mandates 'a violation of the law of nations' in order to create a cause of action. The norms of the law of nations are found by consulting juridical writings on public law, considering the general practice of nations, and referring to judicial decisions recognizing and enforcing international law. Thus, a court applying the ATCA must determine "whether there is an applicable norm of international law, whether it is recognized by the United States, what its status is, and whether it has been violated." Under the ATCA, jurisdiction may be based on a violation of a jus cogens norm which enjoys the highest status within international law." The prohibition against official torture rises to the level of a jus cogens norm, and jurisdiction may be premised on a violation of that norm. 18. ATCA WRT TO STATE ACTION. The Court has articulated four distinct approaches to the state action question: public function, state compulsion, nexus, and joint action.". Whether the concerns are treated as separate tests or as factors for consideration, courts must necessarily make a fact-bound inquiry. Under the joint action approach, private actors can be state actors if they are 'willful participant[s] in joint action with the state or its agents.' An agreement between government and a private party can create joint action. A private party may be considered to have acted under color of state law when it engages in a conspiracy or acts in concern with state agents to deprive one's constitutional rights. Where state "insinuates" itself into position of interdependence with

private party, it is joint participant in challenged activity. Assuming, without deciding, that ATCA confers jurisdiction over private parties who conspire in, or aid and abet, official acts of torture by one nation against the citizens of another nation. Private persons, jointly engaged with state officials in the challenged action, are acting under color' of law for purposes of at 1983 actions." Under the joint action test, "courts examine whether state officials and private parties have acted in concert in effecting a particular deprivation of constitutional rights." Thus, where there is a "substantial degree of cooperative action" between the state and private actors in effecting the deprivation of rights, state action is present. However, some courts have found that the joint action test requires that the state and private actors "share a common, unconstitutional goal." 19. SLORC & MOGE IN CONSPIRACY WITH UNOCAL & TOTAL. Here, plaintiffs allege that SLORC and MOGE are agents of the private defendants; that the defendants are joint venturers, working in concert with one another; and that the defendants have conspired to commit the violations of international law alleged in the complaint in order to further the interests of the Yadana gas pipeline project. Additional factual inquiry is not necessary. Plaintiffs have alleged that the private plaintiffs were and are jointly engaged with the state officials in the challenged activity, namely forced labor and other human rights violations in furtherance of the pipeline project. These allegations are sufficient to support subject-matter jurisdiction under the ATCA. 20. PRIVATE LIABILITY PRESENT ABSENT STATE ACTION. In the recent decision by the Second Circuit, the court provides a reasoned analysis of the scope of a private individual's liability for violations of international law. There, the court disagreed that the law of nations, as understood in the modern era, confines its reach to state action. Instead, that court held that certain forms of conduct violate the law of nations whether undertaken by those acting under the auspices of a state or only as private individuals. That court ultimately concluded that "[rape,] torture and summary execution--when not perpetrated in the course of genocide or war crimes--are proscribed by international law only when committed by state officials or under color of law." However, like Judge Edwards noted that participation in the slave trade "violates the law of nations whether undertaken by those acting under the auspices of a state or only as private individuals. The allegations of forced labor in this case are sufficient to constitute an allegation of participation in slave trading. Although there is no allegation that SLORC is physically selling Burmese citizens to the private defendants, plaintiffs allege that, despite their knowledge of SLORC's practice of forced labor, both in general and with respect to the pipeline project, the private defendants have paid and continue to pay SLORC to provide labor and security for the pipeline, essentially treating SLORC as an overseer, accepting the benefit of and approving the use of forced labor. These allegations are sufficient to establish subject-matter jurisdiction under the ATCA. ISSUE 3: WON ACT OF STATE DOCTRINE SHOULD PRECULUDE THE COURT FROM TAKING JURISDICTION. HELD: NO. 21. WHAT IS THE ACT OF STATE DOCTRINE. Unocal asserts that by adjudicating plaintiffs' claims, this Court will interfere with the foreign policy efforts of Congress and the President. The classic statement of the doctrine rested on notions of international comity, but more recent formulations focus on separation of powers. The continuing vitality of the doctrine depends on its capacity to reflect the proper distribution of functions between the judicial and political branches of Government on matters bearing
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upon foreign relations. Thus, the act of state doctrine "reflects the prudential concern that the courts, if they question the validity of sovereign acts taken by foreign states, may be interfering with the conduct of American foreign policy by the Executive and Congress." The party asserting the applicability of the doctrine bears the burden of proof. Taken as a whole, the act of state doctrine expresses the strong sense of the Judicial Branch that its engagement in the task of passing on the validity of foreign acts of state may hinder rather than further this country's pursuit of goals both for itself and for the community of nations as a whole in the international sphere. The doctrine is limited to situations in which "the relief sought or the defense interposed require a court in the United States to declare invalid the official act of a foreign sovereign performed within its own territory." 22. ONLY APPLICABLE IF WILL LEAD TO HOSTILE CONFRONTATION. Invocation of the act of state doctrine is not appropriate unless it is "apparent" that adjudication of the matter will bring the nation into hostile confrontation with the foreign state. Where, as here, the coordinate branches of government have already denounced the foreign state's human rights abuses, it is hard to imagine how judicial consideration of the matter will so substantially exacerbate relations as to cause "hostile confrontation." 23. ANOTHER TEST: IF THE FOREIGN STATE IS ACTING IN THE PUBLIC INTEREST. In addition, courts should consider "whether the foreign state was acting in the public interest." Where a state acts in the public interest, any injunctive relief, 'instructing a foreign sovereign to alter its chosen means of allocating and profiting from its own valuable natural resources' would affront the sovereignty of a state." Here, it would be difficult to contend that SLORC and MOGE's alleged violations of international human rights were "in the public interest," despite the fact that they are directly connected to decisions regarding allocation and profit from Burma's natural resources. In any event, because SLORC and MOGE are entitled to sovereign immunity, plaintiffs may seek injunctive relief against the non-state defendants only. Indeed, the wording of the complaint suggests that they intended to seek injunctive relief only against the non-state defendants and inartfully drafted the language of the complaint. Plaintiffs should be granted leave to amend to state their claim for injunctive relief against the non-state defendants only. 24. JUS COGENS VIOLATIONS OF INTERNATIONAL LAW = ACTS OF STATE DOCTRINE N/A. Moreover, where jurisdiction is available for jus cogens violations, it is less likely that judicial pronouncements on a foreign sovereign's actions will undermine the policies behind the act of state doctrine. In determining whether the doctrine bars judicial review one factor to be considered is "the degree of international consensus regarding an activity." In the context of jus cogens violations of international law, which are, by definition, internationally denounced, the high degree of international consensus severely undermines defendants' argument that SLORC and MOGE's alleged activities should be treated as acts of state. Where the policies underlying the doctrine militate against its application, the act of state doctrine should not apply, even to claims that a foreign government's actions are or were invalid. Because nations do not, and cannot under international law, claim a right to torture or enslave their own citizens, a finding that a nation has committed such acts, particularly where, as here, that finding comports with the prior conclusions of the coordinate branches of government, should have no detrimental effect on the policies underlying the act of state doctrine.

ISSUE 4: WON THE ADJUDICATION OF THE DISPUTE WILL INTERFERE WITH THE US FOREIGN POLICY WRT TO BURMA SET OUT BY THE EXECUTIVE AND LEGISLATIVE. HELD: NO. 25. EFFORTS OF THE EXEC. & CONGRESS TO PRESSURE BURMA. Unocal contends that adjudication of this case will interfere with Congressional and Executive efforts to exert pressure on SLORC to reform its human rights record. Thus, Unocal states that while vigorously attempting to encourage democratic reform and respect for human rights, Congress and the President have refrained from taking precipitous steps, such as prohibiting all American investment, that might serve only to isolate the Burmese Government [i.e. SLORC] and actually hinder efforts toward reform. This careful approach is reflected in the fact that, after a spirited debate, Congress recently granted the President conditional authority to prohibit only "new investment" in Burma, and even then only if the President certifies that Burma is once again committing certain serious human rights abuses. However, a review of the portions of the Congressional Record cited by Unocal reveals that the debate involved a dispute over whether to promptly impose unilateral sanctions on Burma or refrain from immediately imposing such sanctions to allow the President to work with other nations to develop a multilateral strategy to improve conditions in Burma. 26. THE FOREIGN POLICY WILL NOT BE AFFECTED. Even accepting the Congressional and Executive decisions as Unocal frames them, the coordinate branches of government have simply indicated an intention to encourage reform by allowing companies from the United States to assert positive pressure on SLORC through their investments in Burma. See id. at S 8755 (statement of Sen. McCain) (contending that an immediate investment sanction would decrease the United States' leverage with respect to human rights violations in Burma and might increase repression of the pro-democracy activists in Burma). ISSUE 5: WON THE COMPLAINT FAILED TO STATE A CLAIM HELD: NO. 27. PLAINTIFFS MADE SUFFICIENT ALLEGATIONS. Unocal makes a broad-based argument that plaintiffs fail to state a claim against Unocal because they allege no facts that could conceivably establish Unocal's liability for any of SLORC's actions in Burma. However, plaintiffs' complaint includes a number of allegations that indicate plaintiffs may be able to prove facts in support of their claims. First, plaintiffs allege that Unocal and its officers knew or should have known about SLORC's practices of forced labor and relocation when they agreed to invest in the Yadana gas pipeline project, and that, despite this knowledge, they agreed that SLORC would provide labor for the joint venture and would be responsible for clearing the way for the pipeline and providing security. In addition, plaintiffs assert that Unocal and its officers "were aware of and benefitted from and continue to be aware of and benefit from the use of forced labor to support the Yadana gas pipeline project." Plaintiffs also allege that Unocal knew that SLORC "committed human rights abuses, including forced labor and forced relocation, in connection with the Yadana gas pipeline project." Unocal's contention that the complaint makes only conclusory allegations is meritless. In support of its argument that the complaint fails to state a claim against Unocal or its
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officers, Unocal contends that plaintiffs' allegations establish the presence of a business relationship with SLORC and MOGE and nothing more. Were this the case, Unocal would clearly be entitled to dismissal. However, plaintiffs could conceivably prove facts to support their allegations and thereby demonstrate the very connection between Unocal and SLORC that Unocal denies, namely that Unocal and SLORC have either conspired or acted as joint participants to deprive plaintiffs of international human rights in order to further their financial interests in the Yadana gas pipeline project. ISSUE 6: WON THE ACTION IS BARRED BY THE STATUTE OF LIMITATIONS. HELD: NO. 28. PRESCRIPTION PERIODS NOT CONSIDERED BY THE COURT. Plaintiffs filed their complaint on October 3, 1996. They allege accrual of claims as early as 1991, but the earliest claim specifically alleged accrued on May 12, 1992. The parties agree that plaintiffs' claims under RICO and California Business and Professions Code at 17200 are governed by four-year statutes of limitation. Accordingly, absent equitable tolling or application of the continuing violation doctrine, RICO and at 17200 claims accruing before October 3, 1992, are time-barred. The parties also agree that the TVPA provides a ten-year limitations period. Under the TVPA, torture is defined. With respect to plaintiffs' numerous state law tort claims, plaintiffs do not actively contest defendants' argument that, absent tolling or the effect of the continuing violation doctrine, California's one-year statute of limitations for personal injury torts applies. However, the parties do dispute the length of the limitations period for the ATCA. Plaintiffs argue that the TVPA ten-year period provides the closest federal analogy. But because the Court concludes that plaintiffs have raised an issue of fact regarding equitable tolling, the Court need not determine whether the TVPA limitations period is applicable to all ATCA claims. 29. EQUITABLE TOLLING (EXCUSABLE DELAY: NO FUNCTIONING COURTS IN BURMA) Under federal law, equitable tolling is available where (1) defendant's wrongful conduct prevented plaintiff from asserting the claim; or (2) extraordinary circumstances outside the plaintiff's control made it impossible to timely assert the claim. Here, defendants contend that the complaint contains no allegations to support equitable tolling for the claims alleged. Thus, according to defendants plaintiffs have failed to allege extraordinary circumstances outside their control that made it impossible for them to timely assert their claims. Plaintiffs have sufficiently alleged that they could obtain no relief in Burma because there is no functioning judiciary there. However, defendants are correct that plaintiffs have not specifically alleged that they could not have brought their claims in the United States. Nonetheless, plaintiffs claims should be tolled as long as SLORC remains in power and plaintiffs are unable to obtain access to judicial review. For those plaintiffs who remain in Burma, attempts to access courts in this country may present a threat of reprisal from SLORC.

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