Thomas H. Youmans v.

United Mexican States

(November 23, 1926)

FACTS:
1. Claim for damages in the amount of $50,000.00 is made in this case by the United States of America against
the United Mexican States in behalf of Thomas H. Youmans, the son of Henry Youmans, an American citizen,
who, together with two other Americans, John H. Connelly and George Arnold, was killed in the hands of a
mob in Mexico.
2. Henry Youmans, Connelly, and Arnold were employees engaged in construction of the San Hilario Tunnel in
the town of Angangueo in the state of Michoacan, Mexico. The construction was being done by Mexican
laborers resident in the town under the supervision of the Americans.
3. On March 14,1880, Connelly, the Managing Engineer in the construction, had a controversy with a laborer,
Cayetano Medina, over a sum of money the latter insisted was due to him as wages. Connelly, however,
ejected Medina from his house.
4. Subsequently after, Medina, along with several companions began to throw stones at Connelly and
approached him with a drawn machete. Connelly, trying to frighten the assailants, fired shots in the air and
then went inside his house where Youmans and Arnold also reside.
5. Medina and his companions attempted to enter, and Connelly thereupon fired at medina wounding his legs.
Soon, the house was surrounded by a threatening mob.
6. Connelly undertook to surrender to police authorities but failed to do so as he was driven back to the house
by the mob.
7. Their employer then requested the Mayor to endeavor to protect the Americans, but he was unable to quiet
the mob. The Mayor then ordered the Lieutenant of the Michoacan forces to quell the riot.
8. However, the troops, upon arriving at the scene, instead of dispersing the mob, opened fire in the house,
causing the death of Arnold.
9. The mob renewed their attack against the Americans and set fire to the roof forcing Connelly and Youmans
to leave, and as they did so, they were killed by the troops and the members of the mob.
10. Their bodies were dragged through the streets and left under the pile of stones by the side of the road so
mutilated as scarcely to be recognizable.

CONTENTION OF THE RESPONDENT GOVERNMENT:

11. It is not proved by evidence in the record that the Mexican authorities were chargeable with negligence in
the matter of protecting the men who were killed; or that soldiers participated in the assault on the men; or
that proper efforts were not made to apprehend and punish the persons participating in the attack.
12. However, as per the communications sent to the Legation by the Director of the company, there had been
witnesses who saw the soldiers later on fire on the Americans. Moreover, the American Consul General,
who concealed his official character and conducted an investigation, obtained evidence from eye witnesses,
and established that the appearance alone of the soldier troops have been sufficient to have quelled the riot
but instead they opened fire on the Americans in the house which encouraged the mob to reopen their
attack.
13. The Department of the State called the attention of the Mexican Government, stating that on the plainest
principles of international law and independent of the treaty stipulations between the two nations, which
are contravened by such proceedings, renders the Government in whose services they (soldiers) are
employed, justly liable to the government of the men who were murdered.
14. The Minister of Foreign Affairs challenged the right of the United States to intervene in the cases on the
ground that the murdered men had not been matriculated (registered) under the Mexican Law. The
Minister, in reply, stated that the soldiers confessed to having participated in the riot, alleging in excuse that
they feared the vengeance of the mob had they acted otherwise.

ISSUE:
Whether there is liability on the part of the Mexican Government.
HELD:
YES.
The liability on the part of the Mexican government was sustained by the evidence in the record. The record shows a
lack of diligence in the punishment of the persons implicated in the crime. Citations have been made to evidence with
respect to the participation of the soldiers in the killing of the three Americans. The judicial record also shows that some
soldiers were arrested but were not sentenced. Evidence before the commission does not disclose whose weapons
killed the Americans, but the participation of the soldiers with the members of the mob is established.

With respect to the question of responsibility for the acts of the soldiers, there are citations in the Mexican
Governments brief of extracts from a discussion of a subcommittee of the League of Nations Committee of Experts for
the Progressive Codification of International Law. The passage quoted, which deals with the responsibility of a State for
illegal acts of officials resulting in damages to foreigners, begins with a statement relative to the acts of an official
accomplished outside the scope of his competency, that is to say, if he has exceeded his powers. An illegal act of this
kind, it is stated in the quotation, is one that cannot be imputed to the State.

Apart from the question whether the acts of officials referred to in this discussion have any relation to the rule of
international law with regard to responsibility for acts of soldiers, it seems clear that the passage to which particular
attention is called in the Mexican Governments brief is concerned solely with the question of the authority of an officer
as defined by domestic law to act for his Government with reference to some particular subject. Clearly it is not
intended by the rule asserted to say that no wrongful act of an official acting in the discharge of his duties entrusted to
him can impose responsibility on a Government under international law because any such wrongful act must be
considered to be outside the scope of his competency.

Citation is also made in the Mexican brief to an opinion rendered by Umpire Lieber in which effect is evidently given to
the well-recognized rule of international law that a Government is not responsible for malicious acts of soldiers
committed in their private capacity. But the General Claims Commission do not consider that the participation of the
soldiers in the murder at Angangueo can be regarded as acts of soldiers committed in their private capacity when it is
clear that at the time of the commission of these acts, the men were on duty under the immediate supervision and in
the presence of a commanding officer. Soldiers inflicting personal injuries or committing wonton destruction or looting
always act in disobedience of some rules laid down by superior authority. There could be no liability whatsoever for such
misdeeds if the view were taken.

Jean-Baptiste Caire Claim

5 RIAA 516 (1929) (French - Mexican Claims Commission)

A state may be held internationally responsible for the unauthorised acts of state officials, such as the unlawful killing of
a foreign national by an army or police officer, where those officials purported to act in an official capacity and used the
means placed at their disposition by virtue of that capacity.

On 11 December 1914, M Jean-Baptiste Caire, a French national, was unlawfully shot and killed at an army barracks in
Mexico by two Mexican army officers, a major and a captain aided by a few privates, after M Caire refused a demand by
one of the officers to pay a sum of money.

In awarding an indemnity in the sum of 20,000 Mexican gold piastres in favour of M Caires widow, the French-Mexican
Claims Commission held that Mexico was internationally responsible for the conduct of the army officers. In this regard,
Presiding Commissioner Verzijl observed that, under the doctrine of objective responsibility (state responsibility for the
acts of state officials or state organs even in the absence of fault on the part of the state), a state is internationally
responsible for acts committed by its officials or organs outside their competence if the officials or organs acted at least
to all appearances as competent officials or organs, or used powers or methods appropriate to their official capacity
. Applying this principle to the facts of the present case, Presiding Commissioner Verzijl concluded as follows:
 The officers in question consistently conducted themselves as officers ; in this capacity they began by
exacting the remittance of certain sums of money; they continued by having the victim taken to a barracks of the
occupying troops; and it was clearly because of the refusal of M Caire to meet their repeated demands that they finally
shot him. Under these circumstances, there remains no doubt that, even if they are to be regarded as having acted
outside their competence, which is by no means certain, and even if their superior officers issued a counter-order, these
two officers have involved the responsibility of the State, in view of the fact that they acted in their capacity of officers
and used the means placed at their disposition by virtue of that capacity.

Indemnity awarded

A comparison with vicarious liability in municipal law

In Jean-Baptiste Caire Claim (above), the unlawful conduct of the army officers who killed M Caire was imputed or
attributed to Mexico for the purposes of state responsibility. An analogy in municipal law is the vicarious liability in tort
of an employer for the conduct of an employee in the course of employment. In the latter context, provided that there
is a sufficient connection between the employees conduct and the course of employment, an employer may be held
vicariously liable in tort for the criminal act of an employee, such as the sexual assault of resident children committed by
the warden of a boarding school (Lister v. Hesley Hall Ltd [2002] 1 AC 215).

The reasoning in Caire may be compared with the decision of the Privy Council (on appeal from the Court of Appeal of
Jamaica) in Bernard v. Attorney General of Jamaica [2004] UKPC 47. In this case, a police officer purporting to act in
that capacity, unlawfully shot Mr Clinton Bernard in the head at point-blank range when Mr Bernard refused to comply
with the police officers demand that the police officer be given the use of a public telephone before Mr Bernard had
completed the call he was making. In a judgment delivered by Lord Steyn, the Privy Council held that the Crown, as the
police officers employer, was vicariously liable in tort for the police officers unlawful, and almost certainly criminal,
conduct. In this regard, the Privy Council emphasised that, although the police officer was off-duty at the time of the
incident, the police officer had purported to act in an official capacity and had used the service revolver which off-duty
police officers routinely were permitted to carry. Adapting the language of Presiding Commissioner Verzijl in Caire, the
police officer in Bernard engaged the vicarious liability of the Crown in view of the fact that he had purported to act in
his capacity as a police officer and had used the means placed at his disposition by virtue of that capacity.

HOME MISSIONARY SOCIETY CASE

(Home Frontier and Foreign Missionary Society of the United Bretheren in Christ (United States v. Great Britain))
American and British Claims Arbitration, 1920.

FACTS: In 1898, the British colonial government in Sierra Leone attempted to collect a hut tax. This led to a rebellion
that resulted in attacks on missions. Several missions were destroyed or damaged, and some American missionaries
were killed. This commission was set up to determine if Britain was liable to the US for the injuries suffered by the
latters citizens.
ISSUE : Can the conduct of the rebels be imputed to the government?
HOLDING : No.
LAW : It is a well-established principle of international law that no government can be held responsible for the act of
rebellious bodies of men committed in violation of its authority, where it is itself guilty of no breach of good faith or of
no negligence in suppressing insurrection.
EXPLANATION : Britain did nothing improper in imposing a tax. This is a right of every government. Although difficulty
might have been foreseen, there was nothing to suggest that the tax would lead to a widespread revolt.
MARCOS vs. MANGLAPUS
GR 88211, Sept. 15, 1989

FACTS:
February 1986, Ferdinand E. Marcos was deposed from the presidency via the non-violent "people power" revolution
and forced into exile. In his stead, Corazon C. Aquino was declared President of the Republic under a revolutionary
government.

Now, Mr. Marcos, in his deathbed, has signified his wish to return to the Philipppines to die. But Mrs. Aquino,
considering the dire consequences to the nation of his return at a time when the stability of government is threatened
from various directions and the economy is just beginning to rise and move forward, has stood firmly on the decision to
bar the return of Mr. Marcos and his family.

Petitioners assert that the right of the Marcoses to return to the Philippines is guaranteed under the following provisions
of the Bill of Rights, to wit:

Section 1. No person shall be deprived of life, liberty, or property without due process of law, nor shall any person be
denied the equal protection of the laws.
xxx xxx x
Section 6. The liberty of abode and of changing the same within the limits prescribed by law shall not be impaired except
upon lawful order of the court. Neither shall the right to travel be impaired except in the interest of national security,
public safety, or public health, as may be provided by law.

Furthermore, they contend that the President is without power to impair the liberty of abode of the Marcoses because
only a court may do so "within the limits prescribed by law." Nor may the President impair their right to travel because
no law has authorized her to do so. They advance the view that before the right to travel may be impaired by any
authority or agency of the government, there must be legislation to that effect.

The petitioners further assert that under international law, the right of Mr. Marcos and his family to return to the
Philippines is guaranteed.
The Universal Declaration of Human Rights provides:

Article 13. (1) Everyone has the right to freedom of movement and residence within the borders of each state.
(2) Everyone has the right to leave any country, including his own, and to return to his country.

Likewise, the International Covenant on Civil and Political Rights, which had been ratified by the Philippines, provides:

Article 12
1) Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and
freedom to choose his residence.
2) Everyone shall be free to leave any country, including his own.
3) The above-mentioned rights shall not be subject to any restrictions except those which are provided by law, are
necessary to protect national security, public order (order public), public health or morals or the rights and freedoms of
others, and are consistent with the other rights recognized in the present Covenant.
4) No one shall be arbitrarily deprived of the right to enter his own country.

ISSUES:

Whether or not the President has the power under the Constitution, to bar the Marcoses from returning to the
Philippines.
 Whether or not the President acted arbitrarily or with grave abuse of discretion amounting to lack or excess of
jurisdiction when she determined that the return of the Marcose's to the Philippines poses a serious threat to national
interest and welfare and decided to bar their return.

HELD:
SC well-considered opinion that the President has a residual power which justifies her act of banning the return of the
Marcoses and she did not act arbitrarily or with grave abuse of discretion in determining that the return of former
President Marcos and his family at the present time and under present circumstances poses a serious threat to national
interest and welfare and in prohibiting their return to the Philippines.

It must be emphasized that the individual right involved is not the right to travel from the Philippines to other countries
or within the Philippines. These are what the right to travel would normally connote. Essentially, the right involved is the
right to return to one's country, a totally distinct right under international law, independent from although related to
the right to travel. Thus, the Universal Declaration of Humans Rights and the International Covenant on Civil and Political
Rights treat the right to freedom of movement and abode within the territory of a state, the right to leave a country, and
the right to enter one's country as separate and distinct rights. The Declaration speaks of the "right to freedom of
movement and residence within the borders of each state" [Art. 13(l)] separately from the "right to leave any country,
including his own, and to return to his country." [Art. 13(2).] On the other hand, the Covenant guarantees the "right to
liberty of movement and freedom to choose his residence" [Art. 12(l)] and the right to "be free to leave any country,
including his own." [Art. 12(2)] which rights may be restricted by such laws as "are necessary to protect national
security, public order, public health or morals or enter qqqs own country" of which one cannot be "arbitrarily deprived."
[Art. 12(4).] It would therefore be inappropriate to construe the limitations to the right to return to one's country in the
same context as those pertaining to the liberty of abode and the right to travel.

The right to return to one's country is not among the rights specifically guaranteed in the Bill of Rights, which treats only
of the liberty of abode and the right to travel, but it is our well-considered view that the right to return may be
considered, as a generally accepted principle of international law and, under our Constitution, is part of the law of the
land [Art. II, Sec. 2 of the Constitution.] However, it is distinct and separate from the right to travel and enjoys a different
protection under the International Covenant of Civil and Political Rights, i.e., against being "arbitrarily deprived" thereof
[Art. 12 (4).]

Although the 1987 Constitution imposes limitations on the exercise of specific powers of the President, it maintains
intact what is traditionally considered as within the scope of "executive power." Corollarily, the powers of the President
cannot be said to be limited only to the specific powers enumerated in the Constitution. In other words, executive
power is more than the sum of specific powers so enumerated.

To the President, the problem is one of balancing the general welfare and the common good against the exercise of
rights of certain individuals. The power involved is the President's residual power to protect the general welfare of the
people. It is founded on the duty of the President, as steward of the people.

The Constitution declares among the guiding principles that "[t]he prime duty of the Government is to serve and protect
the people" and that "[t]he maintenance of peace and order, the protection of life, liberty, and property, and the
promotion of the general welfare are essential for the enjoyment by all the people of the blessings of democracy." [Art.
II, Secs. 4 and 5.]

More particularly, this case calls for the exercise of the President's powers as protector of the peace. The power of the
President to keep the peace is not limited merely to exercising the commander-in-chief powers in times of emergency or
to leading the State against external and internal threats to its existence. The President is not only clothed with
extraordinary powers in times of emergency, but is also tasked with attending to the day-to-day problems of
maintaining peace and order and ensuring domestic tranquility in times when no foreign foe appears on the horizon.
Wide discretion, within the bounds of law, in fulfilling presidential duties in times of peace is not in any way diminished
by the relative want of an emergency specified in the commander-in-chief provision. For in making the President
commander-in-chief the enumeration of powers that follow cannot be said to exclude the President's exercising as
Commander-in- Chief powers short of the calling of the armed forces, or suspending the privilege of the writ of habeas
corpus or declaring martial law, in order to keep the peace, and maintain public order and security.

The Court cannot close its eyes to present realities and pretend that the country is not besieged from within by a well-
organized communist insurgency, a separatist movement in Mindanao, rightist conspiracies to grab power, urban
terrorism, the murder with impunity of military men, police officers and civilian officials, to mention only a few. The
documented history of the efforts of the Marcose's and their followers to destabilize the country, as earlier narrated in
this ponencia bolsters the conclusion that the return of the Marcoses at this time would only exacerbate and intensify
the violence directed against the State and instigate more chaos.

The State, acting through the Government, is not precluded from taking pre- emptive action against threats to its
existence if, though still nascent they are perceived as apt to become serious and direct. Protection of the people is the
essence of the duty of government. The preservation of the State the fruition of the people's sovereignty is an obligation
in the highest order. The President, sworn to preserve and defend the Constitution and to see the faithful execution the
laws, cannot shirk from that responsibility.

We cannot also lose sight of the fact that the country is only now beginning to recover from the hardships brought about
by the plunder of the economy attributed to the Marcoses and their close associates and relatives, many of whom are
still here in the Philippines in a position to destabilize the country, while the Government has barely scratched the
surface, so to speak, in its efforts to recover the enormous wealth stashed away by the Marcoses in foreign jurisdictions.
Then, We cannot ignore the continually increasing burden imposed on the economy by the excessive foreign borrowing
during the Marcos regime, which stifles and stagnates development and is one of the root causes of widespread poverty
and all its attendant ills. The resulting precarious state of our economy is of common knowledge and is easily within the
ambit of judicial notice.

INTERNATIONAL SCHOOL ALLIANCE OF EDUCATORS V. QUISUMBING (G.R. NO. 88211. 15, SEPTEMBER 1989)

FACTS:
The private respondent, International School, Inc. pursuant to Presidential Decree 732, is a domestic educational
institution established primarily for dependents of foreign diplomatic personnel and other temporary residents.
The school grants foreign-hires certain benefits not accorded to local hires. These include housing, transportation,
shipping costs, taxes, and home leave travel allowance. Foreign hires are also paid a salary rate twenty-five percent
(25%) more than local hires. The School justifies the difference on two significant economic disadvantages foreign-
hires have to endure, namely (a) the dislocation factor and (b) limited tenure.
The compensation scheme is simply the Schools adaptive measure to remain competitive on an international level in
terms of attracting competent professionals in the field of international education.
Local hires filed a petition claiming that point-of-hire classification employed by the School is discriminatory to Filipinos
and that the grant of higher salaries to foreign-hires constitutes racial discrimination.

ISSUE: Whether or not the Schools system of compensation is violative of the principle of equal pay for equal work

RULING: Discrimination, particularly in terms of wages, is frowned upon by the Labor Code. Article 135, for example,
prohibits and penalizes the payment of lesser compensation to female employees as against a male employee for work
of equal value. Art. 248 declares it an unfair labor practice for an employer to discriminate in regard to wages in order to
encourage or discourage membership in an labor organization.

Persons who work with substantially equal qualifications, skill, effort and responsibility, under similar conditions, should
paid similar salaries. If an employer accords employees the same position and rank, the presumption is that these
employees perform equal work. This presumption is borne by logic and human experience. If the employer has
discriminated against an employee, it is for the employer to explain why the employee is treated unfairly.
The employer in this case had failed to do so. There is no evidence here that foreign-hires perform 25% more efficiently
or effectively than local-hires. Both groups have similar functions and responsibilities, which they perform under similar
working conditions.

G.R. NO. 183871

Rubrico vs. Arroyo

February 18, 2010

FACTS:

Rubrico, in her petition, said she was abducted on April 3, 2007 by armed men belonging to the 301st Air Intelligence
and Security Squadron, based at the Philippine Air Force Field Station at Fernando Air Base in Lipa City, Batangas. During
her detention, the petitioner added, her daughters Mary Joy Rubrico Carbonel and Jean Rubrico Apruebo were harassed
by Senior Insp. Arsenio Gomez and that there were also armed men following them. The petitioners prayed that a writ
of amparo be issued, ordering the individual respondents to desist from performing any threatening act against the
security of the petitioners and for the Office of the Ombudsman (OMB) to immediately file an information for
kidnapping qualified with the aggravating circumstance of gender of the offended party. It also prayed for damages and
for respondents to produce documents submitted to any of them on the case of Lourdes.
The respondents then filed a joint return on the writ specifically denying the material inculpatory averments against
them. Respondents interposed the defense that the President may not be sued during her incumbency.
Petitioners pleaded back to be allowed to present evidence ex parte against the President, et al.
By a separate resolution, the CA dropped the President as respondent in the case .

ISSUE:

WHETHER OR NOT the [CA] committed reversible error in dismissing [their] Petition and dropping President Gloria
Macapagal Arroyo as party respondent.

HELD:

The presidential immunity from suit remains preserved under our system of government, albeit not expressly reserved
in the present constitution. Addressing a concern of his co-members in the 1986 Constitutional Commission on the
absence of an express provision on the matter, Fr. Joaquin Bernas, S.J. observed that it was already understood in
jurisprudence that the President may not be sued during his or her tenure.
Settled is the doctrine that the President, during his tenure of office or actual incumbency, may not be sued in any civil
or criminal case, and there is no need to provide for it in the Constitution or law. It will degrade the dignity of the high
office of the President, the Head of State, if he can be dragged into court litigations while serving as such.
The Court also affirmed the dismissal of the amparo case against other respondents for failure of the petition to allege
ultimate facts as to make out a case against that body for the enforced disappearance of Lourdes and the threats and
harassment that followed.
TRAIL SMELTER ARBITRATION (US vs. CANADA)

Brief Fact Summary. The United States (P) sought damages from Canada by suing them to court and also prayed for an
injunction for air pollution in the state of Washington, by the Trail Smelter, a Canadian corporation which is domiciled in
Canada (D).

Synopsis of Rule of Law. The duty to protect other states against harmful acts by individuals from within its jurisdiction
at all times is the responsibility of a state.

Facts. The Tail Smelter located in British Columbia since 1906, was owned and operated by a Canadian corporation. The
resultant effect of from the sulfur dioxide from Trail Smelter resulted in the damage of the state of Washington between
1925 and 1937. This led to the United States (P) suit against the Canada (D) with an injunction against further air
pollution by Trail Smelter.

Issue. Is it the responsibility of the State to protect to protect other states against harmful acts by individuals from
within its jurisdiction at all times?

Held. Yes. It is the responsibility of the State to protect other states against harmful act by individuals from within its
jurisdiction at all times. No state has the right to use or permit the use of the territory in a manner as to cause injury by
fumes in or to the territory of another or the properties or persons therein as stipulated under the United States (P) laws
and the principles of international law.
By looking at the facts contained in this case, the arbitration held that Canada (D) is responsible in international law for
the conduct of the Trail Smelter Company. Hence, the onus lies on the Canadian government (D) to see to it that Trail
Smelters conduct should be in line with the obligations of Canada (D) as it has been confirmed by International law. The
Trail Smelter Company will therefore be required from causing any damage through fumes as long as the present
conditions of air pollution exist in Washington.
So, in pursuant of the Article III of the convention existing between the two nations, the indemnity for damages should
be determined by both governments. Finally, a regime or measure of control shall be applied to the operations of the
smelter since it is probable in the opinion of the tribunal that damage may occur in the future from the operations of the
smelter unless they are curtailed.

Discussion. Responsibility for pollution of the sea or the existence of a duty to desist from polluting the sea has never
been laid at the feet of any country by any international tribunal. Although regulation of pollution is just commencing, it
must ensure that there is equilibrium against freedom of the seas guaranteed under general and long established rules
of international law.

NOTTEBOHM CASE
Citation. I.C.J. 1955, I.C.J., 4 (1955)

Brief Fact Summary. A month after the start of World War II, Nottebohn (P), a German citizen who had lived in
Guatemala (D) for 34 years, applied for Liechtenstein (P) citizenship.

Synopsis of Rule of Law. Nationality may be disregarded by other states where it is clear that it was a mere device since
the nationality conferred on a party is normally only the concerns of that nation

Facts. Nottebohn (P), a German by birth, lived in Guatemala (D) for 34 years, retaining his German citizenship and family
and business ties with it. He however applied for Liechtenstein (P) citizenship a month after the outbreak of World War
II. Nottebohm (P) had no ties with Liechtenstein but intended to remain in Guatemala. The naturalization application
was approved by Liechtenstein and impliedly waived its three-year. After this approval, Nottebohm (P) travelled to
Liechtenstein and upon his return to Guatemala (D), he was refused entry because he was deemed to be a German
citizen. His Liechtenstein citizenship was not honored. Liechtenstein (P) thereby filed a suit before the International
Court to compel Guatemala (D) to recognize him as one of its national. Guatemala (D) challenged the validity of
Nottebohms (P) citizenship, the right of Liechtenstein (P) to bring the action and alleged its belief that Nottebohm (P)
remained a German national.

Issue. Must nationality be disregarded by other states where it is clear that it was a mere device since the nationality
conferred on a party is normally the concerns of that nation?

Held. NO. issues relating to citizenship are solely the concern of the granting nation. This is the general rule. But it does
not mean that other states will automatically accept the conferring states designation unless it has acted in conformity
with the general aim of forging a genuine bond between it and its national aim. In this case, there was no relationship
between Liechtenstein (P) and Nottebohm (P). the change of nationality was merely a subterfuge mandated by the war.
Under this circumstance, Guatemala (D) was not forced to recognize it. Dismissed.

Discussion. A state putting forth a claim must establish a locus standi for that purpose. Without interruption and
continuously from the time of the injury to the making of an award been a national of the state making the claim and
must not have been a national of the state against whom the claim has been filed. International law 347 (8th Ed. 1955)
Vol.1.

Citation. I.C.J. 1970 I.C.J. 3.

Brief Fact Summary. Belgium (P) claimed Spain (D) should be held accountable for the injury to a Canadian corporation
operating in Spain.

Synopsis of Rule of Law. A state assumes an obligation concerning the treatment of foreign investments based on
general international law, once the state admits foreign investments or foreign nationals into its territory.

Facts. On behalf of Belgian nationals (P) who had invested in a Canadian corporation, Belgium (P) sued Spain (D) on the
premise that Spain (D) was responsible for acts in violation of international law that had caused injury to the Canadian
corporation and its Belgian shareholders (P).

Issue. Does a state assumes an obligation concerning the treatment of foreign investments based on general
international law, once the state admits foreign investments or foreign nationals into its territory?

Held. Yes. A state assumes an obligation concerning the treatment of foreign investments based on general
international law, once the state admits foreign investments or foreign nationals into its territory. It is highly imperative
to draw a distinction between those obligations of a state toward the international community as a whole and those
arising from the field of diplomatic protection. It is only the party to whom an international obligation is due can bring a
claim if a breach of an obligation that is the subject of diplomatic protection occurs.

Discussion. The basic right of all human persons was mentioned by the Court to be protected against slavery and racial
discrimination as deriving from basic general international law. Such rights may derive from international instruments of
a universal or quasi-universal character. Such obligations are obligations erga omnes, that is, all states have a legal
interest in their protection.
U.S. Supreme Court
Alfred Dunhill of London, Inc. v. Republic of Cuba, 425 U.S. 682 (1976)
Alfred Dunhill of London, Inc. v. Republic of Cuba
No. 73-1288
Argued December 10, 1974
Reargued January 19, 1976
Decided May 24, 1976
425 U.S. 682
Syllabus
After the "intervention" (nationalization) by Cuba in 1960 of the business and assets of five leading cigar manufacturers,
the former owners (most of whom had fled to the United States) brought actions against petitioner and two other
importers for, inter alia, the purchase price of cigars that had been shipped to the importers from the seized Cuban
plants. Following conclusion of related litigation, the Cuban "interventors" (those named to possess and occupy the
seized businesses, one of whom, and Cuba, are the respondents herein) were allowed to join in those actions, which
were consolidated for trial. Both the former owners and the interventors asserted their right to sums due from the three
importers for post-intervention shipments. As of the date of intervention, the importers owed various amounts for pre-
intervention shipments, which they later paid to the interventors, who the importers mistakenly believed were entitled
to collect accounts receivable. The former owners also claimed title to and demanded payment of these accounts. The
District Court, acknowledging that, under the "act of state" doctrine reaffirmed in Banco Nacional de Cuba v. Sabbatino,
376 U. S. 398, it had to give effect to the 1960 confiscation insofar as it purported to take the property of Cubans in
Cuba, held that the interventors could collect all due and unpaid amounts for post-intervention shipments, but further
held that the former owners were entitled to the pre-intervention accounts receivable, the situs of which was with the
importer-debtors; and the former owners, rather than the interventors, were held entitled to collect those accounts
from the importers, even though the latter had already mistakenly paid them to the interventors. The importers then
claimed that they were entitled to recover the payments from the interventors by way of setoff or counterclaim. The
interventors countered with the contention that any repayment obligation was a quasi-contractual debt whose situs was
in Cuba, and that their refusal to pay was an act of state not subject to question in American courts. The District
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Page 425 U. S. 683
Court rejected the interventors' claim on the grounds that the repayment obligation was deemed situated in the United
States, and that nothing had occurred qualifying for recognition as an act of state. The importers accordingly were
allowed to set off their mistaken payments for pre-intervention shipments against the amounts they owed for post-
intervention purchases. Since petitioner's claim against the interventors exceeded their claim against it, petitioner was
awarded judgment against the interventors for the full amount of its claim, from which the smaller judgment against it
would be deducted. The Court of Appeals, while agreeing with the District Court in other respects, held that the
interventors' obligation to repay the importers was situated in Cuba, and that the interventors' counsel's repudiation of
the obligation constituted an act of state. Nevertheless, relying on First Nat City Bank v. Banco Nacional de Cuba, 406 U.
S. 759, the court held that enforcement of the importers' counterclaims was not barred up to the limits of the respective
claims asserted against them by the interventors, but that the affirmative judgment awarded petitioner was barred by
the act of state doctrine to the extent that petitioner's claim exceeded its debt. In this respect, the District Court's
judgment was reversed, giving rise to the petition for certiorari in this case.
Held: There is nothing in the record of this case revealing an act of state with respect to the interventors' obligation to
return the sums mistakenly paid to them. Pp. 425 U. S. 690-695.
(a) If the interventors, whose contentions, including the claimed act of state, with respect to the pre-intervention
accounts, represented by the 1960 confiscation had been properly rejected by the courts below, were to escape
repayment upon the basis of a second and later act of state involving the funds mistakenly paid to them, they had the
burden of proving that act. P. 425 U. S. 691.
(b) The interventors' refusal to repay the mistakenly paid funds does not constitute an act of state or indicate that the
interventors had governmental, as opposed to merely commercial, authority for the refusal. The "Gul Djemal," 264 U. S.
90. Pp. 425 U. S. 691-694.
(c) The interventors' counsel's statement during trial that the Cuban Government and the interventors denied liability
and had refused to make repayment is no proof of an act of state, and no statute, decree, order, or resolution of the
Cuban Government was offered in evidence indicating Cuban repudiation of its obligations in general or of the
obligations herein involved. Pp. 425 U. S. 694-695.
485 F.2d 1355, reversed.