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Vienna Convention Digests

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  HOLY SEE V. HON. ROSARIO & STARBRIGHT SALES ENTERPRISES INC 2238 SCRA 534 (1994) FACTS: The petition arose from a controversy over a parcel of land. The said lot was contiguous with two other lots. The land was donated by the Archdiocese of Manila to the Papal Nuncio (which represents the Holy See who exercises sovereignty over the Vatican City in Rome, Italy) for its residence.   1. The lots were sold to Ramon Licup, including the lot for the Papal Nuncio, since the squatters would not evacuate the lands and the land is not suitable anymore for the construction of the Papal Nuncio’s residence.   2. Licup gave his rights over the lots to Starbright Sales Enterprises, Inc. Starbright filed a complaint for the annulment of the sale of the 3 parcels of land, and specific performance and damages against the petitioner and 3 other defendants. 3. The trial court issued an order denying the motion to dismiss after finding that petitioner “shed off [its] foreign immunity by entering into business contract in question ISSUES: 1. WON the Holy See entered into a commercial transaction 2. WON the Holy See can invoke the doctrine of sovereign immunity HELD: FIRST ISSUE: No. The Holy See wanted to dispose the parcel of land donated by the  Archdiocese of Manila because the squatters refused to leave the land and the land cannot be used for its purpose. The Holy See’s act was in pursuit for its sovereign activity and was not undertaken for gain or profit, therefore, the act was jure imperii (public act of the State as opposed to jure gestionis, commercial activities of the State). SECOND ISSUE: Yes. As expressed in Sec 2 of Art II of the 1987 Constitution, we have adopted the generally accepted principles of International Law. Even without this affirmation, such principles of International Law are deemed incorporated as part of the law of the land as a condition and consequence of our admission in the society of nations In Art 31(a) of the 1961 Vienna convention on Diplomatic Relations, 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 in behalf of the sending state for the purposes of the mission. The Holy See can invoke the doctrine of immunity over the instant case.  UNOCAL Case: Decision by the California Central District Court FACTS: In October 1996, farmers from Burma brought a class action suit against UNOCAL, Total SA and 2 Burmese government agencies, State Law and Order Restoration Council (SLORC) and Myanmar Oil and Gas Enterprise (MOGE). The suit alleged various human rights violations including forced labor, wrongful death, false imprisonment, assault, among others, all relating to the construction of the Yadana gas pipeline project in Myanmar. Petitioners alleged that private security guards of UNOCAL forced them to dislocate & then make dams. RULING:   The court also concluded that the evidence does suggest that UNOCAL knew that forced labor was being utilized and that [UNOCAL and Total, a co-venturer in the Yadana project] benefited from the practice and that The violence perpetrated against Plaintiffs is well documented in the deposition testimony filed under seal with the Court. Nonetheless, the court dismissed the case, concluding that UNOCAL could not be held liable under the Alien Tort Statute unless UNOCAL actually controlled the military units that committed abuses, and that plaintiffs had not made this showing. The court held that private corporations can be held liable for violations of international law under the Alien Tort Statute. Specifically, the decision recognizes that corporations may be liable not only for their own actions, but for the actions of partners and joint venturers, including foreign governments.  ACT OF STATE DOCTRINE IS NOT APPLICABLE In Liu v. Republic of China, the court identified 3 factors to consider in determining whether the act of state doctrine applies: (1) Whether the foreign state is acting in the public interest (2) The degree of international consensus regarding the activity (3) Whether the ruling will hinder the executive branch in its formulation of foreign policy or result in differing pronouncements on the same subject  Applying these factors to the facts in the case, the act of state doctrine is not applicable. However, plaintiffs sought to prove that the Burmese army's actions were linked to UNOCAL's will and for UNOCAL's benefit. To determine whether UNOCAL's actions could be considered state action, two tests may be used: the joint action test, and the proximate cause test. Because the joint action test is only appropriate in instances where the private actor is accused of having committed the crime and is aided by the state, he found it inapplicable. Instead, the court used the proximate cause test. To prove proximate cause, a plaintiff must show that a non-state actor exercised control over the government's decision to commit a violation. In determining that absent some showing that a private party had some control over state officials' decision to commit the alleged act, the private party did not proximately cause the injuries stemming from [it]. Because “plaintiffs presented no evidence that UNOCAL 'controlled' the Myanmar military's decision to commit the  alleged tortious acts, the court found that UNOCAL did not act under color of law for purposes of the ATCA. SECONDARY LIABILITY OF UNOCAL The court found that, under international law, the vicarious liability of directors requires participation and cooperation in the practice of forced labor. Although Judge Lew acknowledged that the evidence pointed to Unocal's knowledge of the forced labor practices, he dismissed plaintiffs' claims that Unocal could be held legally responsible for the forced labor because none of the plaintiffs' evidence suggested Unocal actively sought to employ forced labor. UNOCAL contends that this Court lacks subject matter jurisdiction over plaintiffs' claims against SLORC and MOGE under the Foreign Sovereign Immunities Act 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. 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) [1] the action is based upon a commercial activity carried on in the United States by the foreign state; or (2) [2] upon an act performed in the United States in connection with a commercial activity of the foreign state elsewhere; or [ (3) 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 Clause two applies only to claims that are based upon acts performed in the United States. 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.  RESERVATIONS TO THE CONVENTION ON THE PREVENTION & PUNISHMENT OF THE CRIME OF GENOCIDE ISSUES: 1. Can the reserving State be regarded as a party to the Convention if the reservation is objected to by one or more of the parties but not by others? ã  If yes, what is the effect of the reservation as between the reserving State and the parties 2. What is the legal effect if an objection is made: ã  By a signatory which has not yet ratified ã  By a State entitled to sign or accede but which has not yet done so HELD:  A State which has made and maintained a reservation which has been objected to by one or more of the parties to the Convention but not by others, can be regarded as being a party to the Convention if the reservation is compatible with the object and   purpose of the Convention ; OTHERWISE, that State cannot be regarded as being a   party to the Convention.   If a party to the Convention objects to a reservation which it considers to be   incompatible with the object and purpose of the Convention , it can in fact consider that the reserving State is NOT a party to the Convention; if, on the other hand, a party   accepts the reservation as being compatible with the object and purpose of the   Convention, it can in fact consider that the reserving State is a party to the Convention.  An objection to a reservation made by a signatory State which has not yet ratified   the Convention can have the legal effect indicated in the reply to Question I only   upon ratification . Until that moment it merely serves as a notice to the other State of   the eventual attitude of the signatory State ;   an objection to a reservation made by a   State which is entitled to sign or accede but which has not yet done so is without   legal effect .
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