You are on page 1of 47

August 15, 1961

IN RE: PETITION OF ARTURO EFREN
GARCIA for admission to the Philippine Bar
without taking the examination. ARTURO
EFREN GARCIA, petitioner.
RESOLUTION
BARRERA, J.:
Arturo E. Garcia has applied for admission to the
practice of law in the Philippines without submitting
to the required bar examinations. In his verified
petition, he avers, among others, that he is a Filipino
citizen born in Bacolor City, Province of Negros
Occidental, of Filipino parentage; that he had taken
and finished in Spain, the course of "Bachillerato
Superior"; that he was approved, selected and
qualified by the "Instituto de Cervantes" for
admission to the Central University of Madrid where
he studied and finished the law course graduating
there as "Licenciado En Derecho"; that thereafter he
was allowed to practice the law profession in Spain;
and that under the provision of the Treaty of
Academic Degrees and the Exercise of Professions
between the Republic of the Philippines and the
Spanish state, he is entitled to practice the law
profession in the Philippines without submitting to
the required bar examinations.
After due consideration, the Court resolved to deny
the petition on the following grounds:
(1) the provisions of the Treaty on Academic
Degrees and the Exercise of Professions between the
Republic of the Philippines and the Spanish State
can not be invoked by applicant. Under Article 11
thereof;
The Nationals of each of the two countries who shall
have obtained recognition of the validity of their
academic degrees by virtue of the stipulations of this

Treaty, can practice their professions within the
territory of the Other, . . .. (Emphasis supplied).
from which it could clearly be discerned that said
Treaty was intended to govern Filipino citizens
desiring to practice their profession in Spain, and the
citizens of Spain desiring to practice their
professions in the Philippines. Applicant is a Filipino
citizen desiring to practice the legal profession in the
Philippines. He is therefore subject to the laws of his
own country and is not entitled to the privileges
extended to Spanish nationals desiring to practice in
the Philippines.

promulgate rules for admission to the practice of law
in the Philippines, the lower to repeal, alter or
supplement such rules being reserved only to the
Congress of the Philippines. (See Sec. 13, Art VIII,
Phil. Constitution).
THIRD DIVISION

(2) Article I of the Treaty, in its pertinent part,
provides .
The nationals of both countries who shall have
obtained degree or diplomas to practice the liberal
professions in either of the Contracting States, issued
by competent national authorities, shall be deemed
competent to exercise said professions in the
territory of the Other, subject to the laws and
regulations of the latter. . . ..
It is clear, therefore, that the privileges provided in
the Treaty invoked by the applicant are made
expressly subject to the laws and regulations of the
contracting State in whose territory it is desired to
exercise the legal profession; and Section 1 of Rule
127, in connection with Sections 2,9, and 16 thereof,
which have the force of law, require that before
anyone can practice the legal profession in the
Philippine he must first successfully pass the
required bar examinations; and
(3) The aforementioned Treaty, concluded between
the Republic of the Philippines and the Spanish State
could not have been intended to modify the laws and
regulations governing admission to the practice of
law in the Philippines, for the reason that the
Executive Department may not encroach upon the
constitutional prerogative of the Supreme Court to

MA. IMELDA M. MANOTOC, G.R. No. 130974

1

Petitioner,
Present:
- versus - QUISUMBING, J., Chairperson,
CARPIO,
CARPIO MORALES,
HONORABLE COURT OF TINGA, and
APPEALS and AGAPITA VELASCO, JR., JJ.
TRAJANO on behalf of the Estate
of ARCHIMEDES TRAJANO, Promulgated:
Respondents. August 16, 2006

x----------------------------------------------------------------------------------------x

DECISION

VELASCO, JR., J.:

The courts jurisdiction over a defendant is founded
on a valid service of summons. Without a valid
service, the court cannot acquire jurisdiction over the
defendant, unless the defendant voluntarily submits
to it. The defendant must be properly apprised of a
pending action against him and assured of the
opportunity to present his defenses to the suit.Proper
service of summons is used to protect ones right to
due process.
The Case

This Petition for Review on Certiorari[1] under Rule
45 presents the core issue whether there was a valid
substituted service of summons on petitioner for the
trial court to acquire jurisdiction. Petitioner Manotoc
claims the court a quo should have annulled the
proceedings in the trial court for want of jurisdiction
due to irregular and ineffective service of summons.

The Facts

Petitioner is the defendant in Civil Case No. 63337
entitled Agapita Trajano, pro se, and on behalf of the
Estate of Archimedes Trajano v. Imelda Imee R.
Marcos-Manotoc[2] for Filing, Recognition and/or
Enforcement of Foreign Judgment. Respondent
Trajano seeks the enforcement of a foreign courts
judgment rendered on May 1, 1991 by the United
States District Court of Honolulu, Hawaii, United
States of America, in a case entitled Agapita
Trajano, et al. v. Imee Marcos-Manotoc a.k.a. Imee
Marcos, Civil Case No. 86-0207 for wrongful death
of deceased Archimedes Trajano committed by
military intelligence officials of the Philippines
allegedly under the command, direction, authority,
supervision, tolerance, sufferance and/or influence of
defendant Manotoc, pursuant to the provisions of
Rule 39 of the then Revised Rules of Court.

Based on paragraph two of the Complaint, the trial
court issued a Summons[3] on July 6, 1993 addressed
to petitioner at Alexandra Condominium Corporation
orAlexandra Homes, E2 Room 104, at No. 29
Meralco Avenue, Pasig City.
On July 15, 1993, the Summons and a copy of the
Complaint were allegedly served upon (Mr.) Macky

de la Cruz, an alleged caretaker of petitioner at the
condominium unit mentioned earlier.[4] When
petitioner failed to file her Answer, the trial court
declared her in default through an
Order[5] dated October 13, 1993.

On October 19, 1993, petitioner, by special
appearance of counsel, filed a Motion to
Dismiss[6] on the ground of lack of jurisdiction of the
trial court over her person due to an invalid
substituted service of summons. The grounds to
support the motion were: (1) the address of
defendant indicated in the Complaint (Alexandra
Homes) was not her dwelling, residence, or regular
place of business as provided in Section 8, Rule 14
of the Rules of Court; (2) the party (de la Cruz), who
was found in the unit, was neither a representative,
employee, nor a resident of the place; (3) the
procedure prescribed by the Rules on personal and
substituted service of summons was ignored; (4)
defendant was a resident of Singapore; and (5)
whatever judgment rendered in this case would be
ineffective and futile.

During the hearing on the Motion to Dismiss,
petitioner Manotoc presented Carlos Gonzales, who
testified that he saw defendant Manotoc as a visitor
in Alexandra Homesonly two times. He also
identified the Certification of Renato A. de Leon,
which stated that Unit E-2104 was owned by Queens
Park Realty, Inc.; and at the time the Certification
was issued, the unit was not being leased by
anyone. Petitioner also presented her Philippine
passport and the Disembarkation/Embarkation
Card[7] issued by the Immigration Service of
Singapore to show that she was a resident
of Singapore. She claimed that the person referred to
in plaintiffs Exhibits A to EEEE as Mrs. Manotoc
may not even be her, but the mother of Tommy

2

Manotoc, and granting that she was the one referred
to in said exhibits, only 27 out of 109 entries referred
to Mrs. Manotoc. Hence, the infrequent number of
times she allegedly entered Alexandra Homes did
not at all establish plaintiffs position that she was a
resident of said place.
On the other hand, Agapita Trajano, for plaintiffs
estate, presented Robert Swift, lead counsel for
plaintiffs in the Estate of Ferdinand Marcos Human
Rights Litigation, who testified that he participated
in the deposition taking of Ferdinand R. Marcos, Jr.;
and he confirmed that Mr. Marcos, Jr. testified that
petitioners residence was at the Alexandra
Apartment, Greenhills.[8] In addition, the entries[9] in
the logbook of Alexandra Homes from August 4,
1992 to August 2, 1993, listing the name of
petitioner Manotoc and the Sheriffs Return,[10] were
adduced in evidence.

On October 11, 1994, the trial court rejected
Manotocs Motion to Dismiss on the strength of its
findings that her residence, for purposes of the
Complaint, was AlexandraHomes, Unit E-2104, No.
29 Meralco Avenue, Pasig, Metro Manila, based on
the documentary evidence of respondent Trajano.
The trial court relied on the presumption that the
sheriffs substituted service was made in the regular
performance of official duty, and such presumption
stood in the absence of proof to the contrary. [11]
On December 21, 1994, the trial court discarded
Manotocs plea for reconsideration for lack of merit.

1994 and December 21, 1994 Orders of Judge
Aurelio C. Trampe.

Petitioner raises the following assignment of errors
for the Courts consideration:

Ruling of the Court of Appeals

I. RESPONDENT COURT OF APPEALS
COMMITTED [A] SERIOUS ERROR IN
RENDERING THE DECISION AND
RESOLUTION IN QUESTION (ANNEXES A AND
B) IN DEFIANCE OF LAW AND
JURISPRUDENCE IN RULING THAT THE TRIAL
COURT ACQUIRED JURISDICTION OVER THE
PERSON OF THE PETITIONER THROUGH A
SUBSTITUTED SERVICE OF SUMMONS IN
ACCORDANCE WITH SECTION 8, RULE 14 OF
THE REVISED RULES OF COURT.

On March 17, 1997, the CA rendered the assailed
Decision,[14] dismissing the Petition for Certiorari
and Prohibition. The court a quo adopted the
findings of the trial court that petitioners residence
was at Alexandra Homes, Unit E-2104, at No. 29
Meralco Avenue, Pasig, Metro Manila, which was
also the residence of her husband, as shown by the
testimony of Atty. Robert Swift and the Returns of
the registered mails sent to petitioner. It ruled that
the Disembarkation/Embarkation Card and the
Certification datedSeptember 17, 1993 issued by
Renato A. De Leon, Assistant Property Administrator
of Alexandra Homes, were hearsay, and that said
Certification did not refer to July 1993the month
when the substituted service was effected.
In the same Decision, the CA also rejected
petitioners Philippine passport as proof of her
residency in Singapore as it merely showed the dates
of her departure from and arrival in the Philippines
without presenting the boilerplates last two (2) inside
pages where petitioners residence was indicated. The
CA considered the withholding of those pages as
suppression of evidence. Thus, according to the CA,
the trial court had acquired jurisdiction over
petitioner as there was a valid substituted service
pursuant to Section 8, Rule 14 of the old Revised
Rules of Court.

[12]

Undaunted, Manotoc filed a Petition for Certiorari
and Prohibition[13] before the Court of Appeals (CA)
on January 20, 1995, docketed as CA-G.R. SP No.
36214 seeking the annulment of the October 11,

On April 2, 1997, petitioner filed a Motion for
Reconsideration[15] which was denied by the CA in
its Resolution[16] dated October 8, 1997.
Hence, petitioner has come before the Court for
review on certiorari.
The Issues

II. RESPONDENT COURT OF APPEALS
COMMITTED [A] SERIOUS ERROR WHEN IT
RULED THAT THERE WAS A VALID SERVICE
OF SUMMONS ON AN ALLEGED CARETAKER
OF PETITIONERS RESIDENCE IN
COMPLETE DEFIANCE OF THE RULING
IN CASTILLO VS. CFI OF BULACAN, BR. IV,
G.R. NO. L-55869, FEBRUARY 20, 1984, 127
SCRA 632 WHICH DEFINES THE PROPRIETY
OF SUCH SERVICE UPON MERE OVERSEERS
OF PREMISES WHERE A PARTY SUPPOSEDLY
RESIDES.

III. RESPONDENT COURT OF APPEALS
COMMITTED [A] SERIOUS ERROR IN
CONCLUDING THAT THE RESIDENCE OF THE
HUSBAND IS ALSO THE RESIDENCE OF HIS
WIFE CONTRARY TO THE RULING IN THE
BANK OF THE PHILIPPINE ISLANDS VS. DE
COSTER, G.R. NO. 23181, MARCH 16, 1925, 47
PHIL. 594.
IV. RESPONDENT COURT OF APPEALS
COMMITTED [A] SERIOUS ERROR IN FAILING

3

TO APPLY THE RULE ON EXTRATERRITORIAL SERVICE OF SUMMONS UNDER
SECTIONS 17 AND 18, RULE 14 OF THE
REVISED RULES OF COURT.[17]

The assigned errors bring to the fore the crux of the
disagreementthe validity of the substituted service of
summons for the trial court to acquire jurisdiction
over petitioner.
The Courts Ruling
We GRANT the petition.
Acquisition of Jurisdiction
Jurisdiction over the defendant is acquired either
upon a valid service of summons or the defendants
voluntary appearance in court. When the defendant
does not voluntarily submit to the courts jurisdiction
or when there is no valid service of summons, any
judgment of the court which has no jurisdiction over
the person of the defendant is null and void.[18] In an
action strictly in personam, personal service on the
defendant is the preferred mode of service, that is, by
handing a copy of the summons to the defendant in
person. If defendant, for excusable reasons, cannot
be served with the summons within a reasonable
period, then substituted service can be resorted
to. While substituted service of summons is
permitted, it is extraordinary in character and in
derogation of the usual method of service.[19] Hence,
it must faithfully and strictly comply with the
prescribed requirements and circumstances
authorized by the rules. Indeed, compliance with the
rules regarding the service of summons is as much
important as the issue of due process as of
jurisdiction.[20]
Requirements for Substituted Service

Section 8 of Rule 14 of the old Revised Rules of
Court which applies to this case provides:
SEC. 8. [21] Substituted service. If the defendant
cannot be served within a reasonable time as
provided in the preceding section [personal service
on defendant], service may be effected (a) by leaving
copies of the summons at the defendants residence
with some person of suitable age and discretion then
residing therein, or (b) by leaving the copies at
defendants office or regular place of business with
some competent person in charge thereof.
We can break down this section into the following
requirements to effect a valid substituted service:
(1) Impossibility of Prompt Personal Service
The party relying on substituted service or the sheriff
must show that defendant cannot be served promptly
or there is impossibility of prompt service.[22] Section
8, Rule 14 provides that the plaintiff or the sheriff is
given a reasonable time to serve the summons to the
defendant in person, but no specific time frame is
mentioned. Reasonable time is defined as so much
time as is necessary under the circumstances for a
reasonably prudent and diligent man to do,
conveniently, what the contract or duty requires that
should be done, having a regard for the rights and
possibility of loss, if any[,] to the other party.
[23]
Under the Rules, the service of summons has no
set period. However, when the court, clerk of court,
or the plaintiff asks the sheriff to make the return of
the summons and the latter submits the return of
summons, then the validity of the summons
lapses. The plaintiff may then ask for an alias
summons if the service of summons has failed.
[24]
What then is a reasonable time for the sheriff to
effect a personal service in order to demonstrate
impossibility of prompt service? To the plaintiff,
reasonable time means no more than seven (7) days
since an expeditious processing of a complaint is
what a plaintiff wants. To the sheriff, reasonable time

means 15 to 30 days because at the end of the month,
it is a practice for the branch clerk of court to require
the sheriff to submit a return of the summons
assigned to the sheriff for service. The Sheriffs
Return provides data to the Clerk of Court, which the
clerk uses in the Monthly Report of Cases to be
submitted to the Office of the Court Administrator
within the first ten (10) days of the succeeding
month. Thus, one month from the issuance of
summons can be considered reasonable time with
regard to personal service on the defendant.

Sheriffs are asked to discharge their duties on the
service of summons with due care, utmost diligence,
and reasonable promptness and speed so as not to
prejudice the expeditious dispensation of
justice. Thus, they are enjoined to try their best
efforts to accomplish personal service on
defendant. On the other hand, since the defendant is
expected to try to avoid and evade service of
summons, the sheriff must be resourceful,
persevering, canny, and diligent in serving the
process on the defendant. For substituted service of
summons to be available, there must be several
attempts by the sheriff to personally serve the
summons within a reasonable period [of one month]
which eventually resulted in failure to prove
impossibility of prompt service. Several attempts
means at least three (3) tries, preferably on at least
two different dates. In addition, the sheriff must cite
why such efforts were unsuccessful. It is only then
that impossibility of service can be confirmed or
accepted.

(2) Specific Details in the Return

4

WHEREFORE. these details must be contained in the Return. Given the fact that the substituted service of 5 . and whether said person comprehends the significance of the receipt of the summons and his duty to immediately deliver it to the defendant or at least notify the defendant of said receipt of summons. The sheriff must therefore determine if the person found in the alleged dwelling or residence of defendant is of legal age. said summons is hereby returned to this Honorable Court of origin.[28] Thus. then it should be served on a competent person in charge of the place. and such individual must have sufficient knowledge to understand the obligation of the defendant in the summons. Thus. and to no avail for the reason that the said defendant is usually out of her place and/or residence or premises. the Return deviates from the rulinginDomagas v. Thus. a person of suitable age and discretion.[29] A meticulous scrutiny of the aforementioned Return readily reveals the absence of material data on the serious efforts to serve the Summons on petitioner Manotoc in person. such as the president or manager. to serve the summons on defendant must be specified in the Return to justify substituted service. Jensen[30] and other related cases[31]that the pertinent facts and circumstances on the efforts exerted to serve the summons personally must be narrated in the Return. The date and time of the attempts on personal service. such person must know how to read and understand English to comprehend the import of the summons. 1989 requires that impossibility of prompt service should be shown by stating the efforts made to find the defendant personally and the failure of such efforts. living with the said defendant at the given address who acknowledged the receipt thereof of said processes but he refused to sign (emphases supplied). Again. and at what hours of the day the attempts were made. what the recipients relationship with the defendant is. [26] Supreme Court Administrative Circular No. the name/s of the occupants of the alleged residence or house of defendant and all other acts done. The form on Sheriffs Return of Summons on Substituted Service prescribed in the Handbook for Sheriffs published by the Philippine Judicial Academy requires a narration of the efforts made to find the defendant personally and the fact of failure. Metro-Manila July 15. which should be made in the proof of service. MetroManila at reasonable hours of the day but to no avail for the reason that said defendant is usually out of her place and/or residence or premises. though futile. Pasig. There is no clear valid reason cited in the Return why those efforts proved inadequate. Invalid Substituted Service in the Case at Bar Let us examine the full text of the Sheriffs Return. caretaker of the said defendant. on what specific dates.The sheriff must describe in the Return of Summons the facts and circumstances surrounding the attempted personal service. according to (Ms) Lyn Jacinto. personally upon the defendant IMELDA IMEE MARCOSMANOTOC located at Alexandra Condominium Corpration [sic] or Alexandra Homes E-2 Room 104 No. the person must have the relation of confidence to the defendant. and the prejudicial effects arising from inaction on the summons. Wanting in detailed information. its importance. 1993. ensuring that the latter would receive or at least be notified of the receipt of the summons. duly served for its record and information. 1993. (4) A Competent Person in Charge If the substituted service will be done at defendants office or regular place of business. right or wise may be presupposed. substituted service of summons was resorted to in accordance with the Rules of Court in the Philippines leaving copy of said summons with complaint and annexes thru [sic] (Mr) Macky de la Cruz. which reads: THIS IS TO CERTIFY that on many occasions several attempts were made to serve the summons with complaint and annexes issued by this Honorable Court in the above entitled case..[25] The efforts made to find the defendant and the reasons behind the failure must be clearly narrated in detail in the Return. to be of sufficient discretion. to reach the conclusion that personal service has become impossible or unattainable outside the generally couched phrases of on many occasions several attempts were made to serve the summons x x x personally. it should be left with a person of suitable age and discretion then residing therein. It cannot be determined how many times. the inquiries made to locate the defendant. 5 datedNovember 9.[27] A person of suitable age and discretion is one who has attained the age of full legal capacity (18 years old) and is considered to have enough discernment to understand the importance of a summons. at reasonable hours during the day. That on the 15th day of July. (3) A Person of Suitable Age and Discretion If the substituted service will be effected at defendants house or residence. Receptionist and Telephone Operator of the said building. the person on whom the substituted service will be made must be the one managing the office or business of defendant. These matters must be clearly and specifically described in the Return of Summons. 29 Merlaco [sic] Ave. Pasig. Discretion is defined as the ability to make decisions which represent a responsible choice and for which an understanding of what is lawful. and fully realize the need to deliver the summons and complaint to the defendant at the earliest possible time for the person to take appropriate action.

the substituted service of summons must be shown to clearly comply with the rules. who served such summons. Besides. Besides. inquiries to locate defendant. In the case Umandap v. The facts and circumstances should be stated with more particularity and detail on the number of attempts made at personal service. Certainly. Before resorting to substituted service. in the case in hand. The inquiry must be as to whether the requisites of the statute have been complied with. However. thus: The procedure prescribed by a statute or rule for substituted or constructive service must be strictly pursued.summons may be assailed. by the local law. apart from the allegation of petitioners address in the Complaint. To protect petitioners right to due process by being accorded proper notice of a case against her. and those resulted in failure. [38] The fact that the defendant had actual knowledge of attempted service does not render the service effectual if in fact the process was not served in accordance with the requirements of the statute. Macky de la Cruz. by a Motion to Dismiss. dates and times of the attempts.[36] Where. as in the present case. to allow sheriffs to describe the facts and circumstances in inexact terms would encourage routine performance of their precise duties relating to substituted servicefor it would be quite easy to shroud or conceal carelessness or laxity in such broad terms.[37] Jurisdiction is not to be assumed and exercised on the general ground that the subject matter of the suit is within the power of the court.[33] it may be true that the Court held that a Sheriffs Return. It has been stated and restated that substituted service of summons must faithfully and strictly comply with the prescribed requirements and in the circumstances authorized by the rules. and (2) recipient must reside in the house or residence of defendant. or representative. which states that despite efforts exerted to serve said process personally upon the defendant on several occasions the same proved futile. It is doubtful if Mr. Lastly. there is still a serious nonconformity from the requirement that the summons must be left with a person of suitable age and discretion residing in defendants house or residence.[35] There must be strict compliance with the requirements of statutes authorizing substituted or constructive service. Macky de la Cruzs refusal to sign the Receipt for the summons is a strong indication that he did not have the necessary relation of confidence with petitioner. and so [they] allege about the address and whereabouts of petitioner. it is necessary to have additional information in the Return of Summons. it would have been better for personal service to have been pursued persistently. and discretion of Mr. would prove impossibility of prompt personal service. Lyn Jacinto. Both requirements were not met. respondent Trajano failed to demonstrate that there was strict compliance with the requirements of the then Section 8.[32] More so. aside from the sheriffs general assertion that de la Cruz is the resident caretaker of petitioner as pointed out by a certain Ms. Jr. servant. de la Cruz is residing with petitioner Manotoc in the condominium unit considering that a married woman of her stature in society would unlikely hire a male caretaker to reside in her dwelling. Moreover. [34] Even American case law likewise stresses the principle of strict compliance with statute or rule on substituted service. the Sheriffs Return lacks information as to residence.. substituted or constructive service is in certain situations authorized in the place of personal service when the latter is inconvenient or impossible. there are two (2) requirements under the Rules: (1) recipient must be a person of suitable age and discretion. Rule 14 6 . conforms to the requirements of valid substituted service. alleged receptionist and telephone operator of Alexandra Homes. a strict and literal compliance with the provisions of the law must be shown in order to support the judgment based on such substituted or constructive service. names of occupants of the alleged residence. it is imperative that the pertinent facts and circumstances surrounding the service of summons be described with more particularity in the Return or Certificate of Service. exerted extraordinary efforts to locate petitioner. and such compliance must appear on the record. resulting in prolonged litigation and wasteful legal expenses. in view of the numerous claims of irregularities in substituted service which have spawned the filing of a great number of unnecessary special civil actions of certiorari and appeals to higher courts. it has not been shown that respondent Trajano or Sheriff Caelas. considering that monies and properties worth millions may be lost by a defendant because of an irregular or void substituted service. In this case. Mr. Thus. Sabio. [39] Based on the above principles. it is but only fair that the Sheriffs Return should clearly and convincingly show the impracticability or hopelessness of personal service. and the reasons for failure should be included in the Return to satisfactorily show the efforts undertaken. age. That such efforts were made to personally serve summons on defendant. the Court rules in the case at bar that the narration of the efforts made to find the defendant and the fact of failure written in broad and imprecise words will not suffice. the second paragraph of the Complaint only states that respondents were informed. when the alleged petitioners residence or house is doubtful or has not been clearly ascertained. Granting that such a general description be considered adequate. a plaintiff must demonstrate an effort in good faith to locate the defendant through more direct means. With the petitioners allegation that Macky de la Cruz is not her employee.

In the case of Venturanza v. These facts must be specifically narrated in the Return.(now Section 7. Pasig City. Otherwise.R. and to overcome the presumption arising from said certificate. the Return of Sheriff Caelas did not comply with the stringent requirements of Rule 14. such fact would not make an irregular and void substituted service valid and effective. the Sheriffs Return must show that serious efforts or attempts were exerted to personally serve the summons and that said efforts failed. SUZETTE NICOLAS y SOMBILON. for the presumption to apply. Jensen and other cases. Section 8 on substituted service. our findings that the substituted service is void has rendered the matter moot and academic. it must clearly show that the substituted service must be made on a person of suitable age and discretion living in the dwelling or residence of defendant. EDUARDO ERMITA. in his capacity as Secretary of Justice. 1997 Resolution of the Court of Appeals and the October 11. RONALDO PUNO. Unit E-2104. Branch 163 are herebyREVERSED and SET ASIDE. National Capital Judicial Region. effort to accomplish personal service. at No. RAUL GONZALEZ. 175888 ALBERTO ROMULO. Rule 14 of the 1997 Rules of Civil Procedure). 1994 and December 21. in his capacity as Secretary of Foreign Affairs.[41] it was held that x x x the presumption of regularity in the performance of official functions by the sheriff is not applicable in this case where it is patent that the sheriffs return is defective (emphasis supplied). 1994 Orders of the Regional Trial Court. Thus. SO ORDERED. in his 7 . Even assuming that Alexandra Homes Room 104 is her actual residence. the evidence must be clear and convincing. 1997 Decision and October 8. As previously explained. 29 Meralco Avenue. It is as if Caelas Return did not mention any IN VIEW OF THE FOREGOING. However. The court a quo heavily relied on the presumption of regularity in the performance of official duty. G. the Return is flawed and the presumption cannot be availed of. To reiterate. No costs. the proceedings held before the trial court perforce must be annulled On the issue whether petitioner Manotoc is a resident of Alexandra Homes. Pasig City. the Return of Sheriff Caelas in the case at bar merely described the efforts or attempts in general terms lacking in details as required by the ruling in the case of Domagas v. Court of Appeals. in his capacity as Executive Secretary. this Petition for Review is hereby GRANTED and the assailed March 17.[40] The Court acknowledges that this ruling is still a valid doctrine. While the Sheriffs Return in the Venturanza case had no statement on the effort or attempt to personally serve the summons. the substituted service is void. No. It reasons out that [t]he certificate of service by the proper officer isprima facie evidence of the facts set out herein. Due to non-compliance with the prerequisites for valid substituted service.

KILUSANG MAYO UNO (KMU). Hon. Liza Maza. the above-named accuseds (sic). Pozon. which is attached hereto and made an integral part hereof as Annex A. Nicolas. (BAYAN). EMILIO C. JUSTICE SECRETARY RAUL GONZALEZ. AZCUNA. 176222 X----------------------------------X JOVITO R. 2009 That on or about the First (1st) day of November 2005. No. No.. of the crime of Rape under Article 266-A of the Revised Penal Code. SALONGA. SP No. and THE PUBLIC INTEREST LAW CENTER. Keith Silkwood and Timoteo L. represented by Willy Marbella. etc.. SERGIO APOSTOL. HARRY L. in CA-G. Respondents.R. BAGONG ALYANSANG MAKABAYAN G. He was charged with the crime of rape committed against a Filipina. Satur Ocampo. Rachel Pastores. represented by Atty. dated January 2. LEAGUE OF FILIPINO STUDENTS (LFS). GABRIELA. PRESIDENTIAL LEGAL COUNSEL SERGIO APOSTOL. Promulgated: February 11.X PRESIDENT GLORIA MACAPAGALARROYO. JOSE DE LA RAMA. 2005. inside the Subic Bay Freeport Zone. 176051 E. 2007. JR. and BENJAMIN POZON. represented by Rep. BAYAN MUNA. DANIEL SMITH.: These are petitions for certiorari. Jr.versus - Respondent Lance Corporal (L/CPL) Daniel Smith is a member of the United States Armed Forces. GABRIELA WOMENS PARTY. SECRETARY RONALDO PUNO. AND INTERIOR AND LOCAL GOVERNMENT SECRETARY RONALDO PUNO. KILUSANG MAGBUBUKID NG PILIPINAS (KMP). 97212. and L/CPL. FLORIN HILBAY. . Dominic Duplantis.capacity as Secretary of the Interior and Local Government. EXECUTIVE SECRETARY EDUARDO ERMITA. being then 8 . Daniel Smith. Olongapo City and within the jurisdiction of this Honorable Court. represented by Emerenciana de Jesus. Chad Brian Carpentier. DECISION Petitioners. SECRETARY ALBERTO ROMULO. sometime on November 1. represented by Dr. The facts are not disputed. as follows: Petitioners. ROQUE. represented by Vencer Crisostomo. Soriano. Smith v. CAPULONG. TAADA.R. WIGBERTO G. petitioner herein. as special civil actions and/or for review of the Decision of the Court of Appeals in Lance Corporal Daniel J. Benjamin T. Ssgt.versus - DANIEL SMITH. in her capacity as concurrent Defense Secretary. represented by Elmer Labog. X --------------------------------------------------------------------------------------. H. and all persons acting in their capacity. et al. as amended by Republic Act 8353. The Special 16th Division of the COURT OF APPEALS. upon a complaint under oath filed by Suzette S.R. J. SECRETARY RAUL GONZALEZ. committed as follows: Respondents. represented by Rep. . in his capacity as Presidential Legal Counsel. FOREIGN AFFAIRS SECRETARY ALBERTO ROMULO. Carol Araullo. X----------------------------------X Respondents. The undersigned accused LCpl.

. NICOLAS in the amount of P50. he will be detained at the first floor. the United States Government faithfully complied with its undertaking to bring defendant Smith to the trial court every time his presence was required. DANIEL J. Embassy in Manila. Pending agreement on such facilities. Embassy Compound in a room of approximately 10 x 12 square feet. Nicolas. as amended by R. be returned to U.00 as moral damages. 2006. The matter was brought before the Court of Appeals which decided on January 2. a 22-year old unmarried woman inside a Starex Van with Plate No. purportedly acting under orders of the Department of the Interior and Local Government. provided for under new agreements between the Philippines and the United States.. premises considered. of the Visiting Forces Agreement entered into by the Philippines and the United States. the RTC of Makati. United States Marine Corps. thereafter. 8353. During the trial. Smith. in accordance with Article 266-B.000. ROMULO Representative of the United States Representative of the Republic of America of the Philippines DATE: 12-19-06 DATE: December 19. accused L/CPL.A. Pursuant to Article V. Lance Corporal Daniel J. SMITH is hereby temporarily committed to the Makati City Jail. military custody at the U. SMITH.S. threat and intimidation. SO ORDERED. confederating together and mutually helping one another. under the direct supervision of the Philippine Department of Interior and Local Government (DILG) will have access to the place of detention to ensure the United States is in compliance with the terms of the VFA. 10. DOMINIC DUPLANTIS. finding defendant Smith guilty. defendant Smith was taken out of the Makati jail by a contingent of Philippine law enforcement agents. Guadalupe.members of the United States Marine Corps. The prosecution having presented sufficient evidence against accused L/CPL. except Timoteo L. Jr. Soriano. The Philippine police and jail authorities. military personnel. are hereby ACQUITTED to the crime charged. and brought to a facility for detention under the control of the United States government. CONTRARY TO LAW. On December 4. 2006. 2006 which states: The Government of the Republic of the Philippines and the Government of the United States of America agree that. the Makati court ordered Smith detained at the Makati jail until further orders. 2006__ and the Romulo-Kenney Agreement of December 22. owned by Starways Travel and Tours. Rowe (JUSMAG) Building.S. paragraph 1 (a) of the Revised Penal Code. however. WKF-162. with lewd design and by means of force. rendered its Decision. in accordance with the Visiting Forces Agreement signed between the two nations. Accused L/CPL. with Office address at 8900 P. Jr. DANIEL J. On December 29. did then and there willfully. entered into on February 10. Soriano. KEITH SILKWOOD AND L/CPL. 2007. and driven by accused Timoteo L. with abuse of superior strength and taking advantage of the intoxication of the victim.00 as compensatory damages plus P50. U. to her damage and prejudice. all of the US Marine Corps assigned at the USS Essex. L/CPL. accused L/CPL.) KRISTIE A. hereby sentences him to suffer the penalty of reclusion perpetua together with the accessory penalties provided for under Article 41 of the same Code. was granted custody of defendant Smith pending the proceedings. DANIEL J.. 2006 which states: The Department of Foreign Affairs of the Republic of the Philippines and the Embassy of the United States of America agree that. Smith.S. Nicolas. thus: WHEREFORE.[2] As a result. also of the US Marine Corps at the USS Essex. in accordance with the Visiting Forces Agreement signed between our two nations. conspiring. United States Marine Corps. CHAD BRIAN CARPENTER. and. KENNEY (Sgd. (Sgd. first paragraph thereof. for failure of the prosecution to adduce sufficient evidence against accused S/SGT. paragraph No. upon transfer of Lance Corporal Daniel J.[1] Pursuant to the Visiting Forces Agreement (VFA) between the Republic of the Philippines and the United States. unlawfully and feloniously sexually abuse and have sexual intercourse with or carnal knowledge of one Suzette S. Makati City. be agreed upon by appropriate Philippine and United States authorities. Victor St. SMITH shall serve his sentence in the facilities that shall.000. the United States. SMITH is further sentenced to indemnify complainant SUZETTE S. as follows: 9 . against the will and consent of the said Suzette S.) ALBERTO G. 1998. following the end of the trial. at its request. He will be guarded round the clock by U. DANIEL J.S. which was transferred from the Regional Trial Court (RTC) of Zambales to the RTC of Makati for security reasons. from the Makati City Jail. this Court hereby finds him GUILTY BEYOND REASONABLE DOUBT of the crime of RAPE defined under Article 266-A. referred to as the Romulo-Kenney Agreement of December 19.

for the recognition of independence. The RP-US Mutual Defense Treaty states:[7] 10 . or facilities shall not be allowed in the Philippines except under a treaty duly concurred in by the Senate and. and stare decisis vis--vis all the parties. foreign military bases. the United States agreed to cede to the Philippines all the territory it acquired from Spain under the Treaty of Paris. This issue had been raised before. and this Court resolved in favor of the constitutionality of the VFA. To prevent a recurrence of this experience. troops. whereas those that carry out or further implement these policymaking agreements are merely submitted to Congress. 1951. It will be recalled that under the Philippine Bill of 1902. Subsequently. For this is a matter of internal United States law. ratified by a majority of the votes cast by the people in a national referendum held for that purpose. because the Philippines regarded it as a treaty and had it concurred in by our Senate. This earlier agreement was signed and duly ratified with the concurrence of both the Philippine Senate and the United States Senate.[5] the VFA was duly concurred in by the Philippine Senate and has been recognized as a treaty by the United States as attested and certified by the duly authorized representative of the United States government. Sec. which laid the basis for the Philippine Commonwealth and. plus a few islands later added to its realm. as they were excluded from the cession and retained by the US. Accordingly.WHEREFORE. involving the sovereignty of the Republic. a disparity in treatment. one of petitioners in the present cases. we resolved to DISMISS the petition for having become moot. the United States agreed to turn over these bases to the Philippines. all the foregoing considered. The fact that the VFA was not submitted for advice and consent of the United States Senate does not detract from its status as a binding international agreement or treaty recognized by the said State. After the expiration in 1991 of the Agreement between the Philippines and the United States of America concerning Military Bases. 25. This was in Bayan v. 2008. as held in Bayan v. as well as a specific mandate of the Constitution. the present actions. Notice can be taken of the internationally known practice by the United States of submitting to its Senate for advice and consent agreements that are policymaking in nature. Zamora. and with the expiration of the RP-US Military Bases Agreement in 1991. The provision of the Constitution is Art. The provision is thus designed to ensure that any agreement allowing the presence of foreign military bases. Applying the provision to the situation involved in these cases. The idea is to prevent a recurrence of the situation in which the terms and conditions governing the presence of foreign armed forces in our territory were binding upon us but not upon the foreign State. The petitions were heard on oral arguments on September 19. because what this means is that Clark and Subic and the other places in the Philippines covered by the RP-US Military Bases Agreement of 1947 were not Philippine territory.[4] brought by Bayan. Zamora. This is noteworthy. 25 which states: Sec. for two reasons. except certain naval ports and/or military bases and facilities. the RP-US Military Bases Agreement was never advised for ratification by the United States Senate. after which the parties submitted their memoranda. First. under the provisions of the so-called CaseZablocki Act.[6] The second reason has to do with the relation between the VFA and the RP-US Mutual Defense Treaty of August 30. the VFA is void and unconstitutional. first of all.[3] Hence. the reversal of the previous ruling is sought on the ground that the issue is of primordial importance. within sixty days from ratification. XVIII. Against the barriers of res judicata vis--vis Bayan. when the Congress so requires. the provision in question was adopted in the 1987 Constitution. and recognized as a treaty by the other contracting State. troops or facilities in Philippine territory shall be equally binding on the Philippines and the foreign sovereign State involved. The reason for this provision lies in history and the Philippine experience in regard to the United States military bases in the country. which the United States retained for itself. Petitioners contend that the Philippines should have custody of defendant L/CPL Smith because. the Philippines had no jurisdiction over these bases except to the extent allowed by the United States. This Court finds that it is. Furthermore. the question is whether or not the presence of US Armed Forces in Philippine territory pursuant to the VFA is allowed under a treaty duly concurred in by the Senate xxx and recognized as a treaty by the other contracting State. eventually. the territory covered by these bases were finally ceded to the Philippines.

as set forth in the Charter of the United Nations. For the Republic of the Philippines: (Sgd. ROMULO (Sgd. ARTICLE VI.) CARLOS P. will consult together from time to time regarding the implementation of this Treaty and whenever in the opinion of either of them the territorial integrity. ARTICLE VIII. ARTICLE IV. Recalling with mutual pride the historic relationship which brought their two peoples together in a common bond of sympathy and mutual ideals to fight side-by-side against imperialist aggression during the last war. IN WITHNESS WHEREOF the undersigned Plenipotentiaries have signed this Treaty. The Parties. the Parties separately and jointly by self-help and mutual aid will maintain and develop their individual and collective capacity to resist armed attack. The Parties of this Treaty Reaffirming their faith in the purposes and principles of the Charter of the United Nations and their desire to live in peace with all peoples and all governments.MUTUAL DEFENSE TREATY BETWEEN THE REPUBLIC OF THE PHILIPPINES AND THE UNITED STATES OF AMERICA. political independence or security of either of the Parties is threatened by external armed attack in the Pacific. Agreeing that nothing in this present instrument shall be considered or interpreted as in any way or sense altering or diminishing any existing agreements or understandings between the Republic of the Philippines and the United States of America. to settle any international disputes in which they may be involved by peaceful means in such a manner that ARTICLE III. through their Foreign Ministers or their deputies. Have agreed as follows: ARTICLE I. public vessels or aircraft in the Pacific. an armed attack on either of the Parties is deemed to include ARTICLE VII. August 30. Such measures shall be terminated when the Security Council has taken the measures necessary to restore and maintain international peace and security. international peace and security and justice are not endangered and to refrain in their international relation from the threat or use of force in any manner inconsistent with the purposes of the United Nations. The parties undertake. ELIZALDE (Sgd. This Treaty shall be ratified by the Republic of the Philippines and the United Nations of America in accordance with their respective constitutional processes and will come into force when instruments of ratification thereof have been exchanged by them at Manila. DONE in duplicate at Washington this thirtieth day of August. This Treaty shall remain in force indefinitely. In order more effectively to achieve the objective of this Treaty. ARTICLE II. 1951. Any such armed attack and all measures taken as a result thereof shall be immediately reported to the Security Council of the United Nations. This Treaty does not affect and shall not be interpreted as affecting in any way the rights and obligations of the Parties under the Charter of the United Nations or the responsibility of the United Nations for the maintenance of international peace and security. or on the island territories under its jurisdiction in the Pacific Ocean. FRANCISCO 11 . Each Party recognizes that an armed attack in the Pacific area on either of the parties would be dangerous to its own peace and safety and declares that it would act to meet the common dangers in accordance with its constitutional processes. For the purpose of Article IV. Desiring further to strengthen their present efforts for collective defense for the preservation of peace and security pending the development of a more comprehensive system of regional security in the Pacific area. ARTICLE V. Either Party may terminate it one year after notice has been given to the other party.) JOAQUIN M. Signed at Washington. its armed forces. Desiring to declare publicly and formally their sense of unity and their common determination to defend themselves against external armed attack. an armed attack on the metropolitan territory of either of the Parties. 1951. so that no potential aggressor could be under the illusion that either of them stands alone in the Pacific area. and desiring to strengthen the fabric of peace in the Pacific area.) VICENTE J.

25 of our Constitution. The VFA being a valid and binding agreement. but merely to the US Congress under the CaseZablocki Act within 60 days of its ratification. 1951. The VFA provides that in cases of offenses committed by the members of the US Armed Forces in the Philippines. In extraordinary cases. upon formal notification by the Philippine authorities and without delay. as an implementing agreement of the RP-US Mutual Defense Treaty. In the event Philippine judicial proceedings are not completed within one year. The Preamble of the VFA states: The Government of the United States of America and the Government of the Republic of the Philippines. The one year period will not 12 . which is the instrument agreed upon to provide for the joint RP-US military exercises. Considering that cooperation between the United States and the Republic of the Philippines promotes their common security interests. the parties are required as a matter of international law to abide by its terms and provisions. joint RP-US military exercises for the purpose of developing the capability to resist an armed attack fall squarely under the provisions of the RP-US Mutual Defense Treaty. Sec.[10] xxx The provision of Art. (Sgd. Article V Have agreed as follows:[9] Criminal Jurisdiction Accordingly.) ALEXANDER WILEY[8] there is no violation of the Constitutional provision resulting from such presence. Clearly.) TOM CONNALLY Noting that from time to time elements of the United States armed forces may visit the Republic of the Philippines. The VFA. if they so request.) DEAN ACHESON (Sgd. is simply an implementing agreement to the main RP-US Military Defense Treaty. i.) JOHN FOSTER DULLES (Sgd. which the United States Government shall take into full account. is complied with by virtue of the fact that the presence of the US Armed Forces through the VFA is a presence allowed under the RP-US Mutual Defense Treaty. Reaffirming their obligations under the Mutual Defense Treaty of August 30. United States military authorities shall. XVIII.e. Since the RP-US Mutual Defense Treaty itself has been ratified and concurred in by both the Philippine Senate and the US Senate. 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. from the commission of the offense until completion of all judicial proceedings. the United States shall be relieved of any obligations under this paragraph. the following rules apply: Recognizing the desirability of defining the treatment of United States personnel visiting the Republic of the Philippines.) DIOSDADO MACAPAGAL For the United States of America: (Sgd. 25 of the Constitution. Sec. therefore. The custody of any United States personnel over whom the Philippines is to exercise jurisdiction shall immediately reside with United States military authorities. XVIII. 6.(Sgd.. It is for this reason that the US has certified that it recognizes the VFA as a binding international agreement. a treaty. it was not necessary to submit the VFA to the US Senate for advice and consent. the Philippine Government shall present its position to the United States Government regarding custody. Reaffirming their faith in the purposes and principles of the Charter of the United Nations and their desire to strengthen international and regional security in the Pacific area. and this substantially complies with the requirements of Art.

But the principle remains. The Status of Forces Agreements involving foreign military units around the world vary in terms and conditions. Sec. 2006. Sec. the Constitution states that the Philippines adopts the generally accepted principles of international law as part of the law of the land. And this specific arrangement clearly states not only that the detention shall be carried out in facilities agreed on by authorities of both parties. because there is a substantial basis for a different treatment of a member of a foreign military armed forces allowed to enter our territory and all other accused.. Texas ( 552 US ___ No.. the Court addresses the recent decision of the United States Supreme Court in Medellin v. III. 1. They argue that to allow the transfer of custody of an accused to a foreign power is to provide for a different rule of procedure for that accused. [11] The rule in international law is that a foreign armed forces allowed to enter ones territory is immune from local jurisdiction. The equal protection clause is not violated. V. and reflect their bargaining power. 2008). 10 of the VFA. II. which held that treaties entered into by the United States are not automatically part of their domestic 13 . (Art. The confinement or detention by Philippine authorities of United States personnel shall be carried out in facilities agreed on by appropriate Philippines and United Statesauthorities.e. United States personnel serving sentences in the Philippines shall have the right to visits and material assistance. Also. The moment the accused has to be detained. which also violates the equal protection clause of the Constitution (Art. the rule that governs is the following provision of the VFA: Article V Criminal Jurisdiction xxx Sec. this Court finds no violation of the Constitution.g. Sec. 10. 2). Petitioners contend that these undertakings violate another provision of the Constitution. which are agreements on the detention of the accused in the United States Embassy. 5[5]). Sec. Next. after conviction. the situation involved is not one in which the power of this Court to adopt rules of procedure is curtailed or violated. Applying. are not in accord with the VFA itself because such detention is not by Philippine authorities. except to the extent agreed upon. Therefore. but also that the detention shall be by Philippine authorities. the Romulo-Kenney Agreements of December 19 and 22. after timely notification by Philippine authorities to arrange for the presence of the accused. but rather one in which. the Court finds that there is a different treatment when it comes to detention as against custody. e. March 25. the receiving State can exercise jurisdiction over the forces of the sending State only to the extent agreed upon by the parties. according to the situation of the parties involved. VIII. It is clear that the parties to the VFA recognized the difference between custody during the trial and detention after conviction. diplomats and members of the armed forces contingents of a foreign State allowed to enter another States territory. On the contrary.[12] As a result. because they provided for a specific arrangement to cover detention. the one year period will not include any time during which scheduled trial procedures are delayed because United States authorities. Nothing in the Constitution prohibits such agreements recognizing immunity from jurisdiction or some aspects of jurisdiction (such as custody). in relation to long-recognized subjects of such immunity like Heads of State. as is normally encountered around the world. i. Respondents should therefore comply with the VFA and negotiate with representatives of the United States towards an agreement on detention facilities under Philippine authorities as mandated by Art. the provisions of VFA. that providing for the exclusive power of this Court to adopt rules of procedure for all courts in the Philippines (Art.include the time necessary to appeal.). the laws (including rules of procedure) of one State do not extend or apply except to the extent agreed upon to subjects of another State due to the recognition of extraterritorial immunity given to such bodies as visiting foreign armed forces. 06-984. however. Again. fail to do so. namely.

thus: G. as follows: First. is there proof of the US Senate advice and consent resolution? Peralta. DIRECT APPLICATION OF INTERNATIONAL CRIMINAL LAW IN NATIONAL COURTS. and that. It was simply required that the treaty be recognized as a treaty by the other contracting State. the Court holds. the VFA is a self-executing Agreement. President Gloria Macapagal-Arroyo. the RP-US Mutual Defense Treaty was advised and consented to by the US Senate on March 20. et al. No. 176222 (Bagong Alyansang Makabayan [BAYAN]. et al. on these points. 98 Part 2. pp.R. are required to submit within three (3) days a Comment/Manifestation on the following points: 1. 2008. while treaties may comprise international commitments. As Ward N. Finally. subject matter of theMedellin decision. and thus lack legislative implementing authority. After deliberation. The Convention and the ICJ decision are not self-executing and are not registrable under the Case-Zablocki Act. either because it is selfexecutory or because there exists legislation to implement it. 82ndCongress. No. the VFA has been implemented and executed. and G. dated March 25. Second Session. to require the other contracting State to convert their system to achieve alignment and parity with ours. the US Supreme Court in Weinberger enforced the 14 . Ferdinandusse states in his Treatise. Rossi. the Case-Zablocki Act. et al. 176051 (Jovito R. the VFA differs from the Vienna Convention on Consular Relations and the Avena decision of the International Court of Justice (ICJ). the VFA is covered by implementing legislation. On February 3. et al. 112(b). With that. Daniel Smith. What is the implication on the RP-US Visiting Forces Agreement of the recent US Supreme Court decision in Jose Ernesto Medellin v. et al. Alberto Romulo. precisely because the Agreement is intended to carry out obligations and undertakings under the RP-US Mutual Defense Treaty. some countries require legislation whereas others do not. Whether the VFA is enforceable in the US as domestic law. It was not the intention of the framers of the 1987 Constitution.R. as held by the US Supreme Court in Weinberger v. Sec. if so. namely. no part. The framers of the Constitution were aware that the application of international law in domestic courts varies from country to country. 25. The parties to these present cases do not question the fact that the VFA has been registered under the Case-Zablocki Act.. v. in adopting Article XVIII. USC Sec.law unless these treaties are self-executing or there is an implementing legislation to make them enforceable. In sum. because the parties intend its provisions to be enforceable. 2009. 1952. 1951 was concurred in by the US Senate and. with the US faithfully complying with its obligation to produce L/CPL Smith before the court during the trial. therefore. they are not domestic law unless Congress has enacted implementing statutes or the treaty itself conveys an intention that it be self-executory and is ratified on these terms? 2.[13] an executive agreement is a treaty within the meaning of that word in international law and constitutes enforceable domestic law vis--vis the United States. as reflected in the US Congressional Record. The parties. Salonga. as that term is defined in Medellin itself. 175888 (Suzette Nicolas y Sombilon v. Thus. v. inasmuch as it is the very purpose and intent of the US Congress that executive agreements registered under this Act within 60 days from their ratification be immediately implemented. including the Solicitor General.R. Texas.). Secondly. Vol. No. 2594-2595. Whether the RP-US Mutual Defense Treaty of August 30.).). Furthermore. G. to the effect that treaty stipulations that are not self-executory can only be enforced pursuant to legislation to carry them into effect. it becomes for both parties a binding international obligation and the enforcement of that obligation is left to the normal recourse and processes under international law. 3. the Court issued a Resolution. J. As a matter of fact.

Art. and the Court of Appeals Decision in CA-G. CRISPIN BELTRAN.provisions of the executive agreement granting preferential employment to Filipinos in the US Bases here. The Court of Appeals is hereby directed to resolve without delay the related matters pending therein. 97212 dated January 2. pending which the status quo shall be maintained until further orders by this Court. These are agreements entered into by the President. Sec. but the Romulo-Kenney Agreements of December 19 and 22. and Rep. Rep. entered into on February 10. 2. 159618 represented by Rep. 1998. 2 treaties These are advised and consented to by the US Senate in accordance with Art. after which they are recognized by the Congress and may be implemented. Present: MAZA. and respondent Secretary of Foreign Affairs is hereby ordered to forthwith negotiate with the United States representatives for the appropriate agreement on detention facilities under Philippine authorities as provided in Art. SATUR OCAMPO.R. Sole Executive Agreements. the petitions are PARTLY GRANTED. II. They are to be submitted to Congress within sixty (60) days of ratification under the provisions of the CaseZablocki Act. 2 of the US Constitution. 10 of the VFA. ExecutiveCongressional Agreements: These are joint agreements of the President and Congress and need not be submitted to the Senate. Sec. II. Philippines and the United States. as G.R. No costs. WHEREFORE. there are three types of treaties in the American system: 1. SO ORDERED. Accordingly. 2006 are DECLARED not in accordance with the VFA. military aid or assistance has been given under it and this can only be done through implementing legislation. namely. 2007 is MODIFIED. is UPHELD as constitutional. No. SP No. As regards the implementation of the RP-US Mutual Defense Treaty. The VFA itself is another form of implementation of its provisions. The Visiting Forces Agreement (VFA) between the Republic of the BAYAN MUNA. 15 . V. Sec. LIZA L. the petition for contempt and the appeal of L/CPL Daniel Smith from the judgment of conviction. 3.

Petitioner. similar bilateral agreements have been effected by and between the US and 33 other countries. DEL CASTILLO. LEONARDO-DE CASTRO.[5] On December 28. [6] As of the filing of the instant petition. was the Secretary of Foreign Affairs during the period material to this case. The Case This petition[1] for certiorari. PEREZ. Ople. the RP. PERALTA. unless such tribunal has been established by the UN Security Council.[2] Rome Statute of the International Criminal Court Having a key determinative bearing on this case is the Rome Statute[3] establishing the International Criminal Court (ICC) with the power to exercise its jurisdiction over persons for the most serious crimes of international concern x x x and shall be complementary to the national criminal jurisdictions. The Facts Petitioner Bayan Muna is a duly registered party-list group established to represent the marginalized sectors of society. MENDOZA.J. represented by then DFA Secretary Ople. mandamus and prohibition under Rule 65 assails and seeks to nullify the Non-Surrender Agreement concluded by and between the Republic of the Philippines (RP) and the United States of America (USA). J. Secretary of Foreign Affairs. Respondent Alberto Romulo was impleaded in his capacity as then Executive Secretary. hereinafter) between the USA and the RP. then Ambassador Francis J. absent the express consent of the first Party. CARPIO MORALES. Via Exchange of Notes No. BRION. and crimes of aggression. 2003 (E/N BFO-028-03. employees (including contractors). agreed with and accepted the US proposals embodied under the US Embassy Note adverted to and put in effect the Agreement with the US government.[9] The Agreement pertinently provides as follows: 1.[4] The serious crimes adverted to coverthose considered grave under international law. BFO-028-03[7] dated May 13. As of May 2. Persons of one Party present in the territory of the other shall not. 0470 to the Department of Foreign Affairs (DFA) proposing the terms of the non-surrender bilateral agreement (Agreement. capacity as Executive Secretary. Respondents. Promulgated: February 1. signed the Rome Statute which.. war crimes. 2000. in his ABAD. NACHURA. JR. In esse. by its terms. . Respondent Blas F. Ricciardone sent US Embassy Note No. The Philippines is not among the 92. Manalo. only 92 out of the 139 signatory countries appear to have completed On May 9.. acceptance or approval by the signatory states. JR. 2. 2003. approval and concurrence process. 2011 x----------------------------------------------------------------------------------------x the ratification. VILLARAMA. (a) be surrendered or transferred by any means to any international tribunal for any purpose. For purposes of this Agreement. the RP. and SERENO. C. DECISION CORONA. OPLE. the Agreement aims to protect what it refers to and defines as persons of the RP and US from frivolous and harassment suits that might be brought against them in international tribunals. in his capacity as JR. or military personnel or nationals of one Party.. JJ. now deceased. 2003.: RP-US Non-Surrender Agreement CARPIO. hereinafter).versus - VELASCO. or 16 . is subject to ratification..[8] It is reflective of the increasing pace of the strategic security and defense partnership between the two countries. through Charge dAffaires Enrique A. and BLAS F. VELASCO. crimes against humanity. persons are current or former Government officials. such as genocide. BERSAMIN. ALBERTO ROMULO.

Whether the x x x Agreement constitutes an act which defeats the object and purpose of the Rome Statute of the International Criminal Court and contravenes the obligation of good faith inherent in the signature of the President affixed on the Rome Statute of the International Criminal Court. and second. whether or not the Agreement. the [US] will not agree to the surrender or transfer of that person by the third country to any international tribunal. the [GRP] will not agree to the surrender or transfer of that person by the third country to any international tribunal. 2003 that the exchange of diplomatic notes constituted a legally binding agreement under international law. absent the express consent of the Government of the [US]. waived and relinquished our only legitimate recourse through the Rome Statute of the [ICC] to prosecute and try persons as defined in the x x x Agreement. Benipayo on the status of the nonsurrender agreement. or at least declared as without force and effect. 5. This Agreement shall remain in force until one year after the date on which one party notifies the other of its intent to terminate the Agreement. When the [US] extradites. surrenders. under US law.(b) be surrendered or transferred by any means to any other entity or third country. Whether after the signing and pending ratification of the Rome Statute of the [ICC] the [RP] President and the [DFA] Secretary x x x are obliged by the principle of good faith to refrain from doing all acts which would substantially impair the value of the undertaking as signed. WHETHER THE x x x AGREEMENT IS VALID. The Courts Ruling This petition is bereft of merit. or expelled to a third country. In response to a query of then Solicitor General Alfredo L. contravenes and undermines the Rome Statute and other treaties. petitioner imputes grave abuse of discretion to respondents in concluding and ratifying the Agreement and prays that it be struck down as unconstitutional. WHETHER THE RP-US NON SURRENDER AGREEMENT IS VOID AB INITIO FOR CONTRACTING OBLIGATIONS THAT ARE EITHER IMMORAL OR OTHERWISE AT VARIANCE WITH UNIVERSALLY RECOGNIZED PRINCIPLES OF INTERNATIONAL LAW. 17 . BINDING AND EFFECTIVE WITHOUT THE CONCURRENCE BY AT LEAST TWOTHIRDS (2/3) OF ALL THE MEMBERS OF THE SENATE x x x. II.[10] In this proceeding. C. D. war crimes and the crime of aggression. B. unless such tribunal has been established by the UN Security Council. WHEN THE PHILIPPINE GOVERNMENT HAS ALREADY SIGNED THE ROME STATUTE OF THE [ICC] ALTHOUGH THIS IS PENDING RATIFICATION BY THE PHILIPPINE SENATE. surrenders. 4. the said agreement did not require the advice and consent of the US Senate. does not require Senate concurrence for its efficacy. whether or not the Agreement was contracted validly.[11] The foregoing issues may be summarized into two: first. thereby abdicating Philippine Sovereignty. Whether the RP-US Non-Surrender Agreement is void and unenforceable for grave abuse of discretion amounting to lack or excess of jurisdiction in connection with its execution. we shall first tackle the issue of petitioners legal standing. crimes against humanity. Ambassador Ricciardone replied in his letter of October 28. which has not been submitted to the Senate for concurrence. or otherwise transfers a person of the [USA] to a third country. The provisions of this Agreement shall continue to apply with respect to any act occurring. who have committed crimes of genocide. And for reasons detailed in their comment. 3. WHETHER THE [RP] PRESIDENT AND THE [DFA] SECRETARY x x x GRAVELY ABUSED THEIR DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION FOR CONCLUDING THE RP-US NON SURRENDER AGREEMENT BY MEANS OF [E/N] BFO-028-03 DATED 13 MAY 2003. respondents question petitioners standing to maintain a suit and counter that the Agreement. and if so whether the x x x Agreementis void and unenforceable on this ground. III. which resolves itself into the question of whether or not respondents gravely abused their discretion in concluding it. or otherwise transfers a person of the Philippines to a third country. When the [GRP] extradites. The Issues I. before the effective date of termination. unless such tribunal has been established by the UN Security Council. x x x or literally any conduit of American interests. for the purpose of surrender to or transfer to any international tribunal. unless such tribunal has been established by the UN Security Council. being in the nature of an executive agreement. For their part. respondents assert the constitutionality of the Agreement. and that. absent the express consent of the Government of the Republic of the Philippines [GRP]. But because respondents expectedly raised it. Whether by entering into the x x x Agreement Respondents gravely abused their discretion when they capriciously abandoned. A. or any allegation arising.

is merely a matter of procedure and it has been recognized that. the primordial importance to Filipino citizens in general of the issue at hand impels the Court to brush aside the procedural barrier posed by the traditional requirement of locus standi. and calls for more than just a generalized grievance. issues are precisely raised putting to the fore the propriety of the Agreement pending the ratification of the Rome Statute. i. Angara. practices.[16] The rationale for requiring a party who challenges the validity of a law or international agreement to allege such a personal stake in the outcome of the controversy is to assure the concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions.[13] Specifically. agency.Procedural Issue: Locus Standi of Petitioner Petitioner. instrumentality or department of the government.e. practices.. it becomes not only the right but in fact the duty of the judiciary to settle it. When suing as a citizen. committed by any officer.[19] this Court has invariably adopted a liberal stance on locus standi. One of these is the doctrine of incorporation. suits are not brought by parties who have been personally injured by the operation of a law or any other government act. contends that the issue of the validity or invalidity of the Agreement carries with it constitutional significance and is of paramount importance that justifies its standing. their assertions questioning the Agreement are made of a public right. Moreover. When suing as a citizen to question the validity of a law or other government action. In fine.[23] In cases of transcendental importance. however. to ascertain that theAgreement did not go against established national policies. when the proceeding involves the assertion of a public right. petitioners representatives pursue the instant suit primarily as concerned citizens raising issues of transcendental importance. however. but by concerned citizens. that it will not shirk. the interest of the petitioner assailing the constitutionality of a statute must be direct and personal. As in this petition. As citizens.[20] expounded on this requirement. in a catena of cases. [15] The term interest refers to material interest. Locus standi is a right of appearance in a court of justice on a given question. He must be able to show. taxpayers and legislators when specific requirements have been met have been given standing by this Court.[21] In the case at bar. taxpayers. Cited in this regard is what is usually referred to as the emergency powers cases. and jargonsis untenable. where an action of any branch of government is seriously alleged to have infringed the Constitution or is done with grave abuse of discretion. Inc. Indeed. bearing in mind what the Court said in Taada v. in some cases. through its three party-list representatives. and not merely that he suffers thereby in some indefinite way. Going by the petition. digress from or abandon its sacred duty and authority to uphold the Constitution in matters that involve grave abuse of discretion brought before it in appropriate cases. [25] we cannot but resolve head on the issues raised before us. Zamora. Francisco. or voters who actually sue in the public interest. Guingona. At any event. it is a partys personal and substantial interest in a case where he has sustained or will sustain direct injury as a result[14] of the act being challenged.[17] Locus standi. as expressed in Section 18 .[18] Consequently. and obligations bearing on the States obligation to the community of nations. a petitioner needs to meet certain specific requirements before he can be clothed with standing. its threshold posture being that E/N BFO-028-03 cannot be a valid medium for concluding theAgreement. [12] in which ordinary citizens and taxpayers were accorded the personality to question the constitutionality of executive issuances. not only that the law or any government act is invalid. Validity of the RP-US Non-Surrender Agreement Petitioners initial challenge against the Agreement relates to form. the mere fact that he is a citizen satisfies the requirement of personal interest. concerned citizens. thus: In a long line of cases. Jr. as distinguished from one that is merely incidental.[24] 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. At the very least. their interest in the subject matter of the petition is direct and personal. Nagmamalasakit na mga Manananggol ng mga Manggagawang Pilipino. It must appear that the person complaining 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 or act complained of. both for the Republic and the citizenry as a whole. notably in the old but oft-cited emergency powers cases[22] and Kilosbayan v. Petitioners contentionperhaps taken unaware of certain well-recognized international doctrines. as we have done in a long line of earlier cases. v. petitioners representatives have complied with the qualifying conditions or specific requirements exacted under the locus standi rule. but also that he sustained or is in imminent danger of sustaining some direct injury as a result of its enforcement. we wrote again in Bayan v. Jr.

a treaty has greater dignity than an executive agreement. partaking as it does of the nature of a treaty. Sayre observed in his work. [31] x x x It is fairly clear from the foregoing disquisition that E/N BFO-028-03be it viewed as the Non-Surrender Agreement itself. and that may be covered by an executive agreement. Article II of the Constitution. executive agreements concluded by the President sometimes take the form of exchange of notes and at other times that of more formal documents denominated agreements or protocols. or (2) executive agreements that are similar to treaties. wherein the Philippines adopts the generally accepted principles of international law and international jurisprudence as part of the law of the land and adheres to the policy of peace.[26] An exchange of notes falls into the category of inter-governmental agreements.[28] In another perspective. hence. it must be duly concurred in by the Senate. on the domestic sphere. except that they do not require legislative concurrence and are usually less formal and deal with a narrower range of subject matters than treaties.[41] holding that an executive agreement through an exchange of notes cannot be used to amend a treaty. We are not persuaded. The primary consideration in the choice of the form of agreement is the parties intent and desire to craft an international agreement in the form they so wish to further their respective interests.2.[36] Authorities are. to avoid the process of legislative approval. or. a treaty having behind it the authority of the President. Senate Concurrence Not Required Article 2 of the Vienna Convention on the Law of Treaties defines a treaty as an international agreement concluded between states in written form and governed by international law. there is no difference between treaties and executive agreements in terms of their binding effects on the contracting states concerned. Under the usual procedure. each of the parties being in the possession of the one signed by the representative of the other. can one be held valid if it violates the Constitution.[34] as long as the negotiating functionaries have remained within their powers. either because of its speedy procedure. postal and navigation arrangements and settlement of claims. exchange of notes being considered a form of executive agreement that becomes binding through executive action. diplomats or departmental heads. The United Nations Treaty Collections (Treaty Reference Guide) defines the term as follows: An exchange of notes is a record of a routine agreement. the Senate. on a given subject. and amity with all nations.[35] Neither.[38] a ratified treaty. [39] Petitioner parlays the notion that the Agreement is of dubious validity. takes precedence over any prior statutory enactment. 19 . Eastern Sea Trading. unlike an executive agreement. The categorization of subject matters that may be covered by international agreements mentioned in Eastern Sea Trading is not cast in stone. that has many similarities with the private law contract.[33] Under international law. The Constitutionality of Trade Agreement Acts: The point where ordinary correspondence between this and other governments ends and agreements whether denominated executive agreements or exchange of notes or otherwise begin. such as commercial/consular relations. in which the Court reproduced the following observations made by US legal scholars: [I]nternational agreements involving political issues or changes of national policy and those involving international arrangements of a permanent character usually take the form of treaties [while] those embodying adjustments of detail carrying out well established national policies and traditions and those involving arrangements of a more or less temporary nature take the form of executive agreements.[27] which is an internationally accepted form of international agreement. The technique of exchange of notes is frequently resorted to.Petitioner takes a cue from Commissioner of Customs v.[29] On the other hand. agreed that one is distinct from another for accepted reasons apart from the concurrence-requirement aspect. petitioner submits that the subject of the Agreement does not fall under any of the subject-categories that are enumerated in the Eastern Sea Trading case. most-favored nation rights. Verily. and the people. In addition. trademark and copyright protection. The agreement consists of the exchange of two documents. cooperation.[32] International agreements may be in the form of (1) treaties that require legislative concurrence after executive ratification. There are no hard and fast rules on the propriety of entering.[30] As former US High Commissioner to the Philippines Francis B. the accepting State repeats the text of the offering State to record its assent. petitioner foists the applicability to the instant case of Adolfo v. because its constitutional efficacy is beyond doubt. [40] Pressing its point. whether embodied in a single instrument or in two or more related instruments and whatever its particular designation. patent rights. may sometimes be difficult of ready ascertainment. however. CFI of Zambales and Merchant. or as an integral instrument of acceptance thereof or as consent to be boundis a recognized mode of concluding a legally binding international written contract among nations. The signatories of the letters may be government Ministers. [37] As has been observed by US constitutional scholars. the terms exchange of notes and executive agreements have been used interchangeably. sometimes. into a treaty or an executive agreement as an instrument of international relations.

a treaty. as signed. an executive agreement that does not require the concurrence of the Senate for its ratification may not be used to amend a treaty that. As may be noted. 27. purportedly being subject to amendment by an executive agreement.[45] which necessarily would cover the same matters subject of the underlying treaty. income tax on shipping profits. 20 . the enumeration in Eastern Sea Trading cannot circumscribe the option of each state on the matter of which the international agreement format would be convenient to serve its best interest.[51] 89[52] and 90[53] thereof. most favored-nation rights.e. the Court held that an executive agreement cannot be used to amend a duly ratified and existing treaty. as to include such subjects as human rights. and the sea. What the Constitution merely prescribes is that treaties need the concurrence of the Senate by a vote defined therein to complete the ratification process. primarily by states. in Eastern Sea Trading. i. postal and navigation arrangements and the settlement of claims. as representatives of a signatory of the Rome Statute. the executive agreements executed by its President from 1980 to 2000 covered subjects such as defense. etc. arms limitation. aviation. Art. are obliged by the imperatives of good faith to refrain from performing acts that substantially devalue the purpose and object of the Statute. one type of executive agreement is a treaty-authorized[44] or a treatyimplementing executive agreement. environmental cooperation. trademark and copyright protection. and ratified as. like that involving political issues. Considering the above discussion. international claims. does not obtain under the premises. Petitioners reliance on Adolfo[47] is misplaced. Petitioner posits that the Agreement was constituted solely for the purpose of providing individuals or groups of individuals with immunity from the jurisdiction of the ICC. postal matters. any agreementlike the non-surrender agreementthat precludes the ICC from exercising its complementary function of acting when a state is unable to or unwilling to do so. said case being inapplicable owing to different factual milieus. As Francis Sayre said in his work referred to earlier: x x x It would be useless to undertake to discuss here the large variety of executive agreements as such concluded from time to time. have been negotiated with foreign governments. thereby constituting a breach of Arts. Since then. But over and above the foregoing considerations is the fact thatsave for the situation and matters contemplated in Sec.[48] as reiterated in Bayan. as the parties in either international agreement each labor under the pacta sunt servanda[42] principle.[49] given recognition to the obligatory effect of executive agreements without the concurrence of the Senate: x x x [T]he right of the Executive to enter into binding agreements without the necessity of subsequent Congressional approval has been confirmed by long usage. by the ICC. Petitioner stresses that the overall object and purpose of the Rome Statute is to ensure that those responsible for the worst possible crimes are brought to justice in all cases. the Constitution does not classify any subject. 25. and such grant of immunity through non-surrender agreements allegedly does not legitimately fall within the scope of Art. The Court has. atomic energy. the conduct of foreign affairs has become more complex and the domain of international law wider. x x x They cover such subjects as the inspection of vessels. In fact. Indeed.[43] Surely. the Bases Treaty. patent rights. custom matters and commercial relations generally. peace corps. The Agreement Not in Contravention of the Rome Statute It is the petitioners next contention that the Agreement undermines the establishment of the ICC and is null and void insofar as it unduly restricts the ICCs jurisdiction and infringes upon the effectivity of the Rome Statute. the admission of civil air craft. but as a last resort. under the Constitution. almost half a century has elapsed since the Court rendered its decision in Eastern Sea Trading. The presence of a treaty. From the earliest days of our history. The validity of these has never been seriously questioned by our courts. There. thus. trade. the environment. XVIII of the Constitution[46]when a treaty is required. navigation dues. and nuclear safety. Hundreds of executive agreements.[50] 86. is the product of the ratifying acts of the Executive and the Senate. we have entered executive agreements covering such subjects as commercial and consular relations. Petitioner would add that the President and the DFA Secretary.the matter of form takes a back seat when it comes to effectiveness and binding effect of the enforcement of a treaty or an executive agreement. referring to the validity and effectivity of the Agreement without the concurrence by at least two-thirds of all the members of the Senate. according to petitioner. defeats the object and purpose of the Rome Statute. in the US alone. to be in the form of. the Court need not belabor at length the third main issue raised. among others. x x x And lest it be overlooked. It concludes that state parties with non-surrender agreements are prevented from meeting their obligations under the Rome Statute. scientific cooperation.. other than those entered into under the trade-agreement act. is the fact that it has an immoral purpose or is otherwise at variance with a priorly executed treaty. 98 of the Rome Statute. Adding a nullifying ingredient to the Agreement. the registration of trademarks and copyrights.

Contrary to petitioners pretense. which again underscores the primacy of the jurisdiction of a state vis-a-vis that of the ICC.[58] whereas a StateParty. one complements the other. it is abundantly clear to us that the Rome Statute expressly recognizes the primary jurisdiction of states. like the RP. if it is not under an international obligation to extradite the person to the requesting State. over serious crimes committed within their respective borders.) Significantly. tends to diminish the efficacy of the Statute. 17. the sixth preambular paragraph of the Rome Statute declares that it is the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes. Specifically. specifically Arts. We refer to Art. In the instant case. Under the Vienna Convention on the Law of Treaties. Far from going against each other. 1 of the Rome Statute pertinently provides: Article 1 The Court An International Crimininal Court (the Court) is hereby established. 1[55] of the Rome Statute. Thus. shall give priority to the request for 21 . petitioners argument that State-Parties with non-surrender agreements are prevented from meeting their obligations under the Rome Statute. For nothing in the provisions of the Agreement. should the process require the requested state to perform an act that would violate some international agreement it has entered into. Ignoring for a while the fact that the RP signed the Rome Statute ahead of the Agreement. unless the Court can first obtain the cooperation of the sending State for the giving of consent for the surrender. It x x x shall have the power to exercise its jurisdiction over persons for the most serious crimes of international concern. 89 and 90. it is only obliged to refrain from acts which would defeat the object and purpose of the Rome Statute.g. Moreover. par. 86. As aptly pointed out by respondents and admitted by petitioners. the jurisdiction of the ICC is to be complementary to national criminal jurisdictions [of the signatory states]. it bears stressing that the Philippines is only a signatory to the Rome Statute and not a State-Party for lack of ratification by the Senate. the Agreement does not contravene or undermine. 27.. not signatories. as party to the nonsurrender agreement. These articles are only legally binding upon State-Parties. the provision states that no person who has been tried by another court for conduct x x x [constituting crimes within its jurisdiction] shall be tried by the [International Criminal] Court with respect to the same conduct x x x. at the first instance. the principle of complementarity underpins the creation of the ICC. and the ICC. As far as relevant. Furthermore. violated its duty required by the imperatives of good faith and breached its commitment under the Vienna Convention [57] to refrain from performing any act tending to impair the value of a treaty. let alone defeats the purpose of the ICC. 20. Given the above consideration. As a matter of fact. with the ICC in appropriate situations contemplated under Art. on the other hand. which reads: Article 98 Cooperation with respect to waiver of immunity and consent to surrender xxxx 2. as referred to in this Statute. e. The Court may not proceed with a request for surrender which would require the requested State to act inconsistently with its obligations under international agreements pursuant to which the consent of a sending State is required to surrender a person of that State to the Court. must fail. a careful reading of said Art. 90 would show that the Agreement is not incompatible with the Rome Statute. and shall be complementary to national criminal jurisdictions. taken collectively. the Rome Statutehas to be rejected outright.[54] Art. As a result. Lest it be overlooked. argue against the idea of jurisdictional conflict between the Philippines. (Emphasis ours. a signatory state is only obliged to refrain from acts which would defeat the object and purpose of a treaty. secondarily. is legally obliged to follow all the provisions of a treaty in good faith. the Rome Statute. The foregoing provisions of the Rome Statute. 3 of Art. in relation to the Rome Statute. 90(4) provides that [i]f the requesting State is a State not Party to this Statute the requested State. there is a considerable difference between a State-Party and a signatory to a treaty. or the idea of the Agreement substantially impairing the value of the RPs undertaking under the Rome Statute. Rome Statute. Art. the Rome Statute contains a proviso that enjoins the ICC from seeking the surrender of an erring person. petitioners suggestionthat the RP. This provision indicates that primary jurisdiction over the so-called international crimes rests. by entering into the Agreement. The jurisdiction and functioning of the Court shall be governed by the provisions of this Statute. under international law. nor does it differ from. Of particular note is the application of the principle of ne bis in idem[56] under par. the complementary jurisdiction of the ICC coming into play only when the signatory states are unwilling or unable to prosecute. Any argument obliging the Philippines to follow any provision in the treaty would be premature. 98(2) of the Rome Statute. with the state where the crime was committed.

as already discussed. Almost every time a state enters into an international agreement. Sovereignty Limited by International Agreements In the context of the Constitution. certain undisputed facts should be pointed out: first. diplomats and members of the armed forces contingents of a foreign State allowed to enter another States territory. the US must extend the same privilege to the Philippines with respect to persons of the RP committing high crimes within US territorial jurisdiction. treaties and international agreements actually have a limiting effect on the otherwise encompassing and absolute nature of sovereignty.e. the Agreement. Clearly. By their voluntary act. abdication being done by its waiving or abandoning its right to seek recourse through the Rome Statute of the ICC for erring Americans committing international crimes in the country. leaves criminals immune from responsibility for unimaginable atrocities that deeply shock the conscience of humanity. over US persons committing high crimes in the country and defer to the secondary criminal jurisdiction of the ICC over them. accord discretion to the US to exercise either its national criminal jurisdiction over the person concerned or to give its consent to the referral of the matter to the ICC for trial. contends that the RP. abdicated its sovereignty by bargaining away the jurisdiction of the ICC to prosecute US nationals. As it were. under our national criminal justice system. it voluntarily sheds off part of its sovereignty. x x x To be sure. x x x it precludes our country from delivering an American criminal to the [ICC] x x x.[63] The above argument is a kind of recycling of petitioners earlier position. Or it may opt not to exercise its criminal jurisdiction over its erring citizens or reclusive Philippines isolated from the rest of the world. We are not persuaded. it is always the responsibility and within the prerogative of the RP either to prosecute criminal offenses equally covered by the Rome Statute or to accede to the jurisdiction of the ICC. Thus. The Constitution. there can be no serious objection to the Philippines agreeing to undertake the things set forth in the Agreement. does thereby abdicate its sovereignty. a portion of sovereignty may be waived without violating the Constitution. In the same breath. the RP. to the policy of cooperation and amity with all nations.[61] Such waiver does not amount to an unconstitutional diminution or deprivation of jurisdiction of Philippine courts. as drafted. as the term is understood in the Agreement. as earlier stated.[62] Agreement Not Immoral/Not at Variance with Principles of International Law Nothing in the Constitution prohibits such agreements recognizing immunity from jurisdiction or some aspects of jurisdiction (such as custody). The immoral aspect proceeds from the fact that the Agreement. in effect.. by entering into the Agreement. As to persons of the US whom the Philippines refuses to prosecute. The usual underlying consideration in this partial surrender may be the greater benefits derived from a pact or a reciprocal undertaking of one contracting party to grant the same privileges or immunities to the other. even when one of the States is not a State-Party to the Rome Statute. which. the Agreement is but a form of affirmance and confirmance of the Philippines national criminal jurisdiction. in relation to long-recognized subjects of such immunity like Heads of State. did not envision a Petitioner urges that the Agreement be struck down as void ab initio for imposing immoral obligations and/or being at variance with allegedly universally recognized principles of international law. Formulating petitioners argument a bit differently.surrender from the Court. x x x In applying the provision. as explained above. there is an international agreement between the US and the Philippines regarding extradition or surrender of persons. i. Surely. and second. Romulo[59]a case involving the implementation of the criminal jurisdiction provisions of the RP-US Visiting Forces Agreementis apropos: Petitioner next argues that the RP has. nations may decide to surrender or waive some aspects of their state power or agree to limit the exercise of their otherwise exclusive and absolute jurisdiction. On the rationale that the Philippines has adopted the generally accepted principles of international law as part of the law of the land. through the Agreement. National criminal jurisdiction being primary. the Rome Statute still recognizes the primacy of international agreements entered into between States. as petitioner would put it. the country would. the nullity of the subject non-surrender agreement cannot be predicated on the postulate that some of its provisions constitute a virtual abdication of its sovereignty. government officials/employees or military personnel who commit serious crimes of international concerns in the Philippines. virtually abdicated its sovereignty 22 . the Philippines may decide to try persons of the US. by entering into the Agreement. even assuming that the Philippines is a State-Party.[60] By their nature. the US is neither a State-Party nor a signatory to the Rome Statute. It even adheres. one State can agree to waive jurisdictionto the extent agreed uponto subjects of another State due to the recognition of the principle of extraterritorial immunity. What the Court wrote inNicolas v.

provides: Section 17. that all the formalities necessary to bind both countries to the Rome Statute have been met.[64] The Court is not persuaded. the Presidentby ratifying. And without specifically saying so. petitioner would argue that the non-surrender agreement was executed by the President. without the consent of the other party. in grave abuse of discretion. 125[69] thereof. or with the consent of the RP or the US. At the end of the day. the Philippines remains to be just a signatory to the Rome Statute. Petitioner. such issue of ratification was laid to rest in Pimentel. By constitutional fiat and by the nature of his or her office. before the ICC. it may perhaps be pertinent to remind all and sundry that about the time this petition was interposed. For perspective.[66] In thus agreeing to conclude the Agreement thru E/N BFO-028-03. x x x The agreement is a recognition of the primacy and competence of the countrys judiciary to try offenses under its national criminal laws and dispense justice fairly and judiciously. The Court need not delve on and belabor the first portion of the above posture of petitioner. as head of state and government. have yet to be done. as Bayan would put it. As to the second portion. bring it into force. is the Presidents alone and cannot be encroached upon via a writ of mandamus. thru the DFA Secretary. (RA) 9851. As the President wields vast powers and influence. acted within the scope of the authority and discretion vested in her by the Constitution. rests with the President. insofar as the Philippines is concerned. represented by the Secretary of Foreign Affairs. We wish to state that petitioner virtually faults the President for performing. labors under the erroneous impression that the Agreement would allow Filipinos and Americans committing high crimes of international concern to escape criminal trial and punishment. and Other Crimes Against Humanity.[65] The Constitution vests in the President the power to enter into international agreements. the final acts required to complete the treaty process and. [68] This prerogative. 17 of RA 9851. While the issue of ratification of the Rome Statute is not determinative of the other issues raised herein.But as earlier indicated. which may desire to prosecute the crime under its existing laws. Persons who may have committed acts penalized under the Rome Statute can be prosecuted and punished in thePhilippines or in the US.and in the process undermined its treaty obligations under the Rome Statute. to the required concurrence votes of the Senate. Agreement Need Not Be in the Form of a Treaty On December 11. the President. we believe. subject to the concurrence of the Senate. 2009. through respondents. whose role relative to the ratification of a treaty is limited merely to concurring in or withholding the ratification. Jr. or having secured the latters consent to the ratification of the treaty. executive agreements may be validly entered into without such concurrence. thus. No Grave Abuse of Discretion Petitioners final point revolves around the necessity of the Senates concurrence in the Agreement. the relevant Philippine authorities may dispense with the investigation or 23 . x x x x In the interest of justice. contrary to international law principles. her conduct in the external affairs of the nation is. the non-surrender agreementdid nothing more than discharge a constitutional duty and exercise a prerogative that pertains to her office. the Court hastened to add. then President Arroyo signed into law Republic Act No. then President Gloria MacapagalArroyo. And concomitant with this treatymaking power of the President is his or her prerogative to refuse to submit a treaty to the Senate. otherwise known as the Philippine Act on Crimes Against International Humanitarian Law. as aptly described by the Solicitor General. Barring intervening events. like the ICC. the Statute in that instance. particularly the second paragraph thereof. This is manifestly incorrect. executive altogether. Sec. subject. the same having been discussed at length earlier on. then. in appropriate cases. is an assertion by the Philippinesof its desire to try and punish crimes under its national law. Suffice it to state in this regard that the non-surrender agreement. Under Art. Genocide. there is nothing immoral or violative of international law concepts in the act of the Philippines of assuming criminal jurisdiction pursuant to the non-surrender agreement over an offense considered criminal by both Philippine laws and the Rome Statute. a task conferred the President by the Constitutionthe power to enter into international agreements. thru her deputies. refuse to ratify it.[67] As the Court emphasized in said case. Jurisdiction. the power to ratify a treaty. what the Agreement contextually prohibits is the surrender by either party of individuals to international tribunals. v. Office of the Executive Secretary. The right of the President to enter into or ratify binding executive agreements has been confirmed by long practice. assuming. for the nonce. With the view we take of things. is the sole organ and authority in the external affairs of the country.

Prescinding from the foregoing premises. seeks to frustrate the objects of the principles of law or alters customary rules embodied in the Rome Statute.. in this instance Sec. the view posits that the Philippine is required to surrender to the proper international tribunal those persons accused of the grave crimes defined under RA 9851. as earlier explained. among others. 17. the Philippines must prosecute the crime before its own courts pursuant to RA 9851. or to another State pursuant to the applicable extradition laws and treaties. Moreover. the authorities may surrender or extradite suspected or accused persons in thePhilippines to the appropriate international court. i. in effect amends Sec. 17 of RA 9851. consonant with the foregoing view. 2. The view makes much of the above quoted second par. The jurisdiction of the ICC pursuant to the Rome Statute over high crimes indicated thereat is clearly and unmistakably complementary to the national criminal jurisdiction of the signatory states. if any. if it does not exercise its primary jurisdiction to prosecute them. We are unable to lend cogency to the view thus taken. The view asserts that this option of the Philippines under Sec. or (2) surrender the accused to another State if such surrender is pursuant to the applicable extradition laws and treaties. 17 of RA 9851 is not subject to the consent of the US. crimes against humanity and war crimes. so the argument goes. RA 9851 as requiring the Philippine State to surrender to the proper international tribunal those persons accused of crimes sanctioned under said law if it does not exercise its primary jurisdiction to prosecute such persons. Far from it. genocide. Relying on the above-quoted statutory proviso. The basic premise rests on the interpretation that if it does not decide to prosecute a foreign national for violations of RA 9851. 2. 17 of RA 9851 and the status of the Rome Statute as constitutive of enforceable domestic law under Sec. if any. and any derogation of Sec. an existing law. where the Philippines adopts. but cannot amend or repeal. requires an amendatory law. For one. the Statute embodies principles of law which constitute customary international law or custom and for which reason it assumes the status of an enforceable domestic law in the context of the aforecited constitutional provision. Posing the situation of a US national under prosecution by an international tribunal for any crime under RA 9851. and. II of the Constitution. RA 9851 clearly: (1) defines and establishes the crimes against international humanitarian law. 17 of RA 9851. And for a third. to wit: (1) surrender the accused to the proper international tribunal.[71] and (3) establishes special courts for the prosecution of these crimes and for the State to exercise primary criminal jurisdiction. the view strongly argues that the Agreement prevents the Philippineswithout the consent of the USfrom surrendering to any international tribunal US nationals accused of crimes covered by RA 9851. the theory being that a Senate. as a national policy. Art. the view does not clearly state what precise principles of law. can only implement. of Sec. the Agreement does not undermine the Rome Statute as the former merely reinforces the primacy of the national jurisdiction of the US and the Philippines in prosecuting criminal offenses committed by their respective citizens and military personnel. For another. genocide and other crimes against humanity. for the above quoted proviso clearly provides discretion to the Philippine State on 24 .ratified treaty partakes of the nature of a municipal law that can amend or supersede another law. In line with this scenario. Consequently. the generally accepted principles of international law as part of the law of the land. the Philippines has the option to surrender such USnational to the international tribunal if it decides not to prosecute such US national here. But the Philippines may exercise these options only in cases where another court or international tribunal is already conducting the investigation or undertaking the prosecution of such crime. we find that the Agreement does not amend or is repugnant to RA 9851.[70] (2) provides penal sanctions and criminal liability for their commission. as an exclusive act of the executive branch.[72] Nowhere in RA 9851 is there a proviso that goes against the tenor of the Agreement. it does not demonstrate in the concrete how the Agreement seeks to frustrate the objectives of the principles of law subsumed in the Rome Statute. otherwise. citing Sec. the Philippines has only two options. the view thus advanced considers the Agreement inefficacious.prosecution of a crime punishable under this Act if another court or international tribunal is already conducting the investigation or undertaking the prosecution of such crime. Moreover. This view is not entirely correct. unless it is embodied in a treaty duly ratified with the concurrence of the Senate. (Emphasis supplied. Instead. the Court is further impressed to perceive the Rome Statute as declaratory of customary international law. II of the Constitution. Art. which. the view is strongly impressed that theAgreement cannot be embodied in a simple executive agreement in the form of an exchange of notes but must be implemented through an extradition law or a treaty with the corresponding formalities. The Agreement. In other words. such as requiring the consent of the US before the Philippines can exercise such option. As a corollary.e. the Agreement alters.) A view is advanced that the Agreement amends existing municipal laws on the States obligation in relation to grave crimes against the law of nations. it is argued that any derogation from the Rome Statute principles cannot be undertaken via a mere executive agreement. thus.

17 of RA 9851. Title 18 of the United States Code Annotated (USCA) provides for the criminal offense of war crimes which is similar to the war crimes found in both the Rome Statute and RA 9851. (2) Prohibited by Article 23. 1. before the petitions could be resolved by the Court. Said legal proviso aptly provides that the surrender may be made to another State pursuant to the applicable extradition laws and treaties. Thus. the tenor of the Agreement is not repugnant to Sec. Rossi. On the contrary. the pertinent second pararagraph of Sec. and if death results to the victim. not a prior one. shall be fined under this title or imprisoned for life or any term of years. The pertinent Philippine law. 1994. RP-US Extradition Treaty. The view further contends that the RP-US Extradition Treaty is inapplicable to RA 9851 for the reason that under par. The views reliance on Suplico v. [75] In Nicolas. which was executed on November 13. Accordingly. [73] Thus. or (4) Of a person who. this argument finds no application in this case seeing as RA 9851 is a subsequent law. v. and cannot be construed as having mandatory effect. Art. genocide and other crimes against humanity. Notably. Part I. even granting that the surrender of a person is mandatorily required when the Philippines does not exercise its primary jurisdiction in cases where another court or international tribunal is already conducting the investigation or undertaking the prosecution of such crime. a person cannot be tried in the federal courts for an international crime unless Congress adopts a law defining and punishing the offense. signed 18 October 1907. In resolving the case.. i. Justice Carpio discussed the legal implications of an executive agreement. Besides. it dismissed the petitions.e. but only in the dissenting opinion. is Presidential Decree No. Respecting the Laws and Customs of War on Land.[78] Hence. Neda[77] is similarly improper. would neither violate nor run counter to Sec. shall also be subject to the penalty of death. Chapter 118. RA 9851 is simply permissive on the part of the Philippine State. on the other hand. He stated that an executive agreement has the force and effect of law x x x [it] cannot amend or repeal prior laws. Section 2441. [a]n offense shall be an extraditable offense if it is punishable under the laws in both Contracting Parties x x x. the Agreement. in conjunction with the RP-US Extradition Treaty. the Philippines and the US already have an existing extradition treaty. 27 or 28 of the Annex to the Hague Convention IV. there is no similar legislation in the US. It is further argued that. In fact. several petitions were filed questioning the power of the President to enter into foreign loan agreements. or both. Coolidge. this argument cannot be found in the ratio decidendi of the case. the Court took judicial notice of the act of the executive department of the Philippines (the President) and found the petition to be indeed moot. (b) Circumstances The circumstances referred to in subsection (a) are that the person committing such war crime or the victim of such war crime is a member of the Armed Forces of the United States or a national of the United States (as defined in Section 101 of the Immigration and Nationality Act). whether inside or outside the United States. The Agreement can already be considered a treaty following this Courts decision in Nicolas v. (c) Definition As used in this Section the term war crime means any conduct (1) Defined as a grave breach in any of the international conventions signed at Geneva 12 August 1949. in relation to an armed conflict and contrary to the provisions of the Protocol on Prohibitions or Restrictions on the Use of Mines. 25. the US has already enacted legislation punishing the high crimes mentioned earlier. or any protocol to such convention to which the United States is a party. It is settled doctrine in statutory construction that the word may denotes discretion. 17. Booby-Traps and Other Devices as amended at Geneva on 3 May 1996 (Protocol II as amended on 3 May 1996). In that case. We held that an executive agreement is a treaty within the meaning of that word in international law and constitutes enforceable domestic law vis--vis the United States. This view must fail. citing U.[79] and thereby concluding that while the Philippines has criminalized under RA 9851 the acts defined in the Rome Statute as war crimes. still. the US enacted a law criminalizing war crimes. 1977. when the United States is 25 . thus rendering the petition moot. issued on January 13. In his dissent in the abovementioned case. in the US. thus: (a) Offense Whoever. (3) Which constitutes a grave breach of common Article 3 (as defined in subsection [d]) when committed in the context of and in association with an armed conflict not of an international character. as early as October 2006. 1069. Romulo[74] which cited Weinberger v. the Office of the Solicitor General filed a Manifestation and Motion averring that the Philippine Government decided not to continue with the ZTE National Broadband Network Project. The statutory proviso uses the wordmay. 17 of RA 9851. commits a war crime. However. in any of the circumstances described in subsection (b).S.[76] Likewise.whether to surrender or not a person accused of the crimes under RA 9851. 2 of the RP-US Extradition Treaty.

in whole or in part. ethnic. it should be pointed out that the report used may not have any weight or value under international law. racial or religious group as such (1) kills members of that group. in whole or in substantial part. entitled On Trial: The US Military and the International Criminal Court.[81] Rome Statute Arguing further. The report does not fall under any of the foregoing enumerated sources. genocide means any of the following acts committed with intent to destroy. (3) causes the p members of the techniques. torture. as subsidiary means for the determination of rules of law. namely. Article 38 of the Statute of the International Court of Justice (ICJ) lists the sources of international law. ethnical. (4) subjects the group to conditions of life that are intended to cause the physical destruction of the group in whole or in part. (e) Forcibly transferring children of the group to another group. and (4) subject to the provisions of Article 59. serious violations of article 3 amended on 3 M common to the four Geneva Conventions of 12 such Protocol. a national. At the outset. the perceived gaps in the definitions of the crimes are nonexistent. as its basis. any of the following acts civilians. establishing rules expressly recognized by the contesting states. si (3) Which con defined in subse and in associatio international ch (4) Of a person contrary to the p 1091. Genocide Restrictions on (c) In the case of an armed conflict not of an Devices as ame international character. including members of religious armed forces such who have laid down their arms and those placed hors de combat by sickness. (d) Imposing measures intended to prevent births within the group. (1) kills membe (b) Causing serious bodily or mental harm to members of the group. (4) subjects the cause the physic (5) imposes mea group. (2) causes serious bodily injury to members of that group. (3) causes the permanent impairment of the mental faculties of members of the group through drugs. a national. namely. For the purpose of this Statute. as follows: (1) international conventions. ethnic. racial or group as the hostilities. w (a) August 1949. the US adopted a law that criminalized genocide. (5) imposes measures intended to prevent births within the group. the table below shows the definitions of genocide and war crimes under the Rome Statute vis--vis the definitions under US laws: shall be punished as provided in subsection (b). or (6) transfers by shall be punishe Article 8 (a) Definition means any cond War Crimes 2. To highlight. Holt and Elisabeth W. a national. detention or any 26 . any of the following acts against persons or property protected under the provisions of the relevant Geneva Convention: x x x[84] (b) Other serious violations of the laws and customs applicable in international armed conflict. in December 2009. A highly qualified publicist is a scholar of public international law and the term usually refers to legal scholars or academic writers. (2) international custom. whether in the time of peace or in time of war and with specific intent to destroy. still. It cannot even be considered as the teachings of highly qualified publicists.[82] It has not been shown that the authors[83] of this report are highly qualified publicists. any of the following acts: US Law xxxx (1) Defined as conventions sig to such convent (2) Prohibited Hague Convent War on Land. as evidence of a general practice accepted as law. another view has been advanced that the current US laws do not cover every crime listed within the jurisdiction of the ICC and that there is a gap between the definitions of the different crimes under the US laws versus the Rome Statute. judicial decisions and the teachings of the most highly qualified publicists of the various nations.[86] time ofcommitted war and with specific intent to destroy. Article 6 Genocide For the purpose of this Statute. Dallas. namely. or (6) transfers by force children of the group to another group. (3) the general principles of law recognized by civilized nations. whether general or particular. within the established framework of international law. racial or religious group. or similar techniques. Genocide (a) Basic Offense Whoever. (2) causes serio (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part. to wit: 1091. The view used a report written by Victoria K.a party to such Protocol. as such: (a) Killing members of the group. Assuming arguendo that the report has weight. willfully kills or causes serious injury to civilians. war crimes means: (a) Grave breaches of the Geneva Conventions of 12 August 1949.[80] Similarly. wounds. in whole against persons taking no active part inor in substantial part.

the status.[99] Customary international law or international custom is a source of international law as stated in the Statute of the ICJ. resort must be had to the customs and usages of civilized nations. whether the Circuit Courts of the United States can exercise a common law jurisdiction in criminal cases. The report went on further to say that [a]ccording to those involved. within the established framework of international law. v.[94] Stated otherwise. and must be ascertained and administered by the courts of justice of appropriate jurisdiction as often as questions of right depending upon it are duly presented for their determination. there is no common law crime in theUS but this is considerably different from international law.[87] x x x Thus. to wit: Nonetheless. years later. x x x Similarly by the reference in the 15th Article of War to offenders or offenses that x x x by the law of war may be triable by such military commissions. Congress has incorporated by reference. In fact. s 8. necessarily including international crimes. namely. [91] which in turn is based on the holding in U. and. the report itself stated as much. I. as evidence of these. Small areas of potential gaps between the UCMJ and the Rome Statute.[100] It is defined as the general and consistent practice of states recognized and followed by them from a sense of legal obligation. The cited ruling in U. As early as 1900. It has been held that genocide. An Act of Congress punishing the crime of piracy as defined by the law of nations is an appropriate exercise of its constitutional authority. the argument proffered cannot stand. Coolidge. the elements of crimes laid out in the Rome Statute have been part of US military doctrine for decades. and experience have made themselves peculiarly well acquainted with the subjects of which they treat. even without any local statute. the esteemed Justice Gray in The Paquete Habana[89] case already held international law as part of the law of the US. for the conduct of war. war crimes and crimes against humanity have attained the status of customary international law. a person can be tried in the US for an international crime despite the lack of domestic legislation. despite the lack of actual domestic legislation. or to enumerate or define by statute all the acts which that law condemns.[88] Thus. the US notably follows the doctrine of incorporation.[90] (Emphasis supplied. Hudson. they ensured that most of the crimes were consistent with those outlined in the UCMJ and gave strength to complementarity for the US. rights and duties of enemy nations as well as of enemy individuals. thus: It is no objection that Congress in providing for the trial of such offenses has not itself undertaken to codify that branch of international law or to mark its precise boundaries.[93] Indeed. Since US military lawyers were instrumental in drafting the elements of crimes outlined in the Rome Statute. v.[92] only applies to common law and not to the law of nations or international law. Such works are resorted to by judicial tribunals. to wit: International law is part of our law. The US doubtless recognizes international law as part of the law of the land. Art. all offenses which are defined as such by the law of war x x x. to the works of jurists and commentators who by years of labor.other cause: xxxx (d) Paragraph 2 (c) applies to armed conflicts not of an international character and thus does not apply to situations of internal disturbances and tensions. [95] In fact.[101] In order to establish the customary status of a particular 27 .[97] It went on further to explain that Congress had not undertaken the task of codifying the specific offenses covered in the law of war. to define and punish the offense since it has adopted by reference the sufficiently precise definition of international law.S. research.) Few believed there were wide differences between the crimes under the jurisdiction of the Court and crimes within the Uniform Code of Military Justice that would expose US personnel to the Court. isolated and sporadic acts of violence or other acts of a similar nature. could be addressed through existing military laws. any of the following acts: x x x. not for the speculations of their authors concerning what the law ought to be. such as riots. military experts argued. For this purpose. cl. as within the jurisdiction of military commissions.) This rule finds an even stronger hold in the case of crimes against humanity. the gaps pointed out as to the definition of the crimes are not present. Evidently. Some even go so far as to state that these crimes have attained the status of jus cogens. (e) Other serious violations of the laws and customs applicable in armed conflicts not of an international character. but for the trustworthy evidence of what the law really is. Hudson only considered the question. 10. v. where there is no treaty and no controlling executive or legislative act or judicial decision. and which may constitutionally be included within that jurisdiction. So it was that in Ex Parte Quirin[96] the US Supreme Court noted that [f]rom the very beginning of its history this Court has recognized and applied the law of war as including that part of the law of nations which prescribes. the Court in U.S.S.[98] x x x (Emphasis supplied. US courts would apply international law as a source of criminal liability despite the lack of a local statute criminalizing it as such.

This implicitly requires belief that the practice in question is rendered obligatory by the existence of a rule of law requiring it. requires that the state practice or norm be carried out in such a way. [103] It is demonstrated upon the existence of the following elements: (1) generality. the second element has likewise not been shown to be present. even when no other recognized basis for jurisdiction exists. The fact that 114 States out of a total of 194[115] countries in the world.J.norm. why they behave the way they do.[107] As a result. opinio juris. consistency. The first element of customary international law. or roughly 58. Consequently. as to be evidence of a belief that this practice is rendered obligatory by the existence of a rule of law requiring it. it still has both the doctrine of incorporation and universal jurisdiction to try these crimes. x x x xxxx Once the existence of state practice has been established. the second or the psychological element must be deemed non-existent. [106] Corollary. a jus cogens norm holds the highest hierarchical position among all other customary norms and principles. subsequent to its coming into force eight (8) years earlier. This includes several elements: duration.[104] While. 2002. is what makes practice an international rule. in the first place. i. but the treaty has not been transmitted to the Senate for the ratification process. and the psychological factor or subjective factor. no matter how hard one insists. does not even feel bound by the Rome Statute. and consistent practice on the part of States. in a certain manner. any state may exercise jurisdiction over an individual who commits certain heinous and widely condemned offenses. that they are actually behaving.e.[108] When applied to international crimes.[112] Therefore. found in the Rome Statute is not declaratory of customary international law. that is. or the belief that a certain form of behavior is obligatory.. even with the current lack of domestic legislation on the part of the US. thus: Custom or customary international law means a general and consistent practice of states followed by them from a sense of legal obligation [opinio juris] x x x. the Philippines. there is. even by agreement. and generality of the practice of states. the subjective element. should be handled by a particular international criminal court. The numbers even tend to argue against the urgency of establishing international criminal courts envisioned in the Rome Statute. x xx And this brings us to what Fr. jus cogens crimes have been deemed so fundamental to the existence of a just international legal order that states cannot derogate from them. aptly said respecting the application of the concurring elements. Lest it be overlooked. judging by the action or inaction of its top officials.[105] The term jus cogens means the compelling law. established. and opinio juris sive necessitates. S. as yet. [110] The rationale behind this principle is that the crime committed is so egregious that it is considered to be committed against all members of the international community[111] and thus granting every State jurisdiction over the crime. and (3) duration. the psychological element. it becomes necessary to determine why states behave the way they do. Bernas. let alone prevalent practice. The initial factor for determining the existence of custom is the actual behavior of states. Without it. More important is the consistency and the generality of the practice. widespread. jus cogens norms are deemed peremptory and nonderogable. i. as a matter of settled and consistent practice.[113] does not. 28 . etc. Absent the widespread/consistent-practice-of-states factor. Res ipsa loquitur. the objective element. More than eight (8) years have elapsed since the Philippine representative signed the Statute.76%. 2010.e. no overwhelming consensus.[116] (Emphasis added. (2) uniformity and consistency. two elements must concur: State practice. that is how the states behave. or on July 1. xxxx Duration therefore is not the most important element. as an international tribunal. the ICC. for an inquiry on why states behave the way they do presupposes. Do states behave the way they do because they consider it obligatory to behave thus or do they do it only as a matter of courtesy? Opinio juris.. have ratified the Rome Statute casts doubt on whether or not the perceived principles contained in the Statute have attained the status of customary law and should be deemed as obligatory international law. among the different countries in the world that the prosecution of internationally recognized crimes of genocide. only 114[114] States have ratified the Rome Statute. under the premises.) Evidently. practice is not law. This statement contains the two basic elements of custom: the material factor. appear to be obtaining as reflected in this simple reality: As of October 12.[102] State practice refers to the continuous repetition of the same or similar kind of acts or norms by States. The required duration can be either short or long.[109] These jus cogens crimes relate to the principle of universal jurisdiction.[117] Like the first element.

courts should exercise utmost caution in declaring any executive agreement invalid. taking due account of the present Advisory Opinion. The United Nations. principal judicial organ of the United Nations. In light of the above consideration. including in and around East Jerusalem “D. - “B. legality of the construction by Israel of a wall in the Occupied Palestinian Territory. all States parties to the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War of 12 August 1949 have in addition the obligation. has today rendered its Advisory Opinion in the case concerning the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (request for advisory opinion). All States are under an obligation not to recognize the illegal situation resulting from the construction of the wall and not to render aid or assistance in maintaining the situation created by such construction. to dismantle forthwith the structure therein situated. are contrary to international law”. The construction of the wall being built by Israel. Senate Committee on Accountability of Public Officers and Investigations. the Court finds unanimously that it has jurisdiction to give the advisory opinion requested by the United Nations General Assembly and decides by fourteen votes to one to comply with that request. including in and around East Jerusalem. acceptance or approval by signatory States. to be effective. in the Occupied Palestinian Territory. [118] Even further. This authority of the President to enter into executive agreements without the concurrence of the Legislature has traditionally been recognized in Philippine jurisprudence. the petition for certiorari. More importantly. Israel is under an obligation to make reparation for all damage caused by the construction of the wall in the Occupied Palestinian Territory. the Rome Statute itself rejects the concept of universal jurisdiction over the crimes enumerated therein as evidenced by it requiring State consent. Thus. By fourteen votes to one. the Rome Statute specifically and unequivocally requires that: This Statute is subject to ratification. it is under an obligation to cease forthwith the works of construction of the wall being built in the Occupied Palestinian Territory. As We held in Neri v. - “C. SO ORDERED. and to repeal or render ineffective forthwith all legislative and regulatory acts relating thereto. [t]he power to enter into an executive agreement is in essence an executive power. executive and judicial branches of the government. the occupying Power. the position or view that the challenged RP-US Non-Surrender Agreement ought to be in the form of a treaty. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory ADVISORY OPINION The Court finds that the construction by Israel of a wall in the Occupied Palestinian Territory and its associated régime are contrary to international law. By thirteen votes to two. including in and around East Jerusalem. The International Court of Justice (ICJ). - “E. should consider what further action is required to bring to an end the illegal situation resulting from the construction of the wall and the associated régime. legal consequences of the breaches found.Further. an act of the executive branch with a foreign government must be afforded great respect. Jurisdiction of the Court and judicial propriety 29 . 9 July 2004. has to be rejected. By fourteen votes to one. mandamus and prohibition is hereby DISMISSED for lack of merit.[120] The rationale behind this principle is the inviolable doctrine of separation of powers among the legislative.[119] These clearly negate the argument that such has already attained customary status. The power to enter into executive agreements has long been recognized to be lodged with the President. By fourteen votes to one. WHEREFORE. and especially the General Assembly and the Security Council. and its associated régime. absent any clear contravention of the law.” Reasoning of the Court The Advisory Opinion is divided into three parts: jurisdiction and judicial propriety. By fourteen votes to one. to ensure compliance by Israel with international humanitarian law as embodied in that Convention”. Israel is under an obligation to terminate its breaches of international law. in accordance with paragraph 151 of this Opinion”. while respecting the United Nations Charter and international law. In its Opinion. it states the legal consequences arising from that illegality THE HAGUE. No costs. The Court responds to the question as follows: - “A.

paragraph 4. It first observes that the route of the wall as fixed by the Israeli Government includes within the “Closed Area” (between the wall and the “Green Line”) some 80 percent of the settlers living in the Occupied Palestinian Territory. The Court concludes from the foregoing that there is no compelling reason precluding it from giving the requested opinion. which have become part of customary law. which provides that. the Court considers whether or not the construction of the wall is contrary to international law. It recalls that the lack of consent by a State to its contentious jurisdiction has no bearing on its jurisdiction to give an advisory opinion. and emphasizes that it is for the General Assembly to assess the usefulness of that opinion. The Court begins by citing. . as it has sometimes done in the past. it considers that the construction of the wall and its associated régime “create a ‘fait accompli' on the ground that could well become permanent. given that the question on which the General Assembly requested an opinion is located in a much broader frame of reference than that of the bilateral dispute between Israel and Palestine. [the 30 . the Assembly must not make any recommendation with regard thereto unless the Security Council so requests. of circumventing the principle of consent to judicial settlement. and that it is of direct concern to the United Nations. in the present case. with reference to Article 2. International Covenant on Economic. . The Court finds that the conditions laid down by that resolution were met when the Tenth Emergency Special Session was convened. Social and Cultural Rights and the United Nations Convention on the Rights of the Child) are applicable in the Occupied Palestinian Territory. paragraph 1. the Court refers to the provisions of the Hague Regulation of 1907. It further cites the principle of self-determination of peoples. The Court further notes that certain human rights instruments (International Covenant on Civil and Political Rights. while the Security Council is exercising its functions in respect of any dispute or situation. negotiated solution to the Israeli-Palestinian conflict. as well as the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War of 1949. the principles of the prohibition of the threat or use of force and the illegality of any territorial acquisition by such means. . the Court considers the propriety of giving the requested opinion. The Court further refers to the fact that the General Assembly adopted resolution ES-10/14 during its Tenth Emergency Special Session. It finds that the General Assembly. paragraph 1. which requested the opinion by resolution ES-10/14 of 8 December 2003. It further considers certain fears expressed to it that the route of the wall will prejudge the future frontier between Israel and Palestine. of the United Nations Charter and to General Assembly resolution 2625 (XXV). as qualified by Article 12.The Court states that when it is seised of a request for an advisory opinion. it must first consider whether it has jurisdiction to give that opinion. applicable in those Palestinian territories which before the armed conflict of 1967 lay to the east of the 1949 Armistice demarcation line (or “Green Line”) and were occupied by Israel during that conflict. The Court then rejects the argument that an opinion could not be given in the present case on the ground that the question posed in the request is not a legal one. Nor does the Court accept the contention that it should decline to give the advisory opinion requested because its opinion could impede a political. did not exceed its competence. since the other expressions sometimes employed are no more accurate if understood in the physical sense). the Court finds that those settlements have been established in breach of international law. As regards international humanitarian law. that was in particular true when the General Assembly decided to request an opinion. The Court ascertains whether the construction of the wall has violated the above-mentioned rules and principles. Recalling that the Security Council described Israel's policy of establishing settlements in that territory as a “flagrant violation” of the Fourth Geneva Convention. It finds that the General Assembly. as reflected in customary international law. of the Charter. in requesting an advisory opinion from the Court. which provides that if the Security Council fails to exercise its primary responsibility for the maintenance of international peace and security. then gives certain indications as to the relationship between the question on which the advisory opinion is requested and the activities of the General Assembly. The Court. convened pursuant to resolution 377A (V). It adds that the giving of an opinion would not have the effect. Legality of the construction by Israel of a wall in the Occupied Palestinian Territory Before addressing the legal consequences of the construction of the wall (the term which the General Assembly has chosen to use and which is also used in the Opinion. in which case. the General Assembly may consider the matter immediately with a view to making recommendations to Member States. as the Security Council was at that time unable to adopt a resolution concerning the construction of the wall as a result of the negative vote of a permanent member. It further finds it has before it sufficient information and evidence to enable it to give its opinion. as enshrined in the Charter and reaffirmed by resolution 2625 (XXV). Having established its jurisdiction. The Court determines the rules and principles of international law which are relevant to the question posed by the General Assembly. of the Charter. is authorized to do so by Article 96.

in the exercise by the Palestinian people of its right to self-determination is brought to an end. As regards the legal consequences for other States. the Court finds that this construction and its associated régime. the Court finds that Israel must respect the right of the Palestinian people to self-determination and its obligations under humanitarian law and human rights law. to health. In regard to the former. to education and to an adequate standard of living as proclaimed in the International Covenant on Economic. are tending to alter the demographic composition of the Occupied Palestinian Territory and thereby contravene the Fourth Geneva Convention and the relevant Security Council resolutions. all States parties to the Fourth Geneva Convention are under an obligation. The Court further finds that it is for all States. that they impede the liberty of movement of the inhabitants of the territory as guaranteed by the International Covenant on Civil and Political Rights. The Court accordingly finds that the construction of the wall and its associated régime are contrary to international law. and especially the General Assembly and the Security Council. The Court further draws the attention of the General Assembly to the “need for . while respecting the Charter and international law. . taking due account of the present Advisory Opinion. while respecting the United Nations Charter and international law. The Court observes that certain humanitarian law and human rights instruments include qualifying clauses or provisions for derogation which may be invoked by States parties. holding that none of such clauses are applicable. a negotiated solution to the 31 . Social and Cultural Rights and in the Convention on the Rights of the Child. dismantle forthwith those parts of that structure situated within the Occupied Palestinian Territory and forthwith repeal or render ineffective all legislative and regulatory acts adopted with a view to construction of the wall and establishment of its associated régime. . and is therefore a breach of Israel's obligation to respect that right”. and deplored by the Security Council. to ensure compliance by Israel with international humanitarian law as embodied in that Convention. Finally. cutting-off of access to primary water sources. . along with measures taken previously. In conclusion. the Court is of the view that the United Nations. Israel must also put an end to the violation of its international obligations flowing from the construction of the wall in the Occupied Palestinian Territory and must accordingly cease forthwith the works of construction of the wall. restrictions on freedom of movement. The Court notes that the route chosen for the wall gives expression in loco to the illegal measures taken by Israel. The Court concludes by stating that the construction of the wall must be placed in a more general context. on the basis of international law. Legal consequences of the violations found The Court draws a distinction between the legal consequences of these violations for Israel and those for other States. severely impedes the exercise by the Palestinian people of its right to self-determination. confiscation of agricultural land. etc. It finds that the construction of the wall and its associated régime are contrary to the relevant provisions of the Hague Regulations of 1907 and of the Fourth Geneva Convention. with regard to Jerusalem and the settlements. resulting from the construction of the wall. the tragic situation in the region can be brought to an end only through implementation in good faith of all relevant Security Council resolutions. It finds that the “construction [of the wall]. finds that the construction of the wall constitutes “breaches by Israel of various of its obligations under the applicable international humanitarian law and human rights instruments”. to see to it that any impediment. efforts to be encouraged with a view to achieving as soon as possible. .construction of the wall] would be tantamount to de facto annexation”. Israel must further make reparation for all damage suffered by all natural or legal persons affected by the wall's construction. and that it entails further alterations to the demographic composition of the Occupied Palestinian Territory. coupled with the establishment of settlements. inter alia where military exigencies or the needs of national security or public order so require. In the Court's view. The Court then considers the information furnished to it regarding the impact of the construction of the wall on the daily life of the inhabitants of the Occupied Palestinian Territory (destruction or requisition of private property. . and that they also impede the exercise by the persons concerned of the right to work. should consider what further action is required to bring to an end the illegal situation resulting from the construction of the wall and its associated régime. In addition. the Court finds that all States are under an obligation not to recognize the illegal situation resulting from the construction of the wall and not to render aid or assistance in maintaining the situation created by such construction. the Court considers that Israel cannot rely on a right of self-defence or on a state of necessity in order to preclude the wrongfulness of the construction of the wall. In this regard. Lastly. It states that it is not convinced that the specific course Israel has chosen for the wall was necessary to attain its security objectives and. the Court notes that Israel and Palestine are “under an obligation scrupulously to observe the rules of international humanitarian law”. except in so far as such acts may continue to be relevant for compliance by Israel with its obligations in regard to reparation.).

and of the elements of fact at its disposal. IN FAVOUR: President Bedjaoui. A threat or use of nuclear weapons should also be compatible with the requirements of the international law applicable in armed conflict particularly those of the principles and rules of international humanitarian law. There is in neither customary nor conventional international law any comprehensive and universal prohibition of the threat or use of nuclear weapons as such. Weeramantry. Higgins. Herczegh. Unanimously. However. Parra-Aranguren. Ferrari Bravo. Shahabuddeen. Judges Koroma. Ranjeva. Simma and Tomka. D. Koroma. Al-Khasawneh. Kooijmans. LEGALITY OF THE THREAT OR USE OF NUCLEAR WEAPONS AGAINST: Judges Shahabuddeen. (2) Replies in the following manner to the question put by the General Assembly: A. Fleischhauer. 32 . Guillaume. Judges Oda. AGAINST: Vice-President Schwebel. The Court handed down its Advisory Opinion on the request made by the General Assembly of the United Nations on the question concerning the Legality of the Threat or Use of Nuclear Weapons. Unanimously. of the United Nations Charter and that fails to meet all the requirements of Article 51. Higgins. in which the very survival of a State would be at stake. and in particular the principles and rules of humanitarian law. Composition of the Court The Court was composed as follows: Judge Shi. It follows from the above-mentioned requirements that the threat or use of nuclear weapons would generally be contrary to the rules of international law applicable in armed conflict. Judge Buergenthal appends a declaration. AGAINST: Judge Oda. Ranjeva. as well as with specific obligations under treaties and other undertakings which expressly deal with nuclear weapons. Elaraby. Shi. There is in neither customary nor conventional international law any specific authorization of the threat or use of nuclear weapons. Herczegh. By eleven votes to three. Registrar Couvreur. VicePresident Schwebel. By seven votes to seven. by the President's casting vote. Judges Oda. Vice-President. Vereshchetin. with peace and security for all in the region”. Judges Ranjeva. Judges Elaraby and Owada append separate opinions. Fleischhauer. Herczegh. Guillaume. Judges Guillaume. B. A threat or use of force by means of nuclear weapons that is contrary to Article 2. in view of the current state of international law. The final paragraph of the Opinion reads as follows: THE COURT (1) By thirteen votes to one. Koroma. Ferrari Bravo. Rezek. Advisory Opinion of 8 July 1996 C. Higgins. "For these reasons. Higgins. Higgins. Unanimously. IN FAVOUR: President Bedjaoui. Vereshchetin. IN FAVOUR: President Bedjaoui. existing side by side with Israel and its other neighbours. Koroma. Ferrari Bravo. Koroma. Buergenthal. Shahabuddeen.outstanding problems and the establishment of a Palestinian State. Weeramantry. VicePresident Schwebel. the Court cannot conclude definitively whether the threat or use of nuclear weapons would be lawful or unlawful in an extreme circumstance of self-defence. Vereshchetin. Judges Guillaume. E. Decides to comply with the request for an advisory opinion. Judge Ranjeva. is unlawful. Shi. paragraph 4. President. Kooijmans and Al-Khasawneh append separate opinions to the Advisory Opinion. Weeramantry. Fleischhauer. Vereshchetin. Shi. Owada.

the Secretary-General of the United Nations officially communicated to the Registrar the decision taken by the General Assembly to submit a question to the Court for an advisory opinion. . Judges Oda. JudgesGuillaume. adopted by the General Assembly on 15 December 1994. Fleischhauer. the question put to the Court has a relevance to many aspects of the activities and concerns of the General Assembly including those relating to the threat or use of force in international relations." The Court then recapitulates the various stages of the proceedings. para. Nor are the political nature of the motives which may be said to have inspired the request or the political implications that the opinion given might have of relevance in the establishment of the Court's jurisdiction to give such an opinion. paragraph 1. of the Charter of the United Nations. Guillaume. Shi. [and] appear . Judges Oda Shahabuddeen. Ranjeva.C.J. In the view of the Court. pursuant to Article 96. paragraph 1. the Statute 33 . To do this. paragraph 1. the disarmament process. to be questions of a legal character" (Western Sahara. _________ Summary of the Advisory Opinion Submission of the request and subsequent procedure (paras. of its Statute. 18. is or is not correct. Vice-President Schwebe l. should the answer be in the affirmative. Judges Herczegh. 14-19) Article 65. indeed. Discretion of the Court to give an advisory opinion (paras. are by their very nature susceptible of a reply based on law . the Court must identify the existing principles and rules. paragraph 1 of the Charter provides that: "The General Assembly or the Security Council may request the International Court of Justice to give an advisory opinion on any legal question. and the progressive development of international law. interpret them and apply them to the threat or use of nuclear weapons. * The Court was composed as follows: President Bedjaoui. . p. Weeramantry. as.) This is more than an enabling provision. Shi. since the Court is asked to rule on the compatibility of the threat or use of nuclear weapons with the relevant principles and rules of international law. VicePresident Schwebel. provides that the General Assembly "Decides. . the Court finds that. I.F. to request the International Court of Justice urgently to render its advisory opinion on the following question: 'Is the threat or use of nuclear weapons in any circumstance permitted under international law?'. Vereshchetin. Advisory Opinion. in the nature of things. Jurisdiction of the Court paras. 10-18) The Court first considers whether it has the jurisdiction to give a reply to the request of the General Assembly for an Advisory Opinion and whether. . which sets forth the question. there is any reason it should decline to exercise any such jurisdiction. It finds that the question put to the Court by the General Assembly is indeed a legal one. Herczegh. 15). Shahabuddeen. . filed in the Registry on 6 January 1995. thus offering a reply to the question posed based on law. Reports 1975. Unanimously. The Court observes that it draws its competence in respect of advisory opinions from Article 65. the General Assembly has competence in any event to seise the Court. President Bedjaoui. it matters little whether this interpretation of Article 96. Weeramantry. paragraph 1. The final paragraph of Resolution 49/75 K. does not suffice to deprive it of its character as a "legal question" and to "deprive the Court of a competence expressly conferred on it by its Statute". Ferrari Bravo. of the Statute provides: "The Court may give an advisory opinion . Higgins. Koroma and Higgins appended dissenting opinions. . Koroma. . 11 and 13 of the Charter. Registrar Valencia-Ospina. As the Court has repeatedly emphasized. Referring to Articles 10. in the present case." Some States which oppose the giving of an opinion by the Court argued that the General Assembly and Security Council may ask for an advisory opinion on any legal question only within the scope of their activities. Ranjeva and Fleischhauer appended separate opinions. 1-9) The Court begins by recalling that by a letter dated 19 December 1994. "Legal Question" (para. while Article 96. 13) The Court observes that it has already had occasion to indicate that questions "framed in terms of law and rais[ing] problems of international law . Vereshchetin and Ferrari Bravo appended declarations to the Advisory Opinion of the Court. There exists an obligation to pursue in good faith and bring to a conclusion negotiations leading to nuclear disarmament in all its aspects under strict and effective international control". . is the case with so many questions which arise in international life. The fact that this question also has political aspects." (Emphasis added.

" (Interpretation of Peace Treaties with Bulgaria. under the constraints placed upon it as a judicial organ. the Court must decide. through the use of a certain weapon in warfare. Other arguments concerned the fear that the abstract nature of the question might lead the Court to make hypothetical or speculative declarations outside the scope of its judicial function. In order to respond to this argument. to act upon a request for advisory opinion. as argued by some of the proponents of the illegality of the use of nuclear weapons. The Court does not accept those arguments and concludes that it has the authority to deliver an opinion on the question posed by the General Assembly. it will be able to give a complete answer to the question asked of it. I. should not be refused. is that relating to the use of force enshrined in the United Nations Charter and the law applicable in armed conflict which regulates the conduct of hostilities. can only be decided by reference to the law applicable in armed conflict and not deduced from the terms of the Covenant itself. based on the discretionary power of the Court. And the Court further finds that while the existing international law relating to the protection and safeguarding of the environment does not specifically prohibit the use of nuclear weapons. In this context. The fact that the question put to the Court does not relate to a specific dispute should consequently not lead the Court to decline to give the opinion requested. Formulation of the question posed (paras. however. 23-34) In seeking to answer the question put to it by the General Assembly. itself an 'organ of the United Nations'. The Applicable Law (paras. are found by the Court to be without particular significance for the disposition of the issues before it. Reports 1950. in contending that the question put to the Court is vague and abstract. together with any specific treaties on nuclear weapons that the Court might determine to be relevant. It points out. 35 and 36) 34 . appeared to mean by this that there exists no specific dispute on the subject-matter of the question. that a reply from the Court in this case might adversely affect disarmament negotiations and would. the reply of the Court. and the questions of burden of proof to which it was said to give rise.J. and that in answering the question posed. The purpose of the advisory function is not to settle . Unique characteristics of nuclear weapons (paras. and. that it is an entirely different question whether. once it has established its competence to do so.disputes between States. represents its participation in the activities of the Organization. 20 and 22) The Court finds it unnecessary to pronounce on the possible divergences between the English and French texts of the question put.)" In the history of the present Court there has been no refusal. be contrary to the interest of the United Nations. towards a group as such. Hungary and Romania. after consideration of the great corpus of international law norms available to it. the Court has previously noted as follows: "The Court's Opinion is given not to the States. But that is a different matter from a refusal to answer at all. it indicates important environmental factors that are properly to be taken into account in the context of the implementation of the principles and rules of the law applicable in armed conflict. in principle. required by Article II of the Convention on the Prevention and Punishment of the Crime of Genocide. the Court would be going beyond its judicial role and would be taking upon itself a law-making capacity. in the case concerning the Legality of the Use by a State of Nuclear Weapons in Armed Conflict the refusal to give the World Health Organization the advisory opinion requested by it was justified by the Court's lack of jurisdiction in that case. it is necessary to distinguish between requirements governing contentious procedure and those applicable to advisory opinions. In the view of the Court. what might be the relevant applicable law. First Phase. Several reasons were adduced in these proceedings in order to persuade the Court that in the exercise of its discretionary power it should decline to render the opinion requested by the General Assembly. . but to offer legal advice to the organs and institutions requesting the opinion. p.leaves a discretion as to whether or not it will give an advisory opinion that has been requested of it. . In the light of the foregoing the Court concludes that the most directly relevant applicable law governing the question of which it was seised. and that there exist no "compelling reasons" which would lead the Court to exercise its discretion not to do so. The Court considers that the question whether a particular loss of life. And the argument concerning the legal conclusions to be drawn from the use of the word "permitted".at least directly . Some States. therefore.C. Its real objective is clear: to determine the legality or illegality of the threat or use of nuclear weapons. it would only be possible to arrive at such a conclusion after having taken due account of the circumstances specific to each case. 71. but to the organ which is entitled to request it. is to be considered an arbitrary deprivation of life contrary to Article 6 of the International Covenant on Civil and Political Rights. The Court also points out that the prohibition of genocide would be pertinent in this case if the recourse to nuclear weapons did indeed entail the element of intent. . Advisory Opinion. the fact that the General Assembly has not explained to the Court for what precise purposes it seeks the advisory opinion.

e. and observes that. if it is to be lawful. para. paragraph 4. 94. on the contrary. paragraph 4.whether or not it defended the policy of deterrence . nor permits. In short. This prohibition of the use of force is to be considered in the light of other relevant provisions of the Charter. is formulated in terms of prohibition. including nuclear weapons. in particular those of the exercise of legitimate selfdefence. of the Charter stand together in the sense that if the use of force itself in a given case is illegal . in particular humanitarian law. is there any principle or rule of international law which would make the legality of the threat or use of nuclear weapons or of any other weapons dependent on a specific authorization.suggested to the Court that it would be lawful to threaten to use force if the use of force contemplated would be illegal. also meet the requirements of the law applicable in armed conflict which comprise in particular the principles and rules of humanitarian law. But the Court does not find any specific prohibition of recourse to nuclear weapons in treaties expressly prohibiting the use of certain weapons of mass destruction. and their ability to cause damage to generations to come. 37-50) The Court then addresses the question of the legality or illegality of recourse to nuclear weapons in the light of the provisions of the Charter relating to the threat or use of force. the principles and rules of humanitarian law applicable in armed conflict. the Charter recognizes the inherent right of individual or collective self-defence if an armed attack occurs.J. p. however. a use of force that is proportionate under the law of selfdefence. it is imperative for it to take account of the unique characteristics of nuclear weapons.for whatever reason . 35 . no State . The pattern until now has been for weapons of mass destruction to be declared illegal by specific instruments. and in particular their destructive capacity. It does not seem to the Court that the use of nuclear weapons can be regarded as specifically prohibited on the basis of certain provisions of the Second Hague Declaration of 1899. In Article 2.The Court notes that in order correctly to apply to the present case the Charter law on the use of force and the law applicable in armed conflict. Reports 1986. A further lawful use of force is envisaged in Article 42. They apply to any use of force. Whether a signaled intention to use force if certain events occur is or is not a "threat" within Article 2. in order to be lawful. States sometimes signal that they possess certain weapons to use in self-defence against any State violating their territorial integrity or political independence.C. paragraph 4. The proportionality principle may thus not in itself exclude the use of nuclear weapons in self-defence in all circumstances. The notions of "threat" and "use" of force under Article 2. State practice shows that the illegality of the use of certain weapons as such does not result from an absence of authorization but. i. And the Court notes that the very nature of all nuclear weapons and the profound risks associated therewith are further considerations to be borne in mind by States believing they can exercise a nuclear response in self-defence in accordance with the requirements of proportionality. 49-73) Having dealt with the Charter provisions relating to the threat or use of force. 176): "there is a specific rule whereby self-defence would warrant only measures which are proportional to the armed attack and necessary to respond to it. Provisions of the Charter relating to the threat or use of force (paras. regardless of the weapons employed. they have not resulted in a treaty of general prohibition of the same kind as for bacteriological and chemical weapons.the threat to use such force will likewise be illegal. whereby the Security Council may take military enforcement measures in conformity with Chapter VII of the Charter. Rules on the lawfulness or unlawfulness of nuclear weapons as such (paras. For the rest. It first addresses the question whether there are specific rules in international law regulating the legality or illegality of recourse to nuclear weapons per se. The Court notes by way of introduction that international customary and treaty law does not contain any specific prescription authorizing the threat or use of nuclear weapons or any other weapon in general or in certain circumstances. it then examines the question put to it in the light of the law applicable in armed conflict proper. must. Nor. the declared readiness of a State to use force must be a use of force that is in conformity with the Charter. a great many negotiations have been conducted regarding nuclear weapons. of the Charter the use of force against the territorial integrity or political independence of another State or in any other manner inconsistent with the purposes of the United Nations is prohibited. in the last two decades. the Court turns to the law applicable in situations of armed conflict. The entitlement to resort to self-defence under Article 51 is subject to the conditions of necessity and proportionality. a rule well established in customary international law". United States of America) (I. But at the same time. In Article 51. the Regulations annexed to the Hague Convention IV of 1907 or the 1925 Geneva Protocol. The Charter neither expressly prohibits. although. In order to lessen or eliminate the risk of unlawful attack. their capacity to cause untold human suffering. These provisions do not refer to specific weapons. of the Charter depends upon various factors. the use of any specific weapon. As the Court stated in the case concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. and the law of neutrality.

without specifically addressing their threat or use. A modern version of that clause is to be found in Article 1. deployment and testing of nuclear weapons. The emergence. States must never make civilians the object of attack and must consequently never use weapons that are incapable of distinguishing between civilian and military targets. and (c) these reservations met with no objection from the parties to the Tlatelolco or Rarotonga Treaties or from the Security Council. certainly point to an increasing concern in the international community with these weapons. a significant step forward along the road to complete nuclear disarmament. In application of that second principle. from the principles of humanity and from the dictates of public conscience. the Conferences of 1949 and 1974-1977 left these weapons aside. have provided the international community with a corpus of treaty rules the great majority of which had already become customary and which reflected the most universally recognized humanitarian principles. and there is a qualitative as well as 36 . Under these circumstances the Court does not consider itself able to find that there is such an opinio juris. 74-87) Not having found a conventional rule of general scope. the nuclear-weapon States have reserved the right to use nuclear weapons in certain circumstances. The Court also refers to the Martens Clause. Turning to the applicability of the principles and rules of humanitarian law to a possible threat or use of nuclear weapons.The Court notes that the treaties dealing exclusively with acquisition. These rules indicate the normal conduct and behaviour expected of States. it is prohibited to cause unnecessary suffering to combatants: it is accordingly prohibited to use weapons causing them such harm or uselessly aggravating their suffering. the South Pacific) or against certain other States (non-nuclear-weapon States which are parties to the Treaty on the Non-Proliferation of Nuclear Weapons). International humanitarian law (paras. As to the treaties of Tlatelolco and Rarotonga and their Protocols. and also the declarations made in connection with the indefinite extension of the Treaty on the NonProliferation of Nuclear Weapons. the Court then deals with the question whether recourse to nuclear weapons must be considered as illegal in the light of the principles and rules of international humanitarian law applicable in armed conflict and of the law of neutrality. as lex lata. manufacture. It points out that the adoption each year by the General Assembly. by a specific and express prohibition of the use of nuclear weapons. (b) nevertheless. the Court notes that nuclear weapons were invented after most of the principles and rules of humanitarian law applicable in armed conflict had already come into existence. of Additional Protocol I of 1977. and the still strong adherence to the doctrine of deterrence(in which the right to use those weapons in the exercise of the right to self-defence against an armed attack threatening the vital security interests of the State is reserved) on the other. by a large majority. paragraph 2. According to the second principle. reveals the desire of a very large section of the international community to take. but that they do not constitute such a prohibition by themselves. civilians and combatants remain under the protection and authority of the principles of international law derived from established custom." The extensive codification of humanitarian law and the extent of the accession to the resultant treaties. which reads as follows: "In cases not covered by this Protocol or by other international agreements. The Court then turns to an examination of customary international law to determine whether a prohibition of the threat or use of nuclear weapons as such flows from that source of law. of a customary rule specifically prohibiting the use of nuclear weapons as such is hampered by the continuing tensions between the nascent opinio juris on the one hand. States do not have unlimited freedom of choice of means in the weapons they use. and requesting the member States to conclude a convention prohibiting the use of nuclear weapons in any circumstance. nor a customary rule specifically proscribing the threat or use of nuclear weapons per se. It concludes from this that these treaties could therefore be seen as foreshadowing a future general prohibition of the use of such weapons. possession. The first is aimed at the protection of the civilian population and civilian objects and establishes the distinction between combatants and non-combatants. it emerges from these instruments that: (a) a number of States have undertaken not to use nuclear weapons in specific zones (Latin America. which was first included in the Hague Convention II with Respect to the Laws and Customs of War on Land of 1899 and which has proved to be an effective means of addressing the rapid evolution of military technology. as well as the fact that the denunciation clauses that existed in the codification instruments have never been used. the Court observes that the cardinal principles contained in the texts constituting the fabric of humanitarian law are the following. After sketching the historical development of the body of rules which originally were called "laws and customs of war" and later came to be termed "international humanitarian law". even within this framework. of resolutions recalling the content of resolution 1653 (XVI). It notes that the Members of the international community are profoundly divided on the matter of whether non-recourse to nuclear weapons over the past fifty years constitutes the expression of an opinio juris.

the vast majority of the international community.quantitative difference between nuclear weapons and all conventional arms. and with it the stability of the international order which it is intended to govern. the fact that recourse to nuclear weapons is subject to and regulated by the law of armed conflict. The legal import of that obligation goes beyond that of a mere obligation of conduct. whatever type of weapons might be used. to which an appreciable section of the international community adhered for many years. the obligation involved here is an obligation to achieve a precise result . in view of the necessarily indiscriminate consequences of their use. Conclusions to be drawn from the applicability of international humanitarian law and the principle of neutrality (paras. international law. is applicable (subject to the relevant provisions of the United Nations Charter). because of the newness of the latter. the use of such weapons in fact seems scarcely reconcilable with respect for the requirements of the law applicable in armed conflict. In these circumstances. although the applicability of the principles and rules of humanitarian law and of the principle of neutrality to nuclear weapons is hardly disputed. 88 and 89) The Court finds that as in the case of the principles of humanitarian law applicable in armed conflict. * The Court finally emphasizes that its reply to the question put to it by the General Assembly rests on the totality of the legal grounds set forth by the Court above (paragraphs 20 to 103). the Court appreciates the full importance of the recognition by Article VI of the Treaty on the Non-Proliferation of Nuclear Weapons of an obligation to negotiate in good faith a nuclear disarmament. to all international armed conflict. those of the past. namely. which is of a fundamental character similar to that of the humanitarian principles and rules. necessitates the co-operation of all States. the Court considers that it needs to examine one further aspect of the question before it. that principle has therefore been considered by some to rule out the use of a weapon the effects of which simply cannot be contained within the territories of the contending States. Such a conclusion would be incompatible with the intrinsically humanitarian character of the legal principles in question which permeates the entire law of armed conflict and applies to all forms of warfare and to all kinds of weapons. those of the present and those of the future. seen in a broader context. It considers nevertheless. when its survival is at stake. in the Court's view. to which the Court has referred above. This twofold obligation to pursue and to conclude negotiations formally concerns the 182 States parties to the Treaty on the Non-Proliferation of Nuclear Weapons. It is consequently important to put an end to this state of affairs: the long-promised complete nuclear disarmament appears to be the most appropriate means of achieving that result. the Court is led to observe that it cannot reach a definitive conclusion as to the legality or illegality of the use of nuclear weapons by a State in an extreme circumstance of self-defence. as examined by the Court. Indeed. Nor can it ignore the practice referred to as "policy of deterrence". Furthermore. in accordance with Article 51 of the Charter. and of the elements of fact at its disposal. any realistic search for general and complete disarmament. The Court observes that. Another view holds that recourse to nuclear weapons. In the long run. in view of the present state of international law viewed as a whole. In this respect it seems significant that the thesis that the rules of humanitarian law do not apply to the new weaponry. could never be compatible with the principles and rules of humanitarian law and is therefore prohibited. in other words. whatever its content. are bound to suffer from the continuing difference of views with regard to the legal status of weapons as deadly as nuclear weapons.nuclear disarmament in all its aspects . controversial. According to one point of view. in which its very survival would be at stake. does not necessarily mean that such recourse is as such prohibited. the conclusions to be drawn from this applicability are. each of which is to be read in the light of the others. Like the principles and rules of humanitarian law. in view of the unique characteristics of nuclear weapons. and thus its right to resort to self-defence. A similar view has been expressed with respect to the effects of the principle of neutrality. Accordingly. that it does not have sufficient elements to enable it to conclude with certainty that the use of nuclear weapons would necessarily be at variance with the principles and rules of law applicable in armed conflict in any circumstance. 98-103) Given the eminently difficult issues that arise in applying the law on the use of force and above all the law applicable in armed conflict to nuclear weapons. on the other hand. the Court cannot lose sight of the fundamental right of every State to survival. The principle of neutrality (paras. or. has not been advocated in the present proceedings. international law leaves no doubt that the principle of neutrality. the pursuit of negotiations on the matter in good faith. 90-97) The Court observes that.by adopting a particular course of conduct. especially nuclear disarmament. it cannot be concluded from this that the established principles and rules of humanitarian law applicable in armed conflict did not apply to nuclear weapons. Some of these grounds 37 . Obligation to negotiate nuclear disarmament (paras. However.

as he did not wish to disassociate himself from the large number of conclusions that were expressed and integrated into the Advisory Opinion. He indicated that the Court had. In his view. sub-paragraph E. by no means constitute a large proportion of the membership of the international community. they nevertheless retain. a higher priority to the survival of a State than to the survival of humanity itself. The 38 . __________ Declaration of Judge Herczegh Judge Herczegh. opposable erga omnes. President Bedjaoui concludes by stressing the importance of the obligation to negotiate in good faith for nuclear disarmament . To that end. in other words.are not such as to form the object of formal conclusions in the final paragraph of the Opinion. though important and powerful members of the international community and playing an important role on the stage of international politics. international law with regard to the question of the threat and use of nuclear weapons "in any circumstance".if exercised under extreme circumstances in which the very survival of a State is in question . in respect to which the right to life can be exercised". were to have regard to the "policy of deterrence". the ultimate evil. adhere in their relations with other States. According to him. supported by those States accepting nuclear umbrella protection. Declaration Judge Shi As the ultimate objective of any action in the field of nuclear weapons is nuclear disarmament. the Court does no more than place on record the existence of a legal uncertainty. The existence of nuclear weapons is therefore a challenge to the very existence of humanitarian law. Also. that obligation has now . all their importance. Nuclear weapons. __________ Declaration of President Bedjaoui After having pointed out that paragraph E of the operative part was adopted by seven votes to seven. Besides. the Advisory Opinion thus rendered does at least have the merit of pointing to the imperfections of international law and inviting the States to correct them.cannot engender a situation in which a State would exonerate itself from compliance with the "intransgressible" norms of international humanitarian law". he gives the reasons that led him to approve the pronouncement of the Court. and which he fully endorses. in the view of the Court. the question was one to which it was unfortunately not in a position to give a clear answer. in favour of paragraph 105. with his own casting vote. had to find that in the current state of international law. given the at least formally unanimous support for that object. in determining a rule of existing law governing the use of the weapons. He voted in favour of the Advisory Opinion and. However. he concluded that "the very nature of this blind weapon therefore has a destabilizing effect on humanitarian law which regulates discernment in the type of weapon used. President Bedjaoui began by stressing that the Court had been extremely meticulous and had shown an acute sense of its responsibilities when proceeding to consider all the aspects of the complex question put to it by the General Assembly. more particularly. After having observed that the voting of the Members of the Court on paragraph E of the operative part is not the reflection of any geographical dividing line. President Bedjaoui considered that "self-defence . It would be hardly compatible with the Court's judicial function if the Court. without any hesitation. This practice is within the realm of international politics and has no legal value from the standpoint of the formation of a customary rule prohibiting the use of the weapons as such. "nuclear deterrence" is an instrument of policy to which certain nuclear-weapon States. In his view. leaving aside the nature of the policy of deterrence. According to him it would be very rash to accord. however. destabilize humanitarian law which is the law of the lesser evil. He considers for his part that it is possible to go beyond the conclusions of the Court in this regard and to assert "that there in fact exists a twofold general obligation. he has reservations with regard to the role which the Court assigns to the policy of deterrence in determining the existence of a customary rule on the use of nuclear weapons.assumed customary force. to negotiate in good faith and to achieve a specified result". in his declaration. not to mention their long-term effects of damage to the human environment.which the Court has moreover recognized.in his view . takes the view that the Advisory Opinion could have included a more accurate summary of the present state of __________ Judge Shi has voted in favour of the operative paragraphs of the Advisory Opinion of the Court. More specifically. he began by emphasizing the particularly exacting nature of international law and the way in which it is designed to be applied in all circumstances. the structure of the community of states is built on the principle of sovereign equality. States adhering to the policy of deterrence. President Bedjaoui indicated that the fact that the Court was unable to go any further should not "in any way be interpreted as leaving the way open to the recognition of the lawfulness of the threat or use of nuclear weapons".

he says he has had doubts about the applicability of traditional humanitarian law to the use . The Cold War. nuclear weapons of mass destruction can only be used lawfully in extreme cases. __________ Separate opinion of Judge Guillaume After having pondered upon the admissibility of the request for advisory opinion. Those resolutions are fundamental. The harm caused to combatants must not be "greater than that unavoidable to achieve legitimate military objectives". in such circumstances. __________ Declaration of Judge Vereshchetin In his declaration Judge Vereshchetin explains the reasons which have led him to vote in favour of paragraph 2E of the dispositif. In an attempt to define those cases. at least with regard to the burden of proof. The Court cannot be blamed for indecisiveness or evasiveness where the law. which clearly points to the existence of a truly solemn undertaking to eliminate all forms of nuclear weapons. remain free to act as they think fit. The theory of deterrence.and above all the threat of use . like all weapons.of nuclear weapons. in which the very survival of a State would be at stake". while giving rise to the concept of nuclear deterrence which has no legal value. paragraph 4 of the Charter and Article 51.Court cannot view these nuclear-weapon States and their allies in terms of material power. He goes on to say. the law provides no guidance to States. whose presence in military arsenals was declared unlawful. nor any conventional or customary rule can detract from the natural right of self-defence recognized by Article 51 of the Charter. He deduces from this that international law cannot deprive a State of the right to resort to nuclear weaponry if that resort constitutes the ultimate means by which it can ensure its survival. Moving on to an analysis of the law applicable to armed conflict. __________ Declaration of Judge Ferrari Bravo Judge Ferrari Bravo regrets that the Court should have arbitrarily divided into two categories the long line of General Assembly resolutions that deal with nuclear weapons. moreover. It has certainly concluded that it could not. the States. however. The theory of deterrence has arrested the development of that rule and. Consequently. These have. In other words. in those extreme circumstances. while it has occasioned a practice of the nuclearweapon States and their allies. In his view. that he has no choice in the matter but to defer to the consensus that has emerged before the Court between the States. has not been able to create a legal practice serving as a basis for the incipient creation of an international custom. would not only be contrary to the principle of sovereign equality of States. it is nonetheless still the case that that "bare" prohibition has remained unchanged and continues to produce its effects. On that account. Judge Guillaume begins by expressing his agreement with the Court with regard to the fact that nuclear weapons. constituting a fraction of membership of the community of States. where the Court is requested not to resolve an actual dispute. contributed to the formation of a rule prohibiting nuclear weapons. helped to widen the gap between Article 2. He regrets that the Court has not explicitly recognized this. but to state the law as it finds it. the Court may not try to fill any lacuna or improve the law which is imperfect. Any undue emphasis on the practice of these materially powerful States. Thus the collateral damage caused to the civilian population must not be "excessive" as compared to the "military advantage" offered. The Court should have proceeded to a constructive analysis of the role of the General Assembly resolutions. Judge Vereshchetin is of the view that the Opinion adequately reflects the current legal situation and shows the most appropriate means to putting an end to the existence of any "grey areas" in the legal status of nuclear weapons. it follows implicitly but necessarily from paragraph 2 E of the Court's Advisory Opinion that the States may resort to "the threat or use of nuclear weapons in an extreme circumstance of selfdefence. can only be used in the exercise of the right of self-defence recognized by Article 51 of the Charter. which carries the implication of the indecisiveness of the Court. prevented the development of this concept of illegality. This is the case of resolution 1 (I) of 24 January 1946. but also make it more difficult to give an accurate and proper view of the existence of a customary rule on the use of nuclear weapons. make a definitive finding either of legality of illegality in relation to nuclear weapons. he notes that that law essentially implies comparisons in which humanitarian considerations have to be weighed against military requirements. from the outset. When recognizing such a right the 39 . However if the law is silent on that matter. in advisory procedure. in the exercise of their sovereignty. it has taken the view that. but stresses that it has done so implicitly. On the other hand. It has. rather should have regard of them from the standpoint of international law. while it has prevented the implementation of the prohibition of nuclear weapons. is itself inconclusive. which intervened shortly afterwards. upon which it is called to pronounce. by making it more difficult for the nuclear powers to vindicate their policies within the framework of the theory of deterrence. Judge Guillaume stresses that neither the Charter of the United Nations.

Therefore the margin for considering that a particular threat or use of nuclear weapons could be legal. as henceforth any question whose object is to ask the Court to look into matters that some people do not seek to understand. negotiations leading to nuclear disarmament in all its aspects under strict and effective international control. and in particular the rules and principles of humanitarian law on the one side. Finally. __________ Separate opinion of Judge Ranjeva In his separate opinion. He nonetheless hopes that no Court will ever have to reach a decision along the lines of the second sub-paragraph of paragraph E. __________ 40 . generalized nuclear disarmament. Had the Court not done so. and the inherent right of self-defence on the other. while laying down boundaries the exceeding of which is a matter for the competence of States. above all. accepted as being legal. in his view. however. that the nuclear-weapon States attempt to give the reasons for their policies. by so doing. The separate opinion continues that the Court could and should have gone further and that it could and should have stated. as a condition for the suspension of illegality. apply to nuclear weapons. more particularly. The separate opinion sees a confirmation of this view in the legally relevant State practice relating to matters of self-defence.. all legal principles of equal rank. the Court has been led to adopt a liberal acceptation of the concept of a "legal question" in an advisory proceeding. Judge Ranjeva. It goes on to agree with the Court's Conclusion that the threat or use of nuclear weapons would generally be contrary to the rules applicable in armed conflict. that in order to reconcile the conflicting principles. The separate opinion endorses the Court's finding that international law applicable in armed conflict. Judge Ranjeva considers. it is on the basis of a justification of an exception to that principle. will be seen as admissible. These "givens" thus represent the advent of a consistent and uniform practice: an emergent opinio juris. then it would have given prevalence to one set of the principles involved over the other. the separate opinion endorses the existence of a general obligation of States to pursue in good faith. The known qualities of nuclear weapons let their use appear scarcely reconcilable with humanitarian law. bacteriological or chemical weapons or otherwise threatening its very existence. including the requirement of proportionality. however. That indirect response to the question of the General Assembly is. however.Court. has recognized the legality of policies of deterrence.e. would have to be met. is extremely narrow. That means that recourse to nuclear weapons could remain a justified legal option in an extreme case of individual or collective self-defence as the last resort of a State victim of an attack with nuclear. applicable without regard to the status of victim or of aggressor. chemical or bacteriological weapons or otherwise constituting a deadly menace for its very existence. and in particular the principles and rules of humanitarian law. The separate opinion then welcomes that the Court did not stop there. The principles involved are. victim of an attack with nuclear. For a recourse to nuclear weapons to be considered justified. their smallest common denominator would apply. but that the Court admitted that there can be qualifications to that finding. ultimately considers that it does declare the law as it is. i. and bring to a conclusion. __________ Separate opinion of Judge Fleischhauer Judge Fleischhauer's separate opinion highlights that international law is still grappling with and has not yet overcome the dichotomy that is created by the very existence of nuclear weapons between the law applicable in armed conflict. that the equal treatment that the Advisory Opinion has given to the principles of legality and illegality cannot be justified. but all the conditions on which the lawfulness of the exercise of the right of self-defence depends in international law. not only would the situation have to be extreme. for the first time. while being aware of the criticisms that specialists in law and judicial matters will be bound to level at the Advisory Opinion. the Court has unambiguously stated that the use or threat of use of nuclear weapons is contrary to the rules of international law applicable inter alia to armed conflict and. The General Assembly gave a very clear definition of the object of its question: does international law authorize the use or threat of use of nuclear weapons in any circumstance? By dealing at the same time and. to the principles and rules of humanitarian law. on the same level with both legality and illegality. the State practice shows that a point of no return has been reached: the principle of the legality of the use or threat of use of nuclear weapons has not been asserted. and particularly the rules and principles of humanitarian law. Judge Ranjeva has made a point of emphasizing that. In conclusion. and the increasingly closer-knit legal r�gimes of nuclear weapons have come about in the context of the consolidation and implementation of the final obligation to produce a specific result. while the right to self-defence would be severely curtailed if for a State. justified by the very nature of the law of armed conflict. and that explains why the Court has not gone so far as to uphold the exception of extreme self-defence when the very survival of the State is at stake. nuclear weapons were totally ruled out as an ultimate legal option. In his view.

g. nor with events which demonstrate the legality of the threat or use of nuclear weapons in extraordinary circumstances. while agreeing with much of the body of the Court's Opinion. and proclaims. In the present instance there is no need and no rational justification for the General Assembly's request that the Court give an advisory opinion on the existing 41 .or could . When it comes to the supreme interests of State. After examining the developments of the relevant General Assembly resolutions on a convention on the prohibition of the use of nuclear weapons up to 1994. who together represent the bulk of the world's power and much of its population. but a practice of the permanent Members of the Security Council. But it cannot be accepted that the General Assembly resolutions to the contrary are not law-making or declaratory of existing international law. far from outlawing the threat or use of nuclear weapons in all circumstances. with highly political motives. and that the international community. dissented because of his "profound" disagreement with its principal operative conclusion: "The Court cannot conclude definitively whether the threat or use of nuclear weapons would be lawful or unlawful an extreme circumstance of self-defence.Dissenting opinion of Vice-President Schwebel Vice-President Schwebel. The Court's inconclusiveness was in accordance neither with its Statute. While the principles of international humanitarian law govern the use of nuclear weapons.." The Court's conclusion that the threat or use of nuclear weapons "generally" would be contrary to the rules of international law applicable in armed conflict "is not unreasonable.the five nuclearweapon States and the non-nuclear-weapon States. If this was to be its ultimate holding. . and render uninhabitable much or all of the earth. in which the very survival of a State would be at stake.that is to say. that in that deployment inheres a threat of possible use ("deterrence"). that international law and hence the Court have nothing to say. State practice demonstrates that nuclear weapons have been manufactured and deployed for some 50 years. in terms redolent of Realpolitik. could be lawful. puts aside the provisions of the United Nations Charter of which it is 'the principal judicial organ'. the Request was prepared and drafted . After many months of agonizing appraisal of the law. the Court discovers that there is none. E. In the light of that history. nor its precedent. __________ Dissenting opinion of Judge Oda Judge Oda voted against part one of the Court's Advisory Opinion because of his view that.result in the deaths of "many millions in indiscriminate inferno and by far-reaching fallout . the repetition of General Assembly resolutions is a mark of ineffectuality in law formation as it is in practical effect. the Court should have exercised its discretionary power to refrain from rendering an Opinion in response to the Request. he notes that the General Assembly is far from having reached an agreement on the preparation of a Convention rendering the use of nuclear weapons illegal. . . has recognized in effect or in terms that in certain circumstances nuclear weapons may be used or their use threatened." use of nuclear weapons on a scale which would . its ambivalence about the most important provisions of modern international law. and while "it is extraordinarily difficult to reconcile the use . In the view of Judge Oda.not in order to ascertain the status of existing international law on the subject but to try to promote the total elimination of nuclear weapons . it does not follow that the use of nuclear weapons necessarily and invariably will contravene those principles." The case as a whole presents an unparalleled tension between State practice and legal principle. . of nuclear weapons with the application of those principles". for the reasons of judicial propriety and judicial economy. . Judge Oda maintains that an advisory opinion should only be given in the event of a real need. supported by a large and weighty number of other States. the threat which Iraq took as a nuclear threat that may have deterred it from using chemical and biological weapons against coalition forces in the Gulf War was "not only eminently lawful but intensely desirable". As the five nuclear-weapon States have repeatedly given assurances to the non-nuclear-weapon States of their intention not to use nuclear weapons against them. the question in the Request is not adequately drafted and there was a lack of meaningful consensus of the General Assembly with regard to the 1994 Request." The Court thereby concluded "on the supreme issue of the threat or use of force of our age that it has no opinion . there is almost no probability of any use of nuclear weapons given the current doctrine of nuclear deterrence. This State practice is not that of a lone and secondary persistent objector. the Court would have done better to have drawn on its undoubted discretion not to render an Opinion at all. . the Court discards the legal progress of the Twentieth Century. When faced with continuing and significant opposition. The Nuclear Non-Proliferation Treaty and the negative and positive security assurances of the nuclear Powers unanimously accepted by the Security Council indicate the acceptance by the international community of the threat or use of nuclear weapons in certain circumstances. He notes that the perpetuation of the NPT r�gime recognizes two groups of States . Other nuclear treaties equally infer that nuclear weapons are not comprehensively prohibited either by treaty or customary international law.

produced a disruptive electromagnetic pulse. continued. admittedly. damaged the environmental rights of future generations. for decades after its use. and Article 23(a) of the Hague Regulations of 1907. leukaemia. In concluding his Opinion. induced cancers. __________ Dissenting opinion of Judge Shahabuddeen In Judge Shahabuddeen's dissenting opinion. in the special case of nuclear weapons. damaging the environment. showing numerous ways in which the nuclear weapon was unique. and by a variety of treaty obligations. the prohibition against causing serious and lasting damage to the environment. Among these principles were the prohibition against causing unnecessary suffering. and the need to restrain them in accordance with the dictates of the conscience of humanity. It was doubly clear therefore that the principles of humanitarian law governed this situation. It violates the fundamental principles of international law. In his respectful view. it was possible to reconcile the imperative need of a State to defend itself with the no less imperative need to ensure that. even among weapons of mass destruction in injuring human health. and particularly international humanitarian law. the principle of discrimination between combatants and civilians. mental retardation and genetic damage. irreversibly damaged the rights of future generations. produced radiation and radioactive fall-out.international law relating to the use of nuclear weapons. which left no doubt regarding the illegality of nuclear weapons. the principles of international humanitarian law. If a reconciliation was not possible. It offends conventional law and. 42 . threatened all life on the planet. caused congenital deformities. He regretted that the Court had not so held. He voted against sub-paragraph E as the equivocations contained therein serve. The brutalities of the nuclear weapon multiplied a thousand-fold all the brutalities of war as known in the pre-nuclear era. there were some portions of the Court's Opinion which were of value. keloids and related afflictions. caused gastro intestinal. exterminated civilian populations. the general principles of international law. It contradicts the fundamental principle of the dignity and worth of the human person on which all law depends. and represents the very negation of the humanitarian concerns which underlie the structure of humanitarian law. and destroying all the values of civilization. It endangers the human environment in a manner which threatens the entirety of life on the planet. The nuclear weapon caused death and destruction. to induce the health-related problems mentioned above. which side should give way? The question was. He was not persuaded that there was any deficiency in the law or the facts which prevented the Court from returning a definitive answer to the real point of the General Assembly's question. the Court should and could have given a definitive answer . humanitarian law took its origin and inspiration from a realistic perception of the brutalities of war. directly and categorically. damaged neighbouring States. a difficult one.one way or another. produced psychological stress and fear syndromes . However. carried the potential to cause a nuclear winter. cardiovascular and related afflictions. __________ Dissenting opinion of Judge Weeramantry Judge Weeramantry's Opinion is based on the proposition that the use or threat of use of nuclear weapons is illegal in any circumstances whatsoever. in doing so. Judge Weeramantry's Opinion explained that from the time of Henri Dunant. Judge Oda stresses his earnest hope that nuclear weapons will be eliminated from the world but states that the decision on this matter is a function of political negotiations among States in Geneva (the Conference on Disarmament) or New York (United Nations) but not one which concerns this judicial institution in The Hague. the principle of proportionality. when one had regard to their known effects. the prohibition against genocide. It was the first international judicial determination to this effect and further clarifications were possible in the future. in particular. wreaked cultural devastation. to confirm his point that it would have been prudent for the Court to decline from the outset to give any opinion at all in the present case. His Opinion examined in some detail the brutalities of nuclear war.as no other weapons do. there was an abundance of principles of international law. contaminated and destroyed the food chain. He also emphasizes that from the standpoint of judicial economy the right to request an advisory opinion should not be abused. it did not imperil the survival of the human species. but the responsibility of the Court to answer it was clear. the principle against causing damage to neutral states. in his view. imperilled all civilization. the essence of the General Assembly's question was whether. While it was true that there was no treaty or rule of law which expressly outlawed nuclear weapons by name. and the basic principles of human rights law. the Geneva Gas Protocol of 1925. imperilled the eco-system. produced lethal levels of heat and blast. produced social disintegration. in that it expressly held that nuclear weapons were subject to limitations flowing from the United Nations Charter. spanned a time range of thousands of years. threatened human survival.

referring to the recognition of its basic rules in Hindu. the use of nuclear weapons in any circumstance would at the very least result in the violation of the principles and rules of that law and is therefore unlawful. he maintained. Judge Koroma stated that he fundamentally disagreed with the Court's finding that: "in view of the current state of international law. __________ Dissenting opinion of Judge Koroma In his Dissenting Opinion. while at the same time albeit unintentionally it made inroads into the legal restraints imposed on nuclear weapon states regarding such weapons. and the prohibition against the use of poisons was indeed one of the oldest rules of the laws of war. there was no room for a finding of non liquet in the matter before the Court. and the Hague Regulations (1907) which were clearly applicable to nuclear weapons as they prohibited the use of poisons. Judaic. and categorically. African. or as to whether the matter should have been brought before the Court. is the law applicable to the question. Judge Koroma also pointed out that although the views of states are divided on the question of the effects of the use of nuclear weapons. save for the word "generally" . and the other to nuclear weapons. and so slenderly rooted in universal tradition that they may be lightly overridden. The Opinion also points out that there cannot be two sets of the laws of war applicable simultaneously to the same conflict . the Court cannot conclude definitively whether the threat or use of nuclear weapons would be lawful or unlawful in an extreme circumstance of self-defence. which may find a place in the rules of a suicide club.the Court had flinched from answering the actual question put to it that the threat or use of nuclear weapons in any circumstance would be unlawful under international law. without which the risk arises of universal death. in which the very survival of a State would be at stake". in his view. on the basis of the existing law. and modern European cultural traditions. even after holding that: "the threat or use of nuclear weapons would generally be contrary to the rules of international law applicable in armed conflict. Islamic. invented in the nineteenth century. Radiation directly fell within this description. and of the elements of fact at its disposal. A finding with which he concurred. the Court should have performed its judicial function and decide the case on the basis of existing international law. the humanitarian rules of warfare were not to be regarded as a new sentiment. could not be part of any reasonable legal system . He maintained that the Court's answer to the question had turned on the "survival of the state".convincingly. but it is also precise and the purported lacuna is entirely unpersuasive. 43 . could not be sustained on the basis of existing international law. The question should therefore have been answered by the Court . The Opinion concludes with a reference to the appeal in the Russell-Einstein Manifesto to "remember your humanity and forget the rest". and in particular the principles and rules of humanitarian law". Buddhist.and international law was preeminently such a system. He expressed his regret that the Court. nor in the face of the weight and abundance of evidence and material presented to the Court. not only does the law exist in substantial and ample form. Modern juristic discussions showed that a rule of this nature. Judge Weeramantry's analysis includes philosophical perspectives showing that no credible legal system could contain a rule within itself which rendered legitimate an act which could destroy the entire civilization of which that legal system formed a part. but it also threw the regime regarding the prohibition of the use of force and selfdefence as regulated by the United Nations Charter into doubt. and that international law could contribute significantly towards rolling back the shadow of the mushroom cloud. Judge Koroma. He therefore found the Court's judgment not only untenable in law.one to conventional weapons. In his view. In this context. As such. and heralding the sunshine of the nuclear-free age. but even potentially destabilizing of the existing international legal order. Judge Weeramantry's Opinion also draws attention to the multicultural and ancient origins of the laws of war. In his opinion. clearly. Chinese. as it not only made states that might be disposed to use such weapons judges about the lawfulness of the use of the use of such weapons. and that no compelling reason existed against rendering an opinion. the Opinion points out that international law is equipped with the necessary array of principles with which to respond. In his opinion. there were specific treaty provisions contained in the Geneva Gas Protocol (1925). undertook a survey of what. Such a finding.In addition. it could not conclude definitively whether the use of nuclear weapons would be illegal. in his Dissenting Opinion. whereas the question posed to the Court was about the lawfulness of the use of nuclear weapons. he took the view that once the Court had found that the General Assembly was competent to pose the question. analyzed the material before the Court and came to the conclusion that it is wholly unconvincing for the Court to have ruled that in view of the "current state of the law". particularly humanitarian law and the material available to the Court.

__________ Dissenting opinion of Judge Higgins Judge Higgins appended a dissenting opinion in which she explained that she was not able to support that key finding of the court in paragraph 2E. believing it to be unnecessary and wrong in law. Such a conclusion by the Court would have been a most invaluable contribution by the Court as the guardian of legality of the United Nations system to what has been described as the most important aspect of international law facing humanity today. The finding. therefore. damage hospitals and contaminate the natural environment. affect future generations. thereby depriving survivors of the means of survival contrary to the Geneva Conventions of 1949 and the 1977 Additional Protocol I thereto. in his view. with radioactivity. when used. constitutes for the first in history that a tribunal of this standing has declared and reaffirmed that the threat or use of nuclear weapons that is contrary to Article 2. paragraph 4. are incapable of distinguishing between civilians and military personnel. of the Charter prohibiting the use of force is unlawful and would be incompatible with the requirements of international law applicable in armed conflict. Judge Koroma stated that the Opinion should not be viewed as entirely without legal significance or merit. In conclusion. that the use of such weapons would be unlawful. It followed. His dissent from the Court's main finding notwithstanding. after analysing the evidence. tantamounts to a rejection of the argument that because nuclear weapons were invented after the advent of humanitarian law. Judge Koroma regretted that the Court did not follow through with those normative conclusions and make the only and inescapable finding that because of their established characteristics. they are therefore not subjected to that law. cause superfluous injury and unnecessary suffering to survivors. The Court's Advisory Opinion. Nor was the meaning of the first part of paragraph 2E clear. would result in the death of thousands if not millions of civilians. it is impossible to conceive of any circumstance when the use of nuclear weapons in an 44 . food and drinking water. In her view the Court had not applied the rules of humanitarian law in a systematic and transparent way to show how it reached the conclusion in the first part of paragraph 2E of the dispositif. armed conflict would not be unlawful. though qualified.On the other hand. The normative findings contained in it should be regarded as a step forward in the historic process of imposing legal restraints in armed conflicts and in reaffirming that nuclear weapons are subject to international law and to the rule of law. Judge Koroma came to the conclusion as the Court that nuclear weapons. Judge Higgins also opposed the non-liquet in the second part of paragraph 2E.

so as to preclude the exercise of the rights accorded under Article 36 of the Vienna Convention. it is maintained that these individuals were tried and sentenced to death without having been informed. Germany bases the jurisdiction of the Court on Article 36. a national of another State party whom such authorities arrest or detain of the national's right to consular assistance guaranteed by Article 36. subparagraph 1 (b). as described in the preceding statement of facts. decided that. and whether that power's functions are of an international or internal character. (3) that the United States is under an international legal obligation not to apply the doctrine of 'procedural default' or any other doctrine of national law. and that it had accepted that contention as true. it is specified that that provision requires the competent authorities of a State party to advise. did claim violations of the Vienna Convention before the Federal Court of First Instance. legislative. Germany asks the Court to adjudge and declare: "(1) that the United States. trying. violated its international legal obligations to Germany. during the proceedings before the Arizona Mercy Committee on 23 February 1999. it is also alleged that the failure to provide the required notification precluded Germany from protecting its nationals' interests in the United States provided for by Articles 5 and 36 of the Vienna Convention at both the trial and the appeal level in the United States courts. convicting and sentencing Karl and Walter LaGrand. of the Statute of the Court and on Article I of the Optional Protocol concerning the Compulsory Settlement of Disputes. in arresting. the contention of the authorities of the State of Arizona that they had been unaware of the fact that Karl and Walter LaGrand were nationals of Germany. of their rights under that provision. the State Attorney admitted that the authorities of the State of Arizona had indeed been aware since 1982 that the two detainees were German nationals. judicial or other power. which accompanies the Vienna Convention on Consular Relations ("the Optional Protocol"). and that the intermediate federal appellate court. it is stated that in 1982 the authorities of the State of Arizona detained two German nationals. affirmed this decision. and (4) that the United States is under an international obligation to carry out in conformity with the foregoing international legal obligations any future detention of or criminal proceedings against any other German national in its territory. 45 . because the individuals in question had not asserted their rights under the Vienna Convention in the previous legal proceedings at State level. However. executive. "without delay". detaining.m. as is required under Article 36. as provided by Articles 5 and 36 of the Vienna Convention. whether by a constituent. finally with the assistance of German consular officers.In Germany's Application. 1-12) The Court begins by recalling that at 7. they could not assert them in the Federal habeas corpus proceedings. (2) that Germany is therefore entitled to reparation.30 p. (The Hague time) on 2 March 1999 Germany instituted proceedings against the United States of America for "violations of the Vienna Convention on Consular Relations [of 24 April 1963]" (hereinafter the "Vienna Convention") allegedly committed by the United States. in its own right and in its right of diplomatic protection of its nationals. and should be recognized as void by the legal authorities of the United States. Germany states that it had been. applying the municipal law doctrine of "procedural default". until very recently. last means of legal recourse in the United States available to them as of right. and that. The LaGrand Case (Germany v. paragraph 1. whether that power holds a superior or subordinate position in the organization of the United States. that that court. pursuant to the foregoing international legal obligations. (1) the criminal liability imposed on Karl and Walter LaGrand in violation of international legal obligations is void. of the Vienna Convention. Karl and Walter LaGrand. United States of America) Summary of the Order History of the case and submissions (paras. Germany further states that Karl and Walter LaGrand.

and referring to the provisions of Article 75 of the Rules of Court. the Vice-President of the Court received the representatives of the Parties in order to obtain information from them with regard to the subsequent course of the proceedings. and (4) the United States should provide Germany a guarantee of the non-repetition of the illegal acts. of the said Rules. (The Hague time). at 9. namely restoration of the status quo ante. the United States will execute Walter LaGrand . prima facie. and acting in conformity with Article 74." On 2 March 1999. (3) the United States should restore the status quo ante in the case of Walter LaGrand. (Phoenix time). * The Court's reasoning (paras. Germany emphasizes that: "The importance and sanctity of an individual human life are well established in international law. 13-28) The Court begins by pointing out that on a request for the indication of provisional measures the Court need not. that the request for provisional measures submitted by Germany was made at a very late date and that the United States would have strong objections to any procedure such as that proposed only that very morning by the representative of Germany which would result in the Court making an Order proprio motu without having first duly heard the two Parties.m. It notes that Article I of the Optional Protocol. which Germany invokes as the basis of jurisdiction of the Court in this case.00 p.before this Court can consider the merits of Germany's claims and Germany will be forever deprived of the opportunity to have this status quo ante restored in the event of a judgment in its favour. Germany recalls that Karl LaGrand was executed on 24 February 1999. he asked the Court to indicate forthwith. the Court indicate that: "The United States should take all measures at its disposal to ensure that Walter LaGrand is not executed pending the final decision in these proceedings. Germany also submitted an urgent request for the indication of provisional measures in order to protect its rights.00 a. By a letter dated 2 March 1999. finally satisfy itself that it has jurisdiction on the merits of the case. but that it may not indicate them unless the provisions invoked by the Applicant appear. the VicePresident of the Court addressed the Government of the United States in the following terms: "Exercising the functions of the presidency in terms of Articles 13 and 32 of the Rules of Court. I hereby draw the attention of [the] Government [of the United States] to the need to act in such a way as to enable any Order the Court will make on the request for provisional measures to have its appropriate effects.m. to afford a basis on which the jurisdiction of the Court might be founded. and it should inform the Court of all the measures which it has taken in implementation of that Order. that is reestablish the situation that existed before the detention of. is worded as follows: "Disputes arising out of the interpretation or application of the Convention shall lie within the compulsory jurisdiction of the International Court of 46 . The representative of the German Government stated that the Governor of the State of Arizona had rejected a recommendation by the Mercy Committee that the execution of Walter LaGrand should be stayed." It asks the Court moreover to consider its request as a matter of the greatest urgency "in view of the extreme gravity and immediacy of the threat of execution of a German citizen". and conviction and sentencing of that German national in violation of the United States' international legal obligation took place. and without holding any hearing." Germany adds the following: "Under the grave and exceptional circumstances of this case. pending final judgment in the present case. paragraph 4. In its request for the indication of provisional measures of protection.(2) the United States should provide reparation. Without the provisional measures requested." On 3 March 1999. the representative of the United States pointed out that the case had been the subject of lengthy proceedings in the United States. and given the paramount interest of Germany in the life and liberty of its nationals. provisional measures are urgently needed to protect the life of Germany's national Walter LaGrand and the ability of this Court to order the relief to which Germany is entitled in the case of Walter LaGrand. for the execution of Karl LaGrand on 24 February 1999. he emphasized the extreme urgency of the situation. proceedings against.as it did execute his brother Karl . As recognized by Article 6 of the International Covenant on Civil and Political Rights." Germany asks that. every human being has the inherent right to life and this right shall be protected by law. despite all appeals for clemency and numerous diplomatic interventions by the German Government at the highest level. provisional measures proprio motu. before deciding whether or not to indicate them. in the form of compensation and satisfaction. that the date of execution of Walter LaGrand in the State of Arizona has been set for 3 March 1999. and that the request for the urgent indication of provisional measures is submitted in the interest of this latter individual. so that the latter would in consequence be executed that same day at 3.

paragraph 1. of its Rules. the Court finds that the circumstances require it to indicate. The Court then observes that the power to indicate provisional measures under Article 41 of its Statute is intended to preserve the respective rights of the parties pending its decision. and that the Governor of Arizona is under the obligation to act in conformity with the international undertakings of the United States. The Court observes that in its Application Germany stated that the issues in dispute between itself and the United States concern Articles 5 and 36 of the Vienna Convention and fall within the compulsory jurisdiction of the Court under Article I of the Optional Protocol. it should make use of the said power. prima facie. the Court "may at any time decide to examine proprio motu whether the circumstances of the case require the indication of provisional measures which ought to be taken or complied with by any or all of the parties". inter alia when they arise out of the interpretation or application of international conventions. the function of the Court is to resolve international legal disputes between States. 47 . The Court finds that in the light of the requests submitted by Germany in its Application and of the submissions made therein. * In the light of the above considerations. and that further. in the event of extreme urgency. in the light of the particular circumstances of the case. made use of the power conferred upon it by this provision. that Germany emphasizes that it did not become fully aware of the facts of the case until 24 February 1999 and that since then it has pursued its action at diplomatic level. provisional measures in accordance with Article 41 of its Statute and with Article 75. and that it is for the Court to decide in each case if. and that. to date. that a provision of this kind has substantially featured in the Rules of Court since 1936. whatever they may be. that such measures are only justified if there is urgency and that the Court will not order interim measures in the absence of irreparable prejudice to rights which are the subject of dispute. and that both Germany and the United States are parties to the Vienna Convention and to the Optional Protocol. the latter appears nonetheless to be clearly established. and that if the Court has not. that the Government of the United States is consequently under the obligation to transmit the present Order to the said Governor. implementation of the measures indicated in the present Order falls within the jurisdiction of the Governor of Arizona. irrespective of whether or not it has been seised by the parties of a request for the indication of provisional measures. paragraph 1. and that such an execution would cause irreparable harm to the rights claimed by Germany in this particular case. as a matter of the greatest urgency and without any other proceedings. it recalls that measures indicated by the Court for a stay of execution would necessarily be provisional in nature and would not in any way prejudge findings the Court might make on the merits. that. that the United States should take all measures at its disposal to ensure that Walter LaGrand is not executed pending the final decision in the proceedings. it has jurisdiction under Article I of the aforesaid Optional Protocol to decide the dispute between Germany and the United States. that according to the information available to the Court. that in such a case it may. In doing so the Court observes that the issues before the Court in the present case do not concern the entitlement of the federal states within the United States to resort to the death penalty for the most heinous crimes. The Court finally observes that the international responsibility of a State is engaged by the action of the competent organs and authorities acting in that State. under Article 75. there exists prima facie a dispute with regard to the application of the Convention within the meaning of Article I of the Optional Protocol. and not to act as a court of criminal appeal. * The Court observes that the sound administration of justice requires that a request for the indication of provisional measures founded on Article 73 of the Rules of Court be submitted in good time. that the Court may make use of this power.Justice and may accordingly be brought before the Court by an application made by any party to the dispute being a Party to the present Protocol". of its Rules. proceed without holding oral hearings. The Court then points out that the execution of Walter LaGrand is ordered for 3 March 1999.