STATE IMMUNITY AND TUBBATAHA


images-1A motion for issuance of writ of execution was filed yesterday with the Supreme Court in the case of Salonga et. al. versus Executive Secretary. Recall that former Senate President Jovito Salonga attempted to declare the Visiting Forces Agreement unconstitutional in connection with the then criminal prosecution of US Serviceman Lance Corporal Daniel Smith who was accused of raping a Filipina under the name of “Nicole”. Salonga’s petition came after RTC Judge Benjamin Pozon found Smith guilty of rape and ordered him detained in the Makati City Jail pending his appeal. But literally at midnight, former President Gloria Arroyo and her Cabinet members took custody of the person of Smith and delivered him to the US Embassy, where he was beyond reach of Philippine authorities. This is because diplomatic premises are immune from the jurisdiction of host states.

Salonga’s petition sought to reopen the decision of the Supreme Court in the case of Bayan versus Zamora, which earlier upheld the constitutionality of the VFA. In this earlier case, the party list group Bayan sought to have the agreement declared invalid because it was concurred in only by the Philippine Senate and not by the US Senate. Under the 1987 Constitution, and to avoid a repeat of the notorious US-Philippine bases agreement where only the Philippine Senate gave its concurrence to the treaty, it is now expressly required that the presence of foreign troops and bases shall only be pursuant to a treaty “duly recognized by the other party as such”. In Bayan, the Court upheld the VFA’s constitutionality because the court was satisfied that the United States recognized the agreement as a valid binding international agreement. Anent the non-concurrence by the US Senate, the Court ruled that it is not its business to inquire on the requirements of a foreign law before a treaty can have the effect of binding law in that foreign jurisdiction.

Salonga reiterated that the VFA was unconstitutional since the US Senate did not concur it in. But in addition, he argued that the Kearney-Romulo agreement  providing that US servicemen found guilty of the commission of non-service related offenses should remain in American custody pending appeal was illegal. This was pursuant to an express provision of the VFA itself, which provides that these servicemen  should, after conviction, hence be turned over to the  custody of Philippine authorities.

Salonga’s petition, unlike that of the earlier petition of Bayan, was partially granted. While the court upheld anew the constitutionality of the VFA, it nonetheless ruled that the Kearney-Romulo agreement was invalid. It then ordered that the Foreign Affairs Department “is hereby ordered to forthwith negotiate with the United States representatives for the appropriate agreement on detention facilities under Philippine authorities as provided in Art. V, Sec. 10 of the VFA.”

This was the partial victory that Salonga et al sought to enforce through a writ of execution last Tuesday.

While it is true that the Court ordered the renegotiation for a specific purpose, Petitioners further argued that the recent grounding of the USS Guardian in the UNESCO heritage site Tubbataha reef now justifies a renegotiation of the agreement towards abrogating the same. Under the VFA, the same can only be terminated upon the giving of 180 days notice. The petitioners argued that the grounding clearly demonstrates that the VFA has not and will not uphold Philippine interest. The motion states that while the occasion that gave rise to Salonga’s petition was the rape of our women, the Tubbataha  grounding is yet another form of rape- this time, against the national patrimony. Petitioners asked: “what was the USS Guardian doing in the protected area? Why did they ignore park rangers repeated demands for the vessel not to enter the protected area?” The petitioners then speculated that the obvious reason for the incursion of the minesweeper onto the park was to enable its crew to engage in recreational diving in the area. This they said, made the grounding “non-service related” for which reason its captain and crew should have been arrested and prosecuted before Philippine courts under the VFA. If found guilty for incursion into the Tubbataha protected area, they should then be turned over to Philippine authorities pending their appeal.  This was the ruling of the Court in Salonga.

The Tubbataha grounding presents difficult issues of state immunity under international law. While the ICJ has only last year reiterated that the presence and acts of foreign troops in an armed conflict are undeniably covered by sovereign immunity, the court, in a previous case involving a Congolese foreign minister charged with incitement to genocide, nonetheless emphasized that “immunity was a mere procedural bar” and not intended to defeat substantive law.

If immunity from suit is a procedural bar merely to refer the controversy to  another tribunal, the search should then continue on how to hold the Captain and crew of the USS Guardian, and all American authorities responsible for the destruction of one of our greatest natural wealth, responsible for their acts. In this regard, Salonga’s motion for issuance of a writ of execution for its partial victory against the VFA is only the first step.

Impunity for Nazi crimes


Forced Labor during WW IIThe International Court of Justice recently promulgated a judgment which calls into question both the relevance and function of international law. Unwittingly, it  declared that Nazi Germany is entitled to impunity for acts of forced labor that it committed during World War II.

In its February 3, 2012 decision in the case of Germany vs. Italy, the court ruled that the principle of sovereign immunity from suits is a customary norm of international law that cannot be infringed unless waived by the state. This immunity subsists even if the claim against it is for violation of a peremptory norm, referred to as “jus cogens” in international law. It also ruled that state assets are also immune from execution

The case arose because of a series of Italian domestic court decisions awarding civil damages against Germany for forced labor committed during World War II.  While Germany has acknowledged that it committed grave breaches of international humanitarian law during the war, it nonetheless insists that claims against it for damages should be brought pursuant to its domestic law authorizing payment of compensation to individuals for these breaches and before German courts. Unfortunately, German courts barred compensation for forced labor for individuals with the status of a Prisoner of War. This is because the Germany insists that under the Geneva Conventions, POWs may be compelled to work by the detaining power.

In a case involving Luigi Ferrini who claimed to have been forcibly deported from Italy to Germany and made to work in a munitions factory, the Italian court ruled that Germany may not invoke state immunity for the commission of an international crime which at the same time, is covered by a jus cogens prohibition. The Court then awarded Ferrini damages and sought to enforce its decision against a real property owned by Germany in Italy. Hence, Germany’s resort to the ICJ.

The ICJ upheld Germany’s claim of immunity by ruling that under customary international law, the rule remains that a state is absolutely immune from suits for acts committed by its military troops in the territory of the forum. Furthermore, it stressed that under customary law, a violation of a jus cogens norm, even if acknowledged, as it was by Germany, cannot result in waiver of state immunity. In both points, the court enumerated a long list of state practice in the form of legislation and court decisions indicating that other than for Italian and Greek judicial decisions, the principle of state immunity as derived from the principle of sovereign equality of states remains to be firmly rooted in international law.

In ruling in the manner that it did, the ICJ  applied an already disregarded notion that international law is only about the application of legal rules. In fact, bulk of the Court’s opinion was devoted to an examination of what the law is, assuming perhaps that what is may be divorced from why it is law and what it seeks to accomplish. International law is law only because states accept it as such. While states may have varying reasons why they acknowledge it to be law, the fact remains that like all laws, international law forms part of normative system. It prescribes conduct deemed beneficial to all of humanity and prohibits conducts that are otherwise.

This means that in the application of rules, the Court should have considered what is more beneficial to humanity: the cold application of the principle of sovereign immunity or the primacy of protecting civilian and POWS in times of armed conflict. While it is true that sovereign equality of states is a foundational principle of the law, the same is true also of the principle that that human rights have also ceased to be purely domestic issue.

The fact that the ICJ gave primacy to the principle of sovereign immunity from suits ignores why these rules exist in the first place; that is, to protect the interests of individuals and not the interest of an artificial being that is a state. As some have noted, international law protects for instance, the environment—not because the ocean or the air should be protected as such. We do so ultimately because human beings require clean water and air.

True, the Court expressly said that its ruling does not affect the liability of state agents when they themselves commit egregious acts. But why should there be a distinction? Precisely because a state can only act only though its agent, there should be no distinction hence between suits against the state itself and against its agents.

The Court also engaged in face-saving when it said that its decision is without prejudice to the liability of the German state for the commission of an internationally wrongful act. But what use is this when victims are bereft of a remedy under domestic law? Who will authorize the award of compensation to the victims when current state practice still deny individuals a standing to bring claims under international law? Certainly, similar claims to that of Ferrini’s were rejected by the European Court of Human Rights on jurisdictional grounds.

There is clearly more merit in the lone dissenting opinion written by a former President of the Inter-American Court of Human Rights Judge Antonio Trindande: “The Court’s decision … seems more open and receptive to the sensitivities of States than to the victimized human beings, subjected to deportation and sent to forced labor.”

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