HOLY SEE VS. ROSARIO G.R.

101949 (1994)

Facts of the Case:

Petitioner in this case is the Holy See (who exercises sovereignty over the Vatican City in Rome Italy and is represented
in the Philippines by the Papal Nuncio. Respondent in this case is Hon. Edilberto Rosario in his capacity as the Presiding
Judge of RTC Makati, Branch 61 and Starbright Sales Enterprises, a domestic corporation engaged in the real estate
business.

The petition started from a controversy over a parcel of land. Lot 5A registered under the name of the Holy See, is
connected to Lot 5B and 5D under the name of Philippine Realty Corporation. The land was donated by the Archdiocese
of Manila to the Papal Nuncio which represented the Holy See who exercises sovereignty over the Vatican City, Rome
Italy for his residence.

The said lots were sold to Ramon Licup who assigned his rights to respondents Starbright Sales, Inc.

When the squatters refused to vacate the lots, a dispute arose between these two parties because both were unsure as to
whose responsibility was it to evict the squatters from the said lots. Respondent Starbright insists that the Holy See should
clear the property while Holy See says that Starbright should do it or the earnest money will be returned.

Since Starbright refused to clear the property, Msgr. Cirilios, the agent, returned P100k earnest money. The same lots were
sold to Tropicana Properties.

Starbright filed a suit for annulment of sale, specific performance and damages against Msgr. Cirilios, Philippine Realty
Corporation and Tropicana. The Holy See moved to dismiss the petition for lack of jurisdiction based on sovereign
immunity of suit. The RTC denied the motion on the ground that the petitioner already shed off its sovereign immunity by
entering into a business contract.

Issue:

Can the Holy See invoke sovereign immunity?

Court Ruling:

YES. The Court held that the Holy See may properly invoke sovereign immunity for its non-suability. In Article 31 (A) of
the 1961 Vienna Convention on Diplomatic Relations, diplomatic envoy (a representative government who is sent on a
special diplomatic mission) shall be granted immunity from civil and administrative jurisdiction of the receiving state over
any real action relating to private immovable property.

The DFA certified that the Embassy of the Holy See is a duly accredited diplomatic missionary to the Republic of the
Philippines and is thus exempted from local jurisdiction and is entitled to immunity rights of a diplomatic mission or
embassy in this Court.

While the said lot was acquired and bought in the ordinary cause of real estate business, its acquisition and disposal were
not made for profit but claimed that it acquired the said property for its mission or the Apostolic Nunciature of the
Philippines.

Besides, the act of selling the land concerned is non-proprietary in nature, or is not covered by a patent or trademark. The
transfer and disposal of property are likewise clothed with a governmental character as the petitioner did not buy and sell
the land for gain but merely because they cannot evict the said squatters in the property.

TINOCO CLAIMS ARBITRATION (GREAT BRITAIN V. COSTA RICA)

(1923) 1 R.I.A.A. 369

Procedural History:
Arbitration of contract repudiation.

Overview:
Great Britain (P) claimed that the former government of Costa Rica (D), the Tinoco regime, had granted oil
concessions to a British company that had to be honored by the present regime. The Tinoco regime had
seized power in Costa Rica by coup. Great Britain (P) and the United States never recognized the Tinoco
regime. When the Tinoco regime fell, the restored government nullified all Tinoco contracts, including an
oil concession to a British company. Great Britain (P) claimed that the Tinoco government was the only
government in existence at the time the contract was signed and its acts could not be repudiated. Costa
Rica (D) claimed that Great Britain (P) was estopped from enforcing the contract by its nonrecognition of
the Tinoco regime. The matter was sent for arbitration.

Issue:
Does nonrecognition of a new government by other governments destroy the de facto status of the
government?

Rule:
-A government that establishes itself and maintains a peaceful de facto administration need not to conform
to previous constitution and nonrecognition of the govt. by other govt.’s does not destroy the de facto
status of the govt.

Analysis:
The arbitrator found there was no estoppel. The evidence of nonrecognition did not outweigh the evidence
of the de facto status of the Tinoco regime. Unrecognized governments thus may have the power to form
valid contracts.

Outcome:
No. A government that establishes itself and maintains a peaceful de facto administration need not
conform to a previous constitution and nonrecognition of the govern ment by other governments does not
destroy the de facto status of the government. Great Britain's (P) nonrecognition of the Tinoco regime did
not dispute the de facto existence of that regime. There was no estoppel since the successor government
had not been led by British nonrecognition to change its position.

SAUDI ARABIA V. NELSON

Brief Fact Summary. The suit Nelson (P) filed against Saudi Arabia (D) for wrongful arrest, imprisonment and
torture was contended by the defendant who claimed foreign sovereign immunity from the subject matter
jurisdiction of the federal courts.

Synopsis of Rule of Law. Unless the action is based upon a commercial activity in the manner of a private
player within the market, foreign states are entitled to immunity from the jurisdiction of courts in the United
States.

Facts. Nelson (P), a monitoring system engineer at a hospital in Riyadh, Saudi Arabia, was recruited in the
United States for employment. Upon discovery of safety defects in the hospital’s oxygen and nitrous oxide lines,
Nelson (P) disclosed this to the hospital officials as well as the Saudi government (D) commission. Several
months after Nelson (P) was told by the hospital officers to ignore the problems, he was called into the hospital’s
security office and arrested.
He was summarily transported to a jail cell where he was chained, beaten, tortured and kept without food for
four days. Nelson (P) was released after he had spent thirty-nine days in prison and was allowed to leave the
country. Upon his arrival in the United States, the Nelson’s (P) filed suit against Saudi Arabia (D) seeking
damages for personal injury. The Nelsons’ (P) also claimed a basis of recovery in Saudi Arabia (D) for its failure
to inform him about the hidden dangers associated with his employment. This judgment was however appealed
by Saudi Arabia (D).

Issue. Unless the action is based upon a commercial activity in the manner of a private player within the market,
are foreign states entitled to immunity from the jurisdiction of courts in the United States?
Holding and decision: (Souter, J) Yes. Unless the action is based upon a commercial activity in the manner of
a private player within the market, foreign states are entitled to immunity from the jurisdiction of courts in the
United States. Hence, the torture allegation which was levied against Saudi Arabia (D) does not fall under the
purview of the definition of “commercial activity” as contained in the Foreign Sovereign Immunities Act of 1976.
On the part of Nelson (P), his claim about not being warned of the peril attached to his job does not have any
merit because sovereign nations have no duty to warn of their propensity for tortuous conducts. Since the action
of the plaintiff is not in consonance with commercial activity as defined in the Act, it is therefore outside the
subject-matter jurisdiction of the federal courts. The prayer of Saudi Arabia (D) dismissal was thereby granted.
Reversed.

Dissent. (Stevens, J.) Jurisdiction would be upheld on the premise that the same activities had been performed
by a private business.

Concurrence. (White, J.) the hospital’s employment practices and its disciplinary procedures have no clear
connection to the country. The Act does not grant the Nelsons (P) access to the U.S. courts because of the
absent nexus to the United States.

Discussion. When comparing “restrictive” to “absolute” theory of foreign sovereign immunity, a state is immune
from the jurisdiction of foreign courts as to its sovereign or public acts but not as to those that are private or
commercial in character. Where a state exercises only those powers that can also be exercised by private
citizens, as distinct from those powers peculiar to sovereigns, such state is said to be engaging in commercial
activity under the restrictive theory. The Act unmistakable commands to observe the distinction between the
purpose of a conduct and its nature is recognized by the Court.

THE NUREMBERG JUDGMENT

Oct 5th 1946 | Leaders

ON September 30, 1946, seven years and a month after the Second World War began with the onset of the
German armies across the western frontiers of Poland, the International Military Tribunal at Nuremberg
pronounced a mainly unanimous judgment in a document of 50,000 words on the German personalities and
organisations charged before it. This judgment has certainly been an epoch-making event. Nothing at all
comparable has ever taken place before. For the first time a court representing the principal nations of the
world emerging victorious from a great war has formally tried the political leaders of a sovereign state for
responsibility for waging aggressive war defined as a crime. The defendants at Nuremberg have also, of
course, been tried for all manner of atrocities committed in connection with German aggressions, and this has
not involved any new principle of jurisprudence, for it has long been recognised that the victor in war has the
right to try by court-martial officers and others of the defeated nation who have committed atrocities contrary
to the accepted laws of war against the victor's nationals. Although this right has not hitherto been invoked in
application to the rulers and highest military authorities of an enemy country, it could have been so applied to
the Nazi leaders and it provided grounds for the punishment of most of them—all those who have been
convicted at Nuremberg on charges of "War Crimes" in the narrow sense and "Crimes against Humanity"—
even without any accusation of "Crimes against Peace." But responsibility for the war itself has been the
central charge in the Nuremberg indictment, and the Tribunal has declared in its judgment: "To initiate a war
of aggression is not only an international crime; it is the supreme international crime, differing only from other
war crimes in that it contains within itself the accumulated evil of the whole."

It is of interest to recall that when in 1918 the question of trying the Kaiser came up before the British War
Cabinet, the Attorney-General (who was later to become Lord Birkenhead) reported in favour of trying him for
having committed offences against international law by the violation of the guaranteed neutrality of Belgium
and by authorising unrestricted submarine warfare, but advised against prosecution for "the crime against
humanity of having caused the war," not on the ground that such a charge was legally inadmissible, but
because "we do not wish to be confronted by a meticulous examination of the history of European politics for
the past twenty years." Lord Birkenhead indeed saw clearly that a charge of war guilt involves a record of
national policies, and that such a record may not leave unscathed the reputations of the prosecuting
governments. In the Nuremberg case such a historical record has actually been written; the judgment clearly
claims—or at any rate will be claimed—to stand as an adequate history of the great events with which it deals
as well as being a legal verdict on the accused. This aspect of the trial cannot be overlooked in any estimate
of what has been achieved by the judicial process.

It has in fact been easy on the evidence to obtain a conviction of the Nazi leadership on the charge of
planning and initiating aggressive wars. The prosecution has had at its disposal, not only the record of
German acts which was available to the Allied Governments before the end of the war, but also a great mass
of documentary material captured in Germany, including minutes of secret conferences in which Hitler
expounded his plans to a select circle of his colleagues. These documents, the authenticity of which was not
seriously challenged by the defence, provided the most striking proof of the deliberateness and premeditation
of Hitler's aggressions and revealed the hollowness of the various excuses made for them at the time by Nazi
propaganda.

In the minutes of a secret conference held in the Reich chancellery on November 5, 1937, Hitler is recorded
as saying to his Foreign Minister (then Freiherr von Neurath), his War Minister and the commanders-in-chief
of the three fighting services: "The question for Germany is where the greatest possible conquest could be
made at the lowest cost." This declaration was preceded by an allocution on economic theory and racial
biology justifying a policy of acquiring fresh "living space" for the German nation. Hitler maintained that neither
autarky nor international trade could provide Germany with satisfactory economic life and scope for its
capacities. He went on:

The only way out, and one which may appear imaginary, is the securing of greater living space, an endeavour
which at all times has been the cause of formations of States and movements of nations. It is explicable that
this tendency finds no interest in Geneva and in satisfied States . . . every space expansion can only be
effected by breaking resistance and taking risks. Even setbacks are unavoidable; neither formerly nor today
has space been found without an owner; the attacker always comes up against the proprietor.
There is nothing here about any external threat to Germany which might justify extraordinary war
preparations; the purpose is quite frankly territorial conquest. Hitler admits, however, that Germany "must
reckon with its two hateful enemies, England and France, to whom a strong German colossus in the centre of
Europe would be intolerable," and speculates on the when and how of "the decision to apply force." He
concludes that action must in any case be taken not later than the period 1943-45 (because, for reasons
which he gives, he expects Germany's relative position to deteriorate after that date), but that war against
Czechoslovakia should be launched earlier if France is either paralysed by internal political crisis or diverted
by a war with Italy.

This document of the autumn of 1937 reveals the long-term plan with the utmost lucidity, but the stages in its
accomplishment were liable to adjustment according to circumstances, and the minutes of later conferences
show Hitler making up his mind on his estimate of the current situation. In a very important conference held
on May 23, 1939, shortly after the giving of the British guarantee to Poland, Hitler explains that the problem
for solution is "to attack Poland at the first suitable opportunity." He says he will try to isolate Poland
diplomatically, but if this proves impossible, and "if it is not certain that a German-Polish conflict will not lead
to war in the West," then "it will be better to attack in the West." The most interesting revelation of this
document is that Hitler in the spring of 1939 was in favour of starting a war by direct attack on France and the
Low Countries on the 1914 model; he was still assuming the hostility of Russia, but told the conference that "it
is not impossible that Russia will show herself to be disinterested in the destruction of Poland."

The Nuremberg judgment uses these documents to establish beyond challenge the calculated
aggressiveness of Nazi policy. It is indeed proved conclusively that Hitler and his responsible ministers and
military commanders undertook aggressive wars with the utmost premeditation—which is all that needed to
be proved for the legal condemnation of those of them brought before the Nuremberg Tribunal. However, at
one point in the record of events included in the judgment a curious oblivion seems to have affected the
judges with regard not only to facts which have long been known but also to important evidence given during
the trial itself. As we approach the subject of the German-Soviet Non-Aggression Pact of August, 1939, some
inhibition appears to interrupt the flow of narrative and the whole episode is passed over with the bald
statement that "the defendant Ribbentrop was sent to Moscow to negotiate a non-aggression pact with the
Soviet Union."

During the trial the defence lawyer Seidl produced witnesses, including Baron von Weizsaecker, permanent
Secretary of State in the German Foreign Office from 1938 to 1943, who testified about a secret treaty
attached to the Non-Aggression Pact and providing for territorial partition of six European states between
Germany and the Soviet Union.

The prosecution made no attempt to disprove this evidence; nevertheless, the judgment completely ignores it.
Such silence unfortunately shows that the Nuremberg Tribunal is only within certain limits an independent
judiciary. In ordinary criminal law it would certainly be a remarkable case if a judge, summing up on a charge
of murder, were to avoid mentioning evidence on the part played by an accomplice in the murder because the
evidence revealed that the judge himself had been that accomplice. That nobody thinks such reticence
extraordinary in the case of Nuremberg merely demonstrates how far we still really are from anything that can
be called a "reign of law" in international affairs. Both Britain and France are on record as having concurred in
the expulsion of the Soviet Union from the League of Nations for its unprovoked attack on Finland in 1939;
this verdict still stands and is not modified by anything which has happened since. In 1939 Moscow openly
gloried in military cooperation with Germany for the destruction of Poland, "that ugly offspring of the Versailles
Treaty," and Ribbentrop in his last plea quoted a cable of congratulation from Stalin as proof that the Soviet
Union had not then regarded the war against Poland as an aggression. The contrast between 1939 and 1946
is indeed fantastic, and it is too much to expect that either historians in the future or Germans in the present
will share in the current United Nations convention of not seeing it.

Nor should the Western world console itself that the Russians alone stand condemned at the bar of the Allies'
own justice. Waging aggressive war is the chief count in the indictment, but it is not the only one. Among
crimes against humanity stands the offence of the indiscriminate bombing of civilian populations. Can the
Americans who dropped the atom bomb and the British who destroyed the cities of Western Germany plead
"not guilty" on this count? Crimes against humanity also include the mass expulsion of populations. Can the
Anglo-Saxon leaders who at Potsdam condoned the expulsion of millions of Germans from their homes hold
themselves completely innocent?

The result of the Nuremberg trial has been a well-deserved fate for a group of evil men whose terrible guilt
has been thoroughly demonstrated for all time; yet the force of the condemnation is not unaffected by the fact
that the nations sitting in judgment have so clearly proclaimed themselves exempt from the law which they
have administered.