NUREMBERG TRIALSHeld for the purpose of bringing Nazi war
criminals to justice, the Nuremberg trials were a series of 13
trials carried out in Nuremberg, Germany, between 1945 and 1949.
The defendants, who included Nazi Party officials and high-ranking
military officers along with German industrialists, lawyers and
doctors, were indicted on such charges as crimes against peace and
crimes against humanity. Nazi leader Adolf Hitler (1889-1945)
committed suicide and was never brought to trial. Although the
legal justifications for the trials and their procedural
innovations were controversial at the time, the Nuremberg trials
are now regarded as a milestone toward the establishment of a
permanent international court, and an important precedent for
dealing with later instances of genocide and other crimes against
humanity.THE ROAD TO THE NUREMBERG TRIALSShortly afterAdolf
Hitlercame to power as chancellor of Germany in 1933, he and his
Nazi government began implementing policies designed to persecute
German-Jewish people and other perceived enemies of the Nazi state.
Over the next decade, these policies grew increasingly repressive
and violent and resulted, by the end ofWorld War II(1939-45), in
the systematic, state-sponsored murder of some 6 million European
Jews (along with an estimated 4 million to 6 million non-Jews).Did
You Know?The death sentences imposed in October 1946 were carried
out by Master Sergeant John C. Woods (1903-50), who told a reporter
from Time magazine that he was proud of his work. "The way I look
at this hanging job, somebody has to do it . . . ten men in 103
minutes. That's fast work."In December 1942, the Allied leaders of
Great Britain, the United States and the Soviet Union issued the
first joint declaration officially noting the mass murder of
European Jewry and resolving to prosecute those responsible for
violence against civilian populations, according to the United
States Holocaust Memorial Museum (USHMM).Joseph Stalin(1878-1953),
the Soviet leader, initially proposed the execution of 50,000 to
100,000 German staff officers. British Prime Minister Winston
Churchill (1874-1965) discussed the possibility of summary
execution (execution without a trial) of high-ranking Nazis, but
was persuaded by American leaders that a criminal trial would be
more effective. Among other advantages, criminal proceedings would
require documentation of the crimes charged against the defendants
and prevent later accusations that the defendants had been
condemned without evidence.There were many legal and procedural
difficulties to overcome in setting up the Nuremberg trials. First,
there was no precedent for an international trial of war criminals.
There were earlier instances of prosecution for war crimes, such as
the execution of Confederate army officer Henry Wirz (1823-65) for
his maltreatment of Union prisoners of war during theAmerican Civil
War(1861-65); and the courts-martial held by Turkey in 1919-20 to
punish those responsible for the Armenian genocide of 1915-16.
However, these were trials conducted according to the laws of a
single nation rather than, as in the case of the Nuremberg trials,
a group of four powers (France, Britain, the Soviet Union and the
U.S.) with different legal traditions and practices. The Allies
eventually established the laws and procedures for the Nuremberg
trials with the London Charter of the International Military
Tribunal (IMT), issued on August 8, 1945. Among other things, the
charter defined three categories of crimes: crimes against peace
(including planning, preparing, starting or waging wars of
aggression or wars in violation of international agreements), war
crimes (including violations of customs or laws of war, including
improper treatment of civilians and prisoners of war) and crimes
against humanity (including murder, enslavement or deportation of
civilians or persecution on political, religious or racial
grounds). It was determined that civilian officials as well as
military officers could be accused of war crimes. The city of
Nuremberg (also known as Nurnberg) in the German state of Bavaria
was selected as the location for the trials because its Palace of
Justice was relatively undamaged by the war and included a large
prison area. Additionally, Nuremberg had been the site of annual
Nazi propaganda rallies; holding the postwar trials there marked
the symbolic end of Hitlers government, the Third Reich.THE MAJOR
WAR CRIMINALS TRIAL: 1945-46The best-known of the Nuremberg trials
was the Trial of Major War Criminals, held from November 20, 1945,
to October 1, 1946. The format of the trial was a mix of legal
traditions: There were prosecutors and defense attorneys according
to British and American law, but the decisions and sentences were
imposed by a tribunal (panel of judges) rather than a single judge
and a jury. The chief American prosecutor was Robert H. Jackson
(1892-1954), an associate justice of the U.S. Supreme Court. Each
of the four Allied powers supplied two judgesa main judge and an
alternate.Twenty-four individuals were indicted, along with six
Nazi organizations determined to be criminal (such as the Gestapo,
or secret state police). One of the indicted men was deemed
medically unfit to stand trial, while a second man killed himself
before the trial began. Hitler and two of his top associates,
Heinrich Himmler (1900-45) andJoseph Goebbels(1897-45), had each
committed suicide in the spring of 1945 before they could be
brought to trial. The defendants were allowed to choose their own
lawyers, and the most common defense strategy was that the crimes
defined in the London Charter were examples of ex post facto law;
that is, they were laws that criminalized actions committed before
the laws were drafted. Another defense was that the trial was a
form of victors justicethe Allies were applying a harsh standard to
crimes committed by Germans and leniency to crimes committed by
their own soldiers.As the accused men and judges spoke four
different languages, the trial saw the introduction of a
technological innovation taken for granted today: instantaneous
translation. IBM provided the technology and recruited men and
women from international telephone exchanges to provide on-the-spot
translations through headphones in English, French, German and
Russian.In the end, the international tribunal found all but three
of the defendants guilty. Twelve were sentenced to death, one in
absentia, and the rest were given prison sentences ranging from 10
years to life behind bars. Ten of the condemned were executed by
hanging on October 16, 1946. Hermann Gring (1893-1946), Hitlers
designated successor and head of the Luftwaffe (German air force),
committed suicide the night before his execution with a cyanide
capsule he had hidden in a jar of skin medication.SUBSEQUENT
TRIALS: 1946-49Following the Trial of Major War Criminals, there
were 12 additional trials held at Nuremberg. These proceedings,
lasting from December 1946 to April 1949, are grouped together as
the Subsequent Nuremberg Proceedings. They differed from the first
trial in that they were conducted before U.S. military tribunals
rather than the international tribunal that decided the fate of the
major Nazi leaders. The reason for the change was that growing
differences among the four Allied powers had made other joint
trials impossible. The subsequent trials were held in the same
location at the Palace of Justice in Nuremberg.These proceedings
included the Doctors Trial (December 9, 1946-August 20, 1947), in
which 23 defendants were accused of crimes against humanity,
including medical experiments on prisoners of war. In the Judges
Trial (March 5-December 4, 1947), 16 lawyers and judges were
charged with furthering the Nazi plan for racial purity by
implementing the eugenics laws of the Third Reich. Other subsequent
trials dealt with German industrialists accused of using slave
labor and plundering occupied countries; high-ranking army officers
accused of atrocities against prisoners of war; and SS officers
accused of violence against concentration camp inmates. Of the 185
people indicted in the subsequent Nuremberg trials, 12 defendants
received death sentences, 8 others were given life in prison and an
additional 77 people received prison terms of varying lengths,
according to the USHMM. Authorities later reduced a number of the
sentences.AFTERMATHThe Nuremberg trials were controversial even
among those who wanted the major criminals punished. Harlan Stone
(1872-1946), chief justice of the U.S. Supreme Court at the time,
described the proceedings as a sanctimonious fraud and a high-grade
lynching party. William O. Douglas (1898-1980), then an associate
U.S. Supreme Court justice, said the Allies substituted power for
principle at Nuremberg.Nonetheless, most observers considered the
trials a step forward for the establishment of international law.
The findings at Nuremberg led directly to the United Nations
Genocide Convention (1948) and Universal Declaration of Human
Rights (1948), as well as the Geneva Convention on the Laws and
Customs of War (1949). In addition, the International Military
Tribunal supplied a useful precedent for the trials of Japanese war
criminals in Tokyo (1946-48); the 1961 trial of Nazi leader Adolf
Eichmann (1906-62); and the establishment of tribunals for war
crimes committed in the former Yugoslavia (1993) and in Rwanda
(1994).
Nuclear Tests Case (Australia & New Zealand v. France)
Procedural History:Proceeding before the International Court of
Justice.
Overview:Australia and New Zealand (P) demanded that France (D)
cease atmospheric nuclear tests in the South Pacific. France (D)
completed a series of nuclear tests in the South Pacific. Australia
and New Zealand (P) applied to the !.C.). demanding that France (D)
cease testing immediately. While the case was pending, France (D)
announced the series of tests was complete and that it did not plan
any further such tests. France (D) moved to dismiss the
applications.
Issue:May declarations made by way of unilateral acts have the
effect of creating legal obligations?
Rule:declerations made by way of unilateral acts may have the
effect of creating legal obligations.
Analysis:The unilateral statements made by French authorities
were first communicated to the government of Australia. To have
legal effect there was no need tor the statements to be directed to
any particular state. The general nature and characteristics of the
statements alone were relevant for evaluation of their legal
implications.
Outcome:Yes.Declarations made by way of unilateral acts may have
the effect of creating legal obligations. The sole relevant
question is whether the language employed in any given declaration
reveals a clear intention. One of the basic principles governing
the creation and performance of legal obligations is the principle
of good faith. The statements made by the President of the French
Republic must be held to constitute an engagement of the State in
regard to the circumstances and intention with which they were
made. The statements made by the French authorities are therefore
relevant and legally binding. Applications dismissed. - See more
at:
http://www.lawschoolcasebriefs.net/2012/04/nuclear-tests-case-australia-new.html#sthash.t5IzpFTU.dpuf
TEXACO vs LIBYABrief Fact Summary.A decree which attempted to
nationalize all of Texacos (P) rights, interest and property in
Libya was promulgated by Libya (D).
Synopsis of Rule of Law.Whenever reference is been made to
general principles of law in the international arbitration context,
it is always held to be a sufficient criterion for the
internationalization of a contract.
Facts.A decree to nationalize all Texacos (P) rights, interest
and property in Libya was promulgated by Libya (D). This action of
the Libyan Government led Texaco (P) to request for arbitration,
but it was refused by Libya (D). A sole arbitrator was however
appointed by the International Court of Justice on Texacos request,
and Libya (D) was found to have breached its obligations under the
Deeds of Concessions and was also legally bound to perform in
accordance with their terms.
Issue.Whenever reference is being made to general principles of
law in the International arbitration context, can this be held to
be a sufficient criterion for the internationalization of a
contract?Held.Yes. Whenever reference is been made to general
principles of law in the international arbitration context, it is
always held to be a sufficient criterion for the
internationalization of a contract. The lack of adequate law in the
state considered and the need to protect the private contracting
party against unilateral and abrupt modifications of law in the
contracting state is a justification to the recourse to general
principles. Though international law involves subjects of a
diversified nature, legal international capacity is not solely
attributable to a state. A private contracting party, unlike a
state, has only a limited capacity and is limited to invoke only
those rights that he derives from his contract.
Discussion.Applying Libyan law or international law in the
arbitration proceedings was a conflict encountered by in this case.
Though the contract itself deferred to Libyan law, the court noted
that Libyan law does not preclude the application of international
law, but that the two must be combined in order to verify that
Libyan law complies with international law. Even though the right
of a state to nationalize is recognized by international law, this
right in itself is not a sufficient justification not to regard its
contractual obligations
I. Facts
The arbitration originates from fourteen Deeds of Concession
concluded between 1955 and 1968 between Libya and two United States
companies, Texaco Overseas Petroleum Company and California Asiatic
Oil Company (hereafter called the Companies). The majority of the
Deeds of Concession were modified by consent of all parties in
1963, 1966, 1970 and 1971. The purpose of the modifications was to
bring the Concessions into line with the amended Libyan Petroleum
Laws (originally 1955, amended by Royal178Decrees in 1961, 1963 and
1965; in 1966 a consolidated version of the previous texts was
made: Petroleum Law of August 1, 1966). The Concessions were a
reproduction of a model contract which was provided in an annex to
the text of the Petroleum Law 1955.The Royal Decree of November 9,
1961, modifying some of the provisions of the Petroleum Law of
1955, gave a more precise wording to clause 16 of the model
contract which reads:'1. The Libyan Government, the (Petroleum)
Commission and the competent authorities in the Provinces shall
take all the steps that are necessary to ensure that the Company
enjoys all the rights conferred upon it by this concession, and the
contractual rights expressly provided for in this concession may
not be infringed except by agreement of both parties.2. This
concession shall be interpreted during the period of its
effectiveness in accordance with the provisions of the Petroleum
Law and the Regulations issued thereunder at the time of the grant
of the concession, and any amendments to or cancellations of these
Regulations shall not apply to the contractual rights of the
Company except with its consent'.Clause 28 of the Deeds of
Concession contained an extensive arbitral clause, the relevant
parts of which will be referred to below.In 1973, 51% of the
properties, rights and assets relating to the Deeds of Concession
of the Companies, as well as of seven other oil companies was
nationalized by a Decree. In the following year, on September 1,
1974, a Decree was issued, directed only to the Companies. By this
Decree the entirety of all the properties, rights and assets
relating to the fourteen Deeds of Concession, of which the
Companies were holders, was nationalized. Under both Decrees the
Companies concerned were at the same time declared solely
responsible and liable for all the liabilities and debts or
obligations arising from their activities. Both Decrees also
provided for a committee to be appointed to determine the amount of
compensation to be paid. It did not appear from any document
submitted to the arbitration that this committee had functioned or
that its members had been nominated.By the Decree of 1973, Amoseas,
a company governed by foreign law, which was formed jointly by the
Companies to be their operating entity in Libya, was to continue to
carry out its activities for the account of the Companies to the
extent of 49%, and for the account of the Libyan National Oil
Company (N.O.C.), to the extent of 51%. The Decree of 1974 effected
a fundamental change in Amoseas: it was converted into a non-profit
company, the assets of which were completely owned by N.O.C.
Amoseas lost its name and was renamed the 'Om el Jawabi
Company'.The Companies thereupon notified the Libyan Government
that recourse would be taken to arbitration by virtue of clause 28
of the Deeds of Concession. In accordance with clause 28 they
designated their arbitrator. When the Libyan government abstained
from designating its arbitrator, the Companies requested, as
provided for in this situation by the same clause, the President of
the International Court of Justice to designate a sole arbitrator.
On December 18, 1974, the President of the I.C.J. appointed the
French Law Professor Ren-Jean Dupuy as sole arbitrator.The
arbitrator fixed Geneva as the place of the arbitral tribunal
(where the award also was signed). Although the arbitrator had
repeatedly notified the Libyan Government, and allowed extension of
time to submit an answering memorial to the claims of the
Companies, the Libyan Government did not participate in the
arbitral proceedings. It should be noted that the arbitrator kept
the Libyan Government informed of all stages of the proceedings,
and each time transmitted to it all relevant documents. Moreover,
throughout the preliminary award and the award on the merits, the
arbitrator paid due attention to a Memorandum of the Libyan
Government which was submitted to the President of the I.C.J. on
July 26, 1974, setting forth the reasons for which, in its opinion,
no arbitration should take place in the present case.III. Award on
the Merits
1. BINDING NATURE OF THE DEEDS OF CONCESSION
C. Meaning and scope of internationalization of the
contracts
The arbitrator made it clear that international law governing
contractual relations between a State and a foreign private party
means neither that the latter is assimilated to a State nor that
the contract is assimilated to a treaty. It only means that 'for
the purposes of interpretation and performance of the contract, it
should be recognized that a private contracting party has specific
international capacities'.Furthermore, considering that some
contracts may be governed both by municipal law and by
international law, the arbitrator held that the choice of law
clause referred to the principles of Libyan law rather than to the
rules of Libyan law. In this connection the arbitrator said:'The
application of the principles of Libyan law does not have the
effect of ruling out the application of the principles of
international law, but quite the contrary: it simply requires us to
combine the two in verifying the conformity of the first with the
second'.Applying the principles stated above, the arbitrator
declared that he would refer on the one hand to the principle of
the binding force of contracts recognized by Libyan law, and on the
other to the principle ofpacta sunt servandawhich is a general
principle of law constituting an essential foundation of
international law. The arbitrator found therefore on this point
that the principles of Libyan law were in conformity with
international law and concluded that the Deeds of Concession in
dispute had a binding force.2. BREACH OF OBLIGATIONS BY LIBYA?
The second main question was whether the Libyan Government, in
adopting the nationalization measures of 1973 and 1974, breached
its obligations under the contracts. This question was examined
under three types of reasons which could be envisaged in order to
justify the behaviour of the Libyan Government. These reasons are
summarized below under A, B and C.B. Concept of Sovereignty and
Nature of Nationalization
At the outset the arbitrator stated here that 'the right of a
State to nationalize is unquestionable today. It results from
international customary law, established as the result of general
practices considered by the international community as being the
law'.The arbitrator questioned, however, whether the act of
sovereignty which constitutes the nationalization authorizes a
State to disregard its international commitments assumed by it
within the framew ork of its sovereignty. In this respect the
arbitrator drew a distinction between a nationalization concerning
nationals of a State or a foreign party in respect of whom the
State had made no particular commitment to guarantee and maintain
their position, and a nationalization concerning an international
contract. The former type is completely governed by the domestic
law. But in the case of an internationalized contract the State has
placed itself under international law. In the instant case the
arbitrator investigated therefore whether Libya had undertaken
international obligations which prevented it from taking
nationalizing measures, and whether the disregard of such
obligations is justified by the sovereign nature of such
nationalization measures.(a)The arbitrator found first that both
under Libyan law and international law the State has the power to
make international commitments, including those with foreign
private parties. Such a commitment cannot be regarded as a negation
of its sovereignty, but, quite to the contrary, is a manifestation
of such sovereignty. As a result a State cannot invoke its
sovereignty to disregard commitments freely undertaken through the
exercise of this same sovereignty.The arbitrator considered that
Libya had undertaken specific commitments which could not be
disregarded by the nationalization measures. The arbitrator
referred here to the fact that Libya had granted a concession of a
minimum duration of 50 years, and to the stabilization clause
(clause 16, see under IFactsabove). This provision does not, in
principle, impair the sovereignty of the Libyan State to legislate
in the field of petroleum activities in respect of other persons.
Clause 16 only makes such acts invalid as far as the Companies are
concerned for a certain period of time. The arbitrator observed
that:'The recognition by international law of the right to
nationalize is not sufficient ground to empower a State to
disregard its commitments, because the same law also recognizes the
power of a State to commit itself internationally, especially by
accepting the inclusion of stabilization clauses in a contract
entered into with a foreign private party'.*The case has been
settled in the meantime. The parties have agreed that Libya shall
provide the companies with US $ 152 million of Libyan crude oil
over the next 15 months, and that the companies shall terminate the
arbitration proceedings
RESERVATIONS TO THE CONVENTION ON THE PREVENTIONAND PUNISHMENT
OF THE CRIME OF GENOCIDEAdvisory Opinion of 28 May 1951The question
concerning reservations to the Convention on the Prevention and
Punishment of the Crime of Genocide had been referred for an
advisory opinion to the Court by the General Assembly of the United
Nations (G.A. resolution of November 16, 1950) in the following
terms:"In so far as concerns the Convention on the Prevention and
Punishment of the Crime of Genocide in the event of a State
ratifying or acceding to the Convention subject to a reservation
made either on ratification or on accession, or on signature
followed by ratification:"I. Can the reserving State be regarded as
being a party to the Convention while still maintaining its
reservation if the reservation is objected to by one or more of the
parties to the Convention but not by others?"II. If the answer to
question I is in the affirmative, what is the effect of the
reservation as between the reserving State and:(a)The parties which
object to the reservation?(b)Those which accept it?"III. What would
be the legal effect as regards the answer to question I if an
objection to a reservation is made:(a)By a signatory which has not
yet ratified?(b)By a State entitled to sign or accede but which has
not yet done so?"Written statements on the matter were submitted to
the Court by the following States and Organizations:The
Organization of American States, the Union of Soviet Socialist
Republics, the Hashemite Kingdom of Jordan, the United States of
America, the United Kingdom of Great Britain and Northern Ireland,
the Secretary-General of the United Nations, Israel, the
International Labour Organisation, Poland, Czechoslovakia, the
Netherlands, the People's Republic of Romania, the Ukrainian Soviet
Socialist Republic, the People's Republic of Bulgaria, the
Byelorussian Soviet Socialist Republic, the Republic of the
Philippines.In addition, the Court heard oral statements submitted
on behalf of the Secretary-General of the United Nations and of the
Governments of Israel, the United Kingdom and France.By 7 votes to
5 the Court gave the following answers to the questions referred
to:On Question I:a State which has made and maintained a
reservation which has been objected to by one or more of the
parties to the Convention but not by others, can be regarded as
being a party to the Convention if the reservation is compatible
with the object and purpose of the Convention; otherwise, that
State cannot be regarded as being a party to the Convention.On
Question II:(a)if a party to the Convention objects to a
reservation which it considers to be incompatible with the object
and purpose of the Convention, it can in fact consider that the
reserving State is not a party to the Convention;(b)if, on the
other hand, a party accept the reservation as being compatible with
the object and purpose of the Convention, it can in fact consider
that the reserving State is a party to the Convention;On Question
III:(a)an objection to a reservation made by a signatory State
which has not yet ratified the Convention can have the legal effect
indicated in the reply to Question I only upon ratification. Until
that moment it merely serves as a notice to the other State of the
eventual attitude of the signatory State;(b)an objection to a
reservation made by a State which is entitled to sign or accede but
which has not yet done so is without legal effect.Two dissenting
opinions were appended to the Opinion: one by Vice-President
Guerrero and Judges Sir Arnold McNair, Read and Hsu Mo, the other
by Judge Alvarez.** *In its Opinion, the Court begins by refuting
the arguments put forward by certain Governments against its
competence to exercise its advisory functions in the present case.
The Court then dealt with the questions referred to it, after
having noted that they were expressly limited to the Convention on
Genocide and were purely abstract in character.The first question
refers to whether a State which has made a reservation can, while
maintaining it, be regarded as a party to the Convention on
Genocide, when some of the parties object to the reservation. In
its treaty relations, a State cannot be bound without its consent.
A reservation can be effected only with its agreement. On the other
hand, it is a recognised principle that a multilateral Convention
is the result of an agreement freely concluded. To this principle
was linked the notion of integrity of the Convention as adopted, a
notion which, in its traditional concept, involved the proposition
that no reservation was valid unless it was accepted by all
contracting parties. This concept retains undisputed value as a
principle, but as regards the Genocide Convention, its application
is made more flexible by a variety of circumstances among which may
be noted the universal character of the United Nations under whose
auspices the Convention was concluded and the very wide degree of
participation which the Convention itself has envisaged. This
participation in conventions of this type has already given rise to
greater flexibility in practice. More general resorts to
reservations, very great allowance made to tacit assent to
reservations, the admission of the State which has made the
reservation as a party to the Convention in relation to the States
which have accepted it, all these factors are manifestations of a
new need for flexibility in the operation of multilateral
conventions. Moreover, the Convention on Genocide, although adopted
unanimously, is nevertheless the result of a series of majority
votes-which may make it necessary for certain States to make
reservations.In the absence of an article in the Convention
providing for reservations, one cannot infer that they are
prohibited. In the absence of any express provisions on the
subject, to determine the possibility of making reservations as
well as their effects, one must consider their character, their
purpose, their provisions, their mode of preparation and adoption.
The preparation of the Convention on Genocide shows that an
undertaking was reached within the General Assembly on the faculty
to make reservations and that it is permitted to conclude therefrom
that States, becoming parties to the Convention, gave their assent
thereto.What is the character of the reservations which may be made
and the objections which may be raised thereto? The solution must
be found in the special characteristics of the Convention on
Genocide. The principles underlying the Convention are recognised
by civilised nations as binding on States even without any
conventional obligation. It was intended that the Convention would
be universal in scope. Its purpose is purely humanitarian and
civilising. The contracting States do not have any individual
advantages or disadvantages nor interests of their own, but merely
a common interest. This leads to the conclusion that the object and
purpose of the Convention imply that it was the intention of the
General Assembly and of the States which adopted it, that as many
States as possible should participate. This purpose would be
defeated if an objection to a minor reservation should produce
complete exclusion from the Convention. On the other hand, the
contracting parties could not have intended to sacrifice the very
object of the Convention in favour of a vague desire to secure as
many participants as possible. It follows that the compatibility of
the reservation and the object and the purpose of the Convention is
the criterion to determine the attitude of the State which makes
the reservation and of the State which objects. Consequently,
question I, on account of its abstract character, cannot be given
an absolute answer. The appraisal of a reservation and the effect
of objections depend upon the circumstances of each individual
case.The Court then examined question II by which it was requested
to say what was the effect of a reservation as between the
reserving State and the parties which object to it and those which
accept it. The same considerations apply. No State can be bound by
a reservation to which it has not consented, and therefore each
State, on the basis of its individual appraisals of the
reservations, within the limits of the criterion of the object and
purpose stated above, will or will not consider the reserving State
to be a party to the Convention. In the ordinary course of events,
assent will only affect the relationship between the two States. It
might aim, however, at the complete exclusion from the Convention
in a case where it was expressed by the adoption of a position on
the jurisdictional plane: certain parties might consider the assent
as incompatible with the purpose of the Convention, and might wish
to settle the dispute either by special agreement or by the
procedure laid down in the Convention itself.The disadvantages
which result from this possible divergence of views are real. They
could have been remedied by an article on reservations. They are
mitigated by the common duty of the contracting States to be guided
in their judgment by the compatibility or incompatibility of the
reservation with the object and purpose of the Convention. It must
clearly be assumed that the contracting States are desirous of
preserving intact at least what is essential to the object of the
Convention.The Court finally turned to question III concerning the
effect of an objection made by a State entitled to sign and ratify
but which had not yet done so, or by a State which has signed but
has not yet ratified. In the former case, it would be inconceivable
that a State possessing no rights under the Convention could
exclude another State. The case of the signatory States is more
favourable. They have taken certain steps necessary for the
exercise of the right of being a party. This provisional status
confers upon them a right to formulate as a precautionary measure
objections which have themselves a provisional character. If
signature is followed by ratification, the objection becomes final.
Otherwise, it disappears. Therefore, the objection does not have an
immediate legal effect but expresses and proclaims the attitude of
each signatory State on becoming a party.
CASE CONCERNING UNITED STATES DIPLOMATIC ANDCONSULAR STAFF IN
TEHRANJudgment of 24 May 1980In its Judgment in the case concerning
United States Diplomatic and Consular Staff in Tehran, the Court
decided (1) that Iran has violated and is skill violating
obligations owed by it to the United States; (2) that these
violations engage Iran's responsibility; (3) that the Government of
Iran must immediately release the United States nationals held as
hostages and place the premises of the Embassy in the hands of the
protecting power; (4) that no member of the United States
diplomatic or consular staff may be kept in Iran to be subjected to
any form of judicial proceedings or to participate in them as a
witness; (5) that Iran is under an obligation to make reparation
for the injury caused to the United States, and (6) that the form
and amount of such reparation, failing agreement between the
parties, shall be settled by the Court. (The full text of the
operative paragraph is reproduced below.)These decisions were
adopted by large majorities: (1) and (2)-13 votes to 2; (3) and
(4)-unanimously; (5)-12 votes to 3; (6)-14 votes to 1 (the votes
are recorded by name below).** *A separate opinion was appended to
the Judgment by Judge Lachs, who voted against operative paragraph
5. Dissenting opinions were appended by Judge Morozov, who voted
against paragraphs1, 2, 5 and 6, and by Judge Tarazi, who voted
against paragraphs 1, 2 and 5.Procedure before the Court(paras.
1-10)In its Judgment, the Court recalls that on 29 November 1979
the United States of America had instituted proceedings against
Iran in a case arising out of the situation at its Embassy in
Tehran and Consulates at Tabriz and Shiraz, and the seizure and
detention as hostages of its diplomatic and consular staff in
Tehran and two more citizens of the United States. The United
States having at the same time requested the indication of
provisional measures, the Court, by a unanimous Order of 15December
1979, indicated, pending final judgment, that the Embassy should
immediately be given back and the hostages released (see Press
Communiqu No. 80/1).The procedure then continued in accordance with
the Statute and Rules of Court. The United States filed a Memorial,
and on 18, 19 and 20 March 1980 the Court held a public hearing at
the close of which the United States, in its final submissions,
requested it to adjudge and declare,inter alia,that the Iranian
Government had violated its international legal obligations to the
United States and must: ensure the immediate release of the
hostages; afford the United States diplomatic and consular
personnel the protection and immunities to which they were entitled
(including immunity from criminal jurisdiction) and provide them
with facilities to leave Iran; submit the persons responsible for
the crimes committed to the competent Iranian authorities for
prosecution, or extradite them to the United States; and pay the
United States reparation, in a sum to be subsequently determined by
the Court.Iran took no part in the proceedings. It neither filed
pleadings nor was represented at the hearing, and no submissions
were therefore presented on its behalf. Its position was however
defined in two letters addressed to the Court by its Minister for
Foreign Affairs on 9 December 1979 and16March1980 respectively. In
these the Minister maintainedinter aliathat the Court could not and
should not take cognizance of the case.The Facts(paras. 11-32)The
Court expresses regret that Iran did not appear before it to put
forward its arguments. The absence of Iran from the proceedings
brought into operation Article 53 of the Statute, under which the
Court is required, before finding in the Applicant's favour, to
satisfy itself that the allegations of fact on which the claim is
based are well founded.In that respect the Court observes that it
has had available to it, in the documents presented by the United
States, a massive body of information from various sources,
including numerous official statements of both Iranian and United
States authorities. This information, the Court notes, is wholly
concordant as to the main facts and has all been communicated to
Iran without evoking any denial. The Court is accordingly satisfied
that the allegations of fact on which the United States based its
claim were well founded.Admissibility(paras. 33-44)Under the
settled jurisprudence of the Court, it is bound, in applying
Article 53 of its Statute, to investigate, on its own initiative,
any preliminary question of admissibility or jurisdiction that may
arise.On the subject of admissibility, the Court, after examining
the considerations put forward in the two letters from Iran, finds
that they do not disclose any ground for concluding that it could
not or should not deal with the case. Neither does it find any
incompatibility with the continuance of judicial proceedings before
the Court in the establishment by the Secretary-General of the
United Nations, with the agreement of both States, of a Commission
given a mandate to undertake a fact-finding mission to Iran, hear
Iran's grievances and facilitate the solution of the crisis between
the two countries.Jurisdiction(paras. 45-55)Four instruments having
been cited by the United States as bases for the Court's
jurisdiction to deal with its claims, the Court finds that three,
namely the Optional Protocols to the two Vienna Conventions of 1961
and 1963 on, respectively, Diplomatic and Consular Relations, and
the 1955 Treaty of Amity, Economic Relations, and Consular Rights
between the United States and Iran, do in fact provide such
foundations.The Court, however, does not find it necessary in the
present Judgment to enter into the question whether Article 13 of
the fourth instrument so cited, namely the 1973 Convention on the
Prevention and Punishment of Crimes against Internationally
Protected Persons including Diplomatic Agents, provides a basis for
the exercise of its jurisdiction with respect to the United States'
claims thereunder.MERITS:Attributability to the Iranian State of
the acts complained of, and violation by Iran of certain
obligations(paras. 56-94)The Court has also, under Article 53 of
its Statute, to satisfy itself that the claims of the Applicant are
well founded in law. To this end, it considers the acts complained
of in order to determine how far, legally, they may be attributed
to the Iranian State (as distinct from the occupiers of the
Embassy) and whether they are compatible or incompatible with
Iran's obligations under treaties in force or other applicable
rules of international law.(a)The events of 4 November 1979(paras.
56-68)The first phase of the events underlying the Applicant's
claims covers the armed attack on the United States Embassy carried
out on 4 November 1979 by Muslim Student Followers of the Imam's
Policy (further referred to as "the militants" in the Judgment),
the overrunning of its premises, the seizure of its inmates as
hostages, the appropriation of its property and archives, and the
conduct of the Iranian authorities in the face of these
occurrences.The Court points out that the conduct of the militants
on that occasion could be directly attributed to the Iranian State
only if it were established that they were in fact acting on its
behalf. The information before the Court did not suffice to
establish this with due certainty. However, the Iranian
State-which, as the State to which the mission was accredited, was
under obligation to take appropriate steps to protect the United
States Embassy-did nothing to prevent the attack, stop it before it
reached its completion or oblige the militants to withdraw from the
premises and release the hostages. This inaction was in contrast
with the conduct of the Iranian authorities on several similar
occasions at the same period, when they had taken appropriate
steps. It constituted, the Court finds, a clear and serious
violation of Iran's obligations to the United States under Articles
22 (2), 24, 25, 26, 27 and 29 of the 1961 Vienna Convention on
Diplomatic Relations, of Articles 5 and 36 of the 1963 Vienna
Convention on Consular Relations, and of Article 11 (4) of the 1955
Treaty. Further breaches of the 1963 Convention had been involved
in failure to protect the Consulates at Tabriz and Shiraz.The Court
is therefore led to conclude that on 4 November 1979 the Iranian
authorities were fully aware of their obligations under the
conventions in force, and also of the urgent need for action on
their part, that they had the means at their disposal to perform
their obligations, but that they completely failed to do
so.(b)Events since 4 November 1979(paras. 69-79)The second phase of
the events underlying the United States' claims comprises the whole
series of facts which occurred following the occupation of the
Embassy by the militants. Though it was the duty of the Iranian
Government to take every appropriate step to end the infringement
of the inviolability of the Embassy premises and staff, and to
offer reparation for the damage, it did nothing of the kind.
Instead, expressions of approval were immediately heard from
numerous Iranian authorities. Ayatollah Khomeini himself proclaimed
the Iranian State's endorsement of both the seizure of the premises
and the detention of the hostages. He described the Embassy as a
"centre of espionage", declared that the hostages would (with some
exceptions) remain "under arrest" until the United States had
returned the former Shah and his property to Iran, and forbade all
negotiation with the UnitedStates on the subject. Once organs of
the Iranian State had thus given approval to the acts complained of
and decided to perpetuate them as a means of pressure on the United
States, those acts were transformed into acts of the Iranian State:
the militants became agents of that State, which itself became
internationally responsible for their acts. During the six months
which ensued, the situation underwent no material change: the
Court's Order of 15 December 1979 was publicly rejected by Iran,
while the Ayatollah declared that the detention of the hostages
would continue until the new Iranian parliament had taken a
decision as to their fate.The Iranian authorities' decision to
continue the subjection of the Embassy to occupation, and of its
staff to detention as hostages, gave rise to repeated and multiple
breaches of Iran's treaty obligations, additional to those already
committed at the time of the seizure of the Embassy (1961
Convention: Arts.22, 24, 25, 26, 27 and 29 1963 Convention:inter
alia,Art. 33; 1955 Treaty, Art. II (4)).With regard to the Charg
d'affaires and the two other members of the United States mission
who have been in the Iranian Ministry of Foreign Affairs since 4
November 1979 the Court finds that the Iranian authorities have
withheld from them the protection and facilities necessary to allow
them to leave the Ministry in safety. Accordingly, it appears to
the Court that in their respect there have been breaches of
Articles 26 and 29 of the 1961 Vienna Convention.Taking note,
furthermore, that various Iranian authorities have threatened to
have some of the hostages submitted to trial before a court, or to
compel them to bear witness, the Court considers that, if put into
effect, that intention would constitute a breach of Article 31 of
the same Convention.(c)Possible existence of special
circumstances(paras. 80-89)The Court considers that it should
examine the question whether the conduct of the Iranian Government
might be justified by the existence of special circumstances, for
the Iranian Minister for Foreign Affairs had alleged in his two
letters to the Court that the United States had carried out
criminal activities in Iran. The Court considers that, even if
these alleged activities could be considered as proven, they would
not constitute a defence to the United States' claims, since
diplomatic law provides the possibility of breaking off diplomatic
relations, or of declaringpersona non "ratamembers of diplomatic or
consular missions who may be carrying on illicit activities. The
Court concludes that the Government of Iran had recourse to
coercion against the United States Embassy and its staff instead of
making use of the normal means at its disposal.(d)International
responsibility(paras. 90-92)The Court finds that Iran, by
committing successive and continuing breaches of the obligations
laid upon it by the Vienna Conventions of 1961 and 1963, the 1955
Treaty, and the applicable rules of general international law, has
incurred responsibility towards the United States. As a
consequence, there is an obligation on the part of the Iranian
State to make reparation for the injury caused to the United
States. Since, however, the breaches are still continuing, the form
and amount of such reparation cannot yet be determined.At the same
time the Court considers it essential to reiterate the observations
it made in its Order of 15 December 1979 on the importance of the
principles of international law governing diplomatic and consular
relations. After stressing the particular gravity of the case,
arising out of the fact that it is not any private individuals or
groups that have set at naught the inviolability of an embassy, but
the very government of the State to which the mission is
accredited, the Court draws the attention of the entire
international community to the irreparable harm that may be caused
by events of the kind before the Court. Such events cannot fail to
undermine a carefully constructed edifice of law the maintenance of
which is vital for the security and well-being of the international
community.(e)United States operation in Iran on 24-25 April
1980(paras. 93 and 94)With regard to the operation undertaken in
Iran by United States military units on 24-25April1980, the Court
says that it cannot fail to express its concern. It feels bound to
observe that an operation undertaken in those circumstances, from
whatever motive, is of a kind calculated to undermine respect for
the judicial process in international relations. Nevertheless, the
question of the legality of that operation can have no bearing on
the evaluation of Iran's conduct on 4 November 1979. The findings
reached by the Court are therefore not affected by that
operation.** *For these reasons, the Court gives the decision
reproduced in full below.OPERATIVE PART OF JUDGMENTTHE COURT,*
[Composed as
follows:PresidentSirHumphreyWaldock;Vice-PresidentElias;JudgesForster,
Gros, Lachs, Morozov, NagendraSingh, Ruda, Mosler, Tarazi, Oda,
Ago, El-Erian, Sette-Camara and Baxter.]1. By thirteen votes
[PresidentSir Humphrey Waldock;Vice-PresidentElias;JudgesForster,
Gros, Lachs, NagendraSingh, Ruda, Mosler, Oda, Ago, El-Erian,
Sette-Camara and Baxter.] to two [JudgesMorozov and
Tarazi.],Decidesthat the Islamic Republic of Iran, by the conduct
which the Court has set out in this Judgment, has violated in
several respects, and is skill violating, obligations owed by it to
the United States of America under international conventions in
force between the two countries, as well as under long-established
rules of general international law;2. By thirteen votes
[PresidentSir Humphrey Waldock;Vice-PresidentElias;JudgesForster,
Gros, Lachs, NagendraSingh, Ruda, Mosler, Oda, Ago, El-Erian,
Sette-Camara and Baxter.] to two [JudgesMorozov and
Tarazi.],Decidesthat the violations of these obligations engage the
responsibility of the Islamic Republic of Iran towards the United
States of America under international law;3.
Unanimously,Decidesthat the Government of the Islamic Republic of
Iran must immediately take all steps to redress the situation
resulting from the events of 4 November 1979 and what followed from
these events, and to that end:(a)must immediately terminate the
unlawful detention of the United States Charg d'affaires and other
diplomatic and consular staff and other United States nationals now
held hostage in Iran, and must immediately release each and every
one and entrust them to the protecting Power (Article 45 of the
1961 Vienna Convention on Diplomatic Relations);(b)must ensure that
all the said persons have the necessary means of leaving Iranian
territory, including means of transport;(c)must immediately place
in the hands of the protecting Power the premises, property,
archives and documents of the United States Embassy in Tehran and
of its Consulates in Iran;4. Unanimously,Decidesthat no member of
the United States diplomatic or consular staff may be kept in Iran
to be subjected to any form of judicial proceedings or to
participate in them as a witness;5. By twelve votes [PresidentSir
Humphrey Waldock;Vice-PresidentElias;JudgesForster, Gros,
NagendraSingh, Ruda, Mosler, Oda, Ago, El-Erian, Sette-Camara and
Baxter.] to three [JudgesLachs, Morozov and Tarazi.],Decidesthat
the Government of the Islamic Republic of ban is under an
obligation to make reparation to the Government of the United
States of America for the injury caused to the latter by the events
of 4 November 1979 and what followed from these events;6. By
fourteen votes [PresidentSir Humphrey
Waldock;Vice-PresidentElias;JudgesForster, Gros, Lachs,
NagendraSingh, Ruda, Mosler, Tarazi, Oda, Ago, El-Erian,
Sette-Camara and Baxter.] to one [JudgeMorozov.],Decidesthat the
form and amount of such reparation, failing agreement between the
Parties, shall be settled by the Court, and reserves for this
purpose the subsequent procedure in the case.__________
SUMMARY OF OPINIONS APPENDED TO THE JUDGMENTJudge Lachsindicated
that he voted against the first part of operative paragraph 5, as
he found it redundant. The responsibility having been established,
the whole question of reparations should have been left to the
subsequent procedure, including the question of form and amount as
provided by the Judgment.The opinion stresses the importance of the
Judgment for diplomatic law, and the major part of it is devoted to
the question of the practical solution by diplomatic means of the
dispute between the Parties. Once the legal issues have been
clarified by the Judgment, the parties should take speedy action
and make maximum efforts to dispel tension and mistrust, and in
this a third-party initiative may be important. Judge Lachs
visualizes a particular role for the Secretary-General of the
United Nations in this respect and the work of a special commission
or mediating body. In view of the gravity of the situation, the
need for a resolution is urgent.** *In his dissenting opinion,Judge
Morozovindicates that operative paragraph 1 of the Judgment is
drafted in such a way that it is not limited to the question of the
violation of the Vienna Conventions of 1961 and 1963, but also
covers, if read with some paragraphs of the reasoning, the question
of alleged violations of the 1955 Treaty of Amity, Economic
Relations and Consular Rights between Iran and the United States;
this treaty, he believes, does not provide the parties with an
unconditional right to invoke the compulsory jurisdiction of the
Court, and in the circumstances the Court has in fact no competence
to consider the alleged violations.Furthermore, Judge Morozov
observes, the United States committed during the period of the
judicial deliberations many unlawful actions, culminating in the
military invasion of the territory of the Islamic Republic of Iran,
and has therefore lost the legal right to refer to the Treaty in
its relations with Iran.Judge Morozov voted against operative
paragraphs 2, 5 and 6 because he had noted that a series of actions
was undertaken by the United States of America against Iran in the
course of the judicial deliberations, in particular the freezing by
the United States of very considerable Iranian assets, combined
with the intention, clearly expressed in a statement made by the
President of the United States on 7 April 1980 to make use of these
assets, if need be, in accordance with decisions that would betaken
in the domestic framework of the United States; that meant that the
United States was acting as a "judge" in its own cause. In Judge
Morozov's view, the situation, created by actions of the
UnitedStates, in which the Court carried on its judicial
deliberations in the case had no precedent in the whole history of
the administration of international justice either before the Court
or before any other international judicial institution. The United
States, having caused severe damage to Iran, had lost the legal as
well as the moral right to reparations from Iran, as mentioned in
operative paragraphs 2, 5 and 6.Judge Morozov also finds that some
paragraphs of the reasoning part of the Judgment describe the
circumstances of the case in an incorrect or one-sided way.He
considers that, without any prejudice to the exclusive competence
of the Security Council, the Court, from a purely legal point of
view, could have drawn attention to the undeniable fact that
Article 51 of the United Nations Charter, establishing the right of
self-defence to which the UnitedStates of America referred in
connection with the events of 24-25 April, may be invoked only "if
an armed attack occurs against a member of the United Nations", and
that there is no evidence of any armed attack having occurred
against the United States.Judge Morozov also stresses that some
indication should have been included in the Judgment to the effect
that the Court considered that settlement of the dispute between
the United States and the Islamic Republic of Iran should be
reached exclusively by peaceful means.** *Judge Tarazi voted in
favour of operative paragraphs 3 and 4 of the Judgment, because he
considered that the seizure of the embassy, and the detention as
hostages of those present in it, constituted an act in breach of
the provisions of the 1961 and 1963 Vienna Conventions on
Diplomatic and Consular Relations.On the other hand, Judge Tarazi
felt impelled to vote against operative paragraph 1, because he
considered that only the 1961 and 1963 Vienna Conventions conferred
jurisdiction on the Court in the present case.He also voted against
paragraphs 2 and 5, because, in his view, the Court, at the present
stage of the proceedings and considering the concomitant
circumstances, could not make any ruling as to the responsibility
of the Government of the Islamic Republic of Iran.On the other
hand, Judge Tarazi voted in favour of paragraph 6, because he
considered that, in the event of any reparations being owed, they
should be determined and assessed by the International Court of
Justice; it was not admissible for them to be the subject of
proceedings in courts of domestic jurisdiction.
G.R. No. L-21897 October 22, 1963RAMON A.
GONZALES,petitioner,vs.RUFINO G. HECHANOVA, as Executive Secretary,
MACARIO PERALTA, JR., as Secretary of Defense, PEDRO GIMENEZ, as
Auditor General, CORNELIO BALMACEDA, as Secretary of Commerce and
Industry, and SALVADOR MARINO, Secretary of
Justice,respondents.Ramon A. Gonzales in his own behalf as
petitioner.Office of the Solicitor General and Estanislao Fernandez
for respondents.CONCEPCION,J.:This is an original action for
prohibition with preliminary injunction.It is not disputed that on
September 22, 1963, respondent Executive Secretary authorized the
importation of 67,000 tons of foreign rice to be purchased from
private sources, and created a rice procurement committee composed
of the other respondents herein1for the implementation of said
proposed importation. Thereupon, or September 25, 1963, herein
petitioner, Ramon A. Gonzales a rice planter, and president of the
Iloilo Palay and Corn Planters Association, whose members are,
likewise, engaged in the production of rice and corn filed the
petition herein, averring that, in making or attempting to make
said importation of foreign rice, the aforementioned respondents
"are acting without jurisdiction or in excess of jurisdiction",
because Republic Act No. 3452 which allegedly repeals or amends
Republic Act No. 220 explicitly prohibits the importation of rice
and corn "the Rice and Corn Administration orany other government
agency;" that petitioner has no other plain, speedy and adequate
remedy in the ordinary course of law; and that a preliminary
injunction is necessary for the preservation of the rights of the
parties during the pendency this case and to prevent the judgment
therein from coming ineffectual. Petitioner prayed, therefore, that
said petition be given due course; that a writ of preliminary
injunction be forthwith issued restraining respondent their agents
or representatives from implementing the decision of the Executive
Secretary to import the aforementioned foreign rice; and that,
after due hearing, judgment be rendered making said injunction
permanent.Forthwith, respondents were required to file their answer
to the petition which they did, and petitioner's pray for a writ of
preliminary injunction was set for hearing at which both parties
appeared and argued orally. Moreover, a memorandum was filed,
shortly thereafter, by the respondents. Considering, later on, that
the resolution said incident may require some pronouncements that
would be more appropriate in a decision on the merits of the case,
the same was set for hearing on the merits thereafter. The parties,
however, waived the right to argue orally, although counsel for
respondents filed their memoranda.I. Sufficiency of petitioner's
interest.Respondents maintain that the status of petitioner as a
rice planter does not give him sufficient interest to file the
petition herein and secure the relief therein prayed for. We find
no merit in this pretense. Apart from prohibiting the importation
of rice and corn "by the Rice and Corn Administration or any other
government agency". Republic Act No. 3452 declares, in Section 1
thereof, that "the policy of the Government" is to "engage in the
purchase of these basic foodsdirectlyfrom those tenants, farmers,
growers, producers and landownersin the Philippineswho wish to
dispose of their products at a price that will afford them a fair
and just return for their labor and capital investment. ... ."
Pursuant to this provision, petitioner, as a planter with a rice
land of substantial proportion,2is entitled to a chance to sell to
the Government the rice it now seeks to buy abroad. Moreover, since
the purchase of said commodity will have to be effected with public
funds mainly raised by taxation, and as a rice producer and
landowner petitioner must necessarily be a taxpayer, it follows
that he has sufficient personality and interest to seek judicial
assistance with a view to restraining what he believes to be an
attempt to unlawfully disburse said funds.II. Exhaustion of
administrative remedies.Respondents assail petitioner's right to
the reliefs prayed for because he "has not exhausted all
administrative remedies available to him before coming to court".
We have already held, however, that the principle requiring the
previous exhaustion of administrative remedies is not applicable
where the question in dispute is purely a legal one",3or where the
controverted act is "patently illegal" or was performed without
jurisdiction or in excess of jurisdiction,4or where the respondent
is a department secretary, whose acts as an alter-ego of the
President bear the implied or assumed approval of the
latter,5unless actually disapproved by him,6or where there are
circumstances indicating the urgency of judicial intervention.7The
case at bar fails under each one of the foregoing exceptions to the
general rule. Respondents' contention is, therefore, untenable.III.
Merits of petitioner's cause of action.Respondents question the
sufficiency of petitioner's cause of action upon the theory that
the proposed importation in question is not governed by Republic
Acts Nos. 2207 and 3452, but was authorized by the President as
Commander-in-Chief "for military stock pile purposes" in the
exercise of his alleged authority under Section 2 of Commonwealth
Act No. 1;8that in cases of necessity, the President "or his
subordinates may take such preventive measure for the restoration
of good order and maintenance of peace"; and that, as
Commander-in-Chief of our armed forces, "the President ... is
duty-bound to prepare for the challenge of threats of war or
emergency withoutwaiting for any special authority".Regardless of
whether Republic Act No. 3452 repeals Republic Act No. 2207, as
contended by petitioner herein - on which our view need not be
expressed we are unanimously of the opinion - assuming that said
Republic Act No. 2207 is still in force that the two Acts are
applicable to the proposed importation in question because the
language of said laws is such as to include within the purview
thereofallimportations of rice and corn into the Philippines".
Pursuant to Republic Act No. 2207, "it shall be unlawful
foranyperson, association, corporation orgovernment agencyto import
rice and corn into any point in the Philippines", although, by way
of exception, it adds, that"the President of the Philippinesmay
authorize the importation of these commodities through any
government agency that he may designate", is the conditions
prescribed in Section 2 of said Act are present. Similarly,
Republic Act No. 3452 explicitly enjoins "the Rice and Corn
Administration orany government agency" from importing rice and
corn.Respondents allege, however, that said provisions of Republic
Act Nos. 2207 and 3452, prohibiting the importation of rice and
corn by any "government agency", do not apply to importations "made
by the Government itself", because the latter is not a "government
agency". This theory is devoid of merit. The Department of National
Defense and the Armed Forces of the Philippines, as well as
respondents herein, and each and every officer and employee of our
Government, our government agencies and/or agents. The
applicability of said laws even to importations by the Government
as such, becomes more apparent when we consider that:1. The
importation permitted in Republic Act No. 2207 is to be authorized
bythe "President of the Philippines"and, hence, by or on behalf of
the Government of the Philippines;2. Immediately after enjoining
the Rice and Corn administration and any other government agency
from importing rice and corn, Section 10 of Republic Act No. 3452
adds "thatthe importation of rice and corn is left to private
partiesupon payment of the corresponding taxes", thus indicating
thatonly"private parties" may import rice under its provisions;
and3. Aside from prescribing a fine not exceeding P10,000.00 and
imprisonment of not more than five (5) years for those who shall
violate any provision of Republic Act No. 3452 or any rule and
regulation promulgated pursuant thereto, Section 15 of said Act
provides that "if the offender is apublic officialand/or
employees", he shall be subject to the additional penalty specified
therein. A public official is an officerof the Government itself,
as distinguished from officers or employees of instrumentalities of
the Government. Hence,the duly authorized acts of the former are
those of the Government, unlike those of a government
instrumentality which may have a personality of its own, distinct
and separate from that of the Government, as such. The provisions
of Republic Act No. 2207 are, in this respect, even more explicit.
Section 3 thereof provides a similar additional penalty for any
"officer or employeeof the Government" who "violates, abets or
tolerates the violation of any provision" of said Act. Hence, the
intent to apply the same to transactions madeby the very
governmentis patent.Indeed, the restrictions imposed in said
Republic Acts are merelyadditionalto those prescribed in
Commonwealth Act No. 138, entitled "An Act to give native products
and domestic entities the preference in the purchase of articlesfor
the Government." Pursuant to Section 1 thereof:The Purchase and
Equipment Division of theGovernment of the Philippinesand other
officers and employees of the municipal and provincial
governmentsand the Government of the Philippinesand of chartered
cities, boards, commissions,bureaus, departments, offices,
agencies, branches, and bodies of any description, including
government-owned companies, authorized to requisition, purchase, or
contract or make disbursements for articles, materials, and
supplies for public use, public buildings, or public works
shallgive preference to materials... produced ...in the
Philippinesor in the United States, andto domestic entities,
subject to the conditions hereinbelow specified. (Emphasis
supplied.)Under this provision, in all purchasesby the Government,
including those made by and/or for the armed forces,preference
shall be given to materials produced in the Philippines. The
importation involved in the case at bar violates this general
policy of our Government, aside from the provisions of Republic
Acts Nos. 2207 and 3452.The attempt to justify the proposed
importation by invoking reasons of national security predicated
upon the "worsening situation in Laos and Vietnam", and "the recent
tension created by the Malaysia problem" - and the alleged powers
of the President as Commander-in-Chief of all armed forces in the
Philippines, under Section 2 of the National Defense Act
(Commonwealth Act No. 1), overlooks the fact that the protection of
local planters of rice and corn in a manner that would foster and
accelerate self-sufficiency in the local production of said
commodities constitutes a factor that is vital to our ability to
meet possible national emergency. Even if the intent in importing
goods in anticipation of such emergency were to bolster up that
ability, the latter would, instead, be impaired if the importation
were so made as to discourage our farmers from engaging in the
production of rice.Besides, the stockpiling of rice and corn for
purpose of national security and/or national emergency is within
the purview of Republic Act No. 3452. Section 3 thereof expressly
authorizes the Rice and Corn Administration "to accumulate stocks
as anational reservein such quantities as it may deem proper and
necessary to meetany contingencies". Moreover, it ordains that"the
buffer stocks held as a national reserve...be deposited by the
administration throughout the country under the proper dispersal
plans... and may be released only upon the occurrence of calamities
oremergencies...". (Emphasis applied.)Again, the provisions of
Section 2 of Commonwealth Act No. 1, upon which respondents rely so
much, are not self-executory. They merely outline the general
objectives of said legislation. The means for the attainment of
those objectives are subject to congressional legislation. Thus,
the conditions under which the services of citizens, as indicated
in said Section 2, may be availed of, are provided for in Sections
3, 4 and 51 to 88 of said Commonwealth Act No. 1. Similarly,
Section 5 thereof specifies the manner in which resources necessary
for our national defense may be secured by the Government of the
Philippines, but only "during a national mobilization",9which does
not exist. Inferentially, therefore, in the absence of a national
mobilization, said resources shall be produced in such manner as
Congress may byotherlaws provide from time to time. Insofar as rice
and corn are concerned, Republic Acts Nos. 2207 and 3452, and
Commonwealth Act No. 138 are such laws.Respondents cite Corwin in
support of their pretense, but in vain. An examination of the work
cited10shows that Corwin referred to the powers of the President
during "war time"11or when he has placed the country or a part
thereof under "martial law".12Since neither condition obtains in
the case at bar, said work merely proves that respondents' theory,
if accepted, would, in effect, place the Philippines under martial
law,withouta declaration of the Executive to that effect. What is
worse, it would keep usperpetuallyunder martial law.It has been
suggested that even if the proposed importation violated Republic
Acts Nos. 2207 and 3452, it should, nevertheless, be permitted
because "it redounds to the benefit of the people".Salus populi est
suprema lex, it is said.If there were a local shortage of rice, the
argumentmight havesome value. But the respondents, as officials of
this Government, have expressly affirmed again and again that there
is no rice shortage. And the importation is avowedly for
stockpileof the Armynotthe civilian population.But let us follow
the respondents' trend of thought. It has a more serious
implication that appears on the surface. It implies that if an
executive officer believes that compliance with a certain statute
will not benefit the people, he is at liberty to disregard it. That
idea must be rejected - we still live under a rule of law.And then,
"the people" are either producers or consumers. Now as respondents
explicitly admit Republic Acts Nos. 2207 and 3452 were approved by
the Legislature for the benefit of producers and consumers, i.e.,
the people, it must follow that the welfare of the people lies
precisely in thecompliancewith said Acts.It is not for respondent
executive officers now to set their own opinions against that of
the Legislature, and adopt means or ways to set those Acts at
naught. Anyway, those laws permit importation but under certain
conditions, which have not been, and should be complied with.IV.
The contracts with Vietnam and BurmaIt is lastly contended that the
Government of the Philippines has already entered into two (2)
contracts for the Purchase of rice, one with the Republic of
Vietnam, and another with the Government of Burma; that these
contracts constitute valid executive agreements under international
law; that such agreements became binding effective upon the signing
thereof by representatives the parties thereto; that in case of
conflict between Republic Acts Nos. 2207 and 3452 on the one hand,
and aforementioned contracts, on the other, the latter should
prevail, because, if a treaty and a statute are inconsistent with
each other, the conflict must be resolved under the American
jurisprudence in favor of the one which is latest in point of time;
that petitioner herein assails the validity of acts of the
Executive relative to foreign relations in the conduct of which the
Supreme Court cannot interfere; and the aforementioned contracts
have already been consummated, the Government of the Philippines
having already paid the price of the rice involved therein through
irrevocable letters of credit in favor of the sell of the said
commodity. We find no merit in this pretense.The Court is not
satisfied that the status of said tracts as alleged executive
agreements has been sufficiently established. The parties to said
contracts do not pear to have regarded the same as executive
agreements. But, even assuming that said contracts may properly
considered as executive agreements, the same are unlawful, as well
as null and void, from a constitutional viewpoint, said agreements
being inconsistent with the provisions of Republic Acts Nos. 2207
and 3452. Although the President may, under the American
constitutional system enter into executive
agreementswithoutprevious legislative authority, he maynot, by
executive agreement, enter into a transaction which isprohibitedby
statutes enacted prior thereto. Under the Constitution, the main
function of the Executive is to enforce laws enacted by Congress.
The former may not interfere in the performance of the legislative
powers of the latter, except in the exercise of his veto power. He
may not defeat legislative enactments that have acquired the status
of law, byindirectly repealingthe same through an executive
agreementproviding for the performance of the very act prohibited
by said laws.The American theory to the effect that, in the event
of conflict between atreatyand a statute, the one which is latest
in point of time shall prevail, is not applicable to the case at
bar, for respondents not only admit, but, alsoinsistthat the
contracts adverted to are not treaties. Said theory may be
justified upon the ground that treaties to which the United States
is signatory require the advice and consent of its Senate, and,
hence, of a branch of the legislative department. No such
justification can be given as regards executive agreements not
authorized by previous legislation, without completely upsetting
the principle of separation of powers and the system of checks and
balances which are fundamental in our constitutional set up and
that of the United States.As regards the question whether an
international agreement may be invalidated by our courts, suffice
it to say that the Constitution of the Philippines has clearly
settled it in the affirmative, by providing, in Section 2 of
Article VIII thereof, that the Supreme Court may not be deprived
"of its jurisdiction to review, revise, reverse, modify, or affirm
on appeal,certiorari, or writ of error as the law or the rules of
court may provide, final judgments and decrees of inferior courts
in (1) All cases in which theconstitutionalityorvalidityof
anytreaty, law, ordinance, or executive order or regulation is in
question". In other words, our Constitution authorizes the
nullification of a treaty, not only when it conflicts with the
fundamental law,but, also, when it runs counter to an act of
Congress.The alleged consummation of the aforementioned contracts
with Vietnam and Burma doesnotrender this case academic, Republic
Act No. 2207 enjoins our Government not fromentering into
contractsfor the purchase of rice, but fromimportingrice, except
under the conditions Prescribed in said Act. Upon the other hand,
Republic Act No. 3452 has two (2) main features, namely: (a) it
requires the Government to purchase rice and corndirectlyfrom our
local planters, growers or landowners; and (b) it
prohibitsimportationsof rice by the Government, and leaves such
importations to private parties. The pivotal issue in this case is
whether the proposedimportation which has not been consummated as
yet is legally feasible.Lastly, a judicial declaration of
illegality of the proposed importation would not compel our
Government to default in the performance of such obligations as it
may have contracted with the sellers of the rice in question,
because, aside from the fact that said obligations may be complied
withwithout importingthe commodity into the Philippines, the
proposed importation may still be legalized by complying with the
provisions of the aforementioned laws.V. The writ of preliminary
injunction.The members of the Court have divergent opinions on the
question whether or not respondents herein should be enjoined from
implementing the aforementioned proposed importation. However, the
majority favors the negative view, for which reason the injunction
prayed for cannot be granted.WHEREFORE, judgment is hereby rendered
declaring that respondent Executive Secretary had and has no power
to authorize the importation in question; that he exceeded his
jurisdiction in granting said authority; said importation is not
sanctioned by law and is contrary to its provisions; and that, for
lack of the requisite majority, the injunction prayed for must be
and is, accordingly denied. It is so ordered.
G.R. No. L-41518 June 30, 1976GUERRERO'S TRANSPORT SERVICES,
INC.,petitioner,vs.BLAYLOCK TRANSPORTATION SERVICES EMPLOYEES
ASSOCIATION-KILUSAN (BTEA-KILUSAN), LABOR ARBITER FRANCISCO M. DE
LOS REYES and JOSE CRUZ,respondents.ANTONIO,J.:Certiorari and
prohibition with preliminary injunction to annul the Orders of the
National Labor Relations Commission, of March 26, June 20 and
September 25, 1975, as well as the Writ of Execution of September
26, 1975, issued in NLRC Case No. 214, and to restrain respondent
Deputy Sheriff of Manila from implementing said writ.On June 1,
1972, the United states Naval Base authorities at Subic, Zambales,
conducted a public bidding for a five-year contract for the right
to operate and/or manage the transportation services inside the
naval base. This bidding was won by Santiago Guerrero, owner-
operator of Guerrero's Transport Services, Inc., herein petitioner,
over Concepcion F. Blaylock, the then incumbent concessionaire
doing business under the name of "Blaylock Transport Services",
whose 395 employees are members of respondent union BTEA-KILUSAN.
When petitioner, after the commencement of its operation on January
1, 1973, refused to employ the members of the respondent union, the
latter. On January, 12, 1975, filed a complaint1with the National
Labor Relations Commission2docketed as NLRC Case No. 214, against
Guerrero's Transport Services, Inc. and Santiago Guerrero, to
compel them to employ its members pursuant to Article 1, Section 2
of the RP-US Base Agreement dated May 27, 1968.3This case was
dismissed by the National Labor Relations Commission on March 13,
1973, upon petitioner's motion to dismiss on jurisdictional
grounds, there being no employer-employee relationship between
theparties.4Respondent union then appealed said Order on March
26,1973 to the Secretary of the Department of Labor, who, instead
of deciding the appeal, remanded the case for review to the NLRC
which, subsequently, summoned both parties to a series of
conferences. Thereafter, or on October .11, 1973, the NLRC issue a
Resolution5ordering petitioner, among others, "to absorb all the
complainants who filed their applications on or before the
deadline" set by petitioner "on 15 November 1972 except those who
may have derogatory records with the U.S. Naval Authorities in
Subic, Zambales" and directing the Officer-in-charge of the
provincial office of the Department of Labor in Olongapo City to
"oversee the preparation of the list of those qualified for
absorption in accordance with this resolution."Petitioner appealed
to Secretary of Labor Blas F. Ople who, in turn, rendered a
Decision on December 27, 1973, affirming said Resolution.6On
January 22, 1974, Santiago A. Guerrero) appealed the decision to
the President of the Philippines,7but on July 9, 1974, the
President, through Assistant Executive Secretary Ronaldo B. Zamora,
returned the case to the Secretary of Labor for appropriate action
on the appeal, it appearing, that the same does not involve
national interest.8In the meantime, the Provincial Director of the
Labor Office in Zambales furnished, on August 2, 1974, petitioner9a
list of forty-six (46) members of respondent union BTEA-KILUSAN and
former drivers of the Blaylock Transport Service,10who are within
the coverage of the decision of the Secretary of Labor, and
requesting petitioner to report its action on the matter directly
to the Chairman, NLRC, Manila. Subsequently, Santiago A. Guerrero
received a letter dated September 24, 197411from Col. Levi L.
Basilla, PC (GSC) Camp Olivas, San Fernando, Pampanga, requesting
compliance with the Order dated July 19, 1974 of the NLRC in NLRC
Case No. 214. In his reply letter dated October 4, 1974, Guerrero
informed Col. Basilia that he had substantially complied with the
decision of the Secretary of Labor affirming the NLRC Resolution of
October 31, 1974 in NLRC Case No. 214, and that any apparent
non-compliance therewith was attributable to the individual
complainants who failed to submit themselves for processing and
examination as requested by the authorities of the U.S. Naval Base
in Subic, Zambales, preparatory to their absorption by
petitioner.On January 18, 1975, Acting Executive Secretary Roberto
V. Reyes, pursuant to Section 10 of Presidential Decree No. 21,
directed the Chief of Constabulary to arrest the executive officers
of petitioner.12On February 20, 1975, petitioner informed Secretary
Reyes that it has substantially complied with the NLRC Resolution
of October 31, 1975 as out of those listed by the Regional Labor
Director, only a few passed the examination given and some of those
who passed failed to comply with the final requirements of the U.S.
Naval Base Authority; that only those who passed and complied with
the requirements of the U.S. Naval Base Authority were extended
appointments as early as December 16, 1974, but none of them, for
evident lack of interest, has reported for work.13In his 1st
endorsement dated March 26, 1975, Secretary Zamora required the
Secretary of Labor to verify petitioner's allegations.14On the same
date, respondent Labor Arbiter Francisco M. de los Reyes, upon a
motion for execution filed by respondent union, issued an Order
stating that "upon the finality thereof and by way of implementing
any writ of execution that might be issued in this case, further
hearings shall be held to determine the members of respondent union
who are entitled to reinstatement in accordance with the basic
guidelines finally determined in this case."15On June 20, 1975,
respondent Labor Arbiter De los Reyes ordered the reinstatement of
129 individuals "to their former or substantially equivalent
positions without loss of seniority and other rights and
privileges".16On July 16,1975, respondent BTEA-KILUSAN filed a
Motion for Issuance of Writ of Execution with respondent Labor
Arbiter,17but this was objected to by petitioner contending that
the Labor Arbiter has no jurisdiction over NLRC Case No. 214 and,
therefore, his proceedings and orders resulting therefrom are null
and void.18On September 1, 1975, the Provincial Director of the
Zambales Labor Office, pursuant to the directive of the Secretary
of Labor,19and the NLRC Resolution dated October 21,
197520submitted a detailed information to the Assistant Secretary
of the Department of Labor on petitioner's compliance, "to enable
the Department of Labor to formally close" NLRC Case No. 214.21On
September 25, 1975, respondent Labor Arbiter, acting on the motion
for execution filed by respondent union BTEA-KILUSAN, and finding
that both the Orders, dated March 26 and June 20, 1975, have not
been appealed pursuant to Article 223 of the Labor Code, declared
said Orders final and executory and directed petitioner Guerrero's
Transport Services, Inc. to reinstate the 129 complainants and to
pay them the amount of P4,290.00 each, or a total of P592,110.00 as
back wages covering the period from August 22, 1974 to September
20, 1975.22On September 26, 1975, respondent Labor Arbiter issued a
writ directing the respondent Deputy Sheriff of Manila levy on the
moneys and/or properties of petitioner,23and on the same date
respondent Sheriff immediately serve said writ on petitioner who
was given a period of five (5) days within which to comply
therewith.It was on this factual environment that petitioner
instituted the present petition for certiorari and prohibition with
preliminary injunction on October 6, 1975. Petitioner asserts that
the afore-mentioned Orders were issued by respondent Labor Arbiter
without jurisdiction.As prayed for, this Court, on October 6, 1975,
issued a temporary restraining order and required the respondents
to file an answer within ten (10) days from notice.On October 11,
1975, respondent Labor Arbiter De los Reyes and Sheriff Jose Cruz
filed their Comment by way of answer to the petition, explaining
the legal justifications of their action on the premises.Upon
motion filed on October 11, 1975 by respondent union BTEA-KILUSAN
for reconsideration and to lift the temporary restraining order of
October 6, 1975, this Court, on October 15, 1975, lifted said
restraining order and set the case for hearing on Monday, October
20, 1975 at 3:00 p.m.At the hearing of this case on October 20,
1975, a Compromise Agreement was arrived at by the parties wherein
they agreed to submit to the Office of t he Secretary of Labor the
determination of members of the respondent union BTEA-KILUSAN who
shall be reinstated or absorbed by the herein petitioner in the
transportation service inside the naval base, which determination
shall be considered final. This Court approved this agreement and
enjoined "all the parties to strictly observe the terms thereof."
This agreement is deemed to have superseded the Resolution of the
National Labor Relations Commission of October 31, 1973, as
affirmed by the Secretary of Labor on December 27, 1973.Pursuant to
this agreement which was embodied in the Resolution of this Court
of October 24, 1975, Secretary of Labor Blas F. Ople issued an
Order dated November 13, 1975, the pertinent portion of which reads
as follows:The issue submitted for resolution hinges on the
credibility of the alleged applications. Considering that the
employees are economically dependent on their jobs, they have all
the reasons and zealousness to pursue their jobs within the
legitimate framework of our laws. The applicant are no strangers to
the pains and difficulties of unemployment. Because of these
factors we cannot ignore the affidavits of proof presented by the
employees concerned as against the declaration of the herein
respondent. Firmly entrenched is the rule in this jurisdiction that
doubts arising from labor disputes must be construed and
interpreted in favor of the workers.RESPONSIVE TO THE FOREGOING,
the National Labor Relations Commission through Arbiter Francisco
delos Reyes is hereby directed to implement the absorption of the
175 members of the Blaylock Transport Employees Association
(BTEA-KILUSAN) into the Guerrero Transport Services, subject to the
following terms and conditions:1) that they werebona fide
employeesof the Blaybock Transportation Service at the time its
concession expired:2) that the appellantsshall pass final screening
and approvalby the appropriate authorities of the U.S. Base
concerned.Theapplicants to be processedfor absorption shall be
those in the list of 46 submitted by OIC Liberator (Carino on 2
August 1974, and the list of 129 determined by Arbiter de los Reyes
as embodied in the Writ of Execution issued on 25 September
1975.The Regional Director of Regional Office No. II, San Fernando,
Pampanga, shall make available to the parties the facilities of
that Office in the implementation of the aforesaid absorption
process.24On November 24, 1975, in compliance with the aforesaid
directive of the Secretary of Labor, Labor Arbiter Francisco M.
delos Reyes conducted a hearing to receive evidence as to who were
thebona fideemployees of the former concessionaire at the "time of
its concession expire". Thereafter, Labor Arbiter De los Reyes
issued an Order, dated November 25, 1975, listing in Annex "A"
thereof, 174 employees who were bona fide employees of the private
respondent, and transmitting a copy of said Order to the Base
Commander, U.S. Naval Base, Olongapo City, with the request for the
immediate screening and approval of their applications in
accordance with applicable rules of said command. The pertinent
portion of said Order reads as follows:As far as this Labor Arbiter
is concerned, his only participation in this case refers to that
portion of the Secretary of Labor's Order directing him to
implement "* * * the absorption of the 175 members of the Blaylock
Transport Employees Association (BTEA-KILUSAN) into the Guerrero
Transport Services," subject to certain terms and conditions.
Hence, any question of "prematurity" as espoused by respondent's
counsel may not he entertained by this Labor Arbiter.Going now to
the applicants who should be entitled to absorption, the Honorable
Secretary of Labor specified that the same should be composed of
the 46 submitted by OIC Liberator Carino on 2 August 1974 and the
129 applicants determined by this Labor Arbiter. Of the latter,
only 128 will be named. A perusal of said list show that the name
"Renato Carriaga" has been doubly listed. For convenience, these
two listings have now been consolidated and alphabetically arranged
and as an integral part of this Order has been made as Annex "A"
(pp 1 to 6).For purposes of implementation, the initial step to be
undertaken is for the submission of the name of the applicants to
the U.S. Navy authorities concerned, which means the U. S. Naval
Base at Olongapo City for the screening and approval by the
appropriate authorities.Regarding the determination of whether the
applicants arebona fideemployees of the Blaylock Transportation
Service at the time its concession expired, the parties appear to
be in agreement that the records of this case will eventually s