THE CORFU CHANNEL CASE (United Kingdom v.

Albania)
ICJ Decision of 9 April 1949
[1949] ICJ Rep. 4
The Albanian Government hascontended that the
sovereignty of Albania was violated because the passage
of the British warships on October 22nd, 1946, was not an
innocent passage. The reasons advanced in support of this
contention may be summed up as follows: The passage
was not an ordinary passage, but a political mission; the
ships were manoeuvring and sailing in diamond combat
formation with soldiers on board; the position of the guns
was not consistent with innocent passage; the vessels
passed with crews at action stations; the number of the
ships and their armament surpassed what was necessary
in order to attain their object and showed an intention to
intimidate and not merely to pass; the ships had received
orders to observe and report upon the coastal defences
and this order was carried out.
It is shown by the Admiralty telegram of September 21st,
cited above, and admitted by the United Kingdom Agent,
that the object of sending the warships through the Strait
was not only to carry out a passage for purposes of
navigation, but also to test Albania's attitude. As
mentioned above, the Albanian Government, on May
15th, 1946, tried to impose by means of gunfire its view
with regard to the passage. As the exchange of diplomatic
notes did not lead to any clarification, the Government of
the United Kingdom wanted to ascertain by other means
whether the Albanian Government would maintain its
illegal attitude and again impose its view by firing at
passing ships. The legality of this measure taken-by the
Government of the United Kingdom cannot be disputed,
provided that it was carried out in a manner consistent
with the requirements of international law. The "mission"
was designed to affirm a right which had been unjustly
denied. The Government of the United Kingdom was not
bound to abstain from exercising its right of passage,
which the Albanian Government had illegally denied. [Pg
30]
In view of the firing from the Albanian battery on May
15th, this measure of precaution cannot, in itself, he
regarded as unreasonable. But four warships -- two
cruisers and two destroyers -- passed in this manner, with
crews at action stations, ready to retaliate quickly if fired
upon. They passed one after another through this narrow
channel, close to the Albanian coast, at a time of political
tension in this region. The intention must have been, not
only to test Albania's attitude, but at the same time to
demonstrate such force that she would abstain from firing
again on passing ships. Having regard, however, to all the
circumstances of the case, as described above, the Court is
unable to characterize these measures taken by the United
Kingdom authorities as a violation of Albania's sovereignty.
[Pg 31]
After the explosions of October 22nd, the United Kingdom
Government sent a note to the Albanian Government, in
which it announced its intention to sweep the Corfu
Channel shortly. The Albanian reply, which was received in

London on October 31st, stated that the Albanian

Government would not give its consent to this unless the
operation in question took place outside Albanian
territorial waters.
After this exchange of notes, "Operation Retail" took place
on November 12th and 13th. Commander Mestre, of the
French Navy, was asked to attend as observer, and was
present at the sweep on November 13th. The operation
was camed out under the protection of an important
covering force composed of an aircraft carrier, cruisers and
other war vessels. This covering force remained
throughout the operation at a certain distance to the west
of the Channel, except for the frigate St. Bride's Bay, which
was stationed in the Channel south-east of Cape Kiephali.
The sweep began in the morning of November 13th, at
about 9 o'clock, and ended in the afternoon near nightfall.
The area swept was in Albanian territorial waters, and
within the limits of the channel previously swept. [Pg 33]
But, in fact, the explosions of October 22nd, 1946,in a
channel declared safe for navigation, and one which the
United Kingdom Government, more than any other
government, had reason to consider safe, raised quite a
different problem from that of a routine sweep carried out
under the orders of the mineclearance organizations.
These explosions were suspicious; they raised a question
of responsibility.
Accordingly, this was the ground on which the United
Kingdom Government chose to establish its main line of
defence. According to that Government, the corpora
delicti must be secured as quickly as possible, for fear they
should be taken away, without leaving traces, by the
authors of the minelaying or by the Albanian authorities.
This justification took two distinct forms in the United
Kingdom Government's arguments. It was presented first
as a new and special application of the theory of
intervention, by means of which the State intervening
would secure possession of evidence in the territory of
another State, in order to submit it to an international
tribunal and thus facilitate its task.
The Court cannot accept such a line of defence. The Court
can only regard the alleged right of intervention as the
manifestation of a policy of force, such as has, in the past,
given rise to most serious abuses and such as cannot,
whatever be the present defects in international
organization, find a place in international law. Intervention
is perhaps still less admissible in the particular form it
would take here; for, from the nature of things, it would
be reserved for the most powerful States, and might easily
lead to perverting the administration of international
justice itself.
The United Kingdom Agent, in his speech in reply, has
further classified "Operation Retail" among methods of
self-protection or self-help. The Court cannot accept this
defence either. Between independent States, respect for
territorial sovereignty is an essential foundation of
international relations. The Court recognizes that the
Albanian Government's complete failure to carry out its
duties after the explosions, and the dilatory nature of its

diplomatic notes, are extenuating circumstances for the

action of the United Kingdom Government. But to ensure
respect for international law, of which it is the organ, the
Court must declare that the action of the British Navy
constituted a violation of Albanian sovereignty. [Pg 34-3

pursuing their vocation of catching and bringing in

fresh fish, have been recognized as exempt, with their
cargoes and crews, from capture as prize of war. (The
case then discussed instances throughout history
where fishing vessels were captured.)
It will be convenient to refer to some leading French
treatises on international law as determined by the
general consent of civilized nations.

----------------------------------------------------------

THE PAQUETE HABANA, 175 U.S. 677 (1900)

Facts:
These are two appeals from decrees of the district
court of the United States for the southern district of
Florida condemning two fishing vessels and their
cargoes as prize of war.
Each vessel was a fishing smack, running in and out
of Havana, and regularly engaged in fishing on the
coast of Cuba. It sailed under the Spanish flag and
was owned by a Spanish subject of Cuban birth, living
in the city of Havana. It was commanded by a subject
of Spain, also residing in Havana. Her master and
crew had no interest in the vessel, but were entitled to
share her catch.
Her cargo consisted of fresh fish, caught by her crew
from the sea, put on board as they were caught, and
kept and sold alive. Until stopped by the blockading
squadron she had no knowledge of the existence of
the war or of any blockade. She had no arms or
ammunition on board, and made on attempt to run the
blockade after she knew of its existence, nor any
resistance at the time of the capture.
The Paquete Habana (1st vessel) was a sloop and
had a crew of three Cubans, including the master,
who had a fishing license from the Spanish
government, and no other commission or license. She
left Havana and was captured by the United States
gunboat Castine.
The Lola (2nd vessel) was a schooner and had a
crew of six Cubans, including the master, and no
commission or license. She was stopped by the
United States steamship Cincinnati, and was warned
not to go into Havana, but was told that she would be
allowed to land at Bahia Honda. She then set for
Bahia Honda, but on the next morning, when near
that port, was captured by the United States
steamship Dolphin.
Both the fishing vessels were brought by their captors
into Key West. A libel for the condemnation of each
vessel and her cargo as prize of war was filed. Each
vessel was sold by auction (the Paquete Habana for
the sum of $490 and the Lola for the sum of $800).
There was no other evidence in the record of the
value of either vessel or of her cargo.
Issue:
Whether or not the fishing smacks were subject to
capture during the war with Spain.
Held:
No. By an ancient usage among civilized nations,
beginning centuries ago, and gradually ripening into a
rule of international law, coast fishing vessels,

'Enemy ships,' say Pistoye and Duverdy, in their

Treatise on Maritime Prizes, published in 1855, 'are
good prize. Not all, however; for it results from the
unanimous accord of the maritime powers that an
exception should be made in favor of coast fishermen.
Such fishermen are respected by the enemy so long
as they devote themselves exclusively to fishing.'
De Cussy, in his work on the Phases and Leading
Cases of the Maritime Law of Nations, affirms in the
clearest language the exemption from capture of
fishing boats, saying, that 'in time of war the freedom
of fishing is respected by belligerents; fishing boats
are considered as neutral; in law, as in principle, they
are not subject either to capture or to confiscation.
Ortolan, in the fourth edition of his Regles
Internationales et Diplomatie de la Mer, after stating
the general rule that the vessels and cargoes of
subjects of the enemy are lawful prize, says:
'Nevertheless, custom admits an exception in favor of
boats engaged in the coast fishery; these boats, as
well as their crews, are free from capture and exempt
from all hostilities. The coast-fishing industry is, in
truth, wholly pacific, and of much less importance in
regard to the national wealth that it may produce than
maritime commerce or the great fisheries. Peaceful
and wholly inoffensive, those who carry it on, may be
called the harvesters of the territorial seas, since they
confine themselves to gathering in the products
thereof; they are for the most part poor families who
seek in this calling hardly more than the means of
gaining their livelihood.' Again, after observing that
there are very few solemn public treaties which make
mention of the immunity of fishing boats in time of
war, he says: 'From another point of view the custom
which sanctions this immunity is not so general that it
can be considered as making an absolute
international rule; but it has been so often put in
practice, and, besides, it accords so well with the rule
in use in wars on land, in regard to peasants and
husbandmen, to whom coast fishermen may be
likened, that it will doubtless continue to be followed in
maritime wars to come. (A lot of opinions of other
writers were also included which will not be
mentioned in this digest)
This review of the precedents and authorities on the
subject appears to us abundantly to demonstrate that
at the present day, by the general consent of the
civilized nations of the world, and independently of
any express treaty or other public act, it is an
established rule of international law, founded on
considerations of humanity to a poor and industrious
order of men, and of the mutual convenience of
belligerent states, that coast fishing vessels, with their
implements and supplies, cargoes and crews,
unarmed and honestly pursuing their peaceful calling
of catching and bringing in fresh fish, are exempt from
capture as prize of war.
The exemption, of course, does not apply to coast
fishermen or their vessels if employed for a warlike
purpose, or in such a way as to give aid or information
to the enemy; nor when military or naval operations
create a necessity to which all private interests must
give way.

Nor has the exemption been extended to ships or

vessels employed on the high sea in taking whales or
seals or cod or other fish which are not brought fresh
to market, but are salted or otherwise cured and
made a regular article of commerce.
This rule of international law is one which prize courts
administering the law of nations are bound to take
judicial notice of, and to give effect to, in the absence
of any treaty or other public act of their own
government in relation to the matter.
By the practice of all civilized nations, vessels
employed only for the purposes of discovery or
science are considered as exempt from the
contingencies of war, and therefore not subject to
capture. It has been usual for the government sending
out such an expedition to give notice to other powers;
but it is not essential.
To this subject in more than one aspect are singularly
applicable the words uttered by Mr. Justice Strong,
speaking for this court: 'Undoubtedly no single nation
can change the law of the sea. The law is of universal
obligation and no statute of one or two nations can
create obligations for the world. Like all the laws of
nations, it rests upon the common consent of civilized
communities. It is of force, not because it was
prescribed by any superior power, but because it has
been generally accepted as a rule of conduct.
Whatever may have been its origin, whether in the
usages of navigation, or in the ordinances of maritime
states, or in both, it has become the law of the sea
only by the concurrent sanction of those nations who
may be said to constitute the commercial world. Many
of the usages which prevail, and which have the force
of law, doubtless originated in the positive
prescriptions of some single state, which were at first
of limited effect, but which, when generally accepted,
became of universal obligation.'
In the case, each vessel was of a moderate size, such
as is not unusual in coast fishing smacks, and was
regularly engaged in fishing on the coast of Cuba.
The crew of each were few in number, had no interest
in the vessel, and received, in return for their toil and
enterprise, two thirds of her catch, the other third
going to her owner by way of compensation for her
use. Each vessel went out from Havana to her fishing
ground, and was captured when returning along the
coast of Cuba. The cargo of each consisted of fresh
fish, caught by her crew from the sea, and kept alive
on board. Although one of the vessels extended her
fishing trip, we cannot doubt that each was engaged
in the coast fishery, and not in a commercial
adventure, within the rule of international law.
The case was adjudged that the capture was unlawful
and without probable cause ordered that the proceeds
of the sale of the vessel, together with the proceeds of
any sale of her cargo, be restored to the claimant,
with damages and costs.

Paquete Habana.; The Lola, 175 U.S. 677 (1900),

was a landmark United States Supreme Court case
that reversed an earlier court decision allowing the
capture of fishing vessels under Prize. Its importance
rests on the fact that it integrated Customary
international law with American law, perhaps the
quintessential position of those who hold a monist
perspective of international law.

In April 1898 two fishing vessels, the Paquete Habana

and the Lola, separately left Cuban ports in Havana in
order to fish. The two vessels were eventually
captured by US Naval vessels as part of Admiral
William T. Sampson's blockade of Cuba, who was
ordered to execute the blockade 'in pursuance of the
laws of the United States, and the law of nations
applicable to such cases.' The vessels were placed
within Cuba's territorial waters at the onset of the
Spanish-American War and then taken to Key West,
where both vessels were eventually auctioned by the
district court. Both vessels were valued under the
price of 2000$(US) and were thus not originally
thought to be exempt from seizure.
Admiral Sampson justified the seizures by stating that
most fishing vessels, flying under the Spanish banner
were manned by excellent seamen, "liable for further
service" as naval reserves, an asset that could
eventually be used against US interests in the
Spanish-American War.
The owners of the vessels however made an appeal
to the circuit courts, citing a long held tradition by
nations of exempting fishing vessels from prize
capture in times of war. This "tradition", a primary
example of customary international law, dates back
from an order by Henry IV in 1403, and has more or
less been observed by a large majority of States ever
since.
At the time of capture both vessels had no evidence
of aiding the enemy, and were unaware of the US
naval blockade. No arms were found on board, and
no attempts were made to either run the blockade or
resist capture.
The court's decision and merits[edit]
The United States Supreme Court cited lengthy legal
precedents established to support the existence of a
customary international law that exempted fishing
vessels from prize capture, dating all the way back to
ancient times and occurring repeatedly between
Great Britain and France. In 1403, King Henry IV of
England issued his officers leave fisherman alone
during times of war. He then signed a treaty with
France reaffirming this act between both parties.
Again in 1521 between Emperor Charles V and
Francis I of France a treaty was assigned. This treaty
was invoked due to a desperate rise in the markets
for herring. With the war between the two countries
raging on, fisherman dared not venture out to sea.
Therefore, a treaty was necessary on both accounts
to prevent starvation among those who relied upon
cheap herring, namely the lower classes. Situations
similar to this continued to crop up throughout history
prior to the Paquete case. Using this as a basis for
customary law, the court then eventually found the
capture of both vessels as "unlawful and without
probable cause", reversed the District Court's
decision, and ordered the proceeds of the auction as
well as any profits made from her cargo to be restored
to the claimant, "with damages and costs".

The Republic of Nicaragua v. The United States of

[1]
America was a 1986 case of the International Court
of Justice (ICJ) in which the ICJ ruled in favor of
Nicaragua and against the United States and
awarded reparations to Nicaragua. The ICJ held that
the U.S. had violated international law by supporting
the Contras in their rebellion against the Nicaraguan
government and by mining Nicaragua's harbors. The
United States refused to participate in the
proceedings after the Court rejected its argument that
the ICJ lacked jurisdiction to hear the case. The U.S.
later blocked enforcement of the judgment by the
United Nations Security Council and thereby
prevented Nicaragua from obtaining any actual
[2]
compensation. The Nicaraguan government finally
withdrew the complaint from the court in September
1992 (under the later, post-FSLN, government of
Violeta Chamorro), following a repeal of the law
[3]
requiring the country to seek compensation.

revolution the Carter administration moved quickly to

support the Somocistas with financial and material
aid. When Ronald Reagan took office, he augmented
the direct support to an anti-Sandinista group, called
the Contras, which included factions loyal to the
former dictatorship. When Congress prohibited further
funding to the Contras, Reagan continued the funding
through arms sales that were also prohibited by
[8]
Congress.
Arguments[edit]
Nicaragua[edit]
Nicaragua charged:

(a) That the United States, in recruiting,

training,

arming,

equipping,

financing,

The Court found in its verdict that the United States

was "in breach of its obligations under customary
international law not to use force against another
State", "not to intervene in its affairs", "not to violate
its sovereignty", "not to interrupt peaceful maritime
commerce", and "in breach of its obligations under
Article XIX of the Treaty of Friendship, Commerce
and Navigation between the Parties signed at
Managua on 21 January 1956."

supplying

The Court had 16 final decisions upon which it voted.

In Statement 9, the Court stated that while the U.S.
encouraged human rights violations by the Contras by
the manual entitled Psychological Operations in
Guerrilla Warfare, this did not, however, make such
[4]
acts attributable to the U.S.

Article 2 (4) of the United Nations Charter;

The first armed intervention by the United States in

Nicaragua occurred under President Taft. In 1909, he
ordered the overthrow of Nicaraguan President Jos
Santos Zelaya. During August and September 1912,
a contingent of 2300 U.S. Marines landed at the port
of Corinto and occupied Len and the railway line to
Granada. A pro-U.S. government was formed under
the occupation. The 1914 Bryan-Chamorro Treaty
granted perpetual canal rights to the U.S. in
Nicaragua and was signed ten days before the U.S.operated Panama Canal opened for use, thus
preventing anyone from building a competing canal in
[5]
Nicaragua without U.S. permission.

and

otherwise

encouraging,

supporting, aiding, and directing military and

paramilitary

actions

in

and

against

Nicaragua, had violated its treaty obligations

to Nicaragua under:

Articles 18 and 20 of the Charter of the

Organization of American States;
Article 8 of the Convention on Rights and
Duties of States;
Article I, Third, of the Convention concerning
the Duties and Rights of States in the Event
of Civil Strife.
(b) That the United States had breached
international law by

In 1927, under Augusto Csar Sandino, a major

peasant uprising was launched against both the U.S.
occupation and the Nicaraguan establishment. In
1933, the Marines withdrew and left the National
Guard in charge of internal security and elections. In
1934, Anastasio Somoza Garca, the head of the
National Guard, ordered his forces to capture and
murder Sandino. In 1937, Somoza assumed the
presidency, while still in control of the National Guard,
and established a dictatorship that his family
[6]
controlled until 1979.
The downfall of the regime is attributed to its
embezzlement of millions of dollars in foreign aid that
was given to the country in response to the
devastating 1972 earthquake. Many moderate
supporters of the dictatorship began abandoning it in
the face of growing revolutionary sentiment. The
Sandinista (FLSN) movement organized relief, began
to expand its influence and assumed the leadership of
[7]
the revolution. A popular uprising brought the FSLN
to power in 1979. The United States had long been
opposed to the socialist FSLN, and after the

1. violating the sovereignty of Nicaragua by:

armed attacks against Nicaragua by air, land
and sea;
incursions into Nicaraguan territorial waters;
aerial trespass into Nicaraguan airspace;
efforts by direct and indirect means to coerce
and intimidate the Government of Nicaragua.
2. using force and the threat of force against
Nicaragua.

3. intervening in the internal affairs of

Nicaragua.
4. infringing upon the freedom of the high
seas and interrupting peaceful maritime
commerce.
5. killing, wounding and kidnapping citizens
of Nicaragua.
Nicaragua demanded that all such actions cease and
that the United States had an obligation to pay
reparations to the government for damage to their
people, property, and economy.
United States[edit]
The U.S. argued that its actions were "primarily for the
benefit of El Salvador, and to help it to respond to an
alleged armed attack by Nicaragua, that the United
States claims to be exercising a right of collective selfdefense, which it regards as a justification of its own
conduct towards Nicaragua. El Salvador joined the
U.S. in their Declaration of Intervention which it
submitted on 15 August 1984, where it alleged itself
the victim of an armed attack by Nicaragua, and that it
had asked the United States to exercise for its benefit
the right of collective self-defence."[1]
The CIA claimed that the purpose of the
Psychological Operations in Guerrilla Warfare manual
[9]
was to "moderate" the existing Contra activities.
The United States argued that the Court did not have
jurisdiction, with U.S. ambassador to the United
Nations Jeane Kirkpatrick dismissing the Court as a
"semi-legal, semi-juridical, semi-political body, which
[9]
nations sometimes accept and sometimes don't."
It is noteworthy that the United States, the defaulting
party, was the only Member that put forward
arguments against the validity of the judgment of the
Court, arguing that it passed a decision that it 'had
neither the jurisdiction nor the competence to render'.
Members that sided with the United States in
opposing Nicaragua's claims did not challenge the
Court's jurisdiction, nor its findings, nor the
[10]
substantive merits of the case.
Judgment[edit]
The very long judgment first listed 291 points. Among
them that the United States had been involved in the
"unlawful use of force." The alleged violations
included attacks on Nicaraguan facilities and naval
vessels, the mining of Nicaraguan ports, the invasion
of Nicaraguan air space, and the training, arming,
equipping, financing and supplying of forces (the
"Contras") and seeking to overthrow Nicaragua's
Sandinista government. This was followed by the
[11]
statements that the judges voted on.
Findings[edit]
The court found evidence of an arms flow between
Nicaragua and insurgents in El Salvador between

1979-81. However, there was not enough evidence to

show that the Nicaraguan government was imputable
for this or that the US response was proportional. The
court also found that certain transborder incursions
into the territory of Guatemala and Costa Rica, in
1982, 1983 and 1984, were imputable to the
Government of Nicaragua. However, neither
Guatemala nor Costa Rica had made any request for
US intervention; El Salvador did in 1984, well after the
US had intervened unilaterally.[2]
"As regards El Salvador, the Court considers that in
customary international law the provision of arms to
the opposition in another State does not constitute an
armed attack on that State. As regards Honduras and
Costa Rica, the Court states that, in the absence of
sufficient information as to the transborder incursions
into the territory of those two States from Nicaragua, it
is difficult to decide whether they amount, singly or
collectively, to an armed attack by Nicaragua. The
Court finds that neither these incursions nor the
alleged supply of arms may be relied on as justifying
[12]
the exercise of the right of collective self-defence."
Regarding human rights violations by the Contras,
"The Court has to determine whether the relationship
of the contras to the United States Government was
such that it would be right to equate the Contras, for
legal purposes, with an organ of the United States
Government, or as acting on behalf of that
Government. The Court considers that the evidence
available to it is insufficient to demonstrate the total
dependence of the contras on United States aid. A
partial dependency, the exact extent of which the
Court cannot establish, may be inferred from the fact
that the leaders were selected by the United States,
and from other factors such as the organisation,
training and equipping of the force, planning of
operations, the choosing of targets and the
operational support provided. There is no clear
evidence that the United States actually exercised
such a degree of control as to justify treating the
contras as acting on its behalf... Having reached the
above conclusion, the Court takes the view that the
Contras remain responsible for their acts, in particular
the alleged violations by them of humanitarian law.
For the United States to be legally responsible, it
would have to be proved that that State had effective
control of the operations in the course of which the
[12]
alleged violations were committed."
The Court concluded that the United States, despite
its objections, was subject to the Court's jurisdiction.
The Court had ruled on 26 November by 11 votes to
one that it had jurisdiction in the case on the basis of
either Article 36 (i.e. compulsory jurisdiction) or the
1956 Treaty of Friendship, Commerce and Navigation
between the United States and Nicaragua. The
Charter provides that, in case of doubt, it is for the
Court itself to decide whether it has jurisdiction, and
that each member of the United Nations undertakes
to comply with the decision of the Court. The Court
also ruled by unanimity that the present case was
[10]
admissible. The United States then announced that
it had "decided not to participate in further
proceedings in this case." About a year after the
Court's jurisdictional decision, the United States took
the further, radical step of withdrawing its consent to
the Court's compulsory jurisdiction, ending its
previous 40 year legal commitment to binding
international adjudication. The Declaration of
acceptance of the general compulsory jurisdiction of
the International Court of Justice terminated after a 6month notice of termination delivered by the Secretary
[13]
of State to the United Nations on October 7, 1985.

Although the Court called on the United States to

"cease and to refrain" from the unlawful use of force
against Nicaragua and stated that the US was "in
breach of its obligation under customary international
law not to use force against another state" and
ordered it to pay reparations, the United States
refused to comply. [3] As a permanent member of the
Security Council, the U.S. has been able to block any
[14]
enforcement mechanism attempted by Nicaragua.
On November 3, 1986 the United Nations General
Assembly passed, by a vote of 94-3 (El Salvador,
Israel and the US voted against), a non-binding
resolution urging the US to comply.[4]

1983; an attack on Potosi Naval Base on 4/5

January 1984, an attack on San Juan del
Sur on 7 March 1984; attacks on patrol boats
at Puerto Sandino on 28 and 30 March 1984;
and an attack on San Juan del Norte on 9
April 1984; and further by those acts of
intervention referred to in subparagraph (3)
hereof which involve the use of force, has

The ruling[edit]

acted, against the Republic of Nicaragua, in

On June 27, 1986, the Court made the following
ruling:

breach of its obligation under customary

international law not to use force against

The Court

another State;
1.

Decides that in adjudicating the dispute

3.

by directing or authorizing over Rights of

the Republic of Nicaragua on 9 April 1984,

Nicaraguan

the Court is required to apply the "multilateral

imputable to the United States referred to in

treaty reservation"contained in proviso (c) to

subparagraph (4) hereof, has acted, against

the declaration of acceptance of jurisdiction

the Republic of Nicaragua, in breach of its

made under Article 36, paragraph 2, of the

obligation under customary international

Statute of the Court by the Government of

law not to violate the sovereignty of

the United States of America deposited on

another State;
6.

territory,

and

by

the

acts

Decides that, by laying mines in the internal

Rejects the justification of collective self-

or territorial waters of the Republic of

defence maintained by the United States of

Nicaragua during the first months of 1984,

America in connection with the military and

the United States of America has acted,

paramilitary

against the Republic of Nicaragua, in breach

activities

in

and

against

Nicaragua the subject of this case;

of

Decides that the United States of America,

international law not to use force against

by training, arming, equipping, financing and

another State, not to intervene in its

supplying the contra forces or otherwise

affairs, not to violate its sovereignty and

encouraging, supporting and aiding military

not

and paramilitary activities in and against

commerce;

Nicaragua, has acted, against the Republic

4.

Decides that the United States of America,

brought before it by the Application filed by

26 August 1946;
2.

5.

7.

its

to

obligations

interrupt

under

peaceful

customary

maritime

Decides that, by the acts referred to in

of Nicaragua, in breach of its obligation

subparagraph (6) hereof the United States of

under customary international law not to

America has acted, against the Republic of

intervene in the affairs of another State;

Nicaragua, in breach of its obligations under

Decides that the United States of America,

Article XIX of the Treaty of Friendship,

by certain attacks on Nicaraguan territory in

Commerce and Navigation between the

1983-1984,

Puerto

United States of America and the Republic of

Sandino on 13 September and 14 October

Nicaragua signed at Managua on 21 January

1983, an attack on Corinto on 10 October

1956;

namely

attacks

on

8.

9.

Decides that the United States of America,

13. Decides that the United States of America is

by failing to make known the existence and

under an obligation to make reparation to the

location of the mines laid by it, referred to in

Republic of Nicaragua for all injury caused to

subparagraph (6) hereof, has acted in

Nicaragua by the breaches of obligations

breach of its obligations under customary

under

international law in this respect;

enumerated above;

Finds that the United States of America, by

producing

in

'Operaciones

1983

sicolgicas

manual
en

entitled

guerra

customary

international

law

14. Decides that the United States of America is

under an obligation to make reparation to the

de

Republic of Nicaragua for all injury caused to

guerrillas', and disseminating it to contra

Nicaragua by the breaches of the Treaty of

forces, has encouraged the commission by

Friendship,

them of acts contrary to general principles of

between the Parties signed at Managua on

humanitarian law; but does not find a basis

21 January 1956;

Commerce

and

Navigation

for concluding that any such acts which may

15. Decides that the form and amount of such

have been committed are imputable to the

reparation, failing agreement between the

United States of America as acts of the

Parties, will be settled by the Court, and

United States of America;

reserves for this purpose the subsequent

10. Decides that the United States of America,

procedure in the case;

by the attacks on Nicaraguan territory

16. Recalls to both Parties their obligation to

referred to in subparagraph (4) hereof, and

seek a solution to their disputes by peaceful

by declaring a general embargo on trade

means in accordance with international

with

law.

Nicaragua

on

May 1985,

has

committed acts calculated to deprive of its

[12]

Legal clarification and importance[edit]

object and purpose the Treaty of Friendship,

Commerce and Navigation between the
Parties signed at Managua on 21 January
1956;

The ruling did in many ways clarify issues surrounding

prohibition of the use of force and the right of self[15]
defence. Arming and training the Contra was found
to be in breach with principles of non-intervention and
prohibition of use of force, as was laying mines in
Nicaraguan territorial waters.

11. Decides that the United States of America,

by the attacks on Nicaraguan territory
referred to in subparagraph (4) hereof, and
by declaring a general embargo on trade

Nicaragua's dealings with the armed opposition in El

Salvador, although it might be considered a breach
with the principle of non-intervention and the
prohibition of use of force, did not constitute "an
armed attack", which is the wording in article 51
justifying the right of self-defence.

with Nicaragua on 1 May 1985, has acted in

breach of its obligations under Article XIX of
the Treaty of Friendship, Commerce and
Navigation between the Parties signed at
Managua on 21 January 1956;
12. Decides that the United States of America is
under a duty immediately to cease and to
refrain from all such acts as may constitute

The Court considered also the United States claim to

be acting in collective self-defence of El Salvador and
found the conditions for this not reached as El
Salvador never requested the assistance of the
United States on the grounds of self-defence.
In regards to laying mines, "...the laying of mines in
the waters of another State without any warning or
notification is not only an unlawful act but also a
breach of the principles of humanitarian law
underlying the Hague Convention No. VIII of 1907."
How the judges voted[edit]

breaches of the foregoing legal obligations;

Votes of Judges - Nicaragua v. United States

Third-party interpretations[edit]
Professor of International Law, Anthony D'Amato,
writing for the American Journal of International Law,
Vol. 80, 1986, commented on this case, stating that
"...law would collapse if defendants could only be
sued when they agreed to be sued, and the proper
measurement of that collapse would be not just the
drastically diminished number of cases but also the
necessary restructuring of a vast system of legal
transactions and relations predicated on the
availability of courts as a last resort. There would be
talk of a return to the law of the jungle." The author
also notes that the case resulted in an unusual
candor. A month after the announced withdrawal,
Secretary of State Shultz suggested, and President
Reagan later confirmed in a press conference, that
the goal of U.S. policy was to overthrow the
Sandinista Government of Nicaragua (see N.Y.
Times, Feb. 22, 1985, at A10, cols. 1, 3). Although
this was what Nicaragua had alleged to be the U.S.
goal, while the case was actively pending, the United
States could not concede that goal without serious
risk of undermining its litigating position.[5]
Dissent[edit]
Judge Schwebels dissent was twice as long as the
actual judgment. Judge Schwebel argued that the
Sandinista government came to power with support of
foreign intervention similar to what it was now
complaining about. He argued that the Sandinista
government achieved international recognition and
received large amounts of foreign aid in exchange for
commitments they subsequently violated. He cited
evidence that the Sandinista government had indeed
supported the rebels in El Salvador and noted that
Nicaraguas own CIA witness contradicted their
assertions that they had never at any point supported
the rebels in El Salvador. The CIA witness said that
there was no evidence of weapon shipments since
early 1981, but Schwebel argued that he could not
credibly explained why opponents of Contra aid such
as congressman Boland, who also saw the evidence,
believed that weapon shipments were ongoing. He
further argued that Daniel Ortega publicly admitted
such shipments in statements in 1985 and 1986.
Furthermore, there was no dispute that the leadership
of the rebels operated in Nicaragua from time to time.
He stated that in August 1981 the U.S. offered to
resume aid to Nicaragua and to not support regime
change in exchange for Nicaraguan commitments to
not support the rebels in El Salvador. These
proposals were rejected by the Sandinistas, and
judge Schwebel argued that the U.S. was entitled to
take action in collective self-defense with El Salvador
by authorizing contra aid in December 1981. He
stated that further U.S. proposals to resolve the issue
made in early 1982 were also ignored by the
Sandinistas. The Sandinista government in 1983
began advancing proposals in which it would
undertake not to support the rebels, but Schwebel
noted that these were coupled with demands that the
U.S. cease supporting the lawful government of El
Salvador. The judge noted that since early 1985 the
U.S. had increasingly made regime change a primary
objective but argued this was not inconsistent with
self-defense because it was reasonable to believe
that Nicaragua would not maintain any commitments
unless Sandinista power was diluted.
The judge said that both sides of the wars in
Nicaragua and El Salvador had committed atrocities.

He said the U.S. mining of Nicaraguan harbors was

unlawful in regard to third parties, but not
[16]
Nicaragua.
Certain witnesses against the US[edit]
First witness: Commander Luis Carrion[edit]
The first witness called by Nicaragua was Nicaragua's
first Vice Minister of the Interior, Commander Luis
Carrion.
Commander
Carrion
had
overall
responsibility for state security and was in charge of
all government operations in the "principal war zone".
He was responsible for monitoring United States
involvement in military and paramilitary activities
against Nicaragua, directing Nicaragua's military and
intelligence efforts against the contra guerrillas.
Commander Carrion began by explaining the
condition of the contras prior to United States' aid in
December 1981. Commander Carrion stated that the
contras consisted of insignificant bands of poorly
armed and poorly organized members of Somoza's
National Guard, who carried out uncoordinated border
raids and rustled cattle (presumably for food).
In December 1981, the U.S. Congress authorized an
initial appropriation of 19 million dollars to finance
paramilitary operations in Nicaragua and elsewhere in
Central America. Because of this aid, Commander
Carrion stated that the contras began to become
centralized and received both training and weapons
from the CIA. During 1982 the contra guerrillas
engaged the Sandinista armed forces in a series of hit
and run border raids and carried out a number of
sabotage operations including:

1.

the destruction of two key bridges in the

northern part of Nicaragua, and

2.

the planting of bombs in Nicaraguan civil

aircraft in Mexico and in the baggage area of
a Nicaraguan port.

The United States Central Intelligence Agency, and

Argentine military officers financed by the CIA, were
engaged in the training of the contra forces. The
guerrillas received both basic infantry training as well
as training in specialized sabotage and demolition for
"special operation groups".
The U.S. Congress apportioned new funds for the
contras to the amount of $30 million at the end of
1982. This made it possible for the contra forces to
launch a military offensive against Nicaragua.
According to Commander Carrion, the offensive
known as "C Plan" had the objective of capturing the
Nicaraguan border town of Jalapa in order to install a
provisional government, which could receive
international recognition. This plan failed.
After the failure of the Jalapa offensive the contras
changed their tactics from frontal assaults to
economic warfare against State farms, coffee
plantations, grain storage centers, road junctions, etc.
The CIA began to support the contras by setting up
and coordinating a communications and logistical
system. The CIA supplied aircraft and the
construction of airfields in the Honduran border area

next to Nicaragua. This allowed the contras to carry

out deep penetration raids into the more developed
and populated areas of the Nicaraguan interior. U.S.
Army engineers created this airfield. The purpose of
these deep penetration attacks upon economic
targets was to weaken the Nicaraguan economy,
causing a shortages of goods.

completed the speedboats returned to the mother

[17][18]
vessel.

As a part of its training program for the contras, the

CIA prepared and distributed a manual entitled
Psychological Operations in Guerrilla Warfare. This
manual included instructions in the "use of implicit and
explicit terror", and in the "selective use of violence for
propaganda effects". Commander Carrion explained
that the manual was given to the Contras, "All of
these terrorist instructions have the main purpose of
alienating the population from the Government
through creating a climate of terror and fear, so that
nobody would dare support the Government". The
manual
calls
for
the
"neutralization"
(i.e.
assassination) of Sandinista local government
officials, judges, etc. for purposes of intimidation. It
was openly admitted by the President Reagan in a
press conference that the manual had been prepared
by a CIA contract employee.

Commander Carrion stated if the United States

stopped aid, support and training, this would result in
the end of the contras military activities within three
months. Asked why he was so sure of this,
Commander Carrion answered, "Well, because the
contras are an artificial force, artificially set up by the
United States, that exists only because it counts on
United States direction, on United States training, on
United States assistance, on United States weapons,
on United States everything...Without that kind of
support and direction the contras would simply
disband, disorganize, and thus lose their military
[17]
capacity in a very short time".

After the United States Congress approved an

additional $24 million aid to the contras in December
1983, a new offensive was launched, named Plan
Sierra. This offensive involved approximately 7000
members of the contra forces. As in earlier attacks,
the initial objective of this offensive was to capture the
border town of Jalapa to install a provisional
government, which the CIA informed the contras
would be immediately recognized by the United
States Government. But this contra offensive was
also repulsed by the Nicaraguan government forces.
In the beginning of 1984, the contras made a major
effort to prevent the harvesting of the coffee crop,
which is one of Nicaragua's most important export
products. Coffee plantations and state farms where
coffee is grown were attacked, vehicles were
destroyed, and coffee farmers were killed.
Commander Carrion testified that the ability of the
contras to carry out military operations was
completely dependent upon United States funding,
training and logistical support. Carrion stated that the
U.S. Government supplied the contras with uniforms,
weapons, communications equipment, intelligence,
training, and coordination in using this material aid.
In September 1983, CIA operatives blew up
Nicaragua's only oil pipeline, which was used to
transport oil from off-loading facilities to storage tanks
on shore. The United States was also directly
involved in a large scale sabotage operation directed
against Nicaragua's oil storage facilities. This last
attack was carried out by CIA contract employees
termed by that organization as "Unilaterally Controlled
Latin Assets" (UCLAs). The CIA personnel were also
directly involved in a helicopter attack on a
Nicaraguan army training camp. One of the
helicopters was shot down by Nicaraguan ground fire
resulting in the death of two U.S. citizens.
Commander Carrion testified that the United States
was involved in the mining of Nicaragua's ports
between February - April 1984. The mining operation
was carried out by CIA ships directing the operation
from international waters, while the actual mining was
carried out by CIA employees on board speedboats
operating inshore. After the mine-laying was

Carrion stated that 3,886 people had been killed and

4,731 wounded in the four years since the contras
began their attacks. Carrion estimated property
[19]
damage at $375 million.

Second witness: Dr. David MacMichael[edit]

David MacMichael was an expert on counterinsurgency, guerrilla warfare, and Latin American
affairs, he was also a witness because he was closely
involved with U.S. intelligence activities as a contract
employee from March 1981 - April 1983. MacMichael
worked for Stanford Research Institute, which was
contracted by the U.S. Department of Defense. After
this he worked two years for the CIA as a "senior
estimates officer", preparing the National Intelligence
Estimate. Dr. MacMichael's responsibility was
centered upon Central America. He had top-secret
clearance. He was qualified and authorized to have
access to all relevant U.S. intelligence concerning
Central America, including intelligence relating to
alleged Nicaraguan support for, and arms shipments
to the anti-Government insurgents in El Salvador. He
took part in high level meetings of the Latin American
affairs office of the CIA. Including a fall 1981 meeting,
which submitted the initial plan to set up a 1500 man
covert force on the Nicaraguan border, shipping arms
from Nicaragua to the El Salvador insurgents. This
[19][20]
plan was approved by President Reagan.
"The overall purpose (for the creation of the contras)
was to weaken, even destabilize the Nicaraguan
Government and thus reduce the menace it allegedly
posed to the United States' interests in Central
America..."
Contra paramilitary actions would "hopefully provoke
cross-border attacks by Nicaraguan forces and thus
serve to demonstrate Nicaragua's aggressive nature
and possibly call into play the Organization of
American States' provisions (regarding collective selfdefense). It was hoped that the Nicaraguan
Government would clamp down on civil liberties within
Nicaragua itself, arresting its opposition, so
demonstrating its allegedly inherent totalitarian nature
and thus increase domestic dissent within the country,
and further that there would be reaction against
United States citizens, particularly against United
States diplomatic personnel within Nicaragua and
thus to demonstrate the hostility of Nicaragua towards
the United States".
In response to repeated questions as to whether there
was any substantial evidence of the supply of
weapons to the guerrilla movement in El Salvadoreither directly by the Nicaraguan Government itself-or
with the knowledge, approval or authorization of the

Nicaraguan Government of either non-official

Nicaraguan sources, or by third country nationals
inside or outside Nicaragua, using Nicaraguan
territory for this purpose, Dr. MacMichael answered
that there was no such evidence. In the opinion of the
witness it would not have been possible for Nicaragua
to send arms to the insurgents in El Salvador in
significant amounts (as alleged by the U.S.
Government) and over a prolonged period, without
this being detected by the U.S. intelligence network in
the area...Counsel for Nicaragua, asked the witness
several times whether any detection of arms
shipments by or through Nicaragua had taken place
during the period he was employed by the CIA.
(MacMichael) answered repeatedly that there was no
such evidence. He also stated that after his
employment had terminated, nothing had occurred
that would cause him to change his opinion. He
termed the evidence that had been publicly disclosed
by the U.S. Government concerning Nicaraguan arms
deliveries to the El Salvadoran insurgents as both
"scanty" and "unreliable". The witness did however
state that based on evidence, which had been
gathered immediately prior to his employment with the
CIA, evidence he had already actually seen, there
was substantial evidence that arms shipments were
reaching El Salvador from Nicaragua - with the
probable involvement and complicity of the
Nicaraguan Government - through late 1980 up until
the spring of 1981....But this evidence, which most
importantly had included actual seizures of weapons,
which could be traced to Nicaragua, as well as
documentary evidence and other sources, had
completely ceased by early 1981. Since then, no
evidence linking Nicaragua to shipments of arms in
[20]
any substantial quantities had resumed coming in.
Third witness: Professor Michael Glennon[edit]
Mr. Glennon testified about a fact-finding mission he
had conducted in Nicaragua to investigate alleged
human rights violations committed by the contra
guerrillas, sponsored by the International Human
Rights Law Group, and the Washington Office on
Latin America. Glennon conducted the investigation
with Mr. Donald T. Fox who is a New York attorney
and a member of the International Commission of
Jurists.
They traveled to Nicaragua, visiting the northern
region where the majority of contra military operations
took place. The two lawyers interviewed around 36
northern frontier residents who had direct experience
with the contras. They also spoke with the U.S.
Ambassador to Nicaragua, and with senior officials of
the U.S. Department of State in Washington after
returning to the United States.
No hearsay evidence was accepted. Professor
Glennon stated that those interviewed were closely
questioned and their evidence was carefully crosschecked with available documentary evidence.
Doubtful "testimonies" were rejected, and the results
were published in April 1985. The conclusions of the
report were summarized by Glennon in Court:
"We found that there is substantial credible evidence
that the contras were engaged with some frequency
in acts of terroristic violence directed at Nicaraguan
civilians. These are individuals who have no
connection with the war effort-persons with no
economic, political or military significance. These are
Individuals who are not caught in the cross-fire
between Government and contra forces, but rather

individuals who are deliberately targeted by the

contras for acts of terror. "Terror" was used in the
same sense as in recently enacted United States law,
i.e. "an activity that involves a violent act or an act
dangerous to human life that Is a violation or the
criminal law, and appears to be intended to intimidate
or coerce a civilian population, to Influence the policy
of a government by intimidation or coercion, or to
affect the conduct of a government by assassination
or kidnapping".
In talks with U.S. State Department officials, at those
in Managua U.S. Embassy, and with officials in
Washington, Professor Glennon had inquired whether
the U.S. Government had ever investigated human
rights abuses by the contras. Professor Glennon
testified that no such investigation had ever been
conducted, because in the words of a ranking State
Department official who he could not name, the U.S.
Government maintained a policy of "intentional
ignorance" on the matter. State Department officials in
Washington- had admitted to Glennon that "it was
clear that the level of atrocities was enormous". Those
words "enormous" and "atrocities" were the ranking
[21]
State Department official's words.
Fourth witness: Father Jean Loison[edit]
Father Jean Loison was a French priest who worked
as a nurse in a hospital in the northern frontier region
close to Honduras.
Asked whether the contras engaged in acts of
violence directed against the civilian population,
Father Loison answered:
"Yes, I could give you several examples. Near Quilali,
at about 30 kilometers east of Quilali, there was a little
village called El Coco. The contras arrived, they
devastated it, they destroyed and burned everything.
They arrived in front of a little house and turned their
machinegun fire on it, without bothering to check if
there were any people inside. Two children, who had
taken fright and hidden under a bed, were hit. I could
say the same thing of a man and woman who were
hit, this was in the little co-operative of Sacadias
Olivas. It was just the same. They too had taken fright
and got into bed. Unlike El Coco, the contras had just
been on the attack, they had encountered resistance
and were now in flight. During their flight they went
into a house, and seeing that there were people there,
they threw grenade. The man and the woman were
killed and one of the children was injured."
About contra kidnappings:
"I would say that kidnappings are one of the reasons
why some of the peasants have formed themselves
into groups. Here (indicates a point on the map) is
Quilali. Between Quilali and Uilili, in this region to the
north, there are hardly any peasants left of any age to
bear arms, because they have all been carried off"."
Father Loison described many examples of violence,
mostly indiscriminate, directed at the civilian
population in the region where he resides. The picture
that emerges from his testimony is that the contras
engage in brutal violation of minimum standards of
humanity. He described murders of unarmed civilians,
including women and children, rape followed in many
instances by torture or murder, and indiscriminate
terror designed to coerce the civilian population. His
testimony was similar to various reports including the

International Human Rights Law Group, Amnesty

[22]
International, and others.
Fifth witness: William Hper[edit]
William Hper was Nicaragua's Minister of Finance.
He testified about Nicaragua economic damage,
including the loss of fuel as a result of the attack in
the oil storage facilities at Corinto, the damage to
Nicaragua's commerce as a result of the mining of its
[23]
ports, and other economic damage.
UN voting[edit]
After five vetoes in the Security Council between 1982
and 1985 of resolutions concerning the situation in
Nicaragua [6], the United States made one final veto
[24]
on 28 October 1986 (France, Thailand, and United
Kingdom abstaining) of a resolution calling for full and
[25]
immediate compliance with the Judgment.
Nicaragua brought the matter to the U.N. Security
Council, where the United States vetoed a resolution
(11 to 1, 3 abstentions) calling on all states to observe
international law. Nicaragua also turned to the
General Assembly, which passed a resolution 94 to 3
calling for compliance with the World Court ruling.
Two states, Israel and El Salvador, joined the United
States in opposition. At that time, El Salvador was
receiving substantial funding and military advisement
from the U.S., which was aiming to crush a
Sandinista-like revolutionary movement by the FMLN.
At the same session, Nicaragua called upon the U.N.
to send an independent fact-finding mission to the
border to secure international monitoring of the
borders after a conflict there; the proposal was
rejected by Honduras with U.S. backing. A year later,
on November 12, 1987, the General Assembly again
called for "full and immediate compliance" with the
World Court decision. This time only Israel joined the
United States in opposing adherence to the
[26][27
ruling.

THE NORWEGIAN LOANS CASE*

B ETWEEN i885 and r909, the Norwegian
government and two Nor- wegian state banks1 issued
several series of public bonds, many of which were
purchased by French citizens. During the unsettled
years of World War I and the world-wide depression a
decade later, Norway several times suspended the
convertibility to gold of the Norwegian bank notes
issued to pay interest and to redeem the bonds, and,
in 1931, Norway abandoned the gold standard for an
indefinite period.2 The French bondholders refused to
accept payment in the nonconvertible Norwegian
bank notes, and, in 1925, the French government, on
behalf of its nationals, insisted to the government of
Norway that it was obli- gated to pay the interest and
to redeem the bonds in gold. The Nor- wegian
government consistently maintained, during ensuing
protracted diplomatic negotiations, that its law forbade
payment in gold.3 More- over, Norway rejected the
repeated suggestions of France that the dispute be
submitted to international arbitration or judicial
settlement on the ground that the dispute was
governed by Norwegian national law rather than
international law. In 1955, France applied to the
International Court of Justice for a determination of
the rights of its nationals. The application4 requested
judgment that Norway was obligated to pay gold on
the bond coupons and the bonds. In its preliminary
objections, Norway challenged the jurisdiction of the
Court on three grounds:' (i) that the subject matter of
the dispute was in the domain of Norwegian national
law rather than international law; (2) that, with respect
to bonds issued by the state banks, those banks had
separate legal personalities from the Norwegian state,
and that suit could not be instituted against Norway
on those bonds, and that the jurisdiction of the Court
was limited to disputes between states;6 and (3) that
the French bontholders had not exhausted local
remedies available to them in the Norwegian courts.
After hear- ings on Norway's preliminary objections
and on the merits, the Inter- national Court of Justice
held that it lacked jurisdiction to hear the dispute and
dismissed the French application.7
THE FRENCH SELF-JUDGING RESERVATION
The Court rested its judgment on Norway's first
preliminary objec- tion.8 Among the disputes which
the Court may hear are those in- volving questions of
international law,' and it was on this basis that France
had submitted its application. In its first preliminary
objection, however, Norway maintained that the
dispute pertained to questions which were solely
within the domain of national law. The Norwegian
government, therefore, invoked against France the
following reservation to the French declaration of
acceptance of the compulsory jurisdiction of the
court:10
This declaration does not apply to differences relating
to matters which are essentially within the national
jurisdiction as understood by the Government of the
French Republic.
Thus, for the first time," the Court was presented with
the significant question whether a respondent state,

which has made no self-judging reservation in its

declaration of acceptance of the Court's compulsory
jurisdiction, may, nevertheless, invoke the self-judging
reservation of the applicant state and thereby
preclude the Court from taking juris- diction of the
case. The Court answered this question affirmatively.
The opinion of the majority pointed out that the basis
of the Court's jurisdiction was article 36, paragraph 2,
of the Statute of the Court and the unilateral
declarations of states accepting its compulsory
jurisdic- tion.'2 Norway had accepted the compulsory
jurisdiction of the Court in relation to any other state
on condition of reciprocity; that is, it had accepted
jurisdiction only to the same extent as any other state
which might become a party to a case in which
Norway was involved. Thus, because France had
reserved from its acceptance all matters essentially
within its national jurisdiction, as understood by the
French government, the Court concluded that the
extent of its jurisdiction in a dispute be- tween Norway
and France was bounded by the narrower limits of the
French declaration of acceptance.' 3 In accordance
with the principle of reciprocity, the Court ruled that
Norway could invoke the self-judging reservation
which France could have invoked if it had been the
respond- ent state. Thus, Norway's invocation of the
French self-judging reservation prevented the Court
from assuming jurisdiction of the case. The members
of the majority who submitted separate opinions and
the three dissenting judges took issue with the Court's
conclusion as to jurisdiction. Judge Sir Hersch
Lauterpacht"4 and Judge Guerrero " conceived that
the Court lacked jurisdiction of the dispute because
the French declaration of acceptance of the Court's
compulsory jurisdiction was invalid. Vice President
Badawil6 and Judges Lauterpacht and Basdevant'were of the opinion that Norway's invocation of the
self- judging reservation was subsidiary to its primary
objection that the dis- pute was governed by national
law rather than international law and concluded that
the Court should not have reached a decision on the
subsidiary objection without first considering the
primary objection. Judge Read" felt that, although
Norway was entitled to invoke the French reservation,
the Court should not have considered the question
because Norway had failed to maintain that position
throughout the proceeding.
VALIDITY OF THE FRENCH DECLARATION Matters
essentially within its national jurisdiction as
understood by its government were excepted by
France from its declaration of accept- ance of the
compulsory jurisdiction of the Court. "The great defect
of this reservation," said Judge Guerrero, "is that it
does not conform either to the spirit of the Statute of
the Court . . . 2 9 or to its letter. The majority of the
Court, however, declined to consider the validity of
the French declaration because that had not been an
issue in the proceedings.20
Judge Guerrero agreed with the majority that the
extent of the Court's jurisdiction was determined by
the declarations of the parties to the dispute and
particularly by the more restrictive limits of the French
declaration containing the self-judging reservation.
But, he pointed out, this made it necessary for the

Court to consider the validity of the French

declaration. Upon the authority of the Free Zones
Case, 2 Judge Guerrero decided that the consensus
of the parties to the instant case as to jurisdiction was
binding upon the Court only so far as that consensus
was compatible with the Statute of the Court. Judge
Guerrero also believed that the French self-judging
reserva- tion was incompatible with the second
paragraph of article 36 of the Statute of the Court,
which provides for acceptance of compulsory jurisdiction by the parties to the Statute.
By the fact that France reserves her right to determine
herself the limit be- tween her own national
jurisdiction and the jurisdiction of the Court, France
renders void her main undertaking, for the latter
ceases to be compulsory if it is France and not the
Court that holds the power to determine the limit
'between their respective jurisdictions.22
Judge Guerrero felt that the self-judging reservation
was also incom- patible with article 36, paragraph 6,
of the Statute, which provides that the Court shall be
the judge of its own jurisdiction. Judge Lauterpacht
agreed on the latter point and noted that, al- though
the declarations of acceptance of the various states
might limit the Court's jurisdiction "in a drastic manner,
'2 3 only the Court should judge whether a dispute fell
within whatever modicum of jurisdiction remained.
Because the Court could not act in any manner
inconsistent with its Statute, and because the French
declaration of acceptance was incompatible with the
Statute, Judge Lauterpacht concluded that the Court
had no choice but to hold the French declaration
completely invalid.24 The Court would thus lack any
jurisdiction over the dispute. The" Judge thought his
conclusion was analogous to the general prin- ciple of
national law that a condition of a contract or other
legal instru- ment that "is contrary to a fundamental
principle of judicial organiza- tion is invalid. ' 25 He
rejected the notion that those governments which had
appended
self-judging
reservations
to
their
declarations of accept- ance26 had been unfamiliar
with the terms of the Statute and that their inclusion of
the reservations was inadvertent. On the contrary, he
be- lieved that the authors of the self-judging
reservations had the Statute dearly before them and
had deliberately disregarded it. He thus re- jected any
interpretation of the French declaration which would
bring it within "the four corners of conformity with the
Statute. 2 7 Apart from the incompatibility of the
French reservation and article 36 of the Statute of the
Court, Judge Lauterpacht found a more general
reason for concluding that the declaration was invalid.
He judged that because the French government had
reserved to itself the deter- mination of jurisdiction in a
declaration that purported to accept com- pulsory
jurisdiction, it had in effect reserved to itself the
determination of the very existence and extent of its
obligation. Therefore, the decla- ration lacked a
condition essential to the validity of any legal
obligation. Although a declaration of acceptance is in
fact a unilateral instrument, Judge Lauterpacht
reasoned that it was still necessary that it manifest an
intent to create respective rights and obligations if it
was to be treated as a legal text upon which the Court

could base its jurisdiction. The declaration might thus

be regarded as an instrument of accession to a
multilateral treaty. In assuming this position, Judge
Lauterpacht re- sorted to a source of law which article
38 of the Statute denominates as "the general
principles of law recognized by civilized nations."2 ,
Thus, he referred not only to the national law of
France and Norway, but also to American law when
he declared that "the freedom of a party to determine
the object of its obligation is represented [by the
American commentator, Williston] 9 as negativing the
legal nature of the agree- ment."30 This, the Judge
felt, was no more than a principle of com- mon sense.
Applied to the present case, that principle signifies
that if the element of legal obligation is non-existent or
negligible it must follow that the instrument is not a
legal instrument upon which a State can rely as a
matter of right for the purpose of invoking the
jurisdiction of the Court.8'
Having concluded that the French declaration was
invalid, both Judge Guerrero and Judge Lauterpacht
expressed their desire to reverse the trend toward
self-judging reservations which was initiated by the
United States' declaration of acceptance in 1946.
Judge Guerrero said that the construction of article 36
which allowed reservations to be made to the
acceptance of compulsory jurisdiction was made
under the in- fluence of former members of the
League of Nations which were con- cerned with
extending the movement toward international
compulsory jurisdiction that had developed before
World War 11.82 He concluded that the self-judging
reservation was contrary to the spirit and purpose of
the Statute of the Court and the Charter of the United
Nations. He thus summarized his position: 3
It has rightly been said already that it is not possible
to establish a system of law if each State reserves to
itself the power to decide itself what the law is.
The problem to be solved is, however, a simple one. It
is, in fact, the problem whether the unilateral will of
one State or the common will of the Parties before the
Court can have priority over the collective will
expressed in an in- strument as important as the
Statute of the Court.
NORWAY'S PURPOSE IN INVOKING THE SELFJUDGING RESERVATION In invoking the French
self-judging reservation, Norway asserted, "There can
be no possible doubt on this point [that the subject of
the dispute was a matter of national rather than
international law]. If, however, there should still be
some doubt, the Norwegian Government would rely
upon the reservations made by the French Government ... .4 Except for this, the French reservation was
not again discussed by Norway in either the pleadings
or the oral proceedings. This led four of the Judges"
to conclude that Norway's invocation of the selfjudging reservation was subsidiary to the primary
ground of its first preliminary objection concerning the
national character of the dispute. Therefore, the Court
should not have reached the subsidiary ground of
objection until it had disposed of the primary ground.
Vice President Badawi pointed out that it is
characteristic of a sub- sidiary request for judgment

that it carries a greater degree of certainty than the

main request. Here, Norway maintained that the
dispute was a matter of national rather than
international law, which is a question for the Court.
Following this, Norway invoked the French selfjudging reservation, which called for a determination
of the jurisdictional ques- tion by Norway alone, and
was, therefore, certain to produce a result favorable to
Norway. Judge Lauterpacht, however, felt that the
majority had misinter- preted the intent of Norway's
first preliminary objection. He charac- terized
Norway's contention that the dispute was a matter of
national law as "principal" and "substantive," as
opposed to its invocation of the self-judging
reservation which was "subsidiary" and "formal.130
Be- cause Norway's principal purpose in the
proceedings before the Court had been to establish
the correctness of its primary ground of objection,
Judge Lauterpacht reasoned that the Court should
have considered that objection because "a Party to
proceedings before the Court is entitled to expect that
its Judgment shall give as accurate a picture as
possible of the basic aspects of the legal position
adopted by that Party.'37 The question whether the
dispute was governed by national or international law
was one which had divided the parties for years and
was of "con- siderable interest for international law.' 3'
The function of the Court, therefore, was to answer
that question rather than to select the ground which
the majority regarded as "more direct and conclusive.
3 9 While Judges Basdevant and Read agreed with
Vice President Badawi and Judge Lauterpacht that
the Norwegian invocation of the self-judging
reservation was a subsidiary objection, they also
concluded that the majority had misconstrued the
import of Norway's objection. Judge Basdevant
presumed that a government could invoke the reservation in so categorical a fashion that that
government's opinion as to the domestic character of
the dispute would preclude the Court's juris- diction
even without the Court's considering the issue, but he
was hesi- tant to ascribe to Norway "such a
responsibility, political and moral, not only vis-d-vis
the other Party before the Court in the present dispute
but in a more general manner and by such a
precedent, before the United Nations .... 24o
Norway's true position, as conceived by Judge
Basdevant, was more "moderate" 4' in that the
reservation had been invoked only in the event that
the Court was reluctant to accept what Norway
regarded as its irrefutable contention that the dispute
was solely a matter of national law. Moreover, Norway
had contended that, 42 such a reservation must be
interpreted in good faith and should a Government
seek to rely upon it with a view to denying the
jurisdiction of the Court in a case which manifestly did
not involve a "matter which is essentially within the
national jurisdiction" it would be committing an abus
de droit which would not prevent the Court from
acting.
This, Judge Basdevant apprehended, was a
recognition by Norway of the Court's power to control
the invocation of the self-judging reser- vation, a
conclusion which he found to be supported by the
careful attention which Norway gave to buttressing its

primary contention that the dispute was national

rather than international in character. Finally, Judge
Basdevant determined that Norway could not have
intended its invocation of the French reservation as a
categorical denial of the Court's jurisdiction because
of the existing international law between Norway and
France. Both countries had acceded to the compulsory jurisdiction of the Permanent Court of
International Justice, for which the International Court
of Justice was substituted by article 37 of the
Statute.43 The French declaration of accession to
the juris- diction of the old Court applied to disputes
"other than those which the Permanent Court of
International Justice may recognize as bearing on a
question left by the international law to the exclusive
competence of the State.144 As in the instant case,
Norway was entitled to rely upon the French
accession to the jurisdiction of the old Court by virtue
of the principle of reciprocity. Under that accession,
disputes within the exclu- sive competence of the
state were reserved from the Court's jurisdiction. That
reservation, however, was qualified by the
requirement that such disputes were to be defined by
the old Court according to the principles of
international law. The French self-judging reservation
to the juris- diction of the present Court was, of
course, broader in scope than the former reservation,
but, because the present declaration was unilateral, it
could not serve to modify the law already in force
between France and Norway.
A way of access to the Court was opened up by the
accession of the two Parties to the General Act of
1928. It could not be closed or cancelled out by the
restrictive clause which the French Government, and
not the Norwegian Government, added to its fresh
acceptance of compulsory jurisdiction stated in its
Declaration of 1949. The restrictive clause, emanating
from only one of them, does not constitute the law as
between France and Norway.45
Thus, Judge Basdevant concluded, Norway could
have invoked the French reservation only in the light
of the law existing between the two states-that is, only
as to a dispute recognized by international law as one
within the domestic jurisdiction of the state as
adjudged by the Court. It was in this sense that
Norway invoked the self-judging reservation. Although
it would have been in Norway's interest to con- fer a
categorical
character
upon
the
self-judging
reservation, Judge Basdevant thought that she had
not done so "because she was anxious to respect her
international obligations. ' 46 Judge Read concurred
with Judge Basdevant's view that, although Norway
had invoked the self-judging reservation, it had done
so only in the belief that the Court could control the
exercise of the reservation by examining the good
faith of the invoking party. He observed, how- ever,
that it would be impractical for the Court to examine a
dispute on the basis of the good or bad faith of the
parties. The basic principle of the Norwegian position
was correct, but the true meaning of the French
reservation was that a government, by invoking the
self-judging reserva- tion, "understands," and not
merely "pretends to understand" or "de- dares that it
understands," that the dispute was essentially within

its national jurisdiction.4 7 The reservation, then,

properly construed, means that the invoking state
"must establish that there is a genuine understanding, i.e. that the circumstances are such that it
would be reasonably possible to reach the
understanding that the dispute was essentially
national."4"
The
question
whether
these
circumstances exist is for the Court. Any construction
of the self-judging reservation that gave to a
respondent state an arbitrary power to settle any
jurisdictional question would lead to an absurdity,
according to Judge Read, because such a power
would, of course, be contrary to article 36, paragraph
6, of the Statute of the Court. 9 According to accepted
canons of interpretation," such a result must be
avoided if the words in their context can be construed to avoid it. Here, the majority of the Court, in
Judge Read's opinion, failed to recognize that the
words "as understood" in the French reservation,
"connote a real understanding, and not a fictitious
understanding unrelated to the facts."51
WAS THE DISPUTE SUBJECT To NATIONAL OR
INTERNATIONAL LAW? The French application to
the Court requested judgment that Nor- way was
obligated to discharge its debt on the loan contracts in
gold rather than in the existing Norwegian currency. In
its final submissions, France also requested judgment
that Norway pay foreign bondholders without
discrimination as to their nationality and that Norway
could not, by unilateral national legislation, modify the
rights of French bond- holders under the loan
contracts.52 On the other hand, as has been noted,
Norway contended throughout the proceedings that
the subject of the dispute was a matter of national law
rather than international law and in its first preliminary
objection, the government requested that the Court
refuse to hear the case for this reason. Among those
Judges who wrote separate or dissenting opinions,
only Vice President Badawi adopted the Norwegian
contention that the dispute was governed by national
law.53 He declared that the general rule of private
international law is that the construction of loan contracts is governed by the law of the debtor state. The
French govern- ment maintained that the dispute fell
within article 36, paragraph 2(b), of the Statute of the
Court, concerning questions of international law,
because of the operation of the Second Hague
Convention of October 18, 1907, relating to arbitration
of specified disputes, including international loans.54
The Vice President determined, however, that the
convention did not make arbitration of loan disputes
mandatory in all circumstances, and that, even if it
did, that fact could not transform the character of the
dispute from one of national to international law. Even
assuming that the convention required arbitration in
all cases, the question before the Court would not
then be the interpretation of the loan contracts but,
rather, the breach by Norway of its presumed
obligation to submit to arbitration.55 Vice President
Badawi also rejected the French contention that the
dispute was subsumed under article 36, paragraph
2(c), which deals with "the existence of any fact
which, if established, would consti- tute a breach of
international obligation." The underlying assumption
of this provision is that the parties are agreed on the

international obli- gation but that they disagree over

the facts which constitute a breach thereof. According
to international law, national laws "are merely facts
which express the will and constitute the activities of
States."5 0 Thus, in this case, if the application of
Norwegian law were treated as a question of fact, the
Court would have to assume that the parties were
agreed that under international law a state might not
cancel a gold clause applicable to international
payments. Of course, said Vice Presi- dent Badawi,
"Norway disputes the alleged rule of international law.
This is the very basis of the present case." 7 Judge
Lauterpacht agreed with Vice President Badawi that
Nor- wegian law governed the interpretation of the
loan contracts, but he found that it was the very
application of Norwegian law which France
maintained was contrary to international law. Any
national law may conflict with international law in its
intent or effect, and the question of conflict between
national legislation and international law is itself a
ques- tion of international law. The notion that if a
matter is governed by national law it is for that reason
at the same time outside the sphere of international
law is both novel and, if accepted, subversive of
international law. It is not enough for a State to bring a
matter under the protective umbrella of its legislation,
possibly of a predatory character, in order to shelter it
effectively from any control by international law. There
may be little difference between a Government
breaking unlaw- fully a contract with an alien and a
Government causing legislation to be enacted which
makes it impossible for it to comply with the
contract.58
Although he acquiesced in Vice President Badawi's
conclusion that the question of Norway's obligation to
pay the bonds in gold was one of national law, Judge
Read, nevertheless, rejected Norway's first preliminary objection.50 He noted two requests for
judgment by France which did not directly relate to the
interpretation of the alleged gold payment obligation.
The first was that Norway could not discriminate in
payments by giving preferential treatment to some
non-Norwegian bondholders, and denying it to the
French bondholders. Norway had favored Danish and
Swedish bondholders in making payments on the
bonds,6 0 but it argued that this had been done as a
matter of good will toward the other Scandinavian
countries,' that, at any rate, it was a matter of grace
as to which France had no right to complain, and,
finally, that it was justified by the exigencies of the
world-wide depres- sion which compelled states to
pass legislation impairing debtors' obli- gations. Judge
Read considered that the question whether
international law contained any rule forbidding
discriminatory treatment of foreign creditors was
obviously a question of international law and
necessarily included all of the justifications which
Norway had advanced. Secondly, France requested
judgment that, according to international law, Norway could not by unilateral legislation modify the
rights of French bond- holders. France argued that
the marketing of bonds on foreign markets created
obligations arising under international law as well as
national law and that there was a broad principle of
international law forbidding a state to enact

extraterritorial legislation impairing the contractual

rights of nonresident aliens. Norway contested both of
these arguments on the ground that they did not
reflect the actual practice of states. Judge Read
concluded, "It will thus be seen that the French claim
and the Norwegian justification in this aspect of the
question are both based upon considerations of
international law ....1,12
EXHAUSTION OF LOCAL REMEDIES Judge Read
also rejected Norway's fourth preliminary objection"3
that the French bondholders had not exhausted
remedies available to them in the Norwegian courts.
In his opinion, the requirement of in- ternational law
that local remedies be exhausted before resort is had
to international tribunals serves two functions: first,
the international tri- bunal is provided with the ruling of
local courts on the facts and local law before it deals
with the international aspects of the problem; second,
the respondent state, charged with a breach of
international law, is allowed a fair chance to rectify its
position. Judge Read was convinced, however, that
resort by the French bondholders to the Norwegian
courts would have been futile because the Norwegian
government had repeatedly declared since 1925 that
the Norwegian law of 1923 pre- cluded payment in
gold. In the oral proceedings, Norway suggested that
the bondholders might have persuaded the
Norwegian courts that the law was inapplicable to
foreigners or that it was unconstitutional because of
its retroactive character. Judge Read rejected this
contention, however, on the ground that the French
bondholders had no way of knowing of these
possibilities in the face of the Norwegian government's insistence during the diplomatic negotiations
that it was powerless under the law to meet the
bondholders' demands. Judge Lauterpacht felt,
however, that the possibility of a Norwegian judgment
in favor of the bondholders was sufficient to require
that they resort to the Norwegian courts.64 He
pointed to the trend of some national courts to
interpret national legislation, wherever possible, as
not to impute to the local law the intention or effect to
violate interna- tional law. The Judge was also
concerned that France had presented no satisfactory
explanation for the failure of the bondholders to resort
to Norwegian courts during the several decades that
the dispute had lasted. Upon these grounds, Judge
Lauterpacht, "with some hesitation,"" 6 de- cided that
the fourth preliminary objection was well-founded.
-----------------------------------------------------------------------Norwegian Loans Case
(France v. Norway) 1957 I.C.J. Rep. 9. Certain
Norwegian loans were floated between 1885 and
1909 and a proportion of the bonds was held by
French nationals. France contended that the bonds
contained a gold clause. The convertibility into gold of
notes of the Bank of Norway was suspended at
various dates from 1914, being finally suspended in
1931; and in 1923 a Norwegian law provided that,
where a debtor had agreed to pay in gold a pecuniary
debt in Kroner and the creditor refused to accept
payment in Bank of Norway notes according to their
nominal gold value, payment could be postponed in a

prescribed manner. There was protracted diplomatic

correspondence between 1925 and 1955: the French
bond-holders did not meanwhile submit their case to
the Norwegian courts. France objected to a unilateral
decision being relied upon as against foreign creditors
and requested the recognition of the rights claimed by
the French bond-holders. Norway maintained that the
claims of the bond-holders were within the jurisdiction
of the Norwegian courts and involved solely the
interpretation and application of Norwegian law. In
1955, France referred the matter to the I.C.J. on the
basis of declarations made by France and Norway
under art. 36(2) of the Court's Statute (Optional
Clause) accepting its compulsory jurisdiction. On
6July 1957, the Court held (12 to 3), upholding a
preliminary objection filed by Norway, that the Court
had no jurisdiction to decide the dispute since
France's declaration contained a reservation (the
validity of which had not been questioned by the
parties) excluding differences relating to matters
which were essentially within national jurisdiction as
understood by France and, in accordance with the
condition of reciprocity embodied in art. 36(2) of the
Statute of the Court, Norway was entitled to except
from the compulsory jurisdiction of the Court disputes
understood by Norway to be essentially within its
national jurisdiction. The existence between France
and Norway of the Second Hague Convention of 18
October 1907 on the Limitation of the Employment of
Force for the Recovery of Contract Debts did not
make the question of payment of such debts a matter
of international law so as to prevent Norway invoking
the reservation in the French Declaration; nor did the
Franco-Norwegian Arbitration Convention 1904 or the
General Act for the Pacific Settlement of International
Disputes 1928 (to which France and Norway were
parties) justify the Court in seeking a basis for its
jurisdiction different from that which France had set
out in its application and by reference to which both
Parties had presented the case to the Court.
----------------------------------------------------------------------------CASE CONCERNING THE TEMPLE OF PREAH
VIHEAR: CAMBODIA V. THAILAND
THE Temple of Preah Vihear is an ancient shrine
situated on the borders of Thailand and Cambodia.
The temple and the grounds are of considerable
artistic and archaeological interest, and are potentially important militarily. The natural boundary between
the two countries in this region is formed by the high
Dangrek Range, which, in the area of Preah Vihear,
rises abruptly out of the Cambodian Plain forming a
cliff-like escarpment from which the land then
descends to the north into Thailand. The temple is
situated on a promontory at the edge of the
escarpment overlooking the Cam- bodian Plain to the
south. The present boundary is the result of treaties
which were nego- tiated in 1904-07 and which
determined that the line was generally to follow a
specified watershed in this area. The watershed line
at Preah Vihear followed the edge of the escarpment,
with the nat- ural result geographically of enclosing
the temple within Thailand. However, the maps which
were later produced by a French firm, at the request
of the Siamese Government, deviated from the water-

shed line at Preah Vihear so that the temple was

shown as being in Cambodia which, until 1953, was a
part of French Indo-China. This deviation apparently
went unnoticed by Thailand. In 1949, the French
Government protested on learning that Thai troops
had been stationed at Preah Vihear. No explanation
resulted and Cambodia, having become independent
in 1953, insti- tuted the present proceeding before the
International Court of Justice in 1959, asking that it be
declared the sovereign of the area in question. The
Court ruled in favor of Cambodia by a vote of nine to
three.' The result at first seems anomolous since it is
contrary to the original provision of the treaty, and
since the deviation from the watershed was probably
due to a topographical mistake. Neverthe- less, the
Court justified its decision on either of two alternative
bases:
(1) that the two countries adopted the maps at
the time of their publishing as officially
delimiting the international boundary; and (2)
that the concept of preclusion now prevents
Thailand from claiming sovereignty over the
territory. As the facts were reported by the
Court, the maps were never specifically
adopted
by
the
Mixed
Boundary
Commission,2 for that body was dissolved
before the maps were published. Copies
were delivered to the central government of
Thailand, however, and there could have
been no doubt that the maps purported to be
the out- come of the Commission's work.
Although Thailand did not expressly
recognize the validity of the maps, the Court
concluded that the circumstances were such
as to impose on Thailand a duty to inspect
the maps, and a failure to protest was to be
taken as a tacit adoption. This conclusion
was based on the concept of "acquiescence" which protects a country having
taken a position adverse to the interest of
another, where the other fails to protest
within a reasonable time.3 The theory is that
the first country may have relied on its own
position and the other country ought to be
estopped to contest the result at a later time.
This is said to be "an essential requirement
of stability" in the international sphere.4
Acquiescence may have relevance either
with respect to changes in the status of
international rights and customs, or with
respect to modification of treaties, as in the
instant
case.5
However,
for
the
acquiescence to be effective, it must be
under circumstances from which consent on
the part of the adversely affected nation
could reasonably be inferred. Thailand's duty
to inspect the maps also prevented it from
claiming that any adoption at the time of
publication was vitiated by the undetected
error. A plea of error will not be allowed in
international law where the parties could
have avoided it, and here the circumstances
were such as to put Thailand on notice of
possible error. Since the Court concluded
that Thailand had adopted the maps in 1908-

09, thus making them a part of the treaty,

and since this con- clusion was strengthened
by Thailand's continued use of the maps
over a long period of time, as well as other
events,7 the Court found it unnecessary to
develop the preclusion theory. Nevertheless
it was asserted as an adequate basis for
decision even if Thailand had never adopted
the maps. "Preclusion" in international law is
the process by which one nation acquires
sovereignty over an area by long possession adverse to the real sovereign.8 In this
case the basis of pre- clusion would be the
assertion of sovereignty in the publication of
the maps by Cambodia, and continued acts
in relation to the temple amounting to a
continued claim to ownership. Thus, in the
view of the evidence taken by the Court,
Cambodia could now claim the temple even
if it be conceded that Thailand could have
properly
asserted
sovereignty
just
subsequent to the events of 1908-9.

The temple is located on a hill, oriented along a northsouth axis and facing the plains to the north in what is
now Thailand.
Prasat Preah Vihear is the compound of words
Prasat, Preah and Vihear. Prasat (
) mean "castle",
sometimes "temple"; in Sanskrit

. Preah ( )

mean "sacred". "Vihear" ( ) mean "shrine" (the

central structure of the temple). The word Vihear
could be related to the Sanskrit word Vihara (
)
which means "abode."
Prasat (

) in Sanskrit means ("castle", sometimes

"temple"; in Sanskrit
), and in Khmer: "phnom"
( ) means mountain. Cambodians occasionally refer
to it as "Phnom Preah Vihear" (

). The word

"Preah" ( ) means "sacred", and the word "Vihear"

(

) means "shrine" (the central structure of the

temple).
Thais call it "
" (Prasat Phra Wihan),
meaning "Castle of Celestial Abode".

-----------------------------------------------------------------------------The three versions of the name carry significant

political and national connotations (see below: New
dispute over ownership).

Preah Vihear Temple

Preah Vihear Temple (Khmer:

Prasat Preah

Vihea; Thai: ; RTGS: Prasat Phra Wihan)

is an ancient Hindu temple built during the reign of the
Khmer Empire, that is situated atop a 525-metre
(1,722 ft) cliff in the Dngrk Mountains, in the Preah
Vihear province, Cambodia. In 1962, following a
lengthy dispute between Thailand and Cambodia over
ownership, the International Court of Justice (ICJ) in
[1]
The Hague ruled that the temple is in Cambodia.
Affording a view for many kilometers across a plain,
Prasat Preah Vihear has the most spectacular setting
of all the temples built during the six-centuries-long
Khmer Empire. As a key edifice of the empire's
spiritual life, it was supported and modified by
successive kings and so bears elements of several
architectural styles. Preah Vihear is unusual among
Khmer temples in being constructed along a long
north-south axis, rather than having the conventional
rectangular plan with orientation toward the east. The
temple gives its name to Cambodia's Preah Vihear
province, in which it is now located, as well as the
Khao Phra Wihan National Park which borders it in
Thailand's Sisaket province and through which the
temple is most easily accessible. On July 7, 2008,
Preah Vihear was listed as a UNESCO World
[2][3]
Heritage Site.
Nomenclature[edit]

Location[edit]

Rough map of Cambodia and Thailand, showing the

location of the temple being exactly at the border line
of Thailand and Cambodia
The temple was built at the top of Pey Tadi, a steep
cliff in the Dngrk Mountain range which are the
natural border between Thailand and Cambodia.
The Temple is listed by Thailand as being in
Bhumsrol village of Bueng Malu sub-district (now
merged with Sao Thong Chai sub-district), in
Kantharalak district of the Sisaket Province of eastern
Thailand. It is 110 km from the Mueang Sisaket
District, the center of Sisaket Province.
The Temple is also listed by Cambodia as being in
Svay Chrum Village, Kan Tout Commune, in Choam
Khsant District of Preah Vihear province of northern
Cambodia. The temple is 140 km from Angkor Wat
and 320 km from Phnom Penh.

In 1962 the ICJ ruled that only the temple building

belonged to Cambodia, while the direct way to access
[4]
the temple is from Thailand.

two halls. The sanctuary is reached via two

successive courtyards, in the outer of which are two
libraries.

Ancient history[edit]

Modern history and ownership dispute[edit]

Plan of Prasat Preah Vihear

Construction of the first temple on the site began in

the early 9th century; both then and in the following
centuries it was dedicated to the Hindu god Shiva in
his manifestations as the mountain gods Sikharesvara
and Bhadresvara. The earliest surviving parts of the
temple, however, date from the Koh Ker period in the
early 10th century, when the empire's capital was at
the city of that name. Today, elements of the Banteay
Srei style of the late 10th century can be seen, but
most of the temple was constructed during the reigns
of the Khmer kings Suryavarman I (10021050) and
Suryavarman II (11131150). An inscription found at
the temple provides a detailed account of
Suryavarman II studying sacred rituals, celebrating
religious festivals and making gifts, including white
parasols, golden bowls and elephants, to his spiritual
advisor, the aged Brahmin Divakarapandita. The
Brahmin himself took an interest in the temple,
according to the inscription, donating to it a golden
[citation
statue of a dancing Shiva known as "Nataraja".
needed]
In the wake of the decline of Hinduism in the
region the site was converted to use by Buddhists.

In modern times, Prasat Preah Vihear was

rediscovered by the outside world and became
subject of an emotional dispute between Thailand and
the newly independent Cambodia.
In 1904, Siam and the French colonial authorities
ruling Cambodia formed a joint commission to
demarcate their mutual border. In the vicinity of the
temple, the group was tasked by the two governments
to work under the principle that the border would
follow the watershed line of the Dngrk mountain
range, which places nearly all of Preah Vihear temple
on Thailand's side. In 1907, after survey work, French
officers drew up a map to show the borders location.
However, the resulting topographic map, which was
sent to Siamese authorities and used in the 1962
(ICJ) ruling, showed the line deviating from the
watershed without explanation in the Preah Vihear
area, placing all of the temple on the Cambodian side.

The site[edit]

Entrance to the temple structure

Drawing of temple structures
The temple complex runs 800 m (2,600 ft) along a
north-south axis facing the plains to the north, from
which it is now cut off by the international border. It
consists essentially of a causeway and steps rising up
the hill towards the sanctuary, which sits on the
clifftop at the southern end of the complex (120 m or
390 ft above the northern end of the complex, 525 m
or 1,722 ft above the Cambodian plain and 625 m or
2,051 ft above sea level). Although this structure is
very different from the temple mountains found at
Angkor, it serves the same purpose as a stylised
representation of Mount Meru, the home of the gods.
The approach to the sanctuary is punctuated by five
gopuras (these are conventionally numbered from the
sanctuary outwards, so gopura five is the first to be
reached by visitors). Each of the gopuras before the
courtyards is reached by a set of steps, and so marks
a change in height which increases their impact. The
gopuras also block a visitor's view of the next part of
the temple until they pass through the gateway,
making it impossible to see the complex as a whole
from any one point.
The fifth gopura, in the Koh Ker style, retains traces of
the red paint with which it was once decorated,
although the tiled roof has now disappeared. The
fourth gopura is later, from the Khleang/Baphuon
periods, and has on its southern outer pediment, "one
of the masterpieces of Preah Vihear" (Freeman,
p. 162) : a depiction of the Churning of the Sea of
Milk. The third is the largest, and is also flanked by

Following the withdrawal of French troops from

Cambodia in 1954, Thai forces occupied the temple to
enforce their claim. Cambodia protested and in 1959
asked the International Court of Justice to rule that
the temple and the surrounding land lay in
Cambodian territory. The case became a volatile
political issue in both countries. Diplomatic relations
were severed, and threats of force were voiced by
both governments.
The court proceedings focused not on questions of
cultural heritage or on which state was the successor
to the Khmer Empire, but rather on Siam's supposed
long-time acceptance of the 1907 map.
Arguing in The Hague for Cambodia was former U.S.
Secretary of State Dean Acheson, while Thailands
legal team included a former British attorney general,
Sir Frank Soskice. Cambodia contended the map
showing the temple as being on Cambodian soil was
the authoritative document. Thailand argued that the
map was invalid and that it was not an official
document of the border commission, and that it
clearly violated the commissions working principle
that the border would follow the watershed line, which
would place most of the temple in Thailand. If
Thailand had not protested the map earlier, the Thai
side said, it was because Thai authorities had had
actual possession of the temple for some period of
time, due to the great difficulty of scaling the steep

hillside from the Cambodian side, or simply had not

understood that the map was wrong.

pointing out that the French government had never

mentioned Thai "acquiescence" or acceptance at any
time, not even when Thailand stationed military
observers at the temple in 1949. On the contrary,
France always insisted that their map was correct and
the temple was located on their side of the natural
watershed (which it clearly is not). Thailand had
corrected its own maps, which in Spender's opinion
was sufficient without having to protest to France.
Spender said:
Whether the Mixed Commission did or did not delimit
the Dangrek, the truth, in my opinion, is that the
frontier line on that mountain range is today the line of
the watershed.

Illustration of temple structures

On 15 June 1962, the court ruled 9 to 3 that the
temple belonged to Cambodia and, by a vote of 7 to
5, that Thailand must return any antiquities such as
sculptures that it had removed from the temple. In its
decision, the court noted that in over the five decades
after the map was drawn, the Siamese/Thai
authorities had not objected in various international
forums to its depiction of the temples location. Nor
did they object when a French colonial official
received the Siamese scholar and government figure
Prince Damrong at the temple in 1930 (before the
Thais realised the map was wrong). Thailand had
accepted and benefited from other parts of the border
treaty, the court ruled. With these and other acts, it
said, Thailand had accepted the map and therefore
[5]
Cambodia was now the owner of the temple.
"It was clear from the record, however, that the maps
were communicated to the Siamese Government as
purporting to represent the outcome of the work of
delimitation; since there was no reaction on the part of
the Siamese authorities, either then or for many
years, they must be held to have acquiesced. The
maps were moreover communicated to the Siamese
members of the Mixed Commission, who said
nothing, to the Siamese Minister of the Interior, Prince
Damrong, who thanked the French Minister in
Bangkok for them, and to the Siamese provincial
governors, some of whom knew of Preah Vihear. If
the Siamese authorities accepted the Annex I map
without investigation, they could not now plead any
error vitiating the reality of their consent.
The Siamese Government and later the Thai
Government had raised no query about the Annex I
map prior to its negotiations with Cambodia in
Bangkok in 1958. But in 1934-1935 a survey had
established a divergence between the map line and
the true line of the watershed, and other maps had
been produced showing the Temple as being in
Thailand. Thailand had nevertheless continued also to
use and indeed to publish maps showing Preah
Vihear as lying in Cambodia. Moreover, in the course
of the negotiations for the 1925 and 1937 FrancoSiamese Treaties, which confirmed the existing
frontiers, and in 1947 in Washington before the
Franco-Siamese Conciliation Commission, it would
have been natural for Thailand to raise the matter:
she did not do so. The natural inference was that she
had accepted the frontier at Preah Vihear as it was
drawn on the map, irrespective of its correspondence
[5]
with the watershed line. "
Australian judge Sir Percy Spender wrote a scathing
dissent for the minority on the court, however,

The Court however has upheld a frontier line which is

not the line of the watershed, one which in the critical
area of the Temple is an entirely different one. This
finds its justification in the application of the concepts
of recognition or acquiescence.
With profound respect for the Court, I am obliged to
say that in my judgment, as a result of a
misapplication of these concepts and an inadmissible
extension of them, territory, the sovereignty in which,
both by treaty and by the decision of the body
appointed under treaty to determine the frontier line,
[6]
is Thailand's, now becomes vested in Cambodia.
Thailand reacted angrily. It announced it would
boycott meetings of the Southeast Asia Treaty
Organization, with Thai officials saying this step was
to protest a U.S. bias toward Cambodia in the dispute.
As evidence, Thai officials cited the pro-Cambodia
vote of an American judge on the court and
Achesons role as Cambodias advocate; the U.S.
government replied that Acheson was merely acting
as a private attorney, engaged by Cambodia. Mass
demonstrations were staged in Thailand protesting
the ruling.
Thailand eventually backed down and agreed to turn
the site over to Cambodia. Rather than lower the Thai
national flag that had been flying at the temple, Thai
soldiers dug up and removed the pole with it still
[7]
flying. The pole was erected at Mor I Daeng cliff,
where it is still in use. In January 1963, Cambodia
formally took possession of the site in a ceremony
attended by around 1,000 people, many of whom had
made the arduous climb up the cliff from the
Cambodian side. Prince Sihanouk, Cambodias
leader, bounded up the cliff in less than an hour, then
made offerings to Buddhist monks. He made a
gesture of conciliation in the ceremony, announcing
that all Thais would be able to visit the temple without
visas, and that Thailand was free to keep any
[8]
antiquities it may have taken away from the site.
Civil war[edit]
Civil war began in Cambodia in 1970; the temple's
location high atop a cliff served to make it readily
defensible militarily. Soldiers loyal to the Lon Nol
government in Phnom Penh continued to hold it long
after the plain below fell to communist forces. Tourists
were able to visit from the Thai side during the war.
Even though the Khmer Rouge captured Phnom Penh
in April 1975, the Khmer National Armed Forces
soldiers at Preah Vihear continued to hold out after
the collapse of the Khmer Republic government. The
Khmer Rouge made several unsuccessful attempts to

capture the temple, then finally succeeded on May 22,

1975 by shelling the cliff, scaling it and routing the
defenders, Thai officials reported at the time. The
defenders simply stepped across the border and
[9]
surrendered to Thai authorities. It was said to be the
last place in Cambodia to fall to the Khmer Rouge.
Full-scale war began again in Cambodia in December
1978 when the Vietnamese army invaded to
overthrow the Khmer Rouge. Khmer Rouge troops
retreated to border areas. In January, the Vietnamese
reportedly attacked Khmer Rouge troops holed up in
the temple, but there were no reports of damage to it.
Large numbers of Cambodian refugees entered
Thailand after the invasion. Guerrilla warfare
continued in Cambodia through the 1980s and well
into the 1990s, hampering access to Preah Vihear.
The temple opened briefly to the public in 1992, only
to be re-occupied the following year by Khmer Rouge
fighters. In December 1998, the temple was the scene
of negotiations by which several hundred Khmer
Rouge soldiers, said to be the guerrilla movement's
last significant force, agreed to surrender to the
[10]
Phnom Penh government.
The temple opened again to visitors from the Thai
side at the end of 1998; Cambodia completed the
construction of a long-awaited access road up the cliff
in 2003.

At the foot of the cliffs were minefields, placed by the

Khmer Rouge during their rule in Cambodia. The
refugees followed a narrow path, the safe route
indicated by the bodies of those who had set off land
mines. They used the bodies as stepping stones to
cross the three miles of mined land to reach the
Vietnamese soldiers, occupiers of Cambodia, on the
other side. The United Nations High Commissioner for
Refugees later estimated that as many as 3,000
Cambodians had died in the push-back and another
7,000 were unaccounted for. General Kriangsak's
objective in this brutal operation apparently was to
demonstrate to the international community that his
government would not bear alone the burden of
hundreds of thousands of Cambodian refugees. If so,
it worked. For the next dozen years the UN and
Western countries would pay for the upkeep of
Cambodian refugees in Thailand, resettling thousands
in other countries, and devising means by which
Cambodians could return safely to their own
[13]
country.
Preah Vihear as a World Heritage Site[edit]
On July 8, 2008, the World Heritage Committee
decided to add Prasat Preah Vihear, along with 26
other sites, to the World Heritage Site list, despite
several protests from Thailand, since the map implied
Cambodian ownership of disputed land next to the
temple.

Expulsion of Cambodian refugees[edit]

On June 12, 1979, the government of General
Kriangsak Chomanan, who had come to power in
Thailand by a military coup, informed foreign
embassies in Bangkok that it was going to expel a
large number of Cambodian refugees. He would allow
the governments of the United States, France, and
Australia to select 1,200 of the refugees to resettle in
their
countries.
Lionel
Rosenblatt,
Refugee
Coordinator of the American Embassy, Yvette
Pierpaoli, a French businesswoman in Bangkok, and
representatives of the Australian and French
governments rushed to the border to select the
refugees that night. In three frantic hours the
foreigners picked out 1,200 refugees for resettlement
from among the thousands being held by Thai
soldiers behind barbed wire in a Buddhist temple at
Nong Chan Refugee Camp and loaded them on
buses to go to Bangkok. The remaining refugees
were then loaded on buses and sent away, their
destination unknown.
It later became known that Cambodian refugees had
been collected from many locations and sent to Preah
Vihear. An American Embassy official stood beneath
a tree along a dirt road leading to the temple, counted
the buses, and estimated that about 42,000
[11]
Cambodians were taken to Preah Vihear.
Preah Vihear is situated at the top of a 2,000 foot high
escarpment overlooking the Cambodian plains far
below. The refugees were unloaded from the buses
and pushed down the steep escarpment. There was
no path to follow, one said. The way that we had to
go down was only a cliff. Some people hid on top of
the mountain and survived. Others were shot or
pushed over the cliff. Most of the people began to
climb down using vines as ropes. They tied their
children on their backs and strapped them across
their chests. As the people climbed down, the soldiers
[12]
threw big rocks over the cliff.

As the process of Heritage-listing began, Cambodia

announced its intention to apply for World Heritage
inscription by UNESCO. Thailand protested that it
should be a joint-effort and UNESCO deferred debate
at its 2007 meeting.
Following this, both Cambodia and Thailand were in
full agreement that Preah Vihear Temple had
"Outstanding Universal Value" and should be
inscribed on the World Heritage List as soon as
possible. The two nations agreed that Cambodia
should propose the site for formal inscription on the
World Heritage List at the 32nd session of the World
Heritage Committee in 2008 with the active support of
Thailand. This led to a redrawing of the map of the
area for proposed inscription, leaving only the temple
and its immediate environs.
However, Thailand's political opposition launched an
attack on this revised plan (see Modern History and
Ownership Dispute), claiming the inclusion of Preah
Vihear could nevertheless "consume" the overlapping
disputed area near the temple. In response to the
political pressure at home, the Thai government
withdrew its formal support for the listing of Preah
Vihear Temple as a World Heritage site.
Cambodia continued with the application for World
Heritage status and, despite official Thai protests, on
July 7, 2008, Preah Vihear Temple was inscribed on
the list of World Heritage sites.
The renewed national boundary dispute since 2008
has been a reminder that despite the World Heritage
ideals of conservation for all humanity, operating a
World Heritage site often requires use of national
authority at odds with the local cultures and natural
diversity of the landscape. Prior to the listing,
Cambodia considered Preah Vihear to be part of a
Protected Landscape (IUCN category V), defined as
"Nationally significant natural and semi-natural
landscapes which must be maintained to provide
opportunities for recreation." However, Category V is

generally defined as "Land, with coast and seas as

appropriate, where the interaction of people and
nature over time has produced an area of distinct
character with significant aesthetic, cultural and/or
ecological value, and often with high biological
diversity. Safeguarding the integrity of this traditional
interaction is vital to the protection, maintenance and
evolution of such an area."
During the People's Alliance for Democracy's seizure
of Suvarnabhumi Airport, future Thai Foreign Minister
Kasit Piromya reportedly called Cambodian Prime
Minister in a 2008 television interview "crazy" and a
[14]
"nak leng" (commonly translated as "gangster").

The conflict between Cambodia and Thailand over

land adjoining the site has led to periodic outbreaks of
violence.
[18]

A military clash occurred in October 2008.

In April
2009, 66 stones at the temple allegedly were
[19]
damaged by Thai soldiers firing across the border.
In February 2010, the Cambodian government filed a
formal letter of complaint with Google Maps for
depicting the natural watershed as the international
border instead of the line shown on the 1907 French
map used by the International Court of Justice in
[20]
1962.
In February 2011, when Thai officials were in
Cambodia negotiating the dispute, Thai and
Cambodian troops clashed, resulting in injuries and
[21]
deaths on both sides. Artillery bombardment in the
area occurred during the conflict. The Cambodian
government has claimed that damage occurred to the
[22]
temple. However, a UNESCO mission to the site to
determine the extent of the damage indicates that the
destruction is a result of both Cambodian and Thai
[23][24]
gunfire.

Temple structures in 2003

In 1994, Thailand held a World Heritage proposal
conference in Srisaket in which local cultural traditions
were considered along with monuments such as
Preah Vihear that stimulate more nationalistic
sentiments. The use of passes in the Dongrak
Mountains
reportedly
tied
together
cultural
communities and practices divided by a militarized
(and imperfectly demarcated) modern border line. A
Mon-Khmer ethnic minority, the Kui or Suay (the
ethnonyms have multiple spellings), used the passes
to hunt and capture elephants in the forests below the
Dongrak cliff edge, including the Kulen area which is
now a Cambodian wildlife sanctuary. Kui in Cambodia
[15]
were skilled ironsmiths using ore from Phnom Dek.
While elephant hunting in the vicinity of Preah Vihear
was touched upon in the International Court of Justice
proceedings, the World Heritage plans overlook local
culture and species protection to facilitate national
revenues from tourism. One international law
professor has urged that practicality calls for laying
aside exclusive sovereignty in favor of an
[16]
"international peace park."
A scholarly article
concurs in concluding: "Since Thailand and Cambodia
have brought only blood and bitterness to this place, it
might be desirable to preserve it from both. It could be
given back to nature and the indigenous peoples, to
be managed cooperatively between the two
governments in equal partnership with local
communities, as a transborder Protected LandscapeAnthropological Reserve (IUCN category V and old
[17]
category VII)."
Given the massing troops in 2008,
perhaps such a transborder reserve would create not
only a demilitarized buffer zone in which any future
demarcation can be amicably undertaken, but a
recognition of the added ecological and cultural
aspects of an area which both Cambodia and
Thailand may still save from the destructive and
exploitative impacts of rapid development so often
suffered in other ASEAN countries.
Disputes over ownership since 2008[edit]
Main article: CambodianThai border dispute

Since February 4, both sides have used artillery

against each other, and both blame the other for
[25]
starting the violence.
On February 5, Cambodia
had formally complained in a letter to the U.N. "The
recent Thai military actions violate the 1991 Paris
Peace Accord, U.N. Charter and a 1962 judgment
from the International Court of Justice", the letter
[26]
claims. On February 6, the Cambodian government
claimed that the temple had been damaged.
Cambodia's military commander said: "A wing of our
Preah Vihear temple has collapsed as a direct result
[27]
of the Thai artillery bombardment".
However, Thai
sources spoke only of minor damage, claiming that
Cambodian soldiers had fired from within the
[28]
temple.
ASEAN, to which both states belong, has offered to
mediate over the issue. However, Thailand has
insisted that bilateral discussions could better solve
[25]
the issue.
On February 5, the rightwing People's
Alliance for Democracy called for the resignation of
Prime Minister Abhisit Vejjajiva for "failing to defend
[25]
the nation's sovereignty".
An UNESCO World Heritage convention held in Paris
in June 2011 determined to accept Cambodia's
management proposal for the temple. As a
consequence, Thailand withdrew from the event, with
the Thai representative explaining, "We withdraw to
say we do not accept any decision from this
[29]
meeting."
Following a February 2011 request from Cambodia
for Thai military forces to be ordered out of the area,
judges of the International Court of Justice (ICJ) by a
vote of 115 ordered that both countries immediately
withdraw their military forces, and further imposed
restrictions on their police forces. The court said this
order would not prejudice any final ruling on the
where the border in the area between Thailand and
[30]
Cambodia should fall.
Abhisit Vejjajiva said that
Thai soldiers would not pull out from the disputed
area until the military of both countries agree on the
mutual withdrawal. "[I]t depends on the two sides to
come together and talk," he said, suggesting that an
existing joint border committee would be the
[31]
appropriate place to plan a coordinated pullback.
The ICJ ruled on 11 November 2013 that the area
around and below the temple belongs to Cambodia

and that any Thai security forces still in that area

[32][33]
should leave.
Access[edit]
From Cambodia, the temple can be approached
either by Tbeng Meanchey in Preah Vihear province
or from Siem Reap in Siem Reap province via Anlong
Veng. Although the highway is paved when it leaves
Siem Reap, both roads are (occasionally) graded
gravel once they begin to approach the Dangrek
escarpment.
It can be approached more easily from Thailand. The
approach is from Kantharalak district (amphoe) of
Sisaket province. Cambodia allows day-trip access to
the temple from Thailand on a visa-free basis. An
entrance fee of US$5 or 200 baht is charged
foreigners (as of 2006, reduced to 50 baht for Thai
citizens), plus a fee of 5 baht for processing a
photocopy of their passport. Foreign nationals must
pay an access fee of 400 baht to enter the
surrounding Khao Pra Wihan National Park.
Cambodia has periodically cut off access from
Thailand during times of dispute with the Thai
government.
-----------------------------------------------------------------------Anglo-Iranian Oil Co. Case (United Kingdom v. Iran)
ICJ (1952)
1. Facts
a. The Anglo-Iranian Oil Co. signed an agreement
with the Iranian government in 1933. b. In the spring
of 1952 the Iranian government passed multiple laws
that nationalized the oil industry in Iran. Because of
this, a dispute between the Anglo-Iranian Oil Co. and
Iran arose. The United Kingdom adopted the cause,
stating the virtue of diplomatic protection. c. The
Iranian government signed and ratified the declaration
of compulsory jurisdiction for the ICJ in 1932. There
are no treaties between the UK and Iran that are
relevant to this case that have been written since
1932. The Iranian government states that the
declaration of compulsory jurisdiction only applies to
treaties signed after the ratification of the declaration
and, therefore, believes the ICJ does not have
jurisdiction of this dispute. d. The UK does not believe
the Anglo-Iranian Oil Co. has been treated in
accordance to the principles and practice of treaties
signed with Turkey and other States since the
declaration. e. The UK also claims the contract signed
between the Anglo- Iranian Oil Co. and Iran in 1933
was a double charter, and therefore counts as a treaty
or convention.
2. Issues
a. Does the ICJ have jurisdiction over this case?
3. Decision
a. The ICJ does not have jurisdiction over this case
because there is not treaty or convention signed
between Iran and the UK that has been signed since
1932 that are disputed by this case. Also it does not

matter that the Anglo-Iranian Oil Co. has not been

treated in accordance to the principles and practices
of other treaties because the UK was not a party to
said treaties. Finally, the UK was not a party to the
original agreement between the Anglo-Iranian Oil Co.
and Iran. Therefore the ICJ cannot have jurisdiction
over this case in accordance to the declaration of
compulsory jurisdiction signed by Iran in 1932.

ANGLO-IRANIAN
OIL
(PRELIMINARY OBJECTION)

CO.

CASE

Judgment of 22 July 1952

The Anglo-Iranian Oil Company case had been
submitted to the Court by the United Kingdom
Government on May 26th, 1951, and had been the
subject of an Objection on the ground of lack of
jurisdiction by the Government of Iran.
By nine votes against five, the Court declared that it
lacked jurisdiction. The Judgment was followed by a
separate opinion by Sir Arnold McNair, President of
the Court, who while concurring in the conclusion
reached in the Judgment for which he had voted,
added some reasons of his own which had led him to
that conclusion. The Judgment was also followed by
four dissenting opinions by fudges Alvarez,
Hackworth, Read and Levi Carneiro.
On July 5th, 1951, the Court had indicated interim
measures of protection in this case, pending its final
decision, stating expressly that the question of the
jurisdiction of the merits was in no way prejudged. In
its Judgment, the Court declared that the Order of
July 5th, 1951, ceased to be operative and that the
provisional measures lapsed at the same time.
*
**
The Judgment begins by recapitulating the facts. In
April, 1933, an agreement was concluded between
the Government of Iran and the Anglo-Iranian Oil
Company. In March, April and May, 1951, laws were
passed in Iran, enunciating the principle of the
nationalisation of the oil industry in Iran and
establishing procedure for the enforcement of this
principle. The result of these laws was a dispute
between Iran and the Company. The United Kingdom
adopted the cause of the latter, and in virtue of its
right of diplomatic protection it instituted proceedings
before the Court, whereupon Iran disputed the Court's
jurisdiction.
The Judgment refers to the principle according to
which the will of the Parties is the basis of the Court's
jurisdiction, and it notes that in the present case the
jurisdiction depends on the Declarations accepting the
compulsory jurisdiction of the Court made by Iran and
by the United Kingdom under Article 36, paragraph 2,
of the Statute. These Declarations contain the
condition of reciprocity, and as that of Iran is more
limited, it is upon that Declaration that the Court must
base itself.
According to this Declaration, the Court has
jurisdiction only when a dispute relates to the
application of a treaty or convention accepted by Iran.
But Iran maintains that, according to the actual
wording of the text, the jurisdiction is limited to treaties
subsequent to the Declaration. The United Kingdom
maintains, on the contrary, that earlier treaties may
also come into consideration. In the view of the Court,
both contentions might, strictly speaking, be regarded
as compatible with the text. But the Court cannot base
itself on a purely grammatical interpretation: it must
seek the interpretation which is in harmony with a
natural and reasonable way of reading the text,

having due regard to the intention of Iran at the time

when it formulated the Declaration. A natural and
reasonable way of reading the text leads to the
conclusion that only treaties subsequent to the
ratification come into consideration. In order to reach
an opposite conclusion, special and clearly
established reasons would be required: but the United
Kingdom was not able to produce them. On the
contrary, it may be admitted that Iran had special
reasons for drafting her Declaration in a very
restrictive manner, and for excluding the earlier
treaties. For, at that time, Iran had denounced all the
treaties with other States relating to the rgime of
capitulations; she was uncertain as to the legal effect
of these unilateral denunciations. In such
circumstances, it is unlikely that she should have
been willing on her own initiative to agree to submit to
an international court disputes relating to all these
treaties. Moreover, the Iranian law by which the Najlis
approved and adopted the Declaration, before it was
ratified, provides a decisive confirmation of Iran's
intention, for it states that the treaties and conventions
which come into consideration are those which "the
Government will have accepted after the ratification".
The earlier treaties are thus excluded by the
Declaration, and the United Kingdom cannot therefore
rely on them. It has invoked some subsequent
treaties: namely those of 1934 with Denmark and
Switzerland, and that of 1937 with Turkey, by which
Iran had undertaken to treat the nationals of those
Powers in accordance with the principles and practice
of ordinary international law. The United Kingdom
claims that the Anglo-Iranian Oil Company has not
been treated in accordance with those principles and
that practice; and in order to rely on the abovementioned treaties, though concluded with third
parties, it founds itself on the most-favoured-nation
clause contained in two instruments which it
concluded with Iran: the treaty of 1857 and the
commercial convention of 1903. But the two latter
treaties, which form the sole legal connection with the
treaties of 1934 and 1937, are anterior to the
Declaration: the United Kingdom cannot therefore rely
on them, and, consequently, it cannot invoke the
subsequent treaties concluded by Iran with third
States.
But did the settlement of the dispute between Iran and
the United Kingdom, effected in 1933 through the
mediation of the League of Nations, result in an
agreement between the two Governments which may
be regarded as a treaty or convention? The United
Kingdom maintains that it did: it claims that the
agreement signed in 1933 between the United
Kingdom and the Company had a double character:
being at once a concessionary contract and a treaty
between the two States. In the view of the Court, that
it not the case. The United Kingdom is not a party to
the contract, which does not constitute a link between
the two Governments or in any way regulate the
relations between them. Under the contract, Iran
cannot claim from the United Kingdom any rights
which it may claim from the Company, nor can it be
called upon to perform towards the United Kingdom
any obligations which it is bound to perform towards
the Company. This juridical situation is not altered by
the fact that the concessionary contract was
negotiated through the good offices of the Council of
the League of Nations, acting through its rapporteur.
The United Kingdom in submitting its dispute with Iran
to the League Council, was only exercising its right of
diplomatic protection in favour of one of its nationals.
Thus the Court arrives at the conclusion that it lacks
jurisdiction.

Anglo-Iranian Oil Co. (United Kingdom v. Iran)

International Court of Justice, 22 July 1952
Background : In 1951 Mohamed Mossadegh, the
prime minister of Iran, nationalized the Anglo-Iranian
Oil Co. Anglo-Iranian had operated in Iran since the
early 20 th century and had long had a profit sharing
deal with the Iranian government. The agreement
gave Anglo-Iranian the right to extract and sell Iranian
oil assets with the guarantee of revenue for the
government of Iran.
By 1951 the cooperation between the Iranian
government and Anglo-Iranian had deteriorated, and
after failed attempts at arbitration, Mossadegh
decided to go ahead and nationalize the company
claiming all assets for the state of Iran.
Reza Shah, the strong man leader, cut a deal in 1933
that lasted until 1951 1. His agreement was different
from the two previous agreements between Iran and
Anglo- Iranian. The agreement was for a profit
sharing and flat fee agreement that the shahs
government was to be paid each calendar year. In
1951 before nationalization, Anglo- Iranian was able
to take about 85% of profits from the joint venture.
Contention : What spurred the nationalization was the
belief and perception that Anglo-Iranian was taking
revenue from the Iranian government, and was
destroying its natural resources.
The Iranian
government thus made the argument that they could
take control of the company in trust for the Iranian
people. The United Kingdom charged that this was
illegitimate on the grounds:
1. Taking of national
property by one country is illegal, and it breached the
contract signed in 1933. 2. Anglo-Iranian and its
shareholders should be compensated for their loss of
production and the breach of contract.
The Iranian government concluded:
1.
The contract was not a valid agreement between
countries and was thus not a treaty and that it could
not be held responsible for it since it dealt with
arbitration between Iran and a foreign company.
1.
Anglo-Iranian Oil
Co. Case (Jurisdiction), United Kingdom v. Iran. The
American Journal of International Law 1952
American Society of International Law
2.
That the ICJ did not have jurisdiction for
aforementioned reasons and that Article 2 paragraph
7 could not be backdated to hold contracts of
jurisdiction for things before the U.N. charters
ratification.
Ruling : The ICJ determined that there was
insufficient jurisdiction for the case to be heard by its
courts. The court concurred with Iran saying the
agreement was not a treaty, and thus could not be
heard by the court. Also it concluded that the UK was
not a party in the treaty, since the agreement was a
concession between Iran and Anglo-Iranian 2. When
a country enters into a commercial venture, it also
cedes its action as a state actor that Iran retained,
while the UK did not. While the concession was
arbitrated through an international body, the League
of Nations, it still did not constitute a formal treaty,
and thus the ICJ could not hear the case.
Conclusion : This case has had an impact on the
recourse for nationalization of industry all over the
world. In essence it is a strong protector of national
sovereignty and prevents other nations from
removing sovereignty to protect business interest. As
well when the most recent rounds of Nationalization
occurred, there was not precedent to look for
recourse against a government for the seizing of a
companys assets.
While not an extremely common occurrence, the
nationalization of resources is a contentious matter,
and thus one that occurs to the disdain of various

international companies 3. The Anglo-Iranian case

was only later resolved with the removal of
Mossadegh from power, but with the addition of 7
other companies to remove some of the smell of
monopoly from the Iranian oil deal. Thus the only
means for recourse in the international courts eyes is
to affect or arbitrate some deal between the two
countries.

------------------------------------------------------------------------

Asylum Case: Colombia v. Peru

INTERNATIONAL COURT OF JUSTICE
1950 ICJ REP. 266 (1950)
< http://www.icj-cij.org/docket/files/14/1937.pdf>
Authors Note: Haya de la Torre was a Peruvian
national. He led an unsuccessful rebellion against
Peru in 1948. The Peruvian government issued a
warrant for his arrest on criminal charges related to
this political uprising. He fled to the Colombian
embassy in Lima. He therein requested, and was
granted, diplomatic asylum by the Colombian
ambassador on behalf of the government of
Colombia. Colombia then requested permission from
Peru for de la Torres safe passage from the
Colombian embassy, through Peru, and into
Colombia. Peru refused. Colombia then brought this
suit against Peru in the ICJ, asking the Court to
declare that Colombia had properly granted asylum,
pursuant to a recognized regional practice of granting
asylum in such political cases. Perus lawyers
responded that Colombia could not unilaterally grant
asylum over Perus objection. De la Torre had
committed a common crime, subjecting him to
prosecution by Peru, just like any other criminal.
Colombia had no right to employ asylum as a means
of avoiding Perus criminal laws.
Courts Opinion: In the case of diplomatic asylum, the
refugee is within the territory of the State where the
offence was committed. A decision to grant diplomatic
asylum involves a derogation from the sovereignty of
that State. It withdraws the offender from the
jurisdiction of the territorial State and constitutes an
intervention in matters which are exclusively within
the competence of that State [Peru]. Such a
derogation from territorial sovereignty cannot be
recognised unless its legal basis is established in
each particular case.... The Havana Convention on
Asylum of 1928 ... lays down certain rules relating to
diplomatic asylum, but does not contain any provision
conferring on the State granting asylum a unilateral
competence to qualify the offence with definitive and
binding force for the territorial State.... A competence
of this kind is of an exceptional character. It involves a
derogation from the equal rights of qualification which,
in the absence of any contrary rule, must be attributed
to each of the States concerned; it aggravates the
derogation from territorial sovereignty constituted by
the exercise of asylum. Such a competence is not
inherent in the institution of diplomatic asylum. This
institution would perhaps be more effective if a rule of
unilateral and definitive qualification were applied. But
such a rule is not essential to the exercise of
asylum.... The Colombian Government has finally
invoked American international law in general [to
justify its grant of asylum]. In addition to the rules
arising from agreements,
2
... it has relied on an alleged regional or local custom
peculiar to Latin-American States. The Party which
relies on a custom of this kind must prove that this
custom is established in such a manner that it has
become binding on the other Party, ... that it is in
accordance with a constant and uniform usage

practised by the States in question, and that this

usage is the expression of a right appertaining to the
State granting asylum and a duty incumbent on the
territorial State. This follows from Article 38 of the
Statute of the Court, which refers to international
custom as evidence of a general practice accepted
as law. ... [T]he Colombian Government has referred
to a large number of particular cases in which
diplomatic asylum was in fact granted and respected.
But it has not shown that the alleged rule of unilateral
and definitive qualification was invoked or ... that it
was, apart from conventional stipulations, exercised
by the States granting asylum as a right appertaining
to them and respected by the territorial States as a
duty incumbent on them and not merely for reasons of
political expediency. The facts brought to the
knowledge of the Court disclose so much uncertainty
and contradiction, so much fluctuation and
discrepancy in the exercise of diplomatic asylum and
in the official views expressed on various occasions,
there has been so much inconsistency in the rapid
succession of conventions on asylum, ratified by
some States and rejected by others, and the practice
has been so much influenced by considerations of
political expediency in the various cases, that it is not
possible to discern in all this any constant and uniform
usage, mutually accepted as law, with regard to the
alleged rule of unilateral and definitive qualification of
the offence. The Court cannot therefore find that the
Colombian Government has proved the existence of
such a custom. But even if it could be supposed that
such a custom existed between certain LatinAmerican States only, it could not be invoked against
Peru which, far from having by its attitude adhered to
it, has, on the contrary, repudiated it by refraining
from ratifying the Montevideo Conventions of 1933
and 1939, which were the first to include a rule
concerning the qualification of the offence [as
political in nature] in matters of diplomatic asylum. ...
Article 2 lays down in precise terms the conditions
under which asylum shall be granted to [political]
offenders by the territorial State ... the essential
justification for asylum being in the imminence or
persistence of a danger for the person of the refugee.
It was incumbent upon the Government of Colombia
to submit proof of facts to show that [this] condition
was fulfilled. ...
Asylum may be granted on
humanitarian grounds ... to protect political offenders
against the violent and disorderly action of
irresponsible sections of the population. It has not
been contended that Haya de la Torre was in such a
situation at the time when he sought refuge in the
Colombian Embassy at Lima. . . . In principle, it is
inconceivable that the Havana Convention could have
intended the term urgent cases to include the
danger of regular prosecution to which the citizens of
any country lay themselves open by attacking the
institutions of that country, nor can it be admitted that
in referring to the period of time strictly indispensable
for the person who has sought asylum to ensure in
some other way his safety, the Convention
envisaged protection from the operation of regular
legal proceedings. ... In principle, asylum cannot be
opposed to the operation of justice. An exception to
this rule can occur only if, in the guise of justice,
arbitrary action is substituted for the
3
rule of law. Such would be the case if the
administration of justice were corrupted by measures
clearly prompted by political aims. Asylum protects
the political offender against any measures of a
manifestly extra-legal character which a Government
might take or attempt to take against its political
opponents. The word safety, which ... determines
the specific effect of asylum granted to political
offenders, means that the refugee is protected against

arbitrary action by the Government, and that he

enjoys the benefits of the law. On the other hand, the
safety which arises out of asylum cannot be
construed as a protection against the regular
application of the laws and against the jurisdiction of
legally constituted tribunals. Protection thus
understood would authorise the diplomatic agent to
obstruct the application of the laws of the country
whereas it is his duty to respect them; it would in fact
become the equivalent of an immunity, which was
evidently not within the intentions of the draftsmen of
the Havana Convention. It has not been shown that
the existence of a state of siege [in Peru] implied the
subordination of justice to the executive authority, or
that the suspension of certain constitutional
guarantees entailed the abolition of judicial
guarantees. ... The Court cannot admit that the
States signatory to the Havana Convention intended
to substitute for the practice of the Latin-American
republics, in which considerations of courtesy, goodneighbourliness and political expediency have always
held a prominent place, a legal system which would
guarantee to their own nationals accused of political
offences the privilege of evading national jurisdiction.
Such a conception, moreover, would come into
conflict with one of the most firmly established
traditions of Latin-America, namely, nonintervention
[for example, by Colombia into the internal affairs of
another State like Peru].... [The court must] reject the
argument that the Havana Convention was intended
to afford a quite general protection of asylum to any
person prosecuted for political offences, either in the
course of revolutionary events or in the more or less
troubled times that follow, for the sole reason that it
must be assumed that such events interfere with the
administration of justice. It is clear that the adoption of
such a criterion would lead to foreign interference of a
particularly offensive nature in the domestic affairs of
States; besides which no confirmation of this criterion
can be found in Latin-American practice, as this
practice has been explained to the Court. In thus
expressing itself, the Court does not lose sight of the
numerous cases of asylum which have been cited. ...
If these remarks tend to reduce considerably the
value as precedents of the cases of asylum cited ...
they show none the less, that asylum as practised in
Latin-America is an institution which, to a very great
extent, owes its development to extra-legal factors.
The good-neighbour relations between the republics,
the different political interests of the Governments,
have favoured the mutual recognition of asylum apart
from any clearly defined juridical system. Even if the
Havana Convention, in particular, represents an
indisputable reaction against certain abuses in
practice, it in no way tends to limit the practice of
asylum as it may arise from agreements between
interested Governments inspired by mutual feelings of
toleration and goodwill. ... The Court considers that
there did not exist a danger constituting a case of
urgency within the meaning of Article 2, paragraph 2,
of the Havana Convention.
Asylum Case (Colombia v. Peru)
From Wikipedia, the free encyclopedia
Jump to: navigation, search
In the Asylum Case (Colombia v Per), judgement
20 November 1950 (General List No. 7 (19491950)),
the International Court of Justice (ICJ) recognised that
the scope of Article 38 of the Statute of the
International Court of Justice encompassed bi-lateral
and regional international customary norms as well as
general customary norms, in much the same way as it
[1]
encompasses bilateral and multilateral treaties. The
Court also clarified that for custom to be definitively

proven, it must be continuously and uniformly

executed.
The Colombian Ambassador in Lima, Per allowed
Vctor Ral Haya de la Torre, head of the American
People's Revolutionary Alliance sanctuary after his
faction lost a one-day civil war in Peru on 3 October
1948. The Colombian government granted him
asylum, but the Peruvian government refused to grant
him safe passage out of Peru.
Colombia maintained that according to the
Conventions in force - the Bolivian Agreement of 1911
on Extradition, the Havana Convention of 1928 on
Asylum, the Montevideo Convention of 1933 on
[2]
Political Asylum
- and according to American
International Law, they were entitled to decide if
asylum should be granted and their unilateral decision
[3]
on this was binding on Per.
Both submissions of Colombia were rejected by the
Court. It was not found that the custom of Asylum was
uniformly or continuously executed sufficiently to
demonstrate that the custom was of a generally
applicable character.
-----------------------------------------------------------------------Monetary Gold Removed from Rome in 1943 (Italy v.
France, United Kingdom and United States)
From Wikipedia, the free encyclopedia
Jump to: navigation, search
The Monetary Gold Removed from Rome in 1943
Case (Italy v. France, United Kingdom and United
States) was part of a long-running dispute over the
fate of Nazi gold that was originally seized from
Rome.
On 17 September 1943, 2,338 kg of gold were seized
by the Germans from Rome.
After the war, both Italy and Albania claimed that this
gold was theirs, and that the Commission for the
Restitution of Monetary Gold should return it to them.
On 17 November 1950, the commission informed
their forming governments (France, the UK and USA)
that they could not resolve the issue.
On 25 April 1951, the three governments, having
failed to reach an agreement, agreed to request that
the International Court of Justice appoint an
independent arbitrator, who, on 20 February 1953,
decided that the gold belonged to Albania.
However, the UK and Italy still laid claim to the gold:
the UK as partial payment towards the (still unsettled)
compensation that Albania was ordered to pay them
against damage to UK navy vessels and loss of life
during the Corfu Channel Incident, caused by an
undisclosed Albanian mine-field in Corfu (see the
Corfu Channel Case), whilst Italy claimed that most of
the gold was originally Italian, seized by the Albanian
government when it took control of the National Bank
of Albania (which Italy had the majority of shares in),
and additionally that the Italian Peace Treaty
specifically gave them claim to the gold.

On 19 May 1953, Italy requested that the ICJ

determine how much of the gold Italy had claim to,
and whether the UK's or the Italian's claim should
take precedence, stating that the three countries
responsible for the redistribution of the gold should
give it all to Italy in partial compensation for the
Albanian seizure of the National Bank of Albania, and
that this claim should over-ride the UK's claim.
On 15 June 1953, the ICJ decided that, as the first
issue to be addressed was the resolution of the legal
dispute between Italy and Albania over the seizure of
the National Bank of Albania, and as Albania had not
deferred to the ICJ in this case, the ICJ had no
jurisdiction in this matter.

CASE
OF
THE
MONETARY
REMOVED FROM ROME IN 1943

GOLD

Judgment of 15 June 1954

The Monetary Gold Case was brought before the
Court by an Application of the Italian Republic against
the French Republic, the United Kingdom of Great
Britain and Northern Ireland and the United States of
America.
The Court had been requested to determine certain
legal questions upon which depended the delivery to
Italy or to the United Kingdom of a quantity of
monetary gold removed by the Germans from Rome
in 1943, recovered in Germany and found to belong to
Albania. The United Kingdom pointed out that the
Court had found that Albania was under an obligation
to pay compensation to the United Kingdom for the
damage caused by the explosions in the Corfu
Channel in 1946 and that the damages due to the
United Kingdom had never been paid. For its part,
Italy contended, in the first place, that she had a claim
against Albania arising out of the measures of
confiscation allegedly taken by the Albanian
Government in 1945, and, in the second place, that
her claim should have priority over that of the United
Kingdom.
The Italian Government, relying on the Statement
signed at Washington on April 25th, 1951 by the
Governments of France, the United Kingdom and the
United States, referred these two questions to the
Court. But after filing her Application, Italy felt some
doubt as to the jurisdiction of the Court and requested
the Court to adjudicate on the question of jurisdiction
as a preliminary issue.
It is upon the question of jurisdiction that the Court
adjudicated in its Judgment. The Court found first,
unanimously, that in the absence of the consent of
Albania, it was not authorized to adjudicate upon
Italy's claim against Albania and, secondly, by thirteen
votes to one, that the priority issue could only arise if
the first question had been decided in favour of Italy.
Judge Levi Carneiro appended to the Judgment of the
Court a statement of his dissenting opinion (on the
second question); two other Members of the Court
(President, Sir Arnold McNair, and Judge Read),
while voting in favour of the decision, appended to the
Judgment a declaration and individual opinion
respectively.
The Judgment began by reciting the facts. The origin
of the present case was to be found in Part III of the
Agreement on Reparation from Germany (Paris,
January 14th, 1946) which provided that the monetary
gold found in Germany should be pooled for
distribution among the countries entitled to receive a
share of it. France, the United Kingdom and the
United States were signatories of the Agreement, as

well as Albania and other States; Italy adhered

subsequently to Part III. The implementation of the
provisions of Part III having been entrusted to the
Governments of France, the United Kingdom and the
United States, these three Governments appointed a
Tripartite Commission to assist them in this matter In
respect of a quantity of gold removed from Rome in
1943, which belonged to the National Bank of
Albania, the Tripartite Commission, confronted by
competing claims of Albania and Italy, was unable to
give a decision. The three Governments then agreed
to submit the question to an arbitrator (Washington
Agreement of April 25th, 1951). At the same time,
they declared (Washington Statement of the same
date) that if the finding of the arbitrator should be in
favour of Albania, they would be confronted by
another problem since the gold was claimed by Italy
and by the United Kingdom for reasons not covered
by Part III of the Paris Agreement; and they decided
that the gold would be delivered to the United
Kingdom in partial satisfaction of the Judgment of the
court of December 15th, 1949, in the Corfu Channel
case unless within a certain time-limit from the date of
the arbitrator's Opinion, either Albania applied to the
Court requesting it to adjudicate on her rights, or Italy
made an Application to the Court for the
determination of the questions, first, whether by
reason of any rights which she claimed to possess as
a result of the Albanian law of January 13th, 1945, or
under the provisions of the Italian Peace Treaty, the
gold should be delivered to her rather than to Albania,
and second whether the Italian claim should or should
not have priority over the claim of the United
Kingdom, if this issue should arise.
Thus, within the prescribed time-limit, Italy made an
Application to the Court which was communicated in
the customary manner to States entitled to appear
before the Court and also transmitted to the Albanian
Government.
Time-limits for the filing of the pleadings were then
fixed by the Court. However, instead of presenting its
Memorial on the merits, the Italian Government
questioned the jurisdiction of the Court to adjudicate
upon the first question relating to the validity of the
Italian claim against Albania. The Parties having been
requested to submit their views on the problem thus
raised, the Italian Government contended that the
Court did not have a sufficient basis for adjudication
on the ground that the proceedings contemplated by
the Washington Statement were in reality directed
against Albania and that Albania was not a Party to
the suit. As regards the United Kingdom, it saw in the
challenge to the Court's jurisdiction made by Italy a
ground for questioning the validity of the Application
which, in the submission of the United Kingdom,
should be regarded as not conforming to the
Washington Statement or as invalid and void, or as
withdrawn. The two other respondent Governments
France and the United States, did not deposit formal
Submissions.
After thus reciting the facts, the Court dealt with the
views of both sides, beginning with the Submissions
of the United Kingdom which have just been
summarized. Indeed, it was unusual that an applicant
State should challenge the jurisdiction of the Court,
but regard must be had for the circumstances of the
case: it was the Washington Statement, emanating
from the three Governments, that formulated the offer
of jurisdiction accepted by Italy and pre-determined
the subject-matter of the suit, and it was after taking
the initial step that Italy felt some doubt and filed a
Preliminary Objection on the basis of Article 62 of the
Rules of Court. This Article did not preclude the
raising of a preliminary objection by an applicant in
such circumstances. By this Objection, Italy's
acceptance of jurisdiction of the Court has not

become less complete or less positive than was

contemplated in the Washington Statement. To
request the Court to settle the problem of jurisdiction
was not tantamount to asking the Court not to
determine the questions set out in the Application
under any circumstances. The Application was a real
one; and it remained real unless it was withdrawn; but
it had not been withdrawn. Finally, the Application, if
not invalid when it was filed, could not have become
invalid by reason of the presentation of the objection
to the jurisdiction.
Having thus found that it had been validly seised by
the Application and that that Application still
subsisted, the Court proceeded to consideration of
the Italian Objection to the jurisdiction in order to
decide whether or not it could adjudicate upon the
merits of the questions submitted to it by the
Application. The Court noted that, in respect of the
relations between the three Governments and Italy,
the Application was in conformity with the offer made
in the Washington Statement, both as regards the
subject-matter of the suit and the Parties to it; the
Court therefore had jurisdiction to deal with the
questions submitted in the Application. But was this
jurisdiction co-extensive with the task entrusted to the
Court?
In this connection the Court noted that it was not
merely called upon to say whether the gold should be
delivered to Italy or to the United Kingdom: it was
requested to determine first certain legal questions
upon which the solution of the problem depended.
The first submission in the Application centred around
a claim by Italy against Albania, a claim to
indemnification for an alleged wrong. Italy believed
that she possessed a right against Albania for the
redress of an international wrong which, according to
Italy, Albania had committed against her. In order,
therefore, to determine whether Italy was entitled to
receive the gold, it was necessary to determine
whether Albania had committed any international
wrong against Italy, and whether she was under an
obligation to pay compensation to her; and, if so, to
determine also the amount of compensation. In order
to decide such questions it was necessary to
determine whether the Albanian law of January 13th,
1945 was contrary to international law. In the
determination of these questions, which related to the
lawful or unlawful character of certain actions of
Albania vis--vis Italy, only two States, Italy and
Albania, were directly interested.
To go into the merits of such questions would be to
decide a dispute between Italy and Albania - which
the Court could not do without the consent of Albania.
If the Court did so, it would run counter to a wellestablished principle of international law embodied in
the Court's Statute, namely, that the Court can only
exercise jurisdiction over a State with its consent.
It has been contended that Albania might have
intervened, since Article 62 of the Statute gives to a
third State, which considers that it has an interest of a
legal nature which may be affected by the decision in
the case, the right to do so; that the Statute did not
prevent proceedings from continuing, even when a
third State which would be entitled to intervene
refrained from doing so; and that consequently the
fact that Albania had abstained from doing so should
not make it impossible for the Court to give judgment.
But in the present case, Albania's legal interests
would not only be affected by a decision; they would
constitute the very subject-matter of the decision.
Therefore, the Statute could not be regarded, even by
implication, as authorizing that proceedings could be
continued in the absence of Albania.
The Court found that, although Italy and the three
respondent States had conferred jurisdiction upon the
Court, it could not exercise this jurisdiction to

adjudicate on the first claim submitted by Italy. As for

the second claim, which relates to the priority
between the claims of Italy and the United Kingdom, it
would only arise when it had been decided that, as
between Italy and Albania, the gold should go to Italy.
This claim was consequently dependent upon the first
claim in the Application. The Court accordingly found
that inasmuch as it could not adjudicate on the first
Italian claim, it should refrain from examining the
second.

SUPREME COURT FIRST DIVISION

THE WORLD HEALTH ORGANIZATION and DR.
LEONCE
VERSTUYFT,
Petitioners,
-versus1972

G.R. No. L-35131 November 29,

HON. BENJAMIN H. AQUINO, as Presiding Judge of

Branch VIII, Court of First Instance of Rizal, MAJOR
WILFREDO CRUZ, MAJOR ANTONIO G. RELLEVE,
and CAPTAIN PEDRO S. NAVARRO of the
Constabulary Offshore Action Center (COSAC),
Respondents. x--------------------------------------------------x
DECISION
TEEHANKEE, J.:
An Original Action for Certiorari and Prohibition to set
aside respondent judges refusal to quash a search
warrant issued by him at the instance of respondents
COSAC (Constabulary Offshore Action Center)
officers for the search and seizure of the personal
effects of petitioner official of the WHO (World Health
Organization)
notwithstanding his being entitled to diplomatic
immunity, as duly recognized by the executive branch
of the Philippine Government and to prohibit
respondent judge from further proceedings in the
matter.
Upon filing of the petition, the Court issued on June 6,
1972 a restraining order enjoining respondents from
executing the search warrant in question.
chanroblespublishingcompany
Respondents COSAC officers filed their answer
joining issue against petitioners and seeking to justify
their act of applying for and securing from respondent
judge the warrant for the search and seizure of ten
crates consigned to petitioner Verstuyft and stored at
the Eternit Corporation warehouse on the ground that
they contain large quantities of highly dutiable goods
beyond the official needs of said petitioner and the
only lawful way to reach these articles and effects for
purposes of taxation is through a search warrant.[1]
chanroblespublishingcompany
The Court thereafter called for the parties
memoranda in lieu of oral argument, which were filed
on August 3, 1972 by respondents and on August 21,

1972 by petitioners and the case was thereafter

deemed
submitted
for
decision.
chanroblespublishingcompany

diplomatic immunity and motion to quash search

warrant of April 12, 1972 failed to move respondent
judge. chanroblespublishingcompany

It is undisputed in the record that petitioner Dr.

Leonce Verstuyft, who was assigned on December 6,
1971 by the WHO from his last station in Taipei to the
Regional Office in Manila as Acting Assistant Director
of Health Services, is entitled to diplomatic immunity,
pursuant to the Host Agreement executed on July 22,
1951 between the Philippine Government and the
World
Health
Organization.
chanroblespublishingcompany

At the hearing thereof held on May 8, 1972, the Office

of the Solicitor General appeared and filed an
extended comment stating the official position of the
executive branch of the Philippine Government that
petitioner Verstuyft is entitled to diplomatic immunity,
he did not abuse his diplomatic immunity,[5] and that
court proceedings in the receiving or host State are
not the proper remedy in the case of abuse of
diplomatic immunity.[6] chanroblespublishingcompany

Such diplomatic immunity carries with it, among other

diplomatic privileges and immunities, personal
inviolability, inviolability of the officials properties,
exemption from local jurisdiction, and exemption from
taxation
and
customs
duties.
chanroblespublishingcompany

The Solicitor General accordingly joined petitioner

Verstuyfts prayer for the quashal of the search
warrant. Respondent judge nevertheless summarily
denied quashal of the search warrant per his order of
May 9, 1972 for the same reasons already stated in
(his) aforesaid order of March 16, 1972 disregarding
Foreign Secretary Romulos plea of diplomatic
immunity
on
behalf
of
Dr.
Verstuyft.
chanroblespublishingcompany

When petitioner Verstuyfts personal effects contained

in twelve (12) crates entered the Philippines as
unaccompanied baggage on January 10, 1972, they
were accordingly allowed free entry from duties and
taxes. The crates were directly stored at the Eternit
Corporations warehouse at Mandaluyong, Rizal,
pending his relocation into
permanent quarters upon the offer of Mr. Berg, Vice
President of Eternit who was once a patient of Dr.
Verstuyft
in
the
Congo.[2]
chanroblespublishingcompany
Nevertheless, as above stated, respondent judge
issued on March 3, 1972 upon application on the
same date of respondents COSAC officers search
warrant No. 72-138 for alleged violation of Republic
Act 4712 amending section 3601 of the Tariff and
Customs Code[3] directing the search and seizure of
the dutiable items in said crates.
Upon protest of March 6, 1972 of Dr. Francisco Dy,
WHO Regional Director for the Western Pacific with
station in Manila, Secretary of Foreign Affairs Carlos
P. Romulo, personally wired on the same date
respondent judge advising that Dr. Verstuyft is
entitled to immunity from search in respect of his
personal baggage as accorded to members of
diplomatic missions pursuant to the Host Agreement
and requesting suspension of the search warrant
order pending clarification of the matter from the
ASAC. chanroblespublishingcompany
Respondent judge set the Foreign Secretarys request
for hearing and heard the same on March 16, 1972,
but notwithstanding the official plea of diplomatic
immunity interposed by a duly authorized
representative of the Department of Foreign Affairs
who furnished the respondent judge with a list of the
articles brought in by petitioner Verstuyft, respondent
judge issued his order of the same date maintaining
the effectivity of the search warrant issued by him,
unless restrained by a higher court.[4]
Petitioner Verstuyfts special appearance on March
24, 1972 for the limited purpose of pleading his

Hence, the petition at bar. Petitioner Verstuyft has in

this Court been joined by the World Health
Organization (WHO) itself in full assertion of petitioner
Verstuyfts being entitled to all privileges and
immunities, exemptions and facilities accorded to
diplomatic envoys in accordance with international
law under section 24 of the Host Agreement.
chanroblespublishingcompany
The writs of certiorari and prohibition should issue as
prayed for.
1. The executive branch of the Philippine Government
has expressly recognized that petitioner Verstuyft is
entitled to diplomatic immunity, pursuant to the
provisions of the Host Agreement. The Department of
Foreign Affairs formally advised respondent judge of
the Philippine Governments official position that
accordingly Dr. Verstuyft cannot be the subject of a
Philippine court summons without violating an
obligation in international law of the Philippine
Government and asked for the quashal of the search
warrant, since his personal effects and baggages
after having been allowed free entry from all customs
duties and taxes, may not be baselessly claimed to
have been unlawfully imported in violation of the
tariff and customs code as claimed by respondents
COSAC officers. The Solicitor- General, as principal
law officer of the Government,[7] likewise expressly
affirmed said petitioners right to diplomatic immunity
and asked for the quashal of the search warrant.
chanroblespublishingcompany
It is a recognized principle of international law and
under our system of separation of powers that
diplomatic immunity is essentially a political question
and courts should refuse to look beyond a
determination by the executive branch of the
government,[8] and where the plea of diplomatic
immunity is recognized and affirmed by the executive
branch of the government as in the case at bar, it is
then the duty of the courts to accept the claim of

immunity upon appropriate suggestion by the principal

law officer of the government,
the Solicitor General in this case, or other officer
acting under his direction.[9] Hence, in adherence to
the settled principle that courts may not so 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 (this)
government follows the action of the political branch
and will not embarrass the latter by assuming an
antagonistic
jurisdiction.[10]
chanroblespublishingcompany
2. The unfortunate fact that respondent judge chose
to rely on the suspicion of respondents COSAC
officers that the other remaining crates unopened
contain contraband items[11] rather than on the
categorical assurance of the Solicitor-General that
petitioner Verstuyft did not abuse his diplomatic
immunity,[12] which was based in turn on the official
positions taken by the highest executive officials with
competence and authority to act on the matter,
namely, the Secretaries of Foreign Affairs and of
Finance, could not justify respondent judges denial of
the
quashal
of
the
search
warrant.
chanroblespublishingcompany
As already stated above, and brought to respondent
courts attention,[13] the Philippine Government is
bound by the procedure laid down in Article VII of the
Convention on the Privileges and Immunities of the
Specialized Agencies of the United Nations[14] for
consultations between the Host State and the United
Nations agency concerned to determine, in the first
instance the fact of occurrence of the abuse alleged,
and if so, to ensure that no repetition occurs and for
other recourses. This is a treaty commitment
voluntarily assumed by the Philippine Government
and as such, has the force and effect of law.
Hence, even assuming arguendo as against the
categorical assurance of the executive branch of
government that respondent judge had some ground
to prefer respondents COSAC officers suspicion that
there had been an abuse of diplomatic immunity, the
continuation of the search warrant proceedings before
him was not the proper remedy. He should,
nevertheless, in deference to the exclusive
competence and jurisdiction of the executive branch
of government to act on the matter, have acceded to
the quashal of the search warrant, and forwarded his
findings or grounds to believe that there had been
such abuse of diplomatic immunity to the Department
of Foreign
Affairs for it to deal with, in accordance with the
aforementioned Convention, if so warranted.
chanroblespublishingcompany
3. Finally, the Court has noted with concern the
apparent lack of coordination between the various
departments involved in the subject-matter of the
case at bar, which made it possible for a small unit,
the COSAC, to which respondents officers belong,
seemingly to disregard and go against the

authoritative determination and pronouncements of

both the Secretaries of Foreign Affairs and of Finance
that petitioner Verstuyft is entitled to diplomatic
immunity, as confirmed by the Solicitor-General as
the principal law officer of the Government. Such
executive determination properly implemented should
have normally constrained respondents officers
themselves to obtain the quashal of the search
warrant secured by them rather than oppose such
quashal up to this Court, to the embarrassment of
said department heads, if not of the Philippine
Government itself vis a vis the petitioners.[15]
chanroblespublishingcompany
The seriousness of the matter is underscored when
the provisions of Republic Act 75 enacted since
October 21, 1946 to safeguard the jurisdictional
immunity of diplomatic officials in the Philippines are
taken into account. Said Act declares as null and void
writs or processes sued out or prosecuted whereby
inter alia the person of an ambassador or public
minister is arrested or imprisoned or his goods or
chattels are seized or attached and makes it a penal
offense for every person by whom the same is
obtained or prosecuted, whether as party or as
attorney, and every officer concerned in executing it
to obtain or enforce such writ or process.[16]
chanroblespublishingcompany
The Court, therefore, holds that respondent judge
acted without jurisdiction and with grave abuse of
discretion in not ordering the quashal of the search
warrant issued by him in disregard of the diplomatic
immunity
of
petitioner
Verstuyft.
chanroblespublishingcompany
ACCORDINGLY, the writs of certiorari and prohibition
prayed for are hereby granted, and the temporary
restraining order heretofore issued against execution
or enforcement of the questioned search warrant,
which is hereby declared null and void, is hereby
made permanent. The respondent court is hereby
commanded to desist
from further proceedings in the matter. No costs, none
having
been
prayed
for.
chanroblespublishingcompany
The clerk of court is hereby directed to furnish a copy
of this decision to the Secretary of Justice for such
action as he may find appropriate with regard to the
matters mentioned in paragraph 3 hereof. So ordered.
Concepcion, C. J., Makalintal, Zaldivar, Fernando,
Barredo, Makasiar, Antonio and Esguerra, JJ.,
concur. chanroblespublishingcompany Castro, J.,
reserves his vote. chanroblespublishingcompany
chanroblespublishingcompany
[1] Respondents Answer, Rollo, p. 138. [2] Citygram
of March 6, 1972 of Secretary of Foreign Affairs
Carlos P. Romulo to respondent judge, Annex D,
petition. chanroblespublishingcompany [3] This penal
provision of the tariff & customs code imposes a
penalty of a fine of not less than P600.00 nor more
than P5000.00 and imprisonment for not less than 6

months nor more than two years for unlawful

importation and illegal possession of goods imported
contrary to law, upon Any person who shall
fraudulently import or bring into the Philippines, or
assist in so doing, any article, contrary to law, or shall
receive, conceal, buy, sell, or in any manner facilitate
the transportation, concealment, or sale of such
article after importation, knowing the same to have
been imported contrary to law, and states that
(W)hen, upon trial for a violation of this section, the
defendant is shown to have or to have had
possession of the article in question, such possession
shall be deemed sufficient evidence to authorize
conviction, unless the defendant shall explain the
possession to the satisfaction of the court.
chanroblespublishingcompany [4] Respondent judges
justification in his said order reads in part as follows:
From the reply submitted by Captains Pedro S.
Navarro and Antonio G. Relleve of the COSAC, it
appears that the articles contained in the two
baggages allegedly belonging to Dr. Verstuyft so far
opened by them are 120 bottles of assorted foreign
wine and 15 tins of PX goods which are said to be
dutiable under the Customs and Tariff Code of the
Philippines. The two COSAC officers further
manifested that they positively believe that there are
more contraband items in the nine other huge crates
which are still unopened. The articles so far found in
the two crates opened by Capt. Navarro and Relleve
are not mentioned in the list of articles brought in by
Dr. Verstuyft and are highly dutiable under the
Customs and Tariff Code and according to said
officers they have strong reasons to believe that the
other remaining crates unopened contain contraband
items. The Court is certain that the World Health
Organization would not tolerate violations of local
laws by its officials and/or representatives under a
claim of immunity

abuse of privilege, calling for consultations between

the Host State and the U.S. agency concerned and in
case no satisfactory result is reached for submittal to
the International Court of Justice for determination
whether such an abuse has occurred, and providing
for the customary procedure of requiring the offending
officials departure in certain instances. [7] Section
1661,
Rev.
Administrative
Code.
chanroblespublishingcompany [8] See Trost vs.
Tompkins,
44A.
2b
226.
chanroblespublishingcompany [9] See Ins. Co., 24
N.E. 2d 81, 281 N.Y. 362, reversing 5 N.Y.S. 2d 295,
254 App. Div. 511, reargument denied 26 N.E. 2d
808, 282 N.Y. 676, motion denied 29 N.E. 2d 939,
284
N.Y.
638
(27-5th
D-1127).
chanroblespublishingcompany [10] See, United
States vs. Lee, 106 U.S. 196, 209, 1 S. Ct. 240, 27 L.
Ed. 171; Ex parte Republic of Peru, 318 U.S. 578, 68
S. CT. 793, 87 L. Ed. 1014; Republic of Mexico vs.
Hoffman, 324, U.S. 30, 35, 65 S. Ct. 530, 89 L. Ed.
729; Welleman vs. Chase Manhattan Bank 192
N.Y.S. 2d 469. chanroblespublishingcompany [11]
Supra, fn. 4. [12] Supra, fn. 5. [13] Supra, fn. 6. [14]
This Convention was adopted by the U.N. General
Assembly on Nov. 21, 1947; it was concurred in by
the Philippine Senate under Sen. Resolution No. 21,
May 17, 1949; and the Philippine Instrument of
Ratification was signed by the President of the
Republic on Feb. 21, 1959 applying the Convention to
the WHO. See 45 O.G. 3187 (1949) and Vol. I, Phil.
Treaty Series, p. 621. chanroblespublishingcompany
[15] In their answer to petition, respondents COSAC
officers insist on their belief and contention that the
120 bottles of foreign wine found by them are far in
excess, considered by any reasonable standard of
taste and elegance in the diplomatic world of the
official mission and needs of a diplomat, much more
of the status of (petitioner), hence, they should be

granted to them by the host agreement. Since the

right of immunity invoked by the Department of
Foreign Affairs is admittedly relative and not absolute,
and there are strong and positive indications of
violation of local laws, the Court declines to suspend
the effectivity of the search warrant issued in the case
at bar. chanroblespublishingcompany [5] Aside from
the Foreign Affairs Departments certification that the
importation of 120 bottles of wine is ordinary in
diplomatic practice, the Solicitor General took pains
to inform the lower court that the packing of Dr.
Verstuyfts baggages and personal effects was done
by a packing company in Taipei (and) Dr. Verstuyft
had no hand in the preparation of the packing list of
his personal effects which has been assailed by
ASAC agents. Also implicit from the foregoing is the
fact that Dr. Verstuyft had no intention to violate
Philippine laws by selling the 120 bottles of foreign
wine and 15 tins of PX goods in the Philippines.
Otherwise, he need not have stored the same at the
Eternit Corporation where they may be subject to the
probing
eyes
of
government
agents.
chanroblespublishingcompany [6] The Solicitor
General cites that the Convention on the Privileges
and Immunities of the Specialized Agencies of the
U.N. adopted on Nov. 21, 1947, and made applicable
by ratification to the WHO contains Article VII on

taxed and on their conviction that the articles and

effects are not in fact and in truth personal effects so
as to be comprehended within the privileges and
immunities accorded representatives of (WHO).
Rollo, pp. 138-139. [16] The pertinent section of Rep.
Act 75, entitled An act to penalize acts which would
impair the proper observance by the Republic and
inhabitants of the Philippines of the immunities, rights
and privileges of duly accredited foreign diplomatic
and consular agents in the Philippines, reads: Any
writ or process sued out or prosecuted by any person
in any court of the Republic of the Philippines, or by
any judge or justice, whereby the person of any
ambassador or public minister of any foreign State,
authorized and received as such by the President, or
any domestic or domestic servant of any such
ambassador or minister is arrested or imprisoned, or
his goods or chattels are distrained, seized, or
attached, shall be deemed void, and every person by
whom the same is obtained or prosecuted, whether
as party or as attorney, and every officer concerned in
executing it, shall upon conviction, be punished by
imprisonment for not more than three years and a fine
of not exceeding two hundred pesos in the discretion
of the court. (Section 4, italics supplied) As to
whether this Act may be invoked on behalf of

petitioner (who does not pertain to the foreign

diplomatic corps), quaere.
-----------------------------------------------------------------------World Health Organization v. Aquino 48 SCRA 243

Facts:
Herein petitioner, in behalf of Dr. Verstuyft, was
allegedly suspected by the Constabulary Offshore
Action Center (COSAC) officers of carrying dutiable
goods under the Customs and Tariff Code of the
Philippines. Respondent Judge then issued a search
warrant at the instance of the COSAC officers for the
search and seizure of the personla effects of Dr.
Verstuyft notwithstanding his being entitled to
diplomatic immunity, as duly recognized by the
Executive
branch
of
the
government.
The Secretary of Foreign Affairs Carlos P. Romulo
advised the respondent judge that Dr. Verstuyft is
entitled to immunity from search in respect for his
personal baggage as accorded to members of
diplomatic missions pursuant to the Host Agreement
and further requested for the suspension of the
search warrant. The Solicitor General accordingly
joined the petitioner for the quashal of the search
warrant but respondent judge nevertheless summarily
denied
the
quashal.

Issue:
Whether or not personal effect of WHO Officer Dr.
Verstuyft can be exempted from search and seizure
under
the
diplomatic
immunity.

Ruling:
The executive branch of the Phils has expressly
recognized that Verstuyft is entitled to diplomatic
immunity, pursuant to the provisions of the Host
Agreement. The DFA formally advised respondent
judge of the Philippine Government's official position.
The Solicitor General, as principal law officer of the
gorvernment, likewise expressly affirmed said
petitioner's right to diplomatic immunity and asked for
the
quashal
of
the
search
warrant.
It recognized principle of international law and under
our system of separation of powers that diplomatic
immunity is essentially a political question and courts
should refuse to look beyond a determination by the
executive branch of government, and where the plea
of diplomatic immunity is recognized by the executive
branch of the government as in the case at bar, it is
then the duty of the courts to accept the claim of
immunity upon appropriate suggestion by the principal
law officer of the government, the Solicitor General in
this case, or other officer acting under his discretion.
Courts may not so exercise their jurisdiction by
seizure and detention of property, as to embarass the
executive arm of the government in conducting
foreign
relations.
The Court, therefore, holds the respondent judge
acted without jurisdiction and with grave abuse of
discretion in not ordering the quashal of the search
warrant issued by him in disregard of the diplomatic
immunity of petitioner Verstuyft.

Republic of the Philippines

Supreme Court
Manila
EN BANC
ISABELITA C. VINUYA,
VICTORIA
C.
DELA
PEA,
HERMINIHILDA
MANIMBO, LEONOR H.
SUMAWANG,
CANDELARIA
L.
SOLIMAN, MARIA
L. QUILANTANG, MARIA
L. MAGISA,
NATALIA M. ALONZO,
LOURDES M.
NAVARO, FRANCISCA M.
ATENCIO,
ERLINDA MANALASTAS,
TARCILA
M. SAMPANG, ESTER M.
PALACIO,
MAXIMA R. DELA CRUZ,
BELEN A.
SAGUM,
FELICIDAD
TURLA,
FLORENCIA M. DELA
PEA,
EUGENIA
M.
LALU,
JULIANA G.
MAGAT,
CECILIA
SANGUYO, ANA
ALONZO,
RUFINA
P.
MALLARI,
ROSARIO M. ALARCON,
RUFINA C.
GULAPA,
ZOILA
B.
MANALUS,
CORAZON C. CALMA,
MARTA A.
GULAPA, TEODORA M.
HERNANDEZ,
FERMIN B. DELA PEA,
MARIA DELA
PAZ
B.
CULALA,
ESPERANZA
MANAPOL, JUANITA M.
BRIONES,
VERGINIA M. GUEVARRA,
MAXIMA
ANGULO, EMILIA SANGIL,
TEOFILA
R. PUNZALAN, JANUARIA
G. GARCIA,
PERLA
B.
BALINGIT,
BELEN A.
CULALA,
PILAR
Q.
GALANG,
ROSARIO
C.
BUCO,
GAUDENCIA C.
DELA PEA, RUFINA Q.
CATACUTAN,
FRANCIA
A.
BUCO,
PASTORA C.
GUEVARRA, VICTORIA M.
DELA
CRUZ, PETRONILA O.
DELA CRUZ,
ZENAIDA P. DELA CRUZ,
CORAZON
M. SUBA, EMERINCIANA
A. VINUYA,
LYDIA
A.
SANCHEZ,
ROSALINA M.

G.R. No. 162230

Present:

PUNO, C. J.,
CARPIO,
CORONA,
CARPIO
MORALES,
VELASCO, JR.,
NACHURA,
LEONARDO-DE
CASTRO,
BRION,
PERALTA,
BERSAMIN,
DEL CASTILLO,
ABAD,
VILLARAMA, JR.,
PEREZ, and
MENDOZA, JJ.

BUCO,
PATRICIA
A.
BERNARDO,
LUCILA H. PAYAWAL,
MAGDALENA
LIWAG,
ESTER
C.
BALINGIT, JOVITA
A. DAVID, EMILIA C.
MANGILIT,
VERGINIA M. BANGIT,
GUILLERMA
S. BALINGIT, TERECITA
PANGILINAN,
MAMERTA
C.
PUNO,
CRISENCIANA
C. GULAPA, SEFERINA S.
TURLA,
MAXIMA
B.
TURLA,
LEONICIA G.
GUEVARRA, ROSALINA
M. CULALA,
CATALINA Y. MANIO,
MAMERTA T.
SAGUM,
CARIDAD
L.
TURLA, et al.
In their capacity and as
members of the
Malaya
Lolas
Organization,
Petitioners,

Promulgated:

There is a broad range of vitally important

areas that must be regularly decided by the Executive
Department without either challenge or interference
by the Judiciary. One such area involves the delicate
arena of foreign relations. It would be strange indeed
if the courts and the executive spoke with different
voices in the realm of foreign policy. Precisely
because of the nature of the questions presented, and
the lapse of more than 60 years since the conduct
complained of, we make no attempt to lay down
general guidelines covering other situations not
involved here, and confine the opinion only to the very
questions necessary to reach a decision on this
matter.

April 28, 2010

Factual Antecedents

- versus THE
HONORABLE
EXECUTIVE
SECRETARY ALBERTO G.
ROMULO,
THE
HONORABLE
SECRETARY
OF
FOREIGN
AFFAIRS
DELIA
DOMINGOALBERT,
THE
HONORABLE
SECRETARY OF JUSTICE
MERCEDITAS
N.
GUTIERREZ,
and THE HONORABLE
SOLICITOR
GENERAL ALFREDO L.
BENIPAYO,
Respondents.
x-------------------------------------------------------x
DECISION
DEL CASTILLO, J.:
The Treaty of Peace with Japan, insofar as it barred
future claims such as those asserted by plaintiffs in
these actions, exchanged full compensation of
plaintiffs for a future peace. History has vindicated the
wisdom of that bargain. And while full compensation
for plaintiffs' hardships, in the purely economic sense,
has been denied these former prisoners and
countless other survivors of the war, the
immeasurable bounty of life for themselves and their
posterity in a free society and in a more peaceful
world services the debt.1

This is an original Petition for Certiorari under Rule 65

of the Rules of Court with an application for the
issuance of a writ of preliminary mandatory injunction
against the Office of the Executive Secretary, the
Secretary of the Department of Foreign Affairs (DFA),
the Secretary of the Department of Justice (DOJ), and
the Office of the Solicitor General (OSG).
Petitioners are all members of the MALAYA LOLAS, a
non-stock, non-profit organization registered with the
Securities and Exchange Commission, established for
the purpose of providing aid to the victims of rape by
Japanese military forces in the Philippines during the
Second World War.
Petitioners narrate that during the Second World War,
the Japanese army attacked villages and
systematically raped the women as part of the
destruction of the village. Their communities were
bombed, houses were looted and burned, and
civilians were publicly tortured, mutilated, and
slaughtered. Japanese soldiers forcibly seized the
women and held them in houses or cells, where they
were repeatedly raped, beaten, and abused by
Japanese soldiers. As a result of the actions of their
Japanese tormentors, the petitioners have spent their
lives in misery, having endured physical injuries, pain
and disability, and mental and emotional suffering.2
Petitioners claim that since 1998, they have
approached the Executive Department through the
DOJ, DFA, and OSG, requesting assistance in filing a
claim against the Japanese officials and military
officers who ordered the establishment of the comfort
women stations in the Philippines. However, officials
of the Executive Department declined to assist the
petitioners, and took the position that the individual
claims of the comfort women for compensation had
already been fully satisfied by Japans compliance
with the Peace Treaty between the Philippines and
Japan.
Issues
Hence, this petition where petitioners pray for this
court to (a) declare that respondents committed grave
abuse of discretion amounting to lack or excess of
discretion in refusing to espouse their claims for the
crimes against humanity and war crimes committed
against them; and (b) compel the respondents to
espouse their claims for official apology and other
forms of reparations against Japan before the

International Court of Justice

international tribunals.

(ICJ) and

other

regulated environment.ix Comfort stations would also

prevent the spread of venereal disease among
soldiers and discourage soldiers from raping
inhabitants of occupied territories.x

Petitioners argue that the general waiver of claims

made by the Philippine government in the Treaty of
Peace with Japan is void. They claim that the comfort
women system established by Japan, and the brutal
rape and enslavement of petitioners constituted a
crime against humanity,i sexual slavery,ii and
torture.iii They allege that the prohibition against
these international crimes is jus cogens norms from
which no derogation is possible; as such, in waiving
the claims of Filipina comfort women and failing to
espouse their complaints against Japan, the
Philippine government is in breach of its legal
obligation not to afford impunity for crimes against
humanity.
Finally, petitioners assert that the
Philippine
governments
acceptance
of
the
apologies made by Japan as well as funds from the
Asian Womens Fund (AWF) were contrary to
international law.

Daily life as a comfort woman was

unmitigated misery.xi The military forced victims
into barracks-style stations divided into tiny cubicles
where they were forced to live, sleep, and have sex
with as many 30 soldiers per day.xii The 30 minutes
allotted for sexual relations with each soldier were 30minute increments of unimaginable horror for the
women.3 Disease was rampant.4 Military doctors
regularly examined the women, but these checks
were carried out to prevent the spread of venereal
diseases; little notice was taken of the frequent
cigarette burns, bruises, bayonet stabs and even
broken bones inflicted on the women by soldiers.

Petitioners arguments

Respondents Arguments
Respondents maintain that all claims of the
Philippines and its nationals relative to the war were
dealt with in the San Francisco Peace Treaty of 1951
and the bilateral Reparations Agreement of 1956.iv
Article 14 of the Treaty of Peacev provides:
Article 14. Claims and Property
a)
It is recognized that Japan should
pay reparations to the Allied Powers for the damage
and suffering caused by it during the war.
Nevertheless it is also recognized that the resources
of Japan are not presently sufficient, if it is to maintain
a viable economy, to make complete reparation for all
such damage and suffering and at the present time
meet its other obligations.
b)
Except as otherwise provided in the present
Treaty, the Allied Powers waive all reparations claims
of the Allied Powers, other claims of the Allied Powers
and their nationals arising out of any actions taken by
Japan and its nationals in the course of the
prosecution of the war, and claims of the Allied
Powers for direct military costs of occupation.

In addition, respondents argue that the apologies

made by Japanvi have been satisfactory, and that
Japan had addressed the individual claims of the
women through the atonement money paid by the
Asian Womens Fund.
Historical Background
The comfort women system was the tragic
legacy of the Rape of Nanking. In December 1937,
Japanese military forces captured the city of Nanking
in China and began a barbaric campaign of terror
known as the Rape of Nanking, which included the
rapes and murders of an estimated 20,000 to 80,000
Chinese women, including young girls, pregnant
mothers, and elderly women.vii
In reaction to international outcry over the incident,
the Japanese government sought ways to end
international condemnationviii by establishing the
comfort women system. Under this system, the
military could simultaneously appease soldiers' sexual
appetites and contain soldiers' activities within a

Fewer than 30% of the women survived the

war.5 Their agony continued in having to suffer with
the residual physical, psychological, and emotional
scars from their former lives. Some returned home
and were ostracized by their families. Some
committed suicide. Others, out of shame, never
returned home.6
Efforts to Secure Reparation
The most prominent attempts to compel the Japanese
government to accept legal responsibility and pay
compensatory damages for the comfort women
system were through a series of lawsuits, discussion
at the United Nations (UN), resolutions by various
nations, and the Womens International Criminal
Tribunal. The Japanese government, in turn,
responded through a series of public apologies and
the creation of the AWF.7
Lawsuits
In December 1991, Kim Hak-Sun and two other
survivors filed the first lawsuit in Japan by former
comfort women against the Japanese government.
The Tokyo District Court however dismissed their
case.xiii Other suits followed,xiv but the Japanese
government has, thus far, successfully caused the
dismissal of every case.xv

Undoubtedly frustrated by the failure of litigation

before Japanese courts, victims of the comfort women
system brought their claims before the United States
(US). On September 18, 2000, 15 comfort women
filed a class action lawsuit in the US District Court for
the District of Columbiaxvi "seeking money damages
for [allegedly] having been subjected to sexual slavery
and torture before and during World War II," in
violation of "both positive and customary international
law." The case was filed pursuant to the Alien Tort
Claims Act (ATCA),xvii which allowed the plaintiffs
to sue the Japanese government in a US federal
district court.xviii On October 4, 2001, the district
court dismissed the lawsuit due to lack of jurisdiction
over Japan, stating that [t]here is no question that
this court is not the appropriate forum in which
plaintiffs may seek to reopen x x x discussions nearly
half a century later x x x [E]ven if Japan did not enjoy
sovereign immunity, plaintiffs' claims are nonjusticiable and must be dismissed.
The District of Columbia Court of Appeals affirmed the
lower court's dismissal of the case.xix On appeal, the
US Supreme Court granted the womens petition for
writ of certiorari, vacated the judgment of the District
of Columbia Court of Appeals, and remanded the
case.xx On remand, the Court of Appeals affirmed its
prior decision, noting that much as we may feel for
the plight of the appellants, the courts of the US
simply are not authorized to hear their case.xxi The
women again brought their case to the US Supreme
Court which denied their petition for writ of certiorari
on February 21, 2006.
Efforts at the United Nations
In 1992, the Korean Council for the Women Drafted
for Military Sexual Slavery by Japan (KCWS),
submitted a petition to the UN Human Rights
Commission (UNHRC), asking for assistance in
investigating crimes committed by Japan against
Korean women and seeking reparations for former
comfort women.xxii The UNHRC placed the issue on
its agenda and appointed Radhika Coomaraswamy
as the issue's special investigator. In 1996,
Coomaraswamy issued a Report reaffirming Japan's
responsibility in forcing Korean women to act as sex
slaves for the imperial army, and made the following
recommendations:
A.

At the national level

137.

The Government of Japan should:

(a)
Acknowledge that the system of comfort
stations set up by the Japanese Imperial Army during
the Second World War was a violation of its
obligations under international law and accept legal
responsibility for that violation;
(b)
Pay compensation to individual victims of
Japanese military sexual slavery according to
principles outlined by the Special Rapporteur of the
Sub-Commission on Prevention of Discrimination and
Protection of Minorities on the right to restitution,
compensation and rehabilitation for victims of grave
violations of human rights and fundamental freedoms.
A special administrative tribunal for this purpose
should be set up with a limited time-frame since many
of the victims are of a very advanced age;
(c)
Make a full disclosure of documents and
materials in its possession with regard to comfort
stations and other related activities of the Japanese
Imperial Army during the Second World War;

(d)
Make a public apology in writing to individual
women who have come forward and can be
substantiated as women victims of Japanese military
sexual slavery;
(e)
Raise awareness of these issues by
amending educational curricula to reflect historical
realities;
(f)
Identify and punish, as far as possible,
perpetrators involved in the recruitment and
institutionalization of comfort stations during the
Second World War.

Gay J. McDougal, the Special Rapporteur for

the UN Sub-Commission on Prevention of
Discrimination and Protection of Minorities, also
presented a report to the Sub-Committee on June 22,
1998 entitled Contemporary Forms of Slavery:
Systematic Rape, Sexual Slavery and Slavery-like
Practices During Armed Conflict. The report included
an appendix entitled An Analysis of the Legal Liability
of the Government of Japan for 'Comfort Women
Stations' established during the Second World War,8
which contained the following findings:
68.
The present report concludes that the
Japanese Government remains liable for grave
violations of human rights and humanitarian law,
violations that amount in their totality to crimes
against humanity.
The Japanese Governments
arguments to the contrary, including arguments that
seek to attack the underlying humanitarian law
prohibition of enslavement and rape, remain as
unpersuasive today as they were when they were first
raised before the Nuremberg war crimes tribunal
more than 50 years ago. In addition, the Japanese
Governments argument that Japan has already
settled all claims from the Second World War through
peace treaties and reparations agreements following
the war remains equally unpersuasive. This is due, in
large part, to the failure until very recently of the
Japanese Government to admit the extent of the
Japanese militarys direct involvement in the
establishment and maintenance of these rape
centres. The Japanese Governments silence on this
point during the period in which peace and
reparations agreements between Japan and other
Asian Governments were being negotiated following
the end of the war must, as a matter of law and
justice, preclude Japan from relying today on these
peace treaties to extinguish liability in these cases.
69.
The failure to settle these claims more than
half a century after the cessation of hostilities is a
testament to the degree to which the lives of women
continue to be undervalued. Sadly, this failure to
address crimes of a sexual nature committed on a
massive scale during the Second World War has
added to the level of impunity with which similar
crimes are committed today. The Government of
Japan has taken some steps to apologize and atone
for the rape and enslavement of over 200,000 women
and girls who were brutalized in comfort stations
during the Second World War. However, anything
less than full and unqualified acceptance by the
Government of Japan of legal liability and the
consequences that flow from such liability is wholly
inadequate. It must now fall to the Government of

Japan to take the necessary final steps to provide

adequate redress.

The UN, since then, has not taken any

official action directing Japan to provide the
reparations sought.
Women's International War Crimes

Tribunal
The Women's International War Crimes
Tribunal (WIWCT) was a people's tribunal
established by a number of Asian women and human
rights organizations, supported by an international
coalition of non-governmental organizations.xxiii First
proposed in 1998, the WIWCT convened in Tokyo in
2000 in order to adjudicate Japan's military sexual
violence, in particular the enslavement of comfort
women, to bring those responsible for it to justice, and
to end the ongoing cycle of impunity for wartime
sexual violence against women.
After examining the evidence for more than a year,
the tribunal issued its verdict on December 4, 2001,
finding the former Emperor Hirohito and the State of
Japan guilty of crimes against humanity for the rape
and sexual slavery of women.xxiv It bears stressing,
however, that although the tribunal included
prosecutors, witnesses, and judges, its judgment was
not legally binding since the tribunal itself was
organized by private citizens.
Action by Individual Governments
On January 31, 2007, US Representative
Michael Honda of California, along with six cosponsor
representatives,
introduced
House
Resolution 121 which called for Japanese action in
light of the ongoing struggle for closure by former
comfort women. The Resolution was formally passed
on July 30, 2007,xxv and made four distinct demands:
[I]t is the sense of the House of Representatives that
the Government of Japan (1) should formally
acknowledge, apologize, and accept historical
responsibility in a clear and unequivocal manner for
its Imperial Armed Forces' coercion of young women
into sexual slavery, known to the world as comfort
women, during its colonial and wartime occupation of
Asia and the Pacific Islands from the 1930s through
the duration of World War II; (2) would help to resolve
recurring questions about the sincerity and status of
prior statements if the Prime Minister of Japan were to
make such an apology as a public statement in his
official capacity; (3) should clearly and publicly refute
any claims that the sexual enslavement and trafficking
of the comfort women for the Japanese Imperial
Army never occurred; and (4) should educate current
and future generations about this horrible crime while
following the recommendations of the international
community with respect to the comfort women.xxvi

In December 2007, the European Parliament, the

governing body of the European Union, drafted a
resolution similar to House Resolution 121.xxvii
Entitled, Justice for Comfort Women, the resolution
demanded: (1) a formal acknowledgment of
responsibility by the Japanese government; (2) a
removal of the legal obstacles preventing
compensation; and (3) unabridged education of the
past. The resolution also stressed the urgency with
which Japan should act on these issues, stating: the

right of individuals to claim reparations against the

government should be expressly recognized in
national law, and cases for reparations for the
survivors of sexual slavery, as a crime under
international law, should be prioritized, taking into
account the age of the survivors.
The Canadian and Dutch parliaments have each
followed suit in drafting resolutions against Japan.
Canada's resolution demands the Japanese
government to issue a formal apology, to admit that
its Imperial Military coerced or forced hundreds of
thousands of women into sexual slavery, and to
restore references in Japanese textbooks to its war
crimes.9 The Dutch parliament's resolution calls for
the Japanese government to uphold the 1993
declaration of remorse made by Chief Cabinet
Secretary Yohei Kono.
The Foreign Affairs Committee of the United
Kingdoms Parliament also produced a report in
November, 2008 entitled, "Global Security: Japan and
Korea" which concluded that Japan should
acknowledge the pain caused by the issue of comfort
women in order to ensure cooperation between Japan
and Korea.
Statements of Remorse made by representatives
of the Japanese government

Various officials of the Government of Japan have

issued the following public statements concerning the
comfort system:
a) Statement by the Chief Cabinet Secretary
Yohei Kono in 1993:
The Government of Japan has been
conducting a study on the issue of wartime "comfort
women" since December 1991. I wish to announce
the findings as a result of that study.
As a result of the study which indicates that
comfort stations were operated in extensive areas for
long periods, it is apparent that there existed a great
number of comfort women. Comfort stations were
operated in response to the request of the military
authorities of the day. The then Japanese military
was, directly or indirectly, involved in the
establishment and management of the comfort
stations and the transfer of comfort women. The
recruitment of the comfort women was conducted
mainly by private recruiters who acted in response to
the request of the military. The Government study has
revealed that in many cases they were recruited
against their own will, through coaxing coercion, etc.,
and that, at times, administrative/military personnel
directly took part in the recruitments. They lived in
misery at comfort stations under a coercive
atmosphere.
As to the origin of those comfort women who
were transferred to the war areas, excluding those
from Japan, those from the Korean Peninsula
accounted for a large part. The Korean Peninsula was
under Japanese rule in those days, and their
recruitment, transfer, control, etc., were conducted
generally against their will, through coaxing, coercion,
etc.

Undeniably, this was an act, with the

involvement of the military authorities of the day, that
severely injured the honor and dignity of many
women. The Government of Japan would like to take
this opportunity once again to extend its sincere
apologies and remorse to all those, irrespective of
place of origin, who suffered immeasurable pain and
incurable physical and psychological wounds as
comfort women.
It is incumbent upon us, the Government of
Japan, to continue to consider seriously, while
listening to the views of learned circles, how best we
can express this sentiment.
We shall face squarely the historical facts as
described above instead of evading them, and take
them to heart as lessons of history. We hereby
reiterated our firm determination never to repeat the
same mistake by forever engraving such issues in our
memories through the study and teaching of history.
As actions have been brought to court in
Japan and interests have been shown in this issue
outside Japan, the Government of Japan shall
continue to pay full attention to this matter, including
private researched related thereto.
b)
Prime Minister
Statement in 1994

Tomiichi

Murayamas

On the issue of wartime comfort women,

which seriously stained the honor and dignity of many
women, I would like to take this opportunity once
again to express my profound and sincere remorse
and apologies

c) Letters from the Prime Minister of Japan

to Individual Comfort Women
The issue of comfort women, with the
involvement of the Japanese military authorities at
that time, was a grave affront to the honor and dignity
of a large number of women.
As Prime Minister of Japan, I thus extend
anew my most sincere apologies and remorse to all
the women who endured immeasurable and painful
experiences and suffered incurable physical and
psychological wounds as comfort women.
I believe that our country, painfully aware of
its moral responsibilities, with feelings of apology and
remorse, should face up squarely to its past history
and accurately convey it to future generations.

d)
The Diet (Japanese
resolutions in 1995 and 2005

Parliament)

passed

Solemnly reflecting upon the many instances

of colonial rule and acts of aggression that occurred in
modern world history, and recognizing that Japan
carried out such acts in the past and inflicted suffering
on the people of other countries, especially in Asia,
the Members of this House hereby express deep
remorse. (Resolution of the House of Representatives
adopted on June 9, 1995)

e) Various Public Statements by Japanese

Prime Minister Shinzo Abe
I have talked about this matter in the Diet
sessions last year, and recently as well, and to the

press. I have been consistent. I will stand by the Kono

Statement. This is our consistent position. Further, we
have been apologizing sincerely to those who
suffered
immeasurable
pain
and
incurable
psychological wounds as comfort women. Former
Prime Ministers, including Prime Ministers Koizumi
and Hashimoto, have issued letters to the comfort
women. I would like to be clear that I carry the same
feeling. This has not changed even slightly. (Excerpt
from Remarks by Prime Minister Abe at an Interview
by NHK, March 11, 2007).
I am apologizing here and now. I am
apologizing as the Prime Minister and it is as stated in
the statement by the Chief Cabinet Secretary Kono.
(Excerpt from Remarks by Prime Minister Abe at the
Budget Committee, the House of Councilors, the Diet
of Japan, March 26, 2007).
I am deeply sympathetic to the former
comfort women who suffered hardships, and I have
expressed my apologies for the extremely agonizing
circumstances into which they were placed. (Excerpt
from Telephone Conference by Prime Minister Abe to
President George W. Bush, April 3, 2007).
I have to express sympathy from the bottom
of my heart to those people who were taken as
wartime comfort women. As a human being, I would
like to express my sympathies, and also as prime
minister of Japan I need to apologize to them. My
administration has been saying all along that we
continue to stand by the Kono Statement. We feel
responsible for having forced these women to go
through that hardship and pain as comfort women
under the circumstances at the time. (Excerpt from an
interview article "A Conversation with Shinzo Abe" by
the Washington Post, April 22, 2007).
x x x both personally and as Prime Minister
of Japan, my heart goes out in sympathy to all those
who suffered extreme hardships as comfort women;
and I expressed my apologies for the fact that they
were forced to endure such extreme and harsh
conditions. Human rights are violated in many parts of
the world during the 20th Century; therefore we must
work to make the 21st Century a wonderful century in
which no human rights are violated. And the
Government of Japan and I wish to make significant
contributions to that end. (Excerpt from Prime Minister
Abe's remarks at the Joint Press Availability after the
summit meeting at Camp David between Prime
Minister Abe and President Bush, April 27, 2007).
The Asian Women's Fund
Established by the Japanese government in 1995, the
AWF represented the government's concrete attempt
to address its moral responsibility by offering
monetary compensation to victims of the comfort
women system.xxviii The purpose of the AWF was to
show atonement of the Japanese people through
expressions of apology and remorse to the former
wartime comfort women, to restore their honor, and to
demonstrate Japans strong respect for women.10
The AWF announced three programs for
former comfort women who applied for assistance: (1)
an atonement fund paying 2 million (approximately

$20,000) to each woman; (2) medical and welfare

support programs, paying 2.5-3 million ($25,000$30,000) for each woman; and (3) a letter of apology
from the Japanese Prime Minister to each woman.
Funding for the program came from the Japanese
government and private donations from the Japanese
people. As of March 2006, the AWF provided 700
million (approximately $7 million) for these programs
in South Korea, Taiwan, and the Philippines; 380
million (approximately $3.8 million) in Indonesia; and
242 million (approximately $2.4 million) in the
Netherlands.
On January 15, 1997, the AWF and the
Philippine government signed a Memorandum of
Understanding for medical and welfare support
programs for former comfort women. Over the next
five years, these were implemented by the
Department of Social Welfare and Development.
Our Ruling
Stripped down to its essentials, the issue in this case
is whether the Executive Department committed
grave abuse of discretion in not espousing petitioners
claims for official apology and other forms of
reparations against Japan.

decision."xxxii The US Supreme Court has further

cautioned that decisions relating to foreign policy
are delicate, complex, and involve large elements of
prophecy. They are and should be undertaken only
by those directly responsible to the people whose
welfare they advance or imperil. They are decisions
of a kind for which the Judiciary has neither aptitude,
facilities nor responsibility.xxxiii

To be sure, not all cases implicating foreign

relations present political questions, and courts
certainly possess the authority to construe or
invalidate treaties and executive agreements.xxxiv
However, the question whether the Philippine
government should espouse claims of its nationals
against a foreign government is a foreign relations
matter, the authority for which is demonstrably
committed by our Constitution not to the courts but to
the political branches. In this case, the Executive
Department has already decided that it is to the best
interest of the country to waive all claims of its
nationals for reparations against Japan in the Treaty
of Peace of 1951. The wisdom of such decision is not
for the courts to question. Neither could petitioners
herein assail the said determination by the Executive
Department via the instant petition for certiorari.

The petition lacks merit.

From a Domestic Law Perspective, the Executive
Department has the exclusive prerogative to
determine whether to espouse petitioners claims
against Japan.

Baker v. Carrxxix remains the starting point for

analysis under the political question doctrine. There
the US Supreme Court explained that:
x x x Prominent on the surface of any case
held to involve a political question is found a textually
demonstrable constitutional commitment of the issue
to a coordinate political department or a lack of
judicially discoverable and manageable standards for
resolving it, or the impossibility of deciding without an
initial policy determination of a kind clearly for nonjudicial discretion; or the impossibility of a court's
undertaking
independent
resolution
without
expressing lack of the respect due coordinate
branches of government; or an unusual need for
unquestioning adherence to a political decision
already made; or the potentiality of embarrassment
from multifarious pronouncements by various
departments on question.

In Taada v. Cuenco,xxx we held that

political questions refer "to those questions which,
under the Constitution, are to be decided by the
people in their sovereign capacity, or in regard to
which full discretionary authority has been delegated
to the legislative or executive branch of the
government. It is concerned with issues dependent
upon the wisdom, not legality of a particular
measure."
Certain types of cases often have been
found to present political questions.xxxi One such
category involves questions of foreign relations. It is
well-established that "[t]he conduct of the foreign
relations of our government is committed by the
Constitution to the executive and legislative--'the
political'--departments of the government, and the
propriety of what may be done in the exercise of this
political power is not subject to judicial inquiry or

In the seminal case of US v. Curtiss-Wright

Export Corp.,xxxv the US Supreme Court held that
[t]he President is the sole organ of the nation in its
external relations, and its sole representative with
foreign relations.
It is quite apparent that if, in the maintenance
of our international relations, embarrassment -perhaps serious embarrassment -- is to be avoided
and success for our aims achieved, congressional
legislation which is to be made effective through
negotiation and inquiry within the international field
must often accord to the President a degree of
discretion and freedom from statutory restriction
which would not be admissible where domestic affairs
alone involved. Moreover, he, not Congress, has the
better opportunity of knowing the conditions which
prevail in foreign countries, and especially is this true
in time of war. He has his confidential sources of
information. He has his agents in the form of
diplomatic, consular and other officials. x x x

This ruling has been incorporated in our

jurisprudence through Bayan v.
Executive Secretaryxxxvi and Pimentel v. Executive
Secretary;xxxvii its overreaching principle was,
perhaps, best articulated in (now Chief) Justice
Punos dissent in Secretary of Justice v. Lantion:11
x x x The conduct of foreign relations is full of
complexities and consequences, sometimes with life
and death significance to the nation especially in
times of war. It can only be entrusted to that
department of government which can act on the basis
of the best available information and can decide with
decisiveness. x x x It is also the President who
possesses the most comprehensive and the most
confidential information about foreign countries for our
diplomatic and consular officials regularly brief him on
meaningful events all over the world. He has also

unlimited access to ultra-sensitive military intelligence

data. In fine, the presidential role in foreign affairs is
dominant and the President is traditionally accorded a
wider degree of discretion in the conduct of foreign
affairs. The regularity, nay, validity of his actions are
adjudged under less stringent standards, lest their
judicial repudiation lead to breach of an international
obligation, rupture of state relations, forfeiture of
confidence, national embarrassment and a plethora of
other
problems
with
equally
undesirable
consequences.

The Executive Department has determined

that taking up petitioners cause would be inimical to
our countrys foreign policy interests, and could
disrupt our relations with Japan, thereby creating
serious implications for stability in this region. For us
to overturn the Executive Departments determination
would mean an assessment of the foreign policy
judgments by a coordinate political branch to which
authority to make that judgment has been
constitutionally committed.
In any event, it cannot reasonably be
maintained that the Philippine government was
without authority to negotiate the Treaty of Peace with
Japan. And it is equally true that, since time
immemorial, when negotiating peace accords and
settling international claims:
x x x [g]overnments have dealt with x x x private
claims as their own, treating them as national assets,
and as counters, `chips', in international bargaining.
Settlement agreements have lumped, or linked,
claims deriving from private debts with others that
were intergovernmental in origin, and concessions in
regard to one category of claims might be set off
against concessions in the other, or against larger
political considerations unrelated to debts.xxxviii

Indeed, except as an agreement might

otherwise provide, international settlements generally
wipe out the underlying private claims, thereby
terminating any recourse under domestic law. In
Ware v. Hylton,xxxix a case brought by a British
subject to recover a debt confiscated by the
Commonwealth of Virginia during the war, Justice
Chase wrote:
I apprehend that the treaty of peace
abolishes the subject of the war, and that after peace
is concluded, neither the matter in dispute, nor the
conduct of either party, during the war, can ever be
revived, or brought into contest again. All violences,
injuries, or damages sustained by the government, or
people of either, during the war, are buried in oblivion;
and all those things are implied by the very treaty of
peace; and therefore not necessary to be expressed.
Hence it follows, that the restitution of, or
compensation for, British property confiscated, or
extinguished, during the war, by any of the United
States, could only be provided for by the treaty of
peace; and if there had been no provision, respecting
these subjects, in the treaty, they could not be
agitated after the treaty, by the British government,
much less by her subjects in courts of justice.
(Emphasis supplied).

This practice of settling claims by means

of a peace treaty is certainly
nothing new. For instance, in Dames & Moore v.
Regan,xl the US Supreme Court held:

Not infrequently in affairs between nations,

outstanding claims by nationals of one country
against the government of another country are
sources of friction between the two sovereigns.
United States v. Pink, 315 U.S. 203, 225, 62 S.Ct.
552, 563, 86 L.Ed. 796 (1942). To resolve these
difficulties, nations have often entered into
agreements settling the claims of their respective
nationals. As one treatise writer puts it, international
agreements settling claims by nationals of one state
against the government of another are established
international practice reflecting traditional international
theory. L. Henkin, Foreign Affairs and the
Constitution 262 (1972). Consistent with that principle,
the United States has repeatedly exercised its
sovereign authority to settle the claims of its nationals
against foreign countries. x x x
Under such
agreements, the President has agreed to renounce or
extinguish claims of United States nationals against
foreign governments in return for lump-sum payments
or the establishment of arbitration procedures. To be
sure, many of these settlements were encouraged by
the United States claimants themselves, since a
claimant's only hope of obtaining any payment at all
might lie in having his Government negotiate a
diplomatic settlement on his behalf. But it is also
undisputed that the United States has sometimes
disposed of the claims of its citizens without their
consent, or even without consultation with them,
usually without exclusive regard for their interests, as
distinguished from those of the nation as a whole.
Henkin, supra, at 262-263. Accord, Restatement
(Second) of Foreign Relations Law of the United
States 213 (1965) (President may waive or settle a
claim against a foreign state x x x [even] without the
consent of the [injured] national). It is clear that the
practice of settling claims continues today.

Respondents explain that the Allied Powers

concluded the Peace Treaty with Japan not
necessarily for the complete atonement of the
suffering caused by Japanese aggression during the
war, not for the payment of adequate reparations, but
for security purposes. The treaty sought to prevent
the spread of communism in Japan, which occupied a
strategic position in the Far East. Thus, the Peace
Treaty compromised individual claims in the collective
interest of the free world.
This was also the finding in a similar case
involving American victims of Japanese slave labor
during the war.xli In a consolidated case in the
Northern District of California,xlii the court dismissed
the lawsuits filed, relying on the 1951 peace treaty
with Japan,12 because of the following policy
considerations:
The official record of treaty negotiations
establishes that a fundamental goal of the agreement
was to settle the reparations issue once and for all. As
the statement of the chief United States negotiator,
John Foster Dulles, makes clear, it was well
understood that leaving open the possibility of
future claims would be an unacceptable
impediment to a lasting peace:
Reparation is usually the most controversial
aspect of peacemaking. The present peace is no
exception.

On the one hand, there are claims both vast

and just. Japan's aggression caused tremendous
cost, losses and suffering.
On the other hand, to meet these claims,
there stands a Japan presently reduced to four home
islands which are unable to produce the food its
people need to live, or the raw materials they need to
work. x x x
The policy of the United States that
Japanese liability for reparations should be sharply
limited was informed by the experience of six years of
United States-led occupation of Japan. During the
occupation the Supreme Commander of the Allied
Powers (SCAP) for the region, General Douglas
MacArthur,
confiscated Japanese
assets
in
conjunction with the task of managing the economic
affairs of the vanquished nation and with a view to
reparations payments. It soon became clear that
Japan's financial condition would render any
aggressive reparations plan an exercise in futility.
Meanwhile, the importance of a stable, democratic
Japan as a bulwark to communism in the region
increased. At the end of 1948, MacArthur expressed
the view that [t]he use of reparations as a weapon to
retard the reconstruction of a viable economy in
Japan should be combated with all possible means
and recommended that the reparations issue be
settled finally and without delay.
That this policy was embodied in the treaty is
clear not only from the negotiations history but also
from the Senate Foreign Relations Committee report
recommending approval of the treaty by the Senate.
The committee noted, for example:
Obviously insistence upon the payment of
reparations in any proportion commensurate with the
claims of the injured countries and their nationals
would wreck Japan's economy, dissipate any credit
that it may possess at present, destroy the initiative of
its people, and create misery and chaos in which the
seeds of discontent and communism would flourish.
In short, [it] would be contrary to the basic purposes
and policy of x x x the United States x x x.

We thus hold that, from a municipal law

perspective, that certiorari will not lie. As a general
principle and particularly here, where such an
extraordinary length of time has lapsed between the
treatys conclusion and our consideration the
Executive must be given ample discretion to assess
the foreign policy considerations of espousing a claim
against Japan, from the standpoint of both the
interests of the petitioners and those of the Republic,
and decide on that basis if apologies are sufficient,
and whether further steps are appropriate or
necessary.
The Philippines is not under any international
obligation to espouse petitioners claims.

In the international sphere, traditionally, the

only means available for individuals to bring a claim
within the international legal system has been when
the individual is able to persuade a government to
bring a claim on the individuals behalf.xliii Even then,
it is not the individuals rights that are being asserted,
but rather, the states own rights. Nowhere is this
position more clearly reflected than in the dictum of
the Permanent Court of International Justice (PCIJ) in
the 1924 Mavrommatis Palestine Concessions Case:

By taking up the case of one of its subjects

and by resorting to diplomatic action or international
judicial proceedings on his behalf, a State is in reality
asserting its own right to ensure, in the person of its
subjects, respect for the rules of international law. The
question, therefore, whether the present dispute
originates in an injury to a private interest, which in
point of fact is the case in many international
disputes, is irrelevant from this standpoint. Once a
State has taken up a case on behalf of one of its
subjects before an international tribunal, in the eyes of
the latter the State is sole claimant.xliv
Since the exercise of diplomatic protection is the right
of the State, reliance on the right is within the
absolute discretion of states, and the decision
whether to exercise the discretion may invariably be
influenced by political considerations other than the
legal merits of the particular claim.xlv
As clearly
stated by the ICJ in
Barcelona Traction:
The Court would here observe that, within
the limits prescribed by international law, a State may
exercise diplomatic protection by whatever means
and to whatever extent it thinks fit, for it is its own
right that the State is asserting. Should the
natural or legal person on whose behalf it is
acting consider that their rights are not
adequately protected, they have no remedy in
international law. All they can do is resort to national
law, if means are available, with a view to furthering
their cause or obtaining redress. The municipal
legislator may lay upon the State an obligation to
protect its citizens abroad, and may also confer upon
the national a right to demand the performance of that
obligation, and clothe the right with corresponding
sanctions. However, all these questions remain within
the province of municipal law and do not affect the
position internationally.xlvi (Emphasis supplied)

The State, therefore, is the sole judge to decide

whether its protection will be granted, to what extent it
is granted, and when will it cease. It retains, in this
respect, a discretionary power the exercise of which
may be determined by considerations of a political or
other nature, unrelated to the particular case.
The International Law Commissions (ILCs) Draft
Articles on Diplomatic Protection fully support this
traditional view. They (i) state that "the right of
diplomatic protection belongs to or vests in the
State,xlvii (ii) affirm its discretionary nature by
clarifying that diplomatic protection is a "sovereign
prerogative" of the State;xlviii and (iii) stress that the
state "has the right to exercise diplomatic protection
on behalf of a national. It is under no duty or
obligation to do so."xlix
It has been argued, as petitioners argue now, that the
State has a duty to protect its nationals and act on
his/her behalf when rights are injured.l However, at
present, there is no sufficient evidence to establish a
general international obligation for States to exercise
diplomatic protection of their own nationals abroad.li
Though, perhaps desirable, neither state practice nor
opinio juris has evolved in such a direction. If it is a
duty internationally, it is only a moral and not a legal
duty, and there is no means of enforcing its
fulfillment.lii
We fully agree that rape, sexual slavery,
torture, and sexual violence are morally reprehensible
as well as legally prohibited under contemporary
international law.liii However, petitioners take quite a

theoretical leap in claiming that these proscriptions

automatically imply that that the Philippines is under a
non-derogable obligation to prosecute international
crimes, particularly since petitioners do not demand
the imputation of individual criminal liability, but seek
to recover monetary reparations from the state of
Japan. Absent the consent of states, an applicable
treaty regime, or a directive by the Security Council,
there is no non-derogable duty to institute
proceedings against Japan. Indeed, precisely
because of states reluctance to directly prosecute
claims against another state, recent developments
support the modern trend to empower individuals to
directly participate in suits against perpetrators of
international crimes.liv Nonetheless, notwithstanding
an array of General Assembly resolutions calling for
the prosecution of crimes against humanity and the
strong policy arguments warranting such a rule, the
practice of states does not yet support the present
existence of an obligation to prosecute international
crimes.lv Of course a customary duty of prosecution
is ideal, but we cannot find enough evidence to
reasonably assert its existence. To the extent that
any state practice in this area is widespread, it is in
the practice of granting amnesties, immunity,
selective prosecution, or de facto impunity to those
who commit crimes against humanity.13
Even the invocation of jus cogens norms and
erga omnes obligations will not alter this analysis.
Even if we sidestep the question of whether jus
cogens norms existed in 1951, petitioners have not
deigned to show that the crimes committed by the
Japanese army violated jus cogens prohibitions at the
time the Treaty of Peace was signed, or that the duty
to prosecute perpetrators of international crimes is an
erga omnes obligation or has attained the status of
jus cogens.
The term erga omnes (Latin: in relation to
everyone) in international law has been used as a
legal term describing obligations owed by States
towards the community of states as a whole. The
concept was recognized by the ICJ in Barcelona
Traction:
x x x an essential distinction should be drawn
between the obligations of a State towards the
international community as a whole, and those arising
vis--vis another State in the field of diplomatic
protection. By their very nature, the former are the
concern of all States. In view of the importance of the
rights involved, all States can be held to have a legal
interest in their protection; they are obligations erga
omnes.
Such obligations derive, for example, in
contemporary international law, from the outlawing of
acts of aggression, and of genocide, as also from the
principles and rules concerning the basic rights of the
human person, including protection from slavery and
racial discrimination. Some of the corresponding
rights of protection have entered into the body of
general international law others are conferred by
international instruments of a universal or quasiuniversal character.
The Latin phrase, erga omnes, has since
become one of the rallying cries of those sharing a

belief in the emergence of a value-based international

public order. However, as is so often the case, the
reality is neither so clear nor so bright. Whatever the
relevance of obligations erga omnes as a legal
concept, its full potential remains to be realized in
practice.lvi
The term is closely connected with the
international law concept of jus cogens. In
international law, the term jus cogens (literally,
compelling law) refers to norms that command
peremptory authority, superseding conflicting treaties
and custom. Jus cogens norms are considered
peremptory in the sense that they are mandatory, do
not admit derogation, and can be modified only by
general international norms of equivalent authority.lvii
Early strains of the jus cogens doctrine have
existed since the 1700s,lviii but peremptory norms
began to attract greater scholarly attention with the
publication of Alfred von Verdross's influential 1937
article, Forbidden Treaties in International Law.lix
The recognition of jus cogens gained even more force
in the 1950s and 1960s with the ILCs preparation of
the Vienna Convention on the Law of Treaties
(VCLT).lx Though there was a consensus that certain
international norms had attained the status of jus
cogens,lxi the ILC was unable to reach a consensus
on the proper criteria for identifying peremptory
norms.
After an extended debate over these and
other theories of jus cogens, the ILC concluded
ruefully in 1963 that there is not as yet any generally
accepted criterion by which to identify a general rule
of international law as having the character of jus
cogens.lxii In a commentary accompanying the draft
convention, the ILC indicated that the prudent course
seems to be to x x x leave the full content of this rule
to be worked out in State practice and in the
jurisprudence of international tribunals.lxiii Thus,
while the existence of jus cogens in international law
is undisputed, no consensus exists on its
substance,lxiv beyond a tiny core of principles and
rules.lxv
Of course, we greatly sympathize with the cause of
petitioners, and we cannot begin to comprehend the
unimaginable horror they underwent at the hands of
the Japanese soldiers.
We are also deeply
concerned that, in apparent contravention of
fundamental principles of law, the petitioners appear
to be without a remedy to challenge those that have
offended them before appropriate fora. Needless to
say, our government should take the lead in
protecting its citizens against violation of their
fundamental human rights. Regrettably, it is not
within our power to order the Executive Department
to take up the petitioners cause. Ours is only the
power to urge and exhort the Executive Department
to take up petitioners cause.
WHEREFORE, the Petition is hereby DISMISSED.
SO ORDERED.

VINUYA VS. SEC. ROMULO Leave a comment

ISABELITA C. VINUYA, VICTORIA C. DELA
PEA, HERMINIHILDA, MANIMBO, LEONOR H.
SUMAWANG, CANDELARIA L. SOLIMAN, MARIA
L. QUILANTANG, MARIA L. MAGISA, NATALIA
M. ALONZO, LOURDES M. NAVARO, FRANCISCA
M. ATENCIO, ERLINDA MANALASTAS, TARCILA

M. SAMPANG, ESTER M. PALACIO MAXIMA R.

DELA CRUZ, BELEN A. SAGUM, FELICIDAD
TURLA, FLORENCIA M. DELA PEA, FRANCIA A.
BUCO, PASTORA C. GUEVARRA, VICTORIA M.
DELA CRUZ, PETRONILA O. DELA CRUZ,
ZENAIDA P. DELA CRUZ, CORAZON M. SUBA,
EMERINCIANA A. VINUYA, LYDIA A. SANCHEZ,
ROSALINA M.BUCO, PATRICIA A. ERNARDO,
LUCILA H. PAYAWAL, MAGDALENA LIWAG,
ESTER C. BALINGIT, JOVITA A. DAVID, EMILIA
C.
MANGILIT,
VERGINIA
M.
BANGIT,
GUILLERMA
S.
BALINGIT,
TERECITA
PANGILINAN,
MAMERTA
C.
PUNO,
CRISENCIANA C. GULAPA, SEFERINA S. TURLA,
MAXIMA B. TURLA, LEONICIA G. GUEVARRA,
ROSALINA M. CULALA, CATALINA Y. MANIO,
MAMERTA T. SAGUM, CARIDAD L. TURLA, et al.
In their capacity and as members of the Malaya Lolas
Organization,
versus THE HONORABLE EXECUTIVE SECRETARY
ALBERTO G. ROMULO, THE HONORABLE
SECRETARY OF FOREIGNAFFAIRS DELIA
DOMINGO-ALBERT,
THE
HONORABLE
SECRETARY OF JUSTICE MERCEDITAS N.
GUTIERREZ, and THE HONORABLE SOLICITOR
GENERAL ALFREDO L. BENIPAYO
G.R. No. 162230, April 28, 2010
FACTS:
This is an original Petition for Certiorari under Rule 65 of
the Rules of Court with an application for the issuance of a
writ of preliminary mandatory injunction against the Office
of the Executive Secretary, the Secretary of the DFA, the
Secretary of the DOJ, and the OSG.
Petitioners are all members of the MALAYA LOLAS, a
non-stock, non-profit organization registered with the SEC,
established for the purpose of providing aid to the victims
of rape by Japanese military forces in the Philippines
during the Second World War.
Petitioners claim that since 1998, they have approached the
Executive Department through the DOJ, DFA, and OSG,
requesting assistance in filing a claim against the Japanese
officials and military officers who ordered the
establishment of the comfort women stations in the
Philippines. But officials of the Executive Department
declined to assist the petitioners, and took the position that
the individual claims of the comfort women for
compensation had already been fully satisfied by Japans
compliance with the Peace Treaty between the Philippines
and Japan.
Hence, this petition where petitioners pray for this court to
(a) declare that respondents committed grave abuse of
discretion amounting to lack or excess of discretion in
refusing to espouse their claims for the crimes against
humanity and war crimes committed against them; and (b)
compel the respondents to espouse their claims for official
apology and other forms of reparations against Japan before
the International Court of Justice (ICJ) and other
international tribunals.
Respondents maintain that all claims of the Philippines and
its nationals relative to the war were dealt with in the San
Francisco Peace Treaty of 1951 and the bilateral
Reparations Agreement of 1956.

On January 15, 1997, the Asian Womens Fund and the

Philippine government signed a Memorandum of
Understanding for medical and welfare support programs
for former comfort women. Over the next five years, these
were implemented by the Department of Social Welfare
and Development.
ISSUE:
WON the Executive Department committed grave abuse of
discretion in not espousing petitioners claims for official
apology and other forms of reparations against Japan.
RULING:
Petition lacks merit. From a Domestic Law Perspective, the
Executive Department has the exclusive prerogative to
determine whether to espouse petitioners claims against
Japan.
Political questions refer to those questions which, under
the Constitution, are to be decided by the people in their
sovereign capacity, or in regard to which full discretionary
authority has been delegated to the legislative or executive
branch of the government. It is concerned with issues
dependent upon the wisdom, not legality of a particular
measure.
One type of case of political questions involves questions
of foreign relations. It is well-established that the conduct
of the foreign relations of our government is committed by
the Constitution to the executive and legislativethe
politicaldepartments of the government, and the propriety
of what may be done in the exercise of this political power
is not subject to judicial inquiry or decision. are delicate,
complex, and involve large elements of prophecy. They are
and should be undertaken only by those directly responsible
to the people whose welfare they advance or imperil.
But not all cases implicating foreign relations present
political questions, and courts certainly possess the
authority to construe or invalidate treaties and executive
agreements. However, the question whether the Philippine
government should espouse claims of its nationals against a
foreign government is a foreign relations matter, the
authority for which is demonstrably committed by our
Constitution not to the courts but to the political branches.
In this case, the Executive Department has already decided
that it is to the best interest of the country to waive all
claims of its nationals for reparations against Japan in the
Treaty of Peace of 1951. The wisdom of such decision is
not for the courts to question.
The President, not Congress, has the better opportunity of
knowing the conditions which prevail in foreign countries,
and especially is this true in time of war. He has his
confidential sources of information. He has his agents in
the form of diplomatic, consular and other officials.
The Executive Department has determined that taking up
petitioners cause would be inimical to our countrys
foreign policy interests, and could disrupt our relations with
Japan, thereby creating serious implications for stability in
this region. For the to overturn the Executive Departments
determination would mean an assessment of the foreign
policy judgments by a coordinate political branch to which
authority to make that judgment has been constitutionally
committed.
From a municipal law perspective, certiorari will not lie. As
a general principle, where such an extraordinary length of

time has lapsed between the treatys conclusion and our

consideration the Executive must be given ample
discretion to assess the foreign policy considerations of
espousing a claim against Japan, from the standpoint of
both the interests of the petitioners and those of the
Republic, and decide on that basis if apologies are
sufficient, and whether further steps are appropriate or
necessary.
In the international sphere, traditionally, the only means
available for individuals to bring a claim within the
international legal system has been when the individual is
able to persuade a government to bring a claim on the
individuals behalf. By taking up the case of one of its
subjects and by resorting to diplomatic action or
international judicial proceedings on his behalf, a State is in
reality asserting its own right to ensure, in the person of its
subjects, respect for the rules of international law.
Within the limits prescribed by international law, a State
may exercise diplomatic protection by whatever means and
to whatever extent it thinks fit, for it is its own right that the
State is asserting. Should the natural or legal person on
whose behalf it is acting consider that their rights are not
adequately protected, they have no remedy in international
law. All they can do is resort to national law, if means are
available, with a view to furthering their cause or obtaining
redress. All these questions remain within the province of
municipal law and do not affect the position internationally.
Even the invocation of jus cogens norms and erga omnes
obligations will not alter this analysis. Petitioners have not
shown that the crimes committed by the Japanese army
violated jus cogens prohibitions at the time the Treaty of
Peace was signed, or that the duty to prosecute perpetrators
of international crimes is an erga omnes obligation or has
attained the status of jus cogens.

EN BANC
[G.R. No. 138570. October 10, 2000]
BAYAN (Bagong Alyansang Makabayan), a JUNK
VFA MOVEMENT, BISHOP TOMAS MILLAMENA
(Iglesia Filipina Independiente), BISHOP ELMER
BOLOCAN (United Church of Christ of the Phil.), DR.
REYNALDO
LEGASCA,
MD,
KILUSANG
MAMBUBUKID NG PILIPINAS, KILUSANG MAYO
UNO, GABRIELA, PROLABOR, and the PUBLIC
INTEREST
LAW
CENTER,
petitioners,
vs.
EXECUTIVE SECRETARY RONALDO ZAMORA,
FOREIGN AFFAIRS SECRETARY DOMINGO
SIAZON, DEFENSE SECRETARY ORLANDO
MERCADO, BRIG. GEN. ALEXANDER AGUIRRE,
SENATE
PRESIDENT
MARCELO
FERNAN,
SENATOR FRANKLIN DRILON, SENATOR BLAS
OPLE, SENATOR RODOLFO BIAZON, and
SENATOR FRANCISCO TATAD, respondents.
[G.R. No. 138572. October 10, 2000]
PHILIPPINE
CONSTITUTION
ASSOCIATION,
INC.(PHILCONSA),
EXEQUIEL
B.
GARCIA,
AMADOGAT INCIONG, CAMILO L. SABIO, AND
RAMON A. GONZALES, petitioners, vs. HON.
RONALDO B. ZAMORA, as Executive Secretary,
HON. ORLANDO MERCADO, as Secretary of
National Defense, and HON. DOMINGO L. SIAZON,
JR., as Secretary of Foreign Affairs, respondents.
[G.R. No. 138587. October 10, 2000]

The term erga omnes (Latin: in relation to everyone) in

international law has been used as a legal term describing
obligations owed by States towards the community of states
as a whole. Essential distinction should be drawn between
the obligations of a State towards the international
community as a whole, and those arising vis--vis another
State in the field of diplomatic protection. By their very
nature, the former are the concern of all States. In view of
the importance of the rights involved, all States can be held
to have a legal interest in their protection; they are
obligations erga omnes.
The term jus cogens (literally, compelling law) refers
to norms that command peremptory authority, superseding
conflicting treaties and custom. Jus cogens norms are
considered peremptory in the sense that they are
mandatory, do not admit derogation, and can be modified
only by general international norms of equivalent authority

TEOFISTO T. GUINGONA, JR., RAUL S. ROCO, and

SERGIO R. OSMEA III, petitioners, vs. JOSEPH E.
ESTRADA, RONALDO B. ZAMORA, DOMINGO L.
SIAZON, JR., ORLANDO B. MERCADO, MARCELO
B. FERNAN, FRANKLIN M. DRILON, BLAS F. OPLE
and RODOLFO G. BIAZON, respondents.
[G.R. No. 138680. October 10, 2000]
INTEGRATED BAR OF THE PHILIPPINES,
Represented by its National President, Jose Aguila
Grapilon, petitioners, vs. JOSEPH EJERCITO
ESTRADA, in his capacity as President, Republic of
the Philippines, and HON. DOMINGO SIAZON, in his
capacity as Secretary of Foreign Affairs, respondents.
[G.R. No. 138698. October 10, 2000]

WHEREFORE, the Petition is hereby DISMISSED.

------------------------------------------------------------------------------

JOVITO R. SALONGA, WIGBERTO TAADA,

ZENAIDA
QUEZON-AVENCEA,
ROLANDO
SIMBULAN, PABLITO V. SANIDAD, MA. SOCORRO
I. DIOKNO, AGAPITO A. AQUINO, JOKER P.
ARROYO, FRANCISCO C. RIVERA JR., RENE A.V.
SAGUISAG,
KILOSBAYAN,
MOVEMENT
OF
ATTORNEYS FOR BROTHERHOOD, INTEGRITY
AND NATIONALISM, INC. (MABINI), petitioners, vs.
THE EXECUTIVE SECRETARY, THE SECRETARY
OF FOREIGN AFFAIRS, THE SECRETARY OF
NATIONAL DEFENSE, SENATE PRESIDENT
MARCELO B. FERNAN, SENATOR BLAS F. OPLE,
SENATOR RODOLFO G. BIAZON, AND ALL OTHER

PERSONS
ACTING
THEIR
CONTROL,
SUPERVISION, DIRECTION, AND INSTRUCTION IN
RELATION
TO
THE
VISITING
FORCES
AGREEMENT (VFA), respondents.
DECISION
BUENA, J.:
Confronting the Court for resolution in the instant
consolidated petitions for certiorari and prohibition are
issues relating to, and borne by, an agreement forged
in the turn of the last century between the Republic of
the Philippines and the United States of America -the
Visiting Forces Agreement.
The antecedents unfold.
On March 14, 1947, the Philippines and the United
States of America forged a Military Bases Agreement
which formalized, among others, the use of
installations in the Philippine territory by United States
military personnel. To further strengthen their defense
and security relationship, the Philippines and the
United States entered into a Mutual Defense Treaty
on August 30, 1951. Under the treaty, the parties
agreed to respond to any external armed attack on
their territory, armed forces, public vessels, and
v
aircraft.
In view of the impending expiration of the RP-US
Military Bases Agreement in 1991, the Philippines and
the United States negotiated for a possible extension
of the military bases agreement. On September 16,
1991, the Philippine Senate rejected the proposed
RP-US Treaty of Friendship, Cooperation and
Security which, in effect, would have extended the
v
presence of US military bases in the Philippines.
With the expiration of the RP-US Military Bases
Agreement, the periodic military exercises conducted
between the two countries were held in abeyance.
Notwithstanding, the defense and security relationship
between the Philippines and the United States of
America continued pursuant to the Mutual Defense
Treaty.
On July 18, 1997, the United States panel, headed by
US Defense Deputy Assistant Secretary for Asia
Pacific Kurt Campbell, met with the Philippine panel,
headed by Foreign Affairs Undersecretary Rodolfo
Severino Jr., to exchange notes on the
complementing strategic interests of the United States
and the Philippines in the Asia-Pacific region. Both
sides discussed, among other things, the possible
elements of the Visiting Forces Agreement (VFA for
brevity). Negotiations by both panels on the VFA led
to a consolidated draft text, which in turn resulted to a
v
final series of conferences and negotiations that
culminated in Manila on January 12 and 13, 1998.
Thereafter, then President Fidel V. Ramos approved
the VFA, which was respectively signed by public
respondent Secretary Siazon and Unites States
Ambassador Thomas Hubbard on February 10, 1998.

On October 5, 1998, President Joseph E. Estrada,

through respondent Secretary of Foreign Affairs,
v
ratified the VFA.
On October 6, 1998, the President, acting through
respondent Executive Secretary Ronaldo Zamora,
v
officially transmitted to the Senate of the Philippines,
the Instrument of Ratification, the letter of the
v
President and the VFA, for concurrence pursuant to
Section 21, Article VII of the 1987 Constitution. The
Senate, in turn, referred the VFA to its Committee on
Foreign Relations, chaired by Senator Blas F. Ople,
and its Committee on National Defense and Security,
chaired by Senator Rodolfo G. Biazon, for their joint
consideration and recommendation. Thereafter, joint
v
public hearings were held by the two Committees.
On May 3, 1999, the Committees submitted Proposed
v
Senate Resolution No. 443 recommending the
concurrence of the Senate to the VFA and the
creation of a Legislative Oversight Committee to
oversee its implementation. Debates then ensued.
On May 27, 1999, Proposed Senate Resolution No.
443 was approved by the Senate, by a two-thirds
v
(2/3) vote of its members. Senate Resolution No. 443
v
was then re-numbered as Senate Resolution No. 18.
On June 1, 1999, the VFA officially entered into force
after an Exchange of Notes between respondent
Secretary Siazon and United States Ambassador
Hubbard.
The VFA, which consists of a Preamble and nine (9)
Articles, provides for the mechanism for regulating the
circumstances and conditions under which US Armed
Forces and defense personnel may be present in the
Philippines, and is quoted in its full text, hereunder:
Article I
Definitions
As used in this Agreement, United States personnel
means United States military and civilian personnel
temporarily in the Philippines in connection with
activities approved by the Philippine Government.
Within this definition:
1.
The term military personnel refers to military
members of the United States Army, Navy, Marine
Corps, Air Force, and Coast Guard.
2.
The term civilian personnel refers to
individuals who are neither nationals of, nor ordinary
residents in the Philippines and who are employed by
the United States armed forces or who are
accompanying the United States armed forces, such
as employees of the American Red Cross and the
United Services Organization.
Article II
Respect for Law

It is the duty of the United States personnel to

respect the laws of the Republic of the Philippines
and to abstain from any activity inconsistent with the
spirit of this agreement, and, in particular, from any
political activity in the Philippines. The Government of
the United States shall take all measures within its
authority to ensure that this is done.

appropriate United States authority to United States

personnel for the operation of military or official
vehicles.

Article III

Article V

Entry and Departure

Criminal Jurisdiction

1.
The Government of the Philippines shall
facilitate the admission of United States personnel
and their departure from the Philippines in connection
with activities covered by this agreement.

1.

2.
United States military personnel shall be
exempt from passport and visa regulations upon
entering and departing the Philippines.
3. The following documents only, which shall be
presented on demand, shall be required in respect of
United States military personnel who enter the
Philippines:
(a) personal identity card issued by the appropriate
United States authority showing full name, date of
birth, rank or grade and service number (if any),
branch of service and photograph;
(b) individual or collective document issued by the
appropriate United States authority, authorizing the
travel or visit and identifying the individual or group as
United States military personnel; and
(c) the commanding officer of a military aircraft or
vessel shall present a declaration of health, and when
required by the cognizant representative of the
Government of the Philippines, shall conduct a
quarantine inspection and will certify that the aircraft
or vessel is free from quarantinable diseases. Any
quarantine inspection of United States aircraft or
United States vessels or cargoes thereon shall be
conducted by the United States commanding officer in
accordance with the international health regulations
as promulgated by the World Health Organization,
and mutually agreed procedures.
4. United States civilian personnel shall be exempt
from visa requirements but shall present, upon
demand, valid passports upon entry and departure of
the Philippines.
5. If the Government of the Philippines has requested
the removal of any United States personnel from its
territory, the United States authorities shall be
responsible for receiving the person concerned within
its own territory or otherwise disposing of said person
outside of the Philippines.
Article IV
Driving and Vehicle Registration
1. Philippine authorities shall accept as valid, without
test or fee, a driving permit or license issued by the

2. Vehicles owned by the Government of the United

States need not be registered, but shall have
appropriate markings.

Subject to the provisions of this article:

(a) Philippine authorities shall have jurisdiction over

United States personnel with respect to offenses
committed within the Philippines and punishable
under the law of the Philippines.
(b) United States military authorities shall have the
right to exercise within the Philippines all criminal and
disciplinary jurisdiction conferred on them by the
military law of the United States over United States
personnel in the Philippines.
2. (a) Philippine authorities exercise exclusive
jurisdiction over United States personnel with respect
to offenses, including offenses relating to the security
of the Philippines, punishable under the laws of the
Philippines, but not under the laws of the United
States.
(b)
United States authorities exercise exclusive
jurisdiction over United States personnel with respect
to offenses, including offenses relating to the security
of the United States, punishable under the laws of the
United States, but not under the laws of the
Philippines.
(c)
For the purposes of this paragraph and
paragraph 3 of this article, an offense relating to
security means:
(1)

treason;

(2)
sabotage, espionage or violation of any law
relating to national defense.
3.
In cases where the right to exercise
jurisdiction is concurrent, the following rules shall
apply:
(a) Philippine authorities shall have the primary right
to exercise jurisdiction over all offenses committed by
United States personnel, except in cases provided for
in paragraphs 1(b), 2 (b), and 3 (b) of this Article.
(b) United States military authorities shall have the
primary right to exercise jurisdiction over United
States personnel subject to the military law of the
United States in relation to.
(1) offenses solely against the property or security of
the United States or offenses solely against the
property or person of United States personnel; and
(2) offenses arising out of any act or omission done in
performance of official duty.

(c) The authorities of either government may request

the authorities of the other government to waive their
primary right to exercise jurisdiction in a particular
case.
(d) Recognizing the responsibility of the United States
military authorities to maintain good order and
discipline among their forces, Philippine authorities
will, upon request by the United States, waive their
primary right to exercise jurisdiction except in cases of
particular importance to the Philippines. If the
Government of the Philippines determines that the
case is of particular importance, it shall communicate
such determination to the United States authorities
within twenty (20) days after the Philippine authorities
receive the United States request.
(e) When the United States military commander
determines that an offense charged by authorities of
the Philippines against United states personnel arises
out of an act or omission done in the performance of
official duty, the commander will issue a certificate
setting forth such determination. This certificate will
be transmitted to the appropriate authorities of the
Philippines and will constitute sufficient proof of
performance of official duty for the purposes of
paragraph 3(b)(2) of this Article. In those cases where
the Government of the Philippines believes the
circumstances of the case require a review of the duty
certificate, United States military authorities and
Philippine authorities shall consult immediately.
Philippine authorities at the highest levels may also
present any information bearing on its validity. United
States military authorities shall take full account of the
Philippine position. Where appropriate, United States
military authorities will take disciplinary or other action
against offenders in official duty cases, and notify the
Government of the Philippines of the actions taken.
(f) If the government having the primary right does not
exercise jurisdiction, it shall notify the authorities of
the other government as soon as possible.
(g) The authorities of the Philippines and the United
States shall notify each other of the disposition of all
cases in which both the authorities of the Philippines
and the United States have the right to exercise
jurisdiction.
4. Within the scope of their legal competence, the
authorities of the Philippines and United States shall
assist each other in the arrest of United States
personnel in the Philippines and in handling them
over to authorities who are to exercise jurisdiction in
accordance with the provisions of this article.
5. United States military authorities shall promptly
notify Philippine authorities of the arrest or detention
of United States personnel who are subject of
Philippine primary or exclusive jurisdiction. Philippine
authorities shall promptly notify United States military
authorities of the arrest or detention of any United
States personnel.
6. The custody of any United States personnel over
whom the Philippines is to exercise jurisdiction shall

immediately reside with United States military

authorities, if they so request, from the commission of
the offense until completion of all judicial proceedings.
United States military authorities shall, upon formal
notification by the Philippine authorities and without
delay, make such personnel available to those
authorities in time for any investigative or judicial
proceedings relating to the offense with which the
person has been charged in extraordinary cases, the
Philippine Government shall present its position to the
United States Government regarding custody, which
the United States Government shall take into full
account. In the event Philippine judicial proceedings
are not completed within one year, the United States
shall be relieved of any obligations under this
paragraph. The one-year period will not include the
time necessary to appeal. Also, the one-year period
will not include any time during which scheduled trial
procedures are delayed because United States
authorities, after timely notification by Philippine
authorities to arrange for the presence of the
accused, fail to do so.
7.
Within the scope of their legal authority,
United States and Philippine authorities shall assist
each other in the carrying out of all necessary
investigation into offenses and shall cooperate in
providing for the attendance of witnesses and in the
collection and production of evidence, including
seizure and, in proper cases, the delivery of objects
connected with an offense.
8.
When United States personnel have been
tried in accordance with the provisions of this Article
and have been acquitted or have been convicted and
are serving, or have served their sentence, or have
had their sentence remitted or suspended, or have
been pardoned, they may not be tried again for the
same offense in the Philippines. Nothing in this
paragraph, however, shall prevent United States
military authorities from trying United States
personnel for any violation of rules of discipline arising
from the act or omission which constituted an offense
for which they were tried by Philippine authorities.
9.
When United States personnel are detained,
taken into custody, or prosecuted by Philippine
authorities, they shall be accorded all procedural
safeguards established by the law of the Philippines.
At the minimum, United States personnel shall be
entitled:
(a)

To a prompt and speedy trial;

(b)
To be informed in advance of trial of the
specific charge or charges made against them and to
have reasonable time to prepare a defense;
(c)
To be confronted with witnesses against
them and to cross examine such witnesses;
(d)
To present evidence in their defense and to
have compulsory process for obtaining witnesses;

(e)
To have free and assisted legal
representation of their own choice on the same basis
as nationals of the Philippines;
(f)
To have
interpreter; and

the

service

of

competent

(g)
To communicate promptly with and to be
visited regularly by United States authorities, and to
have such authorities present at all judicial
proceedings. These proceedings shall be public
unless the court, in accordance with Philippine laws,
excludes persons who have no role in the
proceedings.
10. The confinement or detention by Philippine
authorities of United States personnel shall be carried
out in facilities agreed on by appropriate Philippine
and United States authorities. United States
Personnel serving sentences in the Philippines shall
have the right to visits and material assistance.
11. United States personnel shall be subject to trial
only in Philippine courts of ordinary jurisdiction, and
shall not be subject to the jurisdiction of Philippine
military or religious courts.
Article VI
Claims
1. Except for contractual arrangements, including
United States foreign military sales letters of offer and
acceptance and leases of military equipment, both
governments waive any and all claims against each
other for damage, loss or destruction to property of
each others armed forces or for death or injury to
their military and civilian personnel arising from
activities to which this agreement applies.
2. For claims against the United States, other than
contractual claims and those to which paragraph 1
applies, the United States Government, in accordance
with United States law regarding foreign claims, will
pay just and reasonable compensation in settlement
of meritorious claims for damage, loss, personal injury
or death, caused by acts or omissions of United
States personnel, or otherwise incident to the noncombat activities of the United States forces.
Article VII
Importation and Exportation
1. United States Government equipment, materials,
supplies, and other property imported into or acquired
in the Philippines by or on behalf of the United States
armed forces in connection with activities to which this
agreement applies, shall be free of all Philippine
duties, taxes and other similar charges. Title to such
property shall remain with the United States, which
may remove such property from the Philippines at any
time, free from export duties, taxes, and other similar
charges. The exemptions provided in this paragraph
shall also extend to any duty, tax, or other similar
charges which would otherwise be assessed upon
such property after importation into, or acquisition

within, the Philippines. Such property may be

removed from the Philippines, or disposed of therein,
provided that disposition of such property in the
Philippines to persons or entities not entitled to
exemption from applicable taxes and duties shall be
subject to payment of such taxes, and duties and prior
approval of the Philippine Government.
2. Reasonable quantities of personal baggage,
personal effects, and other property for the personal
use of United States personnel may be imported into
and used in the Philippines free of all duties, taxes
and other similar charges during the period of their
temporary stay in the Philippines. Transfers to
persons or entities in the Philippines not entitled to
import privileges may only be made upon prior
approval of the appropriate Philippine authorities
including payment by the recipient of applicable duties
and taxes imposed in accordance with the laws of the
Philippines. The exportation of such property and of
property acquired in the Philippines by United States
personnel shall be free of all Philippine duties, taxes,
and other similar charges.
Article VIII
Movement of Vessels and Aircraft
1.
Aircraft operated by or for the United States
armed forces may enter the Philippines upon approval
of the Government of the Philippines in accordance
with
procedures
stipulated
in
implementing
arrangements.
2. Vessels operated by or for the United States
armed forces may enter the Philippines upon approval
of the Government of the Philippines. The movement
of vessels shall be in accordance with international
custom and practice governing such vessels, and
such agreed implementing arrangements as
necessary.
3. Vehicles, vessels, and aircraft operated by or for
the United States armed forces shall not be subject to
the payment of landing or port fees, navigation or over
flight charges, or tolls or other use charges, including
light and harbor dues, while in the Philippines. Aircraft
operated by or for the United States armed forces
shall observe local air traffic control regulations while
in the Philippines. Vessels owned or operated by the
United States solely on United States Government
non-commercial service shall not be subject to
compulsory pilotage at Philippine ports.
Article IX
Duration and Termination
This agreement shall enter into force on the date on
which the parties have notified each other in writing
through the diplomatic channel that they have
completed their constitutional requirements for entry
into force. This agreement shall remain in force until
the expiration of 180 days from the date on which
either party gives the other party notice in writing that
it desires to terminate the agreement.

Via these consolidated petitions for certiorari and

prohibition, petitioners - as legislators, nongovernmental organizations, citizens and taxpayers assail the constitutionality of the VFA and impute to
herein respondents grave abuse of discretion in
ratifying the agreement.

merely that he suffers thereby in some indefinite way.

He must show that he has been, or is about to be,
denied some right or privilege to which he is lawfully
entitled, or that he is about to be subjected to some
burdens or penalties by reason of the statute
v
complained of.

We have simplified the issues raised by the

petitioners into the following:

In the case before us, petitioners failed to show, to the

satisfaction of this Court, that they have sustained, or
are in danger of sustaining any direct injury as a result
of the enforcement of the VFA. As taxpayers,
petitioners have not established that the VFA involves
the exercise by Congress of its taxing or spending
v
powers. On this point, it bears stressing that a
taxpayers suit refers to a case where the act
complained of directly involves the illegal
v
disbursement of public funds derived from taxation.
Thus, in Bugnay Const. & Development Corp. vs.
v
Laron , we held:

I
Do petitioners have legal standing as concerned
citizens, taxpayers, or legislators to question the
constitutionality of the VFA?
II
Is the VFA governed by the provisions of Section 21,
Article VII or of Section 25, Article XVIII of the
Constitution?
III
Does the VFA constitute an abdication of Philippine
sovereignty?
a.
Are Philippine courts deprived of their
jurisdiction to hear and try offenses committed by US
military personnel?
b.
Is the Supreme Court deprived of its
jurisdiction over offenses punishable by reclusion
perpetua or higher?
IV
Does the VFA violate:
a.
the equal protection clause under Section 1,
Article III of the Constitution?
b.
the Prohibition against nuclear weapons
under Article II, Section 8?
c.
Section 28 (4), Article VI of the Constitution
granting the exemption from taxes and duties for the
equipment, materials supplies and other properties
imported into or acquired in the Philippines by, or on
behalf, of the US Armed Forces?
LOCUS STANDI

At the outset, respondents challenge petitioners

standing to sue, on the ground that the latter have not
shown any interest in the case, and that petitioners
failed to substantiate that they have sustained, or will
sustain direct injury as a result of the operation of the
v
VFA. Petitioners, on the other hand, counter that the
validity or invalidity of the VFA is a matter of
transcendental importance which justifies their
v
standing.
A party bringing a suit challenging the constitutionality
of a law, act, or statute must show not only that the
law is invalid, but also that he has sustained or in is in
immediate, or imminent danger of sustaining some
direct injury as a result of its enforcement, and not

x x x it is exigent that the taxpayer-plaintiff sufficiently

show that he would be benefited or injured by the
judgment or entitled to the avails of the suit as a real
party in interest. Before he can invoke the power of
judicial review, he must specifically prove that he has
sufficient interest in preventing the illegal expenditure
of money raised by taxation and that he will sustain a
direct injury as a result of the enforcement of the
questioned statute or contract. It is not sufficient that
he has merely a general interest common to all
members of the public.
Clearly, inasmuch as no public funds raised by
taxation are involved in this case, and in the absence
of any allegation by petitioners that public funds are
being misspent or illegally expended, petitioners, as
taxpayers, have no legal standing to assail the legality
of the VFA.
Similarly, Representatives Wigberto Taada, Agapito
Aquino and Joker Arroyo, as petitioners-legislators,
do not possess the requisite locus standi to maintain
the present suit. While this Court, in Phil.
Constitution Association vs. Hon. Salvador
v
Enriquez, sustained the legal standing of a member
of the Senate and the House of Representatives to
question the validity of a presidential veto or a
condition imposed on an item in an appropriation bull,
we cannot, at this instance, similarly uphold
petitioners standing as members of Congress, in the
absence of a clear showing of any direct injury to their
person or to the institution to which they belong.
Beyond this, the allegations of impairment of
legislative power, such as the delegation of the power
of Congress to grant tax exemptions, are more
apparent than real. While it may be true that
petitioners pointed to provisions of the VFA which
allegedly impair their legislative powers, petitioners
failed however to sufficiently show that they have in
fact suffered direct injury.
In the same vein, petitioner Integrated Bar of the
Philippines (IBP) is stripped of standing in these
cases. As aptly observed by the Solicitor General, the
IBP lacks the legal capacity to bring this suit in the

absence of a board resolution from its Board of

Governors authorizing its National President to
v
commence the present action.
Notwithstanding, in view of the paramount importance
and the constitutional significance of the issues raised
in the petitions, this Court, in the exercise of its sound
discretion, brushes aside the procedural barrier and
takes cognizance of the petitions, as we have done in
v
the early Emergency Powers Cases, where we had
occasion to rule:
x x x ordinary citizens and taxpayers were allowed to
question the constitutionality of several executive
orders issued by President Quirino although they
were involving only an indirect and general interest
shared in common with the public. The Court
dismissed the objection that they were not proper
parties and ruled that transcendental importance to
the public of these cases demands that they be
settled promptly and definitely, brushing aside, if
we must, technicalities of procedure. We have
since then applied the exception in many other cases.
(Association of Small Landowners in the Philippines,
Inc. v. Sec. of Agrarian Reform, 175 SCRA 343).
(Underscoring Supplied)
This principle was reiterated in the subsequent cases
v
v
of Gonzales vs. COMELEC, Daza vs. Singson,
and Basco vs. Phil. Amusement and Gaming
v
Corporation, where we emphatically held:
Considering however the importance to the public of
the case at bar, and in keeping with the Courts duty,
under the 1987 Constitution, to determine whether or
not the other branches of the government have kept
themselves within the limits of the Constitution and
the laws and that they have not abused the discretion
given to them, the Court has brushed aside
technicalities of procedure and has taken cognizance
of this petition. x x x
Again, in the more recent case of Kilosbayan vs.
v
Guingona, Jr., thisCourt ruled that in cases of
transcendental importance, the Court may relax the
standing requirements and allow a suit to prosper
even where there is no direct injury to the party
claiming the right of judicial review.
Although courts generally avoid having to decide a
constitutional question based on the doctrine of
separation of powers, which enjoins upon the
departments of the government a becoming respect
v
for each others acts, this Court nevertheless
resolves to take cognizance of the instant petitions.
APPLICABLE CONSTITUTIONAL PROVISION

One focal point of inquiry in this controversy is the

determination of which provision of the Constitution
applies, with regard to the exercise by the senate of
its constitutional power to concur with the VFA.
Petitioners argue that Section 25, Article XVIII is
applicable considering that the VFA has for its subject
the presence of foreign military troops in the
Philippines. Respondents, on the contrary, maintain

that Section 21, Article VII should apply inasmuch as

the VFA is not a basing arrangement but an
agreement which involves merely the temporary visits
of United States personnel engaged in joint military
exercises.
The 1987 Philippine Constitution contains two
provisions requiring the concurrence of the Senate on
treaties or international agreements. Section 21,
Article VII, which herein respondents invoke, reads:
No treaty or international agreement shall be valid
and effective unless concurred in by at least twothirds of all the Members of the Senate.
Section 25, Article XVIII, provides:
After the expiration in 1991 of the Agreement
between the Republic of the Philippines and the
United States of America concerning Military Bases,
foreign military bases, troops, or facilities shall not be
allowed in the Philippines except under a treaty duly
concurred in by the senate and, when the Congress
so requires, ratified by a majority of the votes cast by
the people in a national referendum held for that
purpose, and recognized as a treaty by the other
contracting State.
Section 21, Article VII deals with treatise or
international agreements in general, in which case,
the concurrence of at least two-thirds (2/3) of all the
Members of the Senate is required to make the
subject treaty, or international agreement, valid and
binding on the part of the Philippines. This provision
lays down the general rule on treatise or international
agreements and applies to any form of treaty with a
wide variety of subject matter, such as, but not limited
to, extradition or tax treatise or those economic in
nature. All treaties or international agreements
entered into by the Philippines, regardless of subject
matter, coverage, or particular designation or
appellation, requires the concurrence of the Senate to
be valid and effective.
In contrast, Section 25, Article XVIII is a special
provision that applies to treaties which involve the
presence of foreign military bases, troops or facilities
in the Philippines. Under this provision, the
concurrence of the Senate is only one of the
requisites to render compliance with the constitutional
requirements and to consider the agreement binding
on the Philippines. Section 25, Article XVIII further
requires that foreign military bases, troops, or
facilities may be allowed in the Philippines only by
virtue of a treaty duly concurred in by the Senate,
ratified by a majority of the votes cast in a national
referendum held for that purpose if so required by
Congress, and recognized as such by the other
contracting state.
It is our considered view that both constitutional
provisions, far from contradicting each other, actually
share some common ground. These constitutional
provisions both embody phrases in the negative and
thus, are deemed prohibitory in mandate and
character. In particular, Section 21 opens with the

clause No treaty x x x, and Section 25 contains the

phrase shall not be allowed. Additionally, in both
instances, the concurrence of the Senate is
indispensable to render the treaty or international
agreement valid and effective.
To our mind, the fact that the President referred the
VFA to the Senate under Section 21, Article VII, and
that the Senate extended its concurrence under the
same provision, is immaterial. For in either case,
whether under Section 21, Article VII or Section 25,
Article XVIII, the fundamental law is crystalline that
the concurrence of the Senate is mandatory to comply
with the strict constitutional requirements.
On the whole, the VFA is an agreement which defines
the treatment of United States troops and personnel
visiting the Philippines. It provides for the guidelines
to govern such visits of military personnel, and further
defines the rights of the United States and the
Philippine government in the matter of criminal
jurisdiction, movement of vessel and aircraft,
importation and exportation of equipment, materials
and supplies.
Undoubtedly, Section 25, Article XVIII, which
specifically deals with treaties involving foreign
military bases, troops, or facilities, should apply in the
instant case. To a certain extent and in a limited
sense, however, the provisions of section 21, Article
VII will find applicability with regard to the issue and
for the sole purpose of determining the number of
votes required to obtain the valid concurrence of the
Senate, as will be further discussed hereunder.
It is a finely-imbedded principle in statutory
construction that a special provision or law prevails
over a general one. Lex specialis derogat generali.
Thus, where there is in the same statute a particular
enactment and also a general one which, in its most
comprehensive sense, would include what is
embraced in the former, the particular enactment
must be operative, and the general enactment must
be taken to affect only such cases within its general
language which are not within the provision of the
v
particular enactment.

placing of structure for the establishment of a military

base. On this score, the Constitution makes no
distinction between transient and permanent.
Certainly, we find nothing in Section 25, Article XVIII
that requires foreign troops or facilities to be stationed
or placed permanently in the Philippines.
It is a rudiment in legal hermenuetics that when no
distinction is made by law, the Court should not
distinguish- Ubi lex non distinguit nec nos
distinguire debemos.
In like manner, we do not subscribe to the argument
that Section 25, Article XVIII is not controlling since no
foreign military bases, but merely foreign troops and
facilities, are involved in the VFA. Notably, a perusal
of said constitutional provision reveals that the
proscription covers foreign military bases, troops, or
facilities. Stated differently, this prohibition is not
limited to the entry of troops and facilities without any
foreign bases being established. The clause does not
refer to foreign military bases, troops, or facilities
collectively but treats them as separate and
independent subjects. The use of comma and the
disjunctive word or clearly signifies disassociation
and independence of one thing from the others
v
included in the enumeration, such that, the provision
contemplates three different situations - a military
treaty the subject of which could be either (a) foreign
bases, (b) foreign troops, or (c) foreign facilities - any
of the three standing alone places it under the
coverage of Section 25, Article XVIII.
To this end, the intention of the framers of the
Charter, as manifested during the deliberations of the
1986 Constitutional Commission, is consistent with
this interpretation:
MR. MAAMBONG. I just want to address a question
or two to Commissioner Bernas.
This formulation speaks of three things: foreign
military bases, troops or facilities. My first question is:
If the country does enter into such kind of a
treaty, must it cover the three-bases, troops or
facilities-or could the treaty entered into cover
only one or two?

In Leveriza vs. Intermediate Appellate Court, we

enunciated:
x x x that another basic principle of statutory
construction mandates that general legislation must
give way to a special legislation on the same subject,
and generally be so interpreted as to embrace only
cases in which the special provisions are not
applicable (Sto. Domingo vs. de los Angeles, 96
SCRA 139), that a specific statute prevails over a
general statute (De Jesus vs. People, 120 SCRA 760)
and that where two statutes are of equal theoretical
application to a particular case, the one designed
therefor specially should prevail (Wil Wilhensen Inc.
vs. Baluyot, 83 SCRA 38).
Moreover, it is specious to argue that Section 25,
Article XVIII is inapplicable to mere transient
agreements for the reason that there is no permanent

FR. BERNAS. Definitely, it can cover only one.

Whether it covers only one or it covers three, the
requirement will be the same.
MR. MAAMBONG. In other words, the Philippine
government can enter into a treaty covering not
bases but merely troops?
FR. BERNAS. Yes.
MR. MAAMBONG. I cannot find any reason why the
government can enter into a treaty covering only
troops.
FR. BERNAS. Why not? Probably if we stretch our
imagination a little bit more, we will find some. We just
v
want to cover everything. (Underscoring Supplied)

Moreover, military bases established within the

territory of another state is no longer viable because
of the alternatives offered by new means and
weapons of warfare such as nuclear weapons, guided
missiles as well as huge sea vessels that can stay
afloat in the sea even for months and years without
returning to their home country. These military
warships are actually used as substitutes for a landhome base not only of military aircraft but also of
military personnel and facilities. Besides, vessels are
mobile as compared to a land-based military
headquarters.
At this juncture, we shall then resolve the issue of
whether or not the requirements of Section 25 were
complied with when the Senate gave its concurrence
to the VFA.
Section 25, Article XVIII disallows foreign military
bases, troops, or facilities in the country, unless the
following conditions are sufficiently met, viz: (a) it
must be under a treaty; (b) the treaty must be duly
concurred in by the Senate and, when so required
by congress, ratified by a majority of the votes cast by
the people in a national referendum; and (c)
recognized as a treaty by the other contracting state.
There is no dispute as to the presence of the first two
requisites in the case of the VFA. The concurrence
handed by the Senate through Resolution No. 18 is in
accordance with the provisions of the Constitution,
whether under the general requirement in Section 21,
Article VII, or the specific mandate mentioned in
Section 25, Article XVIII, the provision in the latter
article requiring ratification by a majority of the votes
cast in a national referendum being unnecessary
since Congress has not required it.

contemplated under Section 25, Article XVIII means

that at least two-thirds of all the members of the
Senate favorably vote to concur with the treaty-the
VFA in the instant case.
Under these circumstances, the charter provides that
the Senate shall be composed of twenty-four (24)
v
Senators. Without a tinge of doubt, two-thirds (2/3) of
this figure, or not less than sixteen (16) members,
favorably acting on the proposal is an unquestionable
compliance with the requisite number of votes
mentioned in Section 21 of Article VII. The fact that
there were actually twenty-three (23) incumbent
v
Senators at the time the voting was made, will not
alter in any significant way the circumstance that
more than two-thirds of the members of the Senate
concurred with the proposed VFA, even if the twothirds vote requirement is based on this figure of
actual members (23). In this regard, the fundamental
law is clear that two-thirds of the 24 Senators, or at
least 16 favorable votes, suffice so as to render
compliance with the strict constitutional mandate of
giving concurrence to the subject treaty.
Having resolved that the first two requisites
prescribed in Section 25, Article XVIII are present, we
shall now pass upon and delve on the requirement
that the VFA should be recognized as a treaty by the
United States of America.
Petitioners content that the phrase recognized as a
treaty, embodied in section 25, Article XVIII, means
that the VFA should have the advice and consent of
the United States Senate pursuant to its own
constitutional process, and that it should not be
considered merely an executive agreement by the
United States.

As to the matter of voting, Section 21, Article VII

particularly requires that a treaty or international
agreement, to be valid and effective, must be
concurred in by at least two-thirds of all the
members of the Senate. On the other hand, Section
25, Article XVIII simply provides that the treaty be
duly concurred in by the Senate.

In opposition, respondents argue that the letter of

United States Ambassador Hubbard stating that the
VFA is binding on the United States Government is
conclusive, on the point that the VFA is recognized as
a treaty by the United States of America. According to
respondents, the VFA, to be binding, must only be
accepted as a treaty by the United States.

Applying the foregoing constitutional provisions, a

two-thirds vote of all the members of the Senate is
clearly required so that the concurrence contemplated
by law may be validly obtained and deemed present.
While it is true that Section 25, Article XVIII requires,
among other things, that the treaty-the VFA, in the
instant case-be duly concurred in by the Senate, it is
very true however that said provision must be related
and viewed in light of the clear mandate embodied in
Section 21, Article VII, which in more specific terms,
requires that the concurrence of a treaty, or
international agreement, be made by a two -thirds
vote of all the members of the Senate. Indeed,
Section 25, Article XVIII must not be treated in
isolation to section 21, Article, VII.

This Court is of the firm view that the phrase

recognized as a treaty means that the other
contracting party accepts or acknowledges the
v
agreement as a treaty. To require the other
contracting state, the United States of America in this
case, to submit the VFA to the United States Senate
v
for concurrence pursuant to its Constitution, is to
accord strict meaning to the phrase.

As noted, the concurrence requirement under

Section 25, Article XVIII must be construed in relation
to the provisions of Section 21, Article VII. In a more
particular language, the concurrence of the Senate

Moreover, it is inconsequential whether the United

States treats the VFA only as an executive agreement
because, under international law, an executive
v
agreement is as binding as a treaty. To be sure, as

Well-entrenched is the principle that the words used

in the Constitution are to be given their ordinary
meaning except where technical terms are employed,
in which case the significance thus attached to them
prevails. Its language should be understood in the
v
sense they have in common use.

long as the VFA possesses the elements of an

agreement under international law, the said
agreement is to be taken equally as a treaty.
A treaty, as defined by the Vienna Convention on the
Law of Treaties, is an international instrument
concluded between States in written form and
governed by international law, whether embodied in a
single instrument or in two or more related
v
instruments, and whatever its particular designation.
There are many other terms used for a treaty or
international agreement, some of which are: act,
protocol, agreement, compromis d arbitrage,
concordat, convention, declaration, exchange of
notes, pact, statute, charter and modus vivendi. All
writers, from Hugo Grotius onward, have pointed out
that the names or titles of international agreements
included under the general term treaty have little or
no legal significance. Certain terms are useful, but
v
they furnish little more than mere description.
Article 2(2) of the Vienna Convention provides that
the provisions of paragraph 1 regarding the use of
terms in the present Convention are without prejudice
to the use of those terms, or to the meanings which
may be given to them in the internal law of the State.
Thus, in international law, there is no difference
between treaties and executive agreements in their
binding effect upon states concerned, as long as the
negotiating functionaries have remained within their
v
powers. International law continues to make no
distinction
between
treaties
and
executive
agreements: they are equally binding obligations upon
v
nations.
In our jurisdiction, we have recognized the binding
effect of executive agreements even without the
concurrence of the Senate or Congress. In
Commissioner of Customs vs. Eastern Sea
v
Trading, we had occasion to pronounce:
x x x the right of the Executive to enter into binding
agreements without the necessity of subsequent
congressional approval has been confirmed by long
usage. From the earliest days of our history we have
entered into executive agreements covering such
subjects as commercial and consular relations, mostfavored-nation rights, patent rights, trademark and
copyright
protection,
postal
and
navigation
arrangements and the settlement of claims. The
validity of these has never been seriously questioned
by our courts.
x x x

xxx

Hyde on International Law [revised Edition], Vol.

2, pp. 1405, 1416-1418; willoughby on the U.S.
Constitution Law, Vol. I [2d ed.], pp. 537-540;
Moore, International Law Digest, Vol. V, pp. 210218; Hackworth, International Law Digest, Vol. V,
pp. 390-407). (Italics Supplied) (Emphasis Ours)
The deliberations of the Constitutional Commission
which drafted the 1987 Constitution is enlightening
and highly-instructive:
MR. MAAMBONG. Of course it goes without saying
that as far as ratification of the other state is
concerned, that is entirely their concern under their
own laws.
FR. BERNAS. Yes, but we will accept whatever they
say. If they say that we have done everything to make
it a treaty, then as far as we are concerned, we will
v
accept it as a treaty.
The records reveal that the United States
Government, through Ambassador Thomas C.
Hubbard, has stated that the United States
government has fully committed to living up to the
v
terms of the VFA. For as long as the united States of
America accepts or acknowledges the VFA as a
treaty, and binds itself further to comply with its
obligations under the treaty, there is indeed marked
compliance with the mandate of the Constitution.
Worth stressing too, is that the ratification, by the
President, of the VFA and the concurrence of the
Senate should be taken as a clear an unequivocal
expression of our nations consent to be bound by
said treaty, with the concomitant duty to uphold the
obligations and responsibilities embodied thereunder.
Ratification is generally held to be an executive act,
undertaken by the head of the state or of the
government, as the case may be, through which the
v
formal acceptance of the treaty is proclaimed. A
State may provide in its domestic legislation the
process of ratification of a treaty. The consent of the
State to be bound by a treaty is expressed by
ratification when: (a) the treaty provides for such
ratification, (b) it is otherwise established that the
negotiating States agreed that ratification should be
required, (c) the representative of the State has
signed the treaty subject to ratification, or (d) the
intention of the State to sign the treaty subject to
ratification appears from the full powers of its
representative, or was expressed during the
v
negotiation.

xxx

Furthermore, the United States Supreme Court has

expressly recognized the validity and constitutionality
of executive agreements entered into without Senate
approval. (39 Columbia Law Review, pp. 753-754)
(See, also, U.S. vs. Curtis Wright Export
Corporation, 299 U.S. 304, 81 L. ed. 255; U.S. vs.
Belmont, 301 U.S. 324, 81 L. ed. 1134; U.S. vs.
Pink, 315 U.S. 203, 86 L. ed. 796; Ozanic vs. U.S.
188 F. 2d. 288; Yale Law Journal, Vol. 15 pp. 19051906; California Law Review, Vol. 25, pp. 670-675;

In our jurisdiction, the power to ratify is vested in the

President and not, as commonly believed, in the
legislature. The role of the Senate is limited only to
giving or withholding its consent, or concurrence, to
v
the ratification.
With the ratification of the VFA, which is equivalent to
final acceptance, and with the exchange of notes
between the Philippines and the United States of
America, it now becomes obligatory and incumbent
on our part, under the principles of international law,

to be bound by the terms of the agreement. Thus, no

v
less than Section 2, Article II of the Constitution,
declares that the Philippines adopts the generally
accepted principles of international law as part of the
law of the land and adheres to the policy of peace,
equality, justice, freedom, cooperation and amity with
all nations.
As a member of the family of nations, the Philippines
agrees to be bound by generally accepted rules for
the conduct of its international relations. While the
international obligation devolves upon the state and
not upon any particular branch, institution, or
individual member of its government, the Philippines
is nonetheless responsible for violations committed by
any branch or subdivision of its government or any
official thereof. As an integral part of the community of
nations, we are responsible to assure that our
government, Constitution and laws will carry out our
v
international obligation. Hence, we cannot readily
plead the Constitution as a convenient excuse for
non-compliance with our obligations, duties and
responsibilities under international law.
Beyond this, Article 13 of the Declaration of Rights
and Duties of States adopted by the International Law
Commission in 1949 provides: Every State has the
duty to carry out in good faith its obligations arising
from treaties and other sources of international law,
and it may not invoke provisions in its constitution or
v
its laws as an excuse for failure to perform this duty.
Equally important is Article 26 of the convention which
provides that Every treaty in force is binding upon the
parties to it and must be performed by them in good
faith. This is known as the principle of pacta sunt
servanda which preserves the sanctity of treaties and
have been one of the most fundamental principles of
positive international law, supported by the
v
jurisprudence of international tribunals.
NO GRAVE ABUSE OF DISCRETION

In the instant controversy, the President, in effect, is

heavily faulted for exercising a power and performing
a task conferred upon him by the Constitution-the
power to enter into and ratify treaties. Through the
expediency of Rule 65 of the Rules of Court,
petitioners in these consolidated cases impute grave
abuse of discretion on the part of the chief
Executive in ratifying the VFA, and referring the same
to the Senate pursuant to the provisions of Section
21, Article VII of the Constitution.
On this particular matter, grave abuse of discretion
implies such capricious and whimsical exercise of
judgment as is equivalent to lack of jurisdiction, or,
when the power is exercised in an arbitrary or
despotic manner by reason of passion or personal
hostility, and it must be so patent and gross as to
amount to an evasion of positive duty enjoined or to
v
act at all in contemplation of law.
By constitutional fiat and by the intrinsic nature of his
office, the President, as head of State, is the sole
organ and authority in the external affairs of the

country. In many ways, the President is the chief

architect of the nations foreign policy; his dominance
v
in the field of foreign relations is (then) conceded.
Wielding vast powers an influence, his conduct in the
external affairs of the nation, as Jefferson describes,
v
is executive altogether."
As regards the power to enter into treaties or
international agreements, the Constitution vests the
same in the President, subject only to the
concurrence of at least two-thirds vote of all the
members of the Senate. In this light, the negotiation of
the VFA and the subsequent ratification of the
agreement are exclusive acts which pertain solely to
the President, in the lawful exercise of his vast
executive and diplomatic powers granted him no less
than by the fundamental law itself. Into the field of
negotiation the Senate cannot intrude, and Congress
v
itself is powerless to invade it. Consequently, the
acts or judgment calls of the President involving the
VFA-specifically the acts of ratification and entering
into a treaty and those necessary or incidental to the
exercise of such principal acts - squarely fall within
the sphere of his constitutional powers and thus, may
not be validly struck down, much less calibrated by
this Court, in the absence of clear showing of grave
abuse of power or discretion.
It is the Courts considered view that the President, in
ratifying the VFA and in submitting the same to the
Senate for concurrence, acted within the confines and
limits of the powers vested in him by the Constitution.
It is of no moment that the President, in the exercise
of his wide latitude of discretion and in the honest
belief that the VFA falls within the ambit of Section 21,
Article VII of the Constitution, referred the VFA to the
Senate for concurrence under the aforementioned
provision. Certainly, no abuse of discretion, much less
a grave, patent and whimsical abuse of judgment,
may be imputed to the President in his act of ratifying
the VFA and referring the same to the Senate for the
purpose of complying with the concurrence
requirement embodied in the fundamental law. In
doing so, the President merely performed a
constitutional task and exercised a prerogative that
chiefly pertains to the functions of his office. Even if
he erred in submitting the VFA to the Senate for
concurrence under the provisions of Section 21 of
Article VII, instead of Section 25 of Article XVIII of the
Constitution, still, the President may not be faulted or
scarred, much less be adjudged guilty of committing
an abuse of discretion in some patent, gross, and
capricious manner.
For while it is conceded that Article VIII, Section 1, of
the Constitution has broadened the scope of judicial
inquiry into areas normally left to the political
departments to decide, such as those relating to
national security, it has not altogether done away with
political questions such as those which arise in the
v
field of foreign relations. The High Tribunals function,
as sanctioned by Article VIII, Section 1, is merely (to)
check whether or not the governmental branch or
agency has gone beyond the constitutional limits of its
jurisdiction, not that it erred or has a different view. In
the absence of a showing (of) grave abuse of

discretion amounting to lack of jurisdiction, there is no

occasion for the Court to exercise its corrective
powerIt has no power to look into what it thinks is
v
apparent error.

culminated on January 12 and 13, 1998. Thereafter,

President Fidel Ramos approved the VFA, which was
respectively signed by Secretary Siazon and United
States Ambassador Thomas Hubbard.

As to the power to concur with treaties, the

constitution lodges the same with the Senate alone.
v
Thus, once the Senate performs that power, or
exercises its prerogative within the boundaries
prescribed by the Constitution, the concurrence
cannot, in like manner, be viewed to constitute an
abuse of power, much less grave abuse thereof.
Corollarily, the Senate, in the exercise of its discretion
and acting within the limits of such power, may not be
similarly faulted for having simply performed a task
conferred and sanctioned by no less than the
fundamental law.

Pres. Joseph Estrada ratified the VFA on October 5,

1998 and on May 27, 1999, the senate approved it by
(2/3) votes.

For the role of the Senate in relation to treaties is

v
essentially legislative in character; the Senate, as an
independent body possessed of its own erudite mind,
has the prerogative to either accept or reject the
proposed agreement, and whatever action it takes in
the exercise of its wide latitude of discretion, pertains
to the wisdom rather than the legality of the act. In this
sense, the Senate partakes a principal, yet delicate,
role in keeping the principles of separation of powers
and of checks and balances alive and vigilantly
ensures that these cherished rudiments remain true to
their form in a democratic government such as ours.
The Constitution thus animates, through this treatyconcurring power of the Senate, a healthy system of
checks and balances indispensable toward our
nations pursuit of political maturity and growth. True
enough, rudimentary is the principle that matters
pertaining to the wisdom of a legislative act are
beyond the ambit and province of the courts to
inquire.
In fine, absent any clear showing of grave abuse of
discretion on the part of respondents, this Court- as
the final arbiter of legal controversies and staunch
sentinel of the rights of the people - is then without
power to conduct an incursion and meddle with such
affairs purely executive and legislative in character
and nature. For the Constitution no less, maps out the
distinct boundaries and limits the metes and bounds
within which each of the three political branches of
government may exercise the powers exclusively and
essentially conferred to it by law.
WHEREFORE, in light of the foregoing disquisitions,
the instant petitions are hereby DISMISSED.

Cause of Action:
Petitioners, among others, assert that Sec. 25, Art
XVIII of the 1987 constitution is applicable and not
Section 21, Article VII.
Following the argument of the petitioner, under they
provision cited, the foreign military bases, troops, or
facilities may be allowed in the Philippines unless the
following
conditions
are
sufficiently
met:
a)
it
must
be
a
treaty,
b) it must be duly concurred in by the senate, ratified
by a majority of the votes cast in a national
referendum held for that purpose if so required by
congress,
and
c) recognized as such by the other contracting state.
Respondents, on the other hand, argue that Section
21 Article VII is applicable so that, what is requires for
such treaty to be valid and effective is the
concurrence in by at least two-thirds of all the
members
of
the
senate.
ISSUE: Is the VFA governed by the provisions of
Section 21, Art VII or of Section 25, Article XVIII of the
Constitution?
HELD:
Section 25, Article XVIII, which specifically deals with
treaties involving foreign military bases, troops or
facilities should apply in the instant case. To a certain
extent and in a limited sense, however, the provisions
of section 21, Article VII will find applicability with
regard to the issue and for the sole purpose of
determining the number of votes required to obtain
the valid concurrence of the senate.
The Constitution, makes no distinction between
transient and permanent. We find nothing in
section 25, Article XVIII that requires foreign troops or
facilities to be stationed or placed permanently in the
Philippines.
It is inconsequential whether the United States treats
the VFA only as an executive agreement because,
under international law, an executive agreement is as
binding as a treaty.

SO ORDERED.
1. What is the Enhanced Defense Cooperation
Agreement (EDCA)?
BAYAN
G.
R.
October 10, 2000

v.
No.

ZAMORA
138570

Facts:
The United States panel met with the Philippine panel
to discussed, among others, the possible elements of
the Visiting Forces Agreement (VFA). This resulted to
a series of conferences and negotiations which

The EDCA is an agreement between the Philippines

and the United States which is envisioned to advance
the implementation of the PH-US Mutual Defense
Treaty (MDT).
2. What purpose does EDCA serve?

The EDCA is designed to promote between the

Philippines and its defense treaty ally the United
States the following:

Interoperability
Capacity
building
towards
AFP
modernization
Strengthening AFP for external defense
Maritime Security
Maritime Domain Awareness
Humanitarian Assistance and Disaster
Response (HADR)

3. How will these objectives be achieved?

We are currently holding joint training exercises such

as Balikatan and undertaking humanitarian assistance
and disaster relief cooperation such as in the
aftermath of Typhoon Yolanda.
To improve on the above, we intend to undertake
additional cooperation by way of (1) Construction of
facilities and infrastructure upgrades; and (2) Storage
and prepositioning of defense and HADR equipment,
supplies and material.
4. Where will the construction and prepositioning
take place?
These will take place in designated areas within a few
AFP bases to be agreed upon by both Parties.
5. What principles were adhered to in ensuring
that the national interests are protected and
advanced?
Upon the instructions of the President, we observed
the following principles:

Strict compliance with the Philippine

Constitution, laws and jurisprudence;
Utmost respect for Philippine sovereignty;
Requirement for Philippine consent for all
activities;
No permanent presence or base by US
troops in the Philippines;
Full Philippine control over facilities to be
used;
Mutuality of benefits;
Non-exclusivity of use of the designated
areas for US armed forces;
Enhancement of AFP capabilities through
joint training exercises;
Prohibition of nuclear weapons; and,
US commitment for long-term AFP capability
build-up.

6. What are the main features of EDCA?

Consistent with the Presidents guidelines, the
agreement has the following main features:

Clear provision that the US would not

establish a permanent military presence or
base in the Philippines;
US access to and use of designated areas in
AFP owned and controlled facilities (Agreed

Locations) will be at the invitation of the

Philippine Government;
Prior consent of the Philippines, through the
Mutual Defense Board (MDB) and Security
Engagement Board (SEB), with regard to US
access and use of Agreed Locations which
may be listed in an annex and further
described in implementing arrangements;
Philippines retention of primary responsibility
for security of the Agreed Locations;
Access of the AFP base commander to the
entire area of the Agreed Locations;
Philippine ownership of buildings and
infrastructure once constructed by US
military;
Sharing and joint use of facilities in the
Agreed Locations, including those built by
the US military;
Value of prepositioned materiel in the
enhancement of AFP defense capabilities
and possible transfer or purchase of materiel
determined to be excess;
Prohibition of entry to the Philippines of
nuclear weapons, and reference to
respective obligations of both Parties under
the Chemical Weapons Convention and the
Biological Weapons Convention;
Strong commitment by both Parties in
protecting the environment, human health
and safety;
Preference for Philippine suppliers of goods,
products and service in US military
procurement; and,
Regular consultation on the implementation
of the agreement.

7. How does the Philippine Government envision

defense cooperation with the US?
The Philippines will strengthen its capabilities for
external and territorial defense by continuing to work
with its treaty ally in a mutually beneficial way in line
with what is allowed by the Philippine Constitution.
8. What other benefits will the Philippines derive
from EDCA?
In addition to interoperability, maritime security,
maritime domain awareness, capacity building and
more expeditious HADR, the Agreement will further
benefit the Philippines economically through the
provision of jobs and other economic opportunities in
the construction activities in the Agreed Locations and
procurement of local goods and supplies by the US
military and personnel.
9. What is the reason behind the change in the
title of the agreement from Increased Rotational
Presence Framework Agreement to Enhanced
Defense Cooperation Agreement?
The change in the title reflects the desire of the
Philippines and the US for a more comprehensive
agreement that covers the full range of enhanced
defense cooperation, including developing maritime
security,
maritime
domain
awareness
and
humanitarian
assistance
and
disaster
relief
capabilities. Increased rotational presence is just one
modality of enhanced defense cooperation.
10. Is EDCA constitutional?

Yes. EDCA provides that the access and use of AFP

facilities by the US military will be at the invitation of
the Philippines and with full respect for the Philippine
Constitution and Philippine laws.
The constitutional provision which prohibits the
establishment of foreign military bases or facilities
in the country except under a treaty duly concurred in
by the Senate does not apply to EDCA.
The defining features of foreign military bases
extraterritoriality, exclusivity in use and foreign
ownership will not be applicable in the Agreed
Locations.
On the other hand, the entry of US military troops for
military exercises and other approved activities is
already allowed under the PH-US Visiting Forces
Agreement (VFA) which is a treaty concurred in by
the Senate and upheld by the Supreme Court.
The provisions of EDCA, an executive agreement, are
consistent with the Philippine Constitution, laws, and
jurisprudence.
11. Does EDCA mean the return of US bases in
the Philippines?
The Agreement is very clear on this matter and
specifies in the Preamble the Parties understanding
for the US not to establish a permanent military
presence or base in the territory of the Philippines.
EDCA does not authorize the establishment of US
bases. It allows the US military access to Agreed
Locations.
12. Does EDCA give the US military blanket
authority to build facilities in AFP military bases?
Will the Philippines have access to these
facilities? Who will own them?
Under EDCA, before constructions and other activities
can be undertaken, prior consent of the Philippines
will have to be secured through the Mutual Defense
Board (MDB) and Security Engagement Board (SEB)
which were established under the MDT and the VFA.
The AFP base commander will have access to the
entire area of the facilities shared with the US military.
The Philippines will also own any building and similar
infrastructure that will be built by the US military.
13. Will EDCA also provide a blanket authority for
all activities of the US troops in the future?
No. Activities to be undertaken under EDCA will have
to be approved by the Philippines through the MDB
and SEB.
14. How long will EDCA be in effect?
EDCA will have an initial term of 10 years. There will
be
regular
bilateral
consultations
on
the
implementation of the Agreement.
15. How many US personnel will be allowed into
the Philippines under this Agreement?

The number of visiting US personnel will depend on

the scale and the frequency of the activities to be
approved by both Parties.
There will be no stationing of US personnel under
EDCA. US personnel will come on temporary and
rotational basis in relation to activities that will be held
in AFP facilities.
16. Will the entry of nuclear weapons, chemical
weapons and biological weapons be allowed
under the EDCA?
EDCA clearly provides that the materials the US
military may bring into the country shall not include
nuclear weapons, in compliance with the Philippine
Constitution. EDCA also reaffirms the two countries
respective obligations under the Convention on
Chemical Weapons and Convention on Biological
Weapons.
17. Which AFP bases will be shared with and used
by the US under EDCA?
The designated areas in a limited number of AFP
bases that will be shared and jointly used with the US
will be specified in an annex and agreed
implementing arrangements. Given the mutuality of
benefits to be derived from the Agreement (such as
making available defense and HADR equipment,
supplies and materiel for the benefit of the
Philippines), the areas will be made available to US
forces without rental. In addition, the buildings and
other infrastructure to be constructed by the US
military will be owned by the Philippines.
18. How will the Philippines benefit from the
prepositioning of US military equipment?
EDCA recognizes the value of prepositioning and
storing equipment, supplies and materiel to the
enhancement of the AFPs defense capabilities.
Moreover, prepositioned materiel will allow for timely
responses in the event of disasters natural or
otherwise. This is well recognized by the Philippines
and the United States. As stated in Article IV para 2,
The Parties share a recognition of the benefits that
such prepositioning could have for humanitarian
assistance and disaster relief.
19. How will EDCA improve
assistance and disaster relief?

humanitarian

As shown in the aftermath of Typhoon Yolanda, the

need for timely delivery of relief assistance is critical.
Under EDCA, activities aimed at increasing and
strengthening the Parties individual and collective
HADR capabilities will be facilitated and strengthened
through prepositioned materiel and closer cooperation
with the US.
20.
Does
EDCA
address
concerns
on
environmental protection and human health and
safety?
Yes. This is a landmark and defining feature of EDCA.

This agreement has robust provisions on

environmental protection, human health and safety,
including the adoption of a preventative approach to
environmental
protection, the
application
of
environmental compliance standards that reflect the
more protective of Philippines, US or applicable
international agreement standards, immediate action
to contain and address environmental contamination
resulting from spills, and other measures.

mutually acceptable to both sides consistent with

their respective laws.

21. How does EDCA relate to the Mutual Defense

Treaty (MDT)?

29. Was the Philippine Congress briefed on this

Agreement?

The MDT obligated the Philippines and the United

States to maintain and develop their individual and
collective defense capabilities.

During the course of the negotiations, the leadership

of both Houses of Congress was informed of the
progress of the negotiations. We will be scheduling a
full briefing for interested members of Congress.

EDCA is therefore within the ambit and in furtherance

of the MDT.
22. How does EDCA relate to the Visiting Forces
Agreement (VFA)?
The VFA lays out the terms and conditions on the
entry and visit of US military personnel for military
exercises. These provisions shall likewise apply to the
entry and temporary stay of US personnel under
EDCA.
23. If the above activities are within the ambit of
the MDT and VFA, why is there a need for a new
agreement on enhanced defense cooperation?
In advancing the benefits that could be derived from
our defense alliance with the United States, we
needed to articulate the parameters, modalities and
mechanisms to a greater degree.
24. Does EDCA address the matter on criminal
jurisdiction and custody of indicted servicemen?
With the finalization of EDCA, we can now fast track
the bilateral consultations on the implementing
arrangements of the VFA.

28. How long did the negotiations take?

The eight rounds of negotiations and preceded by
preparatory discussions took almost two years to
complete.

30. Do we have the support of the Filipino people

for EDCA?
A recent Social Weather Station survey showed at
least 7 out of 10 Filipinos support measures to
strengthen the countrys defense capabilities and that
the Philippines may ask its partners in achieving this
objective.
Through EDCA, the Philippines will cooperate with its
defense treaty ally in further strengthening their
respective individual and collective defense
capabilities.
All Filipinos should unite in support for a stronger
Philippines.

THE VISITING FORCES AGREEMENT BETWEEN

THE PHILIPPINES AND U.S.A.
[VFA]

25. Will EDCA affect bilateral relations with

neighboring countries?
EDCA reaffirms the desire of both the Philippines and
the United States to strengthen international and
regional security and stability, a common and shared
interest of countries in the region.
26. What will be our neighbors reaction to this
Agreement?

AGREEMENT

Between the
GOVERNMENT OF THE

We would hope that this Agreement will also be

viewed by our neighbors as a positive contribution
towards peace and stability in the region.
27. Is it true that the negotiation was rushed in
order to coincide with US President Barack
Obamas visit to the Philippines?

REPUBLIC OF THE PHILIPPINES

and the
GOVERNMENT OF THE UNITED STATES OF
AMERICA

The pace of negotiations for EDCA was dictated by

the need for full understanding and consensus by
both negotiating panels on all provisions of the
Agreement. It was more important for both parties to
come up with an Agreement that would be fully and

Regarding the Treatment of United States Armed

Forces Visiting the Philippines

Preamble

American Red Cross and the United

Services Organization.

The Government of the United States of America

and the Government of the Republic of the
Philippines,
Article II
Reaffirming their faith in the purposes and

Respect for Law

principles of the Charter of the United Nations and

their desire
regional

to

strengthen

security

in

international

the

and

Pacific

area;

It is the duty of United States personnel to respect

the laws of the Republic of the Philippines and to

Reaffirming their obligations under the Mutual

abstain from any activity inconsistent with the

Defense

spirit of this agreement, and, in particular, from

Treaty

of

August

30,

1951;

any political activity in the Philippines. The

Noting that from time to time elements of the

Government of the United States shall take all

United States armed forces may visit the Republic

measures within its authority to ensure that this is

of

done.

the

Philippines;

Considering that cooperation between the United

States and the Republic of the Philippines
promotes

their

common

security

Recognizing the desirability

Article III
Entry and Departure

interests;

of defining the

1. The Government of the Philippines shall

treatment of United States personnel visiting the

facilitate

Republic

personnel

of

the

Philippines;

the
and

admission
their

of

United

departure

States

from

the

Philippines in connection with activities covered

Have

agreed

as

follows:

by

this

agreement.

2. United States military personnel shall be

Article I

exempt from passport and visa regulations upon

entering

Definitions

and

departing

the

Philippines.

3. The following documents only, which shall be

As used in this Agreement, "United States

presented on demand, shall be required in respect

personnel" means United States military and

of United States military personnel who enter the

civilian personnel temporarily in the Philippines in

Philippines:

connection

with

activities

approved

by

the

Philippine Government. Within this definition:

(a) personal identity card issued by the
appropriate

United

States

authority

1. The term "military personnel" refers to

showing full name, date of birth, rank or

military members of the United States

grade and service number (if any), branch

Army, Navy, Marine Corps, Air Force, and

of service and photograph; and

Coast

Guard.

2. The term "civilian personnel" refers to

individuals who are neither nationals of
nor ordinarily resident in the Philippines
and who are employed by the United
States

armed

forces

or

who

are

accompanying the United States armed

forces,

such

as

employees

of

the

(b) individual or collective document

issued by the appropriate United States
authority, authorizing the travel or visit
and identifying the individual or group as
United States military personnel.

(c) the commanding officer of a military

aircraft

or

vessel

shall

present

(a)

Philippine

authorities

shall

have

declaration of health, and when required

jurisdiction over United States personnel

by the cognizant representative of the

with respect to offenses committed within

Government of the Philippines, shall

the Philippines and punishable under the

conduct a quarantine inspection and will

law of the Philippines.

certify that the aircraft or vessel is free

from

quarantinable

diseases.

Any

quarantine inspection of United States

(b) United States military authorities shall

aircraft, or vessels, or cargoes thereon,

have the right to exercise within the

shall be conducted by the United States

Philippines all criminal and disciplinary

commanding officer in accordance with

jurisdiction conferred on them by the

the international health regulations as

promulgated
Organization,

by

the

and

World

military law of the United States over

Health

mutually

United

agreed

States

personnel

in

the

Philippines.

procedures.
2. (a) Philippine authorities exercise exclusive
4. United States civilian personnel shall be
exempt from visa requirements but shall present,
upon demand, valid passports upon entry and
departure

of

the

Philippines.

jurisdiction over United States personnel with

respect to offenses, including offenses relating to
the security of the Philippines, punishable under
the laws of the Philippines, but not under the laws
of

the

United

States.

5. If the Government of the Philippines has

requested the removal of any United States
personnel from its territory, the United States

(b) United States authorities exercise

authorities shall be responsible for receiving the

exclusive jurisdiction over United States

person concerned within its own territory or

personnel

otherwise disposing of said person outside of the

including offenses relating to the security

Philippines.

of the United States, punishable under

with

respect

to

offenses,

the laws of the United States, but not

Article IV

under the laws of the Philippines.

Driving and Vehicle Registration

(c) For the purposes of this paragraph
1. Philippine authorities shall accept as valid,
without test or fee, a driving permit or license

and paragraph 3 of this article, an offense

relating to security means:

issued by the appropriate United States authority

to United States personnel for the operation of
military

or

official

vehicles.
(1) treason;

2. Vehicles owned by the Government of the

United States need not be registered, but shall
have appropriate markings.

(2)

sabotage,

espionage

or

violation of any law relating to

Article V

national defense.

Criminal Jurisdiction
3. In cases where the right to exercise jurisdiction
1. Subject to the provisions of this article:

is concurrent, the following rules shall apply:

(a) Philippine authorities shall have the

(e) When the United States military

primary right to exercise jurisdiction over

commander determines that an offense

all offenses committed by United States

charged by authorities of the Philippines

personnel, except in cases provided for

against United States personnel arises

in paragraphs l (b), 2 (b), and 3 (b) of this

out of an act or omission done in the

Article.

performance

of

official

duty,

the

commander will issue a certificate setting

(b) United States military authorities shall
have

the

primary

right

to

exercise

jurisdiction over United States personnel

subject to the military law of the United
States in relation to:

forth such determination. This certificate

will be transmitted to the appropriate
authorities of the Philippines and will
constitute sufficient proof of performance
of official duty for the purposes of
paragraph 3(b)(2) of this article. In those
cases where the Government of the

(1) offenses solely against the

Philippines believes the circumstances of

property or security of the United

the case require a review of the duty

States or offenses solely against

certificate,

the property or person of United

authorities

States personnel; and

shall

United
and

consult

States

military

Philippine

authorities

immediately.

Philippine

authorities at the highest levels may also

present any information bearing on its
(2) offenses arising out of any act
or omission done in performance

validity. United States military authorities

shall take full account of the Philippine
position.

of official duty.

States

Where
military

disciplinary

or

appropriate,
authorities
other

United

will

action

take

against

offenders in official duty cases, and

(c) The authorities of either government
may request the authorities of the other

notify the Government of the Philippines

of the actions taken.

government to waive their primary right

to exercise jurisdiction in a particular
case.
(f) If the government having the primary
right does not exercise jurisdiction, it
shall notify the authorities of the other
(d) Recognizing the responsibility of the
United
maintain

States

military

good

order

authorities
and

government as soon as possible.

to

discipline

among their forces, Philippine authorities

will, upon request by the United States,
waive their primary right to exercise
jurisdiction except in cases of particular
importance to the Philippines. If the
Government

of

the

Philippines

determines that the case is of particular

(g) The authorities of the Philippines and

the United States shall notify each other
of the disposition of all cases in which
both the authorities of the Philippines and
the United States have the right to
exercise jurisdiction.

importance, it shall communicate such

determination

to

the

United

States

authorities within twenty (20) days after

the Philippine authorities receive the
United States request.

4. Within the scope of their legal competence, the

authorities of the Philippines and the United
States shall assist each other in the arrest of
United States personnel in the Philippines and in
handing them over to authorities who are to
exercise jurisdiction in accordance with the

provisions

of

this

article.

have had their sentence remitted or suspended,

or have been pardoned, they may not be tried

5. United States military authorities shall promptly

again for the same offense in the Philippines.

notify Philippine authorities of the arrest or

Nothing in this paragraph, however, shall prevent

detention of United States personnel who are

United States military authorities from trying

subject

exclusive

United States personnel for any violation of rules

jurisdiction. Philippine authorities shall promptly

of discipline arising from the act or omission

notify United States military authorities of the

which constituted an offense for which they were

arrest

tried

to

or

Philippine

detention

primary

of

any

or

United

States

by

Philippine

authorities.

personnel.
9. When United States personnel are detained,
6. The custody of any United States personnel

taken into custody, or prosecuted by Philippine

over

authorities, they shall be accorded all procedural

whom

the

Philippines

is

to

exercise

jurisdiction shall immediately reside with United

safeguards

established

States military authorities, if they so request, from

Philippines.

At the

the commission of the offense until completion of

personnel

by

the

minimum,

shall

law

of

United

the

States

be

entitled:

and

speedy trial;

all judicial proceedings. United States military

authorities shall, upon formal notification by the
Philippine authorities and without delay, make

(a)

To

prompt

such personnel available to those authorities in

time for any investigative or judicial proceedings
relating to the offense with which the person has
been

charged.

In

extraordinary

cases,

the

Philippine Government shall present its position

(b) To be informed in advance of trial of

the specific charge or charges made
against them and to have reasonable time
to

prepare

defense;

to the United States Government regarding

custody, which the United States Government
shall take into full account. In the event Philippine
judicial proceedings are not completed within one

(c) To be confronted with witnesses

against them and to cross examine such
witnesses;

year, the United States shall be relieved of any

obligations under this paragraph. The one year
period will not include the time necessary to
appeal. Also, the one year period will not include

(d) To present evidence in their defense

and to have compulsory process for
obtaining witnesses;

any time during which scheduled trial procedures

are delayed because United States authorities,
after timely notification by Philippine authorities

(e) To have free and assisted legal

to arrange for the presence of the accused, fail to

representation of their own choice on the

do

same

so.

basis

as

nationals

of

the

Philippines;
7. Within the scope of their legal authority, United
States and Philippine authorities shall assist each
other in the carrying out of all necessary
investigations into offenses and shall cooperate

(f) To have the services of a competent

interpreter;

in providing for the attendance of witnesses and

in the collection and production of evidence,
including seizure and, in proper cases, the
delivery of objects connected with an offense.

(g) To communicate promptly with and to

be visited regularly by United States
authorities, and to have such authorities
present at all judicial proceedings. These

8. When United States personnel have been tried

in accordance with the provisions of this article
and have been acquitted or have been convicted
and are serving, or have served their sentence, or

proceedings shall be public unless the

court, in accordance with Philippine law,
excludes persons who have no role in the
proceedings.

10. The confinement or detention by Philippine

into, or acquisition within, the Philippines. Such

authorities of United States personnel shall be

property may be removed from the Philippines, or

carried out in facilities agreed on by appropriate

disposed of therein, provided that disposition of

Philippine and United States authorities. United

such property in the Philippines to persons or

States

the

entities not entitled to exemption from applicable

Philippines shall have the right to visits and

taxes and duties shall be subject to payment of

material

such taxes, and duties and prior approval of the

personnel

serving

sentences

in

assistance.

Philippine

Government.

11. United States personnel shall be subject to

trial

only

in

Philippine

courts

of

ordinary

2. Reasonable quantities of personal baggage,

jurisdiction, and shall not be subject to the

personal effects, and other property for the

jurisdiction of Philippine military or religious

personal use of United States personnel may be

courts.

imported into and used in the Philippines free of

all duties, taxes and other similar charges during
the

Article VI

period

of

their temporary stay in

the

Philippines. Transfers to persons or entities in the

Philippines not entitled to import privileges may

Claims

only be made upon prior approval of the

1. Except for contractual arrangements, including
United States foreign military sales letters of offer
and acceptance and leases of military equipment,
both governments waive any and all claims
against each other for damage, loss or
destruction to property of each other's armed
forces or for death or injury to their military and
civilian personnel arising from activities to which
this
aggreement
applies.
2. For claims against the United States, other than
contractual claims and those to which paragraph
1 applies, the United States Government, in
accordance with United States law regarding
foreign claims, will pay just and reasonable
compensation in settlement of meritorious claims
for damage, loss, personal injury or death, caused
by acts or omissions of United States personnel,
or otherwise incident to the non-combat activities
of the United States forces.

appropriate

Philippine

authorities

including

payment by the recipient of applicable duties and

taxes imposed in accordance with the laws of the
Philippines. The exportation of such property and
of property acquired in the Philippines by United
States personnel shall be free of all Philippine
duties,

taxes,

and

other

similar

charges.

Article VIII
Movement

of

Vessels

and

Aircraft

1. Aircraft operated by or for the United States

armed forces may enter the Philippines upon
approval of the Government of the Philippines in
accordance

with

procedures

implementing

stipulated

in

arrangements.

Article VII
2. Vessels operated by or for the United States

Importation and Exportation

armed forces may enter the Philippines upon

equipment,

approval of the Government of the Philippines.

materials, supplies, and other property imported

The movement of vessels shall be in accordance

into or acquired in the Philippines by or on behalf

with international custom and practice governing

of the United States armed forces in connection

such vessels, and such agreed implementing

with activities to which this agreement applies,

arrangements

1.

United

States

Government

as

necessary.

shall be free of all Philippine duties, taxes and

other similar charges. Title to such property shall

3. Vehicles, vessels, and aircraft operated by or

remain with the United States, which may remove

for the United States armed forces shall not be

such property from the Philippines at any time,

subject to the payment of landing or port fees,

free from export duties, taxes, and other similar

navigation or overflight charges, or tolls or other

charges.

this

use charges, including light and harbor dues,

paragraph shall also extend to any duty, tax, or

while in the Philippines. Aircraft operated by or

other similar charges which would otherwise be

for the United States armed forces shall observe

assessed upon such property after importation

local air traffic control regulations while in the

The

exemptions

provided

in

Philippines. Vessels owned or operated by the

United States solely on United States Government
non-commercial service shall not be subject to
compulsory pilotage at Philippine ports.
Article IX
Duration

and

Termination

This agreement shall enter into force on the date

on which the parties have notified each other in
writing through the diplomatic channel that they
have completed their constitutional requirements
for entry into force. This agreement shall remain
in force until the expiration of 180 days from the
date on which either party gives the other party
notice in writing that it desires to terminate the
agreement.
IN WITNESS WHEREOF the undersigned,
being duly authorized by their respective
governments,

have

signed

this

agreement.
DONE

in

duplicate

at

Manila,

The

Philippines, this 10th day of February,

1998.
FOR THE GOVERNMENTFOR THE GOVERNMENT
OF THE UNITED STATESOF THE REPUBLIC OF
OF

AMERICA THE

Thomas C. Hubbard

PHILIPPINES

Domingo L. Siazon, Jr.