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Nuclear Tests Case (Australia & New Zealand v.

France) constitute an engagement of the State in regard to the circumstances and intention with which they
International Court of Justice were made. The statements made by the French authorities are therefore relevant and legally binding.
1974 I.C.J. 253, 457 Applications dismissed.

Facts Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the
France (defendant) was performing atmospheric nuclear tests in the South Pacific. Australia and New Congo v. Rwanda)
Zealand (plaintiffs) brought suit in the International Court of Justice (ICJ) demanding it order France to
cease performing these tests. While the case was pending, France announced it was ceasing performance On 28 May 2002, the Democratic Republic of the Congo (DRC) filed in the Registry of the Court an
of tests and that it did not plan to perform any additional tests. Application instituting proceedings against Rwanda for “massive, serious and flagrant violations of human
rights and international humanitarian law” resulting
Rule of Law “from acts of armed aggression perpetrated by Rwanda on the territory of the Democratic Republic of the
The rule of law is the black letter law upon which the court rested its decision. To access this section Congo in flagrant breach of the sovereignty and territorial integrity [of the DRC], as guaranteed by the
United Nations Charter and the Charter of the Organization of African Unity”.
Issue
The issue section includes the dispositive legal issue in the case phrased as a question. To access this The DRC stated in its Application that the Court’s jurisdiction to deal with the dispute between it and
section Rwanda “deriv[ed] from compromissory clauses” in many international legal instruments, such as the 1979
Convention on the Elimination on All Forms of Discrimination against Women, the 1965 International
Holding and Reasoning Convention on the Elimination of All Forms of Racial Discrimination, the 1948 Convention on the
The holding and reasoning section includes: Prevention and Punishment of the Crime of Genocide, the Constitution of the World Health Organization
 A “yes” or “no” answer to the question framed in the issue section; (WHO), the Constitution of UNESCO, the 1984 New York Convention against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment and the 1971 Montreal Convention for the Suppression
 A summary of the majority or plurality opinion, using the CREAC method; and
of Unlawful Acts against the Safety of Civil Aviation. The DRC added that the jurisdiction of the Court also
 The procedural disposition (e.g. reversed and remanded, affirmed, etc.). derived from the supremacy of peremptory norms (jus cogens), as reflected in certain international
treaties and conventions, in the area of human rights.
Nuclear Tests Case (Australia & New Zealand v. France)
On 28 May 2002, the date of the filing of the Application, the DRC also submitted a request for the
Procedural History: indication of provisional measures. Public hearings were held on 13 and 14 June 2002 on that request. By
Proceeding before the International Court of Justice. an Order of 10 July 2002, the Court rejected that request, holding that it did not, in this case, have the
prima facie jurisdiction necessary to indicate the provisional measures requested by the DRC. Further, “in
Overview: the absence of a manifest lack of jurisdiction”, it also rejected Rwanda’s request for the case to be removed
Australia and New Zealand (P) demanded that France (D) cease atmospheric nuclear tests in the South from the List. The Court also found that its findings in no way prejudged the question of its jurisdiction to
Pacific. France (D) completed a series of nuclear tests in the South Pacific. Australia and New Zealand (P) deal with the merits of the case or any questions relating to the admissibility of the Application or relating
applied to the !.C.). demanding that France (D) cease testing immediately. While the case was pending, to the merits themselves.
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. On 18 September 2002, the Court delivered an Order directing that the written pleadings should first be
addressed to the questions of the jurisdiction of the Court and the admissibility of the Application, and
Issue: fixed 20 January 2003 and 20 May 2003, respectively, as the time-limits for the filing of the Memorial of
May declarations made by way of unilateral acts have the effect of creating legal obligations? Rwanda and Counter-Memorial of the DRC. Those pleadings were filed within the time-limits thus
prescribed.
Rule: Declarations made by way of unilateral acts may have the effect of creating legal obligations. In its Judgment of 3 February 2006, the Court ruled that it did not have jurisdiction to entertain the
Application filed by the DRC. It found that the international instruments invoked by the DRC could not be
Analysis: relied on, either because Rwanda (1) was not a party to them (as in the case of the Convention against
The unilateral statements made by French authorities were first communicated to the government of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment) or (2) had made reservations
Australia. To have legal effect there was no need tor the statements to be directed to any particular to them (as in the case of the Convention on the Prevention and Punishment of the Crime of Genocide and
state. The general nature and characteristics of the statements alone were relevant for evaluation of the Convention on the Elimination of All Forms of Racial Discrimination), or because (3) other
their legal implications. preconditions for the seisin of the Court had not been satisfied (as in the case of the Convention on the
Elimination of All Forms of Discrimination against Women, the Constitution of the WHO, the Constitution
Outcome: of UNESCO and the Montreal Convention for the Suppression of Unlawful Acts against the Safety of Civil
Yes. Declarations made by way of unilateral acts may have the effect of creating legal obligations. The Aviation).
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 Since the Court had no jurisdiction to entertain the Application, it was not required to rule on its
principle of good faith. The statements made by the President of the French Republic must be held to admissibility. Mindful that the subject-matter of the dispute was very similar in nature to that in the case

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between the Congo and Uganda, and that the reasons as to why the Court would not proceed to an Discussion. The analysis of the treaties in the casebook excerpt is similar to the Court’s analysis of treaties.
examination of the merits in the case between Congo and Rwanda needed to be carefully explained, the The main principle here is that the I.C.J will not advance the case past the preliminary matter of jurisdiction
Court stated that it was precluded by a number of provisions in its Statute from taking any position on the where a state has not granted consent to the I.C.J’s jurisdiction, whatever atrocities have in fact been
merits of the claims made by the DRC. It recalled, however, “that there is a fundamental distinction committed by the non-consenting state. Also, reversal of the position requires an overt act by the state in
between the acceptance by States of the Court’s jurisdiction and the conformity of their acts with a situation like this, where there is evidence of non-consent, in order to convince the Court that after all,
international law”. Thus, “[w]hether or not States have accepted the jurisdiction of the Court, they are consent to the I.C.J’s jurisdiction was granted.
required to fulfil their obligations under the United Nations Charter and the other rules of international
law, including international humanitarian and human rights law, and they remain responsible for acts
attributable to them which are contrary to international law”. Temple of Preah Vihear (Cambodia v. Thailand)

Democratic Republic of Congo vs Rwanda OVERVIEW OF THE CASE

Brief Fact Summary. Rwanda (D) challenged the jurisdiction of the International Court of Justice when a Cambodia complained that Thailand had occupied a piece of its territory surrounding the ruins of the
suit was filed against her by the Democratic Republic of the Congo (P). Temple of Preah Vihear, a place of pilgrimage and worship for Cambodians, and asked the Court to declare
that territorial sovereignty over the Temple belonged to it and that Thailand was under an obligation to
Synopsis of Rule of Law. The International Court of Justice lacks jurisdiction based on a treaty in which withdraw the armed detachment stationed there since 1954. Thailand filed preliminary objections to the
one party to such a treaty excludes dispute settlement obligations under the treaty before becoming a Court’s jurisdiction, which were rejected in a Judgment given on 26 May 1961. In its Judgment on the
party, and fails to take formal acts to bring about withdrawal of the reservation. merits, rendered on 15 June 1962, the Court noted that a Franco-Siamese Treaty of 1904 provided that, in
the area under consideration, the frontier was to follow the watershed line, and that a map based on the
Facts. In the suit filed by the Republic of the Congo (DRC) (P) against Rwanda (D), the DRC (P) tried to base work of a Mixed Delimitation Commission showed the Temple on the Cambodian side of the boundary.
the jurisdiction of the International Court of Justice on nine treaties with dispute settlement clauses that Thailand asserted various arguments aimed at showing that the map had no binding character. One of its
provided for such jurisdiction. Of the nine treaties, Rwanda (D) excluded dispute settlement obligations in contentions was that the map had never been accepted by Thailand or, alternatively, that if Thailand had
seven of the treaties while it was not party to the remaining two. Based on the nature of its obligations, accepted it, it had done so only because of a mistaken belief that the frontier indicated corresponded to
Rwanda (D) challenged the jurisdiction of the International Court of Justice. the watershed line. The Court found that Thailand had indeed accepted the map and concluded that the
Discussions of some of the treaties were omitted by the excerpt. The treaties involved were Convention Temple was situated on Cambodian territory. It also held that Thailand was under an obligation to
on Privileges, Immunities of the Specialized Agencies, Genocide Convention, Article IX, Convention on withdraw any military or police force stationed there and to restore to Cambodia any objects removed
Racial Discrimination against Women, Article 29, World Health Organization Constitution, Article 75. from the ruins since 1954.
Unesco Convention, Article XIV, Montreal Convention, Article 14, Vienna Convention, Article 66 and
Convention Against Torture. Rwanda (D) was not party to the first two treaties.
Whaling in the Antarctic (Australia v. Japan: New Zealand intervening)
Issue. Does the International Court of Justice lacks jurisdiction based on a treaty in which one party to such
a treaty excludes disputes settlement obligations under the treaty before becoming a party and fails to OVERVIEW OF THE CASE
make formal acts to bring about withdrawal of the reservation?
Proceedings were instituted on 31 May 2010 by Australia, which accused Japan of pursuing “a large-scale
Held. program of whaling under the Second Phase of its Japanese Whale Research Program under Special Permit
(Judge not stated in casebook excerpt) Yes. The International Court of Justice lacks jurisdiction based on a in the Antarctic (‘JARPA II’)”, in breach of obligations assumed by Japan under the 1946 International
treaty in which one party to such a treaty excludes dispute settlement obligations under the treaty before Convention for the Regulation of Whaling and of other international obligations for the preservation of
becoming a party and fails to take formal acts to bring about withdrawal of the reservation. marine mammals and the marine environment.
Firstly, as at the time of a 1993 peace agreement to withdrawing all reservations to human rights treaties,
Rwanda (D) may have committed itself, though this withdrawal was effectuated by the Rwanda (D) In the Judgment it rendered on 31 March 2014, the Court first found that it had jurisdiction to entertain
minister of justice, Rwanda (D) never for once take formal acts to bring about withdrawal of reservation. the case, rejecting Japan’s argument that the dispute fell within the scope of a reservation contained in
Deciding on whether to withdraw reservation with a state’s domestic legal order is not the same as Australia’s declaration recognizing the Court’s jurisdiction as compulsory. It then turned to the question
implementation of that decision by the national authorities within the international legal order, which can of the interpretation and application of Article VIII of the 1946 Convention, paragraph 1 of which states
only come to pass by notification to the other state parties to the parties in question through the Secretary- that the parties “may grant to any of [their] nationals a special permit authorizing that national to kill, take
General of the United Nations. and treat whales for purposes of scientific research”.

Secondly, the existence of a dispute that implicates peremptory norms of general international law does With respect to the interpretation of that provision, the Court first observed that, although Article VIII
not imply that it is not part of the principles that jurisdiction always relies on the consent of the parties. gives discretion to a State party to the Convention to reject the request for a special permit, whether the
The treaty was however held not to form the basis of jurisdiction because the DRC (P) failed to prove killing, taking and treating of whales pursuant to a requested special permit is for purposes of scientific
beyond reasonable doubt that it initiated arbitration proceedings against Rwanda (D) under the research cannot depend simply on that State’s perception. In the view of the Court, the two elements of
Convention on Discrimination against Women. the phrase for purposes of (1) scientific research (2) are cumulative.

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As regards the application of that same provision, the Court indicated that JARPA II could broadly be interruption of transit between Uruguay and Argentina, including the blockading of bridges or roads
described as a “scientific research” programme. It then turned to the question of whether it was for between the two States” ; to abstain “from any measure that might aggravate, extend or make more
purposes of scientific research that lethal methods were used. To answer that question, it examined difficult the settlement of this dispute” ; and to abstain “from any other measure which might prejudice
whether the programme’s design and implementation were reasonable in relation to achieving its stated the rights of Uruguay in dispute before the Court”. Public hearings on the request for the indication of
research objectives. The Court considered that the evidence before it did not establish that such was the provisional measures were held on 18 and 19 December 2006. By an Order of 23 January 2007, the Court
case. It concluded that the special permits issued by Japan for the killing, taking and treating of whales in found that the circumstances, as they then presented themselves to it, were not such as to require the
connection with JARPA II were not granted “for purposes of scientific research” pursuant to Article VIII, exercise of its power under Article 41 of the Statute.
paragraph 1, of the 1946 Convention. Argentina filed its Memorial and Uruguay its Counter-Memorial within the time-limits fixed by the Order
of 13 July 2006. By an Order of 14 September 2007, the Court authorized the submission of a Reply by
The Court then turned to the implications of that conclusion, in light of Australia’s contention that Japan Argentina and a Rejoinder by Uruguay. Those pleadings were filed within the prescribed time-limits.
had breached several provisions of the Schedule annexed to the said Convention. Having found that Japan
had indeed breached some of the provisions invoked (namely the moratoriums on commercial whaling Following public hearings held between 14 September 2009 and 2 October 2009, the Court delivered its
and factory ships, and the prohibition on commercial whaling in the Southern Ocean Sanctuary), it Judgment on 20 April 2010. With respect to Argentina’s argument that projects had been authorized by
considered the question of remedies. Since JARPA II was an ongoing programme, it ordered Japan to Uruguay in violation of the mechanism for prior notification and consultation laid down by Articles 7 to 13
revoke any extant authorization, permit or licence to kill, take or treat whales in relation to JARPA II, and of the 1975 Statute (the procedural violations), the Court noted that Uruguay had not informed the
to refrain from granting any further permits under Article VIII, paragraph 1, of the Convention, in Administrative Commission of the River Uruguay of the projects as prescribed in the Statute. The
pursuance of that programme. Administrative Commission of the River Uruguay — commonly referred to by its Spanish acronym “CARU”
— is a body established under the Statute for the purpose of monitoring the river, including assessing the
impact of proposed projects on the river. The Court concluded that, by not informing CARU of the planned
Pulp Mills on the River Uruguay (Argentina v. Uruguay) works before the issuing of the initial environmental authorizations for each of the mills and for the port
terminal adjacent to the Orion (Botnia) mill, and by failing to notify the plans to Argentina through CARU,
OVERVIEW OF THE CASE Uruguay had violated the 1975 Statute.

On 4 May 2006, Argentina filed an Application instituting proceedings against Uruguay concerning alleged With respect to Argentina’s contention that the industrial activities authorized by Uruguay had had, or
breaches by Uruguay of obligations incumbent upon it under the Statute of the River Uruguay, a treaty would have, an adverse impact on the quality of the waters of the river and the area affected by it, and
signed by the two States on 26 February 1975 (hereinafter “the 1975 Statute”) for the purpose of had caused significant damage to the quality of the waters of the river and significant transboundary
establishing the joint machinery necessary for the optimum and rational utilization of that part of the river damage to Argentina (the substantive violations), the Court found, based on a detailed examination of the
which constitutes their joint boundary. In its Application, Argentina charged Uruguay with having Parties’ arguments, that there was
unilaterally authorized the construction of two pulp mills on the River Uruguay without complying with “no conclusive evidence in the record to show that Uruguay has not acted with the requisite degree of due
the obligatory prior notification and consultation procedures under the 1975 Statute. Argentina claimed diligence or that the discharges of effluent from the Orion (Botnia) mill have had deleterious effects or
that those mills posed a threat to the river and its environment and were likely to impair the quality of the caused harm to living resources or to the quality of the water or the ecological balance of the river since
river’s waters and to cause significant transboundary damage to Argentina. As basis for the Court’s it started its operations in November 2007”.
jurisdiction, Argentina invoked the first paragraph of Article 60 of the 1975 Statute, which provides that
any dispute concerning the interpretation or application of that Statute which cannot be settled by direct Consequently, the Court concluded that Uruguay had not breached substantive obligations under the
negotiations may be submitted by either party to the Court. Statute. In addition to this finding, however, the Court emphasized that, under the 1975 Statute, “[t]he
Parties have a legal obligation . . . to continue their co-operation through CARU and to enable it to devise
Argentina’s Application was accompanied by a request for the indication of provisional measures, whereby the necessary means to promote the equitable utilization of the river, while protecting its environment”.
Argentina asked that Uruguay be ordered to suspend the authorizations for construction of the mills and
all building works pending a final decision by the Court ; to co-operate with Argentina with a view to Argentina v. Uruguay (Case Concerning Pulp Mills on the River Uruguay)
protecting and conserving the aquatic environment of the River Uruguay ; and to refrain from taking any
further unilateral action with respect to the construction of the two mills incompatible with the 1975 Facts
Statute, and from any other action which might aggravate the dispute or render its settlement more The Statute of the River Uruguay (Statute), a 1975 treaty between Uruguay (defendant) and Argentina
difficult. Public hearings on the request for the indication of provisional measures were held on 8 and 9 (plaintiff), established the Administrative Commission of the River Uruguay (CARU), a bilateral commission
June 2006. By an Order of 13 July 2006, the Court found that the circumstances, as they then presented intended to facilitate the nations’ joint management of the Uruguay River (River), which formed the
themselves to it, were not such as to require the exercise of its power under Article 41 of the Statute to international boundary between the two nations. Article 7 of the Statute required a party planning any
indicate provisional measures. projects that might affect the River to notify CARU, which would in turn decide if the plan had the potential
to injure the other party. If so, the acting party would be required to inform the other party of the project.
On 29 November 2006, Uruguay in turn submitted a request for the indication of provisional measures on Argentina and Uruguay also agreed that the acting party was required to undertake an environmental-
the grounds that, from 20 November 2006, organized groups of Argentine citizens had blockaded a “vital impact assessment to determine the extent of any damage that the plan might cause. Article 41 of the
international bridge” over the River Uruguay, that that action was causing it considerable economic Statute imposed a substantive obligation upon the nations to protect the marine life of the River and to
prejudice and that Argentina had made no effort to end the blockade. At the end of its request, Uruguay prevent pollution through the implementation of appropriate regulations. Uruguay authorized two
asked the Court to order Argentina to take “all reasonable and appropriate steps . . . to prevent or end the companies, Botnia and ENCE, to build two pulp mills next to the River. Argentina argued that the

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authorizations violated procedural as well as substantive obligations under the Statute because Uruguay to the President of the Republic of Djibouti on 14 February 2007 ; and (d) it had no jurisdiction to
(1) did not refer its plans to CARU, (2) did not notify Argentina of the plans, and (3) conducted an adjudicate upon the dispute concerning the arrest warrants issued against two senior Djiboutian officials
insufficient environmental-impact assessment because Uruguay did not consider alternative mill sites as on 27 September 2006.
required under international law. Uruguay offered a study establishing that at least four other mill sites
had been considered. After CARU was unable to resolve the dispute, Argentina brought the case before Having established the precise scope of its jurisdiction in the case, the Court turned first to the alleged
the International Court of Justice, requesting that the already constructed Botnia mill be taken down. violation by France of the Treaty of Friendship and Co-operation between France and Djibouti of 27 June
1977. While pointing out that the provisions of the said Treaty constituted relevant rules of international
Rule of Law law having “a certain bearing” on relations between the Parties, the Court concluded that “the fields of
The rule of law is the black letter law upon which the court rested its decision. To access this section co-operation envisaged in th[at] Treaty do not include co-operation in the judicial field” and thus that the
above-mentioned relevant rules imposed no concrete obligations in this case.
Issue
The issue section includes the dispositive legal issue in the case phrased as a question. To access this The Court then turned to the allegation that France had violated its obligations under the 1986 Convention
section on Mutual Assistance in Criminal Matters. Under that Convention, judicial co-operation is envisaged,
including the requesting and granting of “letters rogatory” (usually the passing, for judicial purposes, of
Holding and Reasoning information held by a party). The Convention also provides for exceptions to this envisaged co-operation.
The holding and reasoning section includes: Since the French judicial authorities refused to transmit the requested case file, a key question in the case
 A “yes” or “no” answer to the question framed in the issue section; was whether that refusal fell within the permitted exceptions. Also at issue was whether France had
complied with the provisions of the 1986 Convention in other respects. The Court held that the reasons
 A summary of the majority or plurality opinion, using the CREAC method; and
given by the French investigating judge for refusing the request for mutual assistance fell within the scope
 The procedural disposition (e.g. reversed and remanded, affirmed, etc.). of Article 2 (c) of the Convention, which entitles the requested State to refuse to execute a letter rogatory
if it considers that that execution is likely to prejudice its sovereignty, its security, its ordre public or other
of its essential interests. The Court did however conclude that, as no reasons were given in the letter dated
Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France) 6 June 2005, whereby France informed Djibouti of its refusal to execute the letter rogatory presented by
the latter on 3 November 2004, France had failed to comply with its international obligations under Article
OVERVIEW OF THE CASE 17 of the 1986 Convention.
On 9 January 2006, the Republic of Djibouti filed an Application against the French Republic in respect of
a dispute : Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France)
“concern[ing] the refusal by the French governmental and judicial authorities to execute an international
letter rogatory regarding the transmission to the judicial authorities in Djibouti of the record relating to
the investigation in the Case against X for the murder of Bernard Borrel, in violation of the Convention on The dispute between France and Djibouti arose in relation to the investigation into the death of the
Mutual Assistance in Criminal Matters between the [Djiboutian] Government and the [French] French Judge Bernard Borrel in Djibouti in 1995. Djibouti’s Application concerned “the refusal by the
Government, of 27 September 1986, and in breach of other international obligations borne by [France] to French governmental and judicial authorities to execute an international letter rogatory regarding the
. . . Djibouti”. transmission to the judicial authorities in Djibouti of the record relating to the investigation in the ‘Case
against X for the murder of Bernard Borrel’”. Djibouti maintained that the refusal constitutes a violation
In its Application, Djibouti also alleged that these acts constituted a violation of the Treaty of Friendship of France’s international obligations under the Treaty of Friendship and Co-operation signed by the two
and Co-operation concluded between France and Djibouti on 27 June 1977. Djibouti indicated that it States on 27 June 1977 and the Convention on Mutual Assistance in Criminal Matters between France
sought to found the jurisdiction of the Court on Article 38, paragraph 5, of the Rules of Court. This provision and Djibouti, dated 27 September 1986.
applies when a State submits a dispute to the Court, proposing to found the Court’s jurisdiction upon a
consent yet to be given or manifested by the State against which the Application is made. This was the On 4 June 2008, the International Court of Justice (ICJ) rendered its judgement in the case. In its
second occasion that the Court had been called upon to pronounce on a dispute brought before it by an Judgment, the Court unanimously found that France failed to meet its international obligations by not
Application based on Article 38, paragraph 5, of its Rules (forum prorogatum). France consented to the giving the reasons for its refusal to execute a letter rogatory issued by Djibouti in 2004. The Court also
jurisdiction of the Court by a letter, dated 25 July 2006 in which it specified that this consent was “valid determined that its finding of this violation constitutes appropriate satisfaction. The Court did not
only for the purposes of the case, within the meaning of Article 38, paragraph 5, i.e., in respect of the uphold any of the other final submissions presented by Djibouti.
dispute forming the subject of the Application and strictly within the limits of the claims formulated
therein” by Djibouti. However, the Parties disagreed as to the exact extent of the consent given by France. Fisheries Jurisdiction (United Kingdom of Great Britain and Northern Ireland v. Iceland)
In a Judgment rendered on 4 June 2008, the Court, having read Djibouti’s Application together with
France’s letter in order to determine the extent of the mutual consent of the Parties, concluded that (a) it
OVERVIEW OF THE CASE
had jurisdiction to adjudicate upon the dispute concerning the execution of the letter rogatory addressed
by the Republic of Djibouti to the French Republic on 3 November 2004 ; (b)it had jurisdiction to adjudicate
upon the dispute concerning the summons addressed to the President of the Republic of Djibouti on 17 On 14 April and 5 June 1972, respectively, the United Kingdom and the Federal Republic of Germany
May 2005 and the summonses addressed to two senior Djiboutian officials on 3 and 4 November 2004 and instituted proceedings against Iceland concerning a dispute over the proposed extension by Iceland, as
17 June 2005 ; (c) it had jurisdiction to adjudicate upon the dispute concerning the summons addressed from 1 September 1972, of the limits of its exclusive fisheries jurisdiction from a distance of 12 to a distance

4
of 50 nautical miles. Iceland declared that the Court lacked jurisdiction, and declined to be represented in On 2 July 1993 the Governments of the Republic of Hungary and of the Slovak Republic notified jointly to
the proceedings or file pleadings. At the request of the United Kingdom and the Federal Republic, the the Registry of the Court a Special Agreement, signed at Brussels on 7 April 1993, for the submission to
Court in 1972 indicated, and in 1973 confirmed, provisional measures to the effect that Iceland should the Court of certain issues arising out of differences which had existed between the Republic of Hungary
refrain from implementing, with respect to their vessels, the new regulations regarding the extension of and the Czech and Slovak Federal Republic regarding the implementation and the termination of the
the zone of its exclusive fishing rights, and that the annual catch of those vessels in the disputed area Budapest Treaty of 16 September 1977 on the Construction and Operation of the Gabčíkovo-Nagymaros
should be limited to certain maxima. In Judgments delivered on 2 February 1973, the Court found that it Barrage System and on the construction and operation of the “provisional solution”. The Special
possessed jurisdiction ; and in Judgments on the merits of 25 July 1974, it found that the Icelandic Agreement records that the Slovak Republic is in this respect the sole successor State of the Czech and
regulations. constituting a unilateral extension of exclusive fishing rights to a limit of 50 nautical miles were Slovak Federal Republic. In Article 2 of the Special Agreement, the Court was asked to say : (a) whether
not opposable to either the United Kingdom or the Federal Republic, that Iceland was not entitled the Republic of Hungary was entitled to suspend and subsequently abandon, in 1989, the works on the
unilaterally to exclude their fishing vessels from the disputed area, and that the Parties were under mutual Nagymaros project and on that part of the Gabčíkovo project for which the Treaty attributed responsibility
obligations to undertake negotiations in good faith for the equitable solution of their differences. to the Republic of Hungary ; (b) whether the Czech and Slovak Federal Republic was entitled to proceed,
in November 1991, to the “provisional solution” and to put into operation from October 1992 this system
(the damming up of the Danube at river kilometre 1,851.7 on Czechoslovak territory and the resulting
Fisheries Jurisdiction (United Kingdom of Great Britain and Northern Ireland v. Iceland)
consequences for the water and navigation course) ; and (c) what were the legal effects of the notification,
on 19 May 1992, of the termination of the Treaty by the Republic of Hungary. The Court was also requested
Brief Fact Summary. Because some circumstances changed, Iceland (D) claimed that a fishing treaty it had to determine the legal consequences, including the rights and obligations for the Parties, arising from its
with the United Kingdom (P) was no longer applicable. Judgment on the above-mentioned questions. Each of the Parties filed a Memorial, a Counter Memorial
and a Reply accompanied by a large number of annexes.
Synopsis of Rule of Law. In order that a change of circumstances may give rise to the premise calling for
the termination of a treaty, it is necessary that it has resulted in a radical transformation of the extent of In June 1995, the Agent of Slovakia requested the Court to visit the site of the Gabčíkovo-Nagymaros
the obligations still to be performed. hydroelectric dam project on the Danube for the purpose of obtaining evidence. A “Protocol of
Agreement” was thus signed in November 1995 between the two Parties. The visit to the site, the first
such visit by the Court in its 50-year history, took place from 1 to 4 April 1997 between the first and second
rounds of oral pleadings.

Facts. Iceland’s (D) claim to a 12-mile fisheries limit was recognized by the United Kingdom (P) in 1961 in
return for Iceland’s (D) agreement that any dispute concerning Icelandic fisheries jurisdiction beyond the In its Judgment of 25 September 1997, the Court asserted that Hungary was not entitled to suspend and
12-mile limit be referred to the International Court of Justice. An application was filed before the I.C.J. subsequently abandon, in 1989, the works on the Nagymaros project and on the part of the Gabčíkovo
when Iceland (D) proposed to extend its exclusive fisheries jurisdiction from 12 to 50 miles around its project for which it was responsible, and that Czechoslovakia was entitled to proceed, in November 1991,
shores in 1972. By postulating that changes in circumstances since the 12-mile limit was now generally to the “provisional solution” as described by the terms of the Special Agreement. On the other hand, the
recognized was the ground upon which Iceland (D) stood to argue that the agreement was no longer valid. Court stated that Czechoslovakia was not entitled to put into operation, from October 1992, the barrage
Iceland (D) also asserted that there would be a failure of consideration for the 1961 agreement. system in question and that Slovakia, as successor to Czechoslovakia, had become Party to the Treaty of
16 September 1977 as from 1 January 1993. The Court also decided that Hungary and Slovakia must
negotiate in good faith in the light of the prevailing situation and must take all necessary measures to
Issue. In order that a change of circumstances may give rise to a ground for invoking the termination of a ensure the achievement of the objectives of the said Treaty, in accordance with such modalities as they
treaty, is it necessary that it has resulted in a radical transformation of the extent of the obligation still to might agree upon. Further, Hungary was to compensate Slovakia for the damage sustained by
be performed? Czechoslovakia and by Slovakia on account of the suspension and abandonment by Hungary of works for
which it was responsible, whereas, again according to the Judgment of the Court, Slovakia was to
Held. Yes. In order that a change of circumstances may give rise to the premise calling for the termination compensate Hungary for the damage it had sustained on account of the putting into operation of the dam
of a treaty, it is necessary that it has resulted in a radical transformation of the extent of the obligations by Czechoslovakia and its maintenance in service by Slovakia.
still to be performed. The change of circumstances alleged by Iceland (D) cannot be said to have
transformed radically the extent of the jurisdictional obligation that was imposed in the 1961 Exchange of On 3 September 1998, Slovakia filed in the Registry of the Court a request for an additional Judgment in
Notes. the case. Slovakia considered such a Judgment necessary because of the unwillingness of Hungary to
implement the Judgment delivered by the Court on 25 September 1997. In its request, Slovakia stated that
Discussion. Recourse to the I.C.J. in the event of a dispute was the original agreement between the the Parties had conducted a series of negotiations of the modalities for executing the 1997 Judgment and
parties. The economy of Iceland (D) is dependent on fishing. The merit of Iceland (D) argument was not had initialled a draft Framework Agreement, which had been approved by the Slovak Government.
reached by the Court in this case, however, but rather dealt with the jurisdictional issues. However, according to the latter, Hungary had decided to postpone its approval and had even disavowed
it when the new Hungarian Government had come into office. Slovakia requested the Court to determine
the modalities for executing the Judgment, and, as the basis for its request, invoked the Special Agreement
Gabčíkovo-Nagymaros Project (Hungary/Slovakia) signed at Brussels on 7 April 1993 by itself and Hungary. After the filing by Hungary of a statement of its
position on Slovakia’s request, the Parties resumed negotiations and informed the Court on a regular basis
of the progress in them.
5
Gabcíkovo-Nagymaros (Hungary v. Slovakia) Syllabus

On 2 July 1993, Hungary and Slovakia notified the ICJ that a Special Agreement existed between Hungary The Treaty of February 8, 1861, with the Dominican Republic (art. 9) provides that
and Czechoslovakia regarding the implementation and the termination of the Budapest Treaty of 16
September 1977 on the Construction and Operation of the Gabčíkovo-Nagymaros System of Locks on the "No higher or other duty shall be imposed on the importation into the United states of any article the
Danube. The Special Agreement identified Slovakia as the sole successor of the State of Czechoslovakia. In growth, produce, or manufacture of the Dominican Republic, or of her fisheries, than are or shall be
its Judgment of 1997, the Court asserted that Hungary was not entitled to suspend and subsequently payable on the like articles the growth, produce, or manufacture of any other foreign country or of its
abandon, in 1989, the Nagymaros project and the part of the Gabčíkovo project for which it was fisheries."
responsible, and that Czechoslovakia was entitled to proceed, in November 1991, with a provisional
solution(damming up the Danube on Czechoslovak territory). The Court also stated that Czechoslovakia
The Convention of January 30, 1575, with the King of the Hawaiian Islands provides for the importation
was not entitled to put into operation, from October 1992, the system of locks in question, and that
into the United States, free of duty, of various articles, the produce and manufacture of those islands
Slovakia, as successor to Czechoslovakia, had become Party to the Treaty of 16 September 1977 as of 1
(among which were sugars), in consideration of certain concessions made by the King of the Hawaiian
January 1993.
Islands to the United States. Held that this provision in the treaty with the Dominican Republic did not
Brief Fact Summary. Hungary (P) claimed that Czechoslovakia (D) violated the provisions of a treaty when authorize the admission into the United States, duty free, of similar sugars, the growth, produce, or
it appropriated the waters of the Danube River to construct a dam. manufacture of that republic as a consequence of the agreement made with the King of the Hawaiian
Islands, and that there was no distinction in principle between this case and Bartram v. Robertson,122 U.
Synopsis of Rule of Law. Watercourse states shall participate in the use, development and protection of S. 116.
an international watercourse in an equitable and reasonable manner.
By the Constitution of the United States, a treaty and a statute are placed on the same footing, and if the
Facts. In 1977, Hungary (P) and Czechoslovakia (D) signed a Treaty for the construction of dams and other two are inconsistent, the one last in date will control, provided the stipulation of the treaty on the subject
projects along the Danube River that bordered both nations. Czechoslovakia (D) began work on damming is self-executing.
the river in its territory when Hungary (P) stopped working on the project and negotiation could not resolve
the matter which led Hungary (P) to terminate the Treaty. Hungary (P) based its action on the fact that the
damming of the river had been agreed to only on the ground of a joint operation and sharing of benefits This was an action to recover back duties alleged to have been illegally exacted. Verdict for the defendant
associated with the project, to which Czechoslovakia (D) had unlawfully unilaterally assumed control of a and judgment on the verdict. The plaintiffs sued out this writ of error.
shared resource.
MR. JUSTICE FIELD delivered the opinion of the Court.
Issue. Shall watercourse states participate in the use, development and protection of an international
watercourse in an equitable and reasonable manner?
The plaintiffs are merchants doing business in the City of New York, and in August, 1882, they imported a
large quantity
Held. Yes. Watercourse states shall participate in the use, development and protection of an
international watercourse in an equitable and reasonable manner. Hungary (P) was deprived of its rights
to an equitable and reasonable share of the natural resources of the Danube by Czechoslovakia (D) and Page 124 U. S. 191
also failed to respect the proportionality that is required by international law. Cooperative
administration must be reestablished by the parties of what remains of the project. of "centrifugal and molasses sugars," the produce and manufacture of the Island of San Domingo. These
goods were similar in kind to sugars produced in the Hawaiian Islands, which are admitted free of duty
Discussion. The Court’s decision was that the joint regime must be restored. In order to achieve most of under the treaty with the King of those islands and the act of Congress passed to carry the treaty into
the Treaty’s objectives, common utilization of shared water resources was necessary. Hence, the effect. They were duly entered at the custom house at the port of New York, the plaintiffs claiming that by
defendant was not authorized to proceed without the plaintiff’s consent. the treaty with the Republic of San Domingo, the goods should be admitted on the same terms -- that is,
free of duty -- as similar articles the produce and manufacture of the Hawaiian Islands. The defendant,
who was at the time collector of the port, refused to allow this claim, treated the goods as dutiable articles
under the acts of Congress, and exacted duties on them to the amount of $21,936. The plaintiffs appealed
from the collector's decision to the Secretary of the Treasury, by whom the appeal was denied. They then
paid, under protest, the duties exacted, and brought the present action to recover the amount.
Whitney v. Robertson, 124 U.S. 190 (1888) Decided January 9, 1888

The complaint set forth the facts as to the importation of the goods; the claim of the plaintiffs that they
ERROR TO THE CIRCUIT COURT OF THE UNITED
should be admitted free of duty, because like articles from the Hawaiian Islands were thus admitted; the
refusal of the collector to allow the claim; the appeal from his decision to the Secretary of the Treasury,
STATES FOR THE SOUTHERN DISTRICT OF NEW YORK and its denial by him, and the payment, under protest, of the duties exacted, and concluded with a prayer

6
for judgment for the amount. The defendant demurred to the complaint, the demurrer was sustained, and to avoid hostile legislation in that respect, but they were not intended to interfere with special
final judgment was entered in his favor; to review which the case is brought here. arrangements with other countries founded upon a concession of special privileges."

The treaty with the King of the Hawaiian Islands provides for the importation into the United States, free The counsel for the plaintiffs meet this position by pointing to the omission in the treaty with the Republic
of duty, of various articles, the produce and manufacture of those islands, in consideration, among other of San Domingo of the provision as to free concessions, and concessions upon compensation, contending
things, of like exemption from duty on the importation into that country of sundry specified articles which that the omission precludes any concession, in respect of commerce and navigation, by our government
are the produce and manufacture of the United States. 19 Stat. 625. The language of the first two articles to another country without that concession's being at once extended to San Domingo. We do not think
of the treaty, which recite the reciprocal engagements of the two countries, declares that they are made that the absence of this provision changes the obligations of the United States. The ninth article of the
in consideration treaty with that republic, in the clause quoted, is substantially like the fourth article in the treaty with the
King of Denmark, and as we said of the latter, we may say of the former -- that it is a pledge of the
contracting parties that there shall be no discriminating legislation, against the importation of articles
Page 124 U. S. 192
which are the growth, produce, or manufacture of their respective countries, in favor of articles of like
character imported from any other country. It has no greater extent. It was never designed to prevent
"of the rights and privileges," and "as an equivalent therefor," which one concedes to the other. special concessions, upon sufficient considerations, touching the importation of specific articles into the
country of the other. It would require the clearest language to justify a conclusion that our government
The plaintiffs rely for a like exemption of the sugars imported by them from San Domingo upon the ninth intended to preclude itself from such engagements with other countries which might in the future be of
article of the treaty with the Dominican Republic, which is as follows: the highest importance to its interests.

"No higher or other duty shall be imposed on the importation into the United States of any article, the But independently of considerations of this nature, there is another and complete answer to the
growth, produce, or manufacture of the Dominican Republic, or of her fisheries, and no higher or other pretensions of the plaintiffs. The act of Congress under which the duties were collected authorized their
duty shall be imposed on the importation into the Dominican Republic of any article, the growth, produce, exaction. It is of general application, making no exception in favor of goods of any country. It was passed
or manufacture of the United States, or their fisheries, than are or shall be payable on the like articles, the
growth, produce, or manufacture of any other foreign country, or its fisheries." Page 124 U. S. 194

15 Stat. 475. after the treaty with the Dominican Republic, and, if there be any conflict between the stipulations of the
treaty and the requirements of the law, the latter must control. A treaty is primarily a contract between
In Bartram v. Robertson, decided at the last term, 122 U. S. 116, we held that brown and unrefined sugars, two or more independent nations, and is so regarded by writers on public law. For the infraction of its
the produce and manufacture of the Island of St. Croix, which is part of the dominions of the King of provisions, a remedy must be sought by the injured party through reclamations upon the other. When the
Denmark, were not exempt from duty by force of the treaty with that country, because similar goods from stipulations are not self-executing, they can only be enforced pursuant to legislation to carry them into
the Hawaiian Islands were thus exempt. The first article of the treaty with Denmark provided that the effect, and such legislation is as much subject to modification and repeal by Congress as legislation upon
contracting parties should not grant "any particular favor" to other nations in respect to commerce and any other subject. If the treaty contains stipulations which are self-executing -- that is, require no
navigation which should not immediately become common to the other party, who should "enjoy the legislation to make them operative -- to that extent they have the force and effect of a legislative
same freely if the concession were freely made, and upon allowing the same compensation if the enactment. Congress may modify such provisions so far as they bind the United States, or supersede them
concession were conditional." 11 Stat. 719. The fourth article provided that no "higher or other duties" altogether. By the Constitution, a treaty is placed on the same footing, and made of like obligation, with
should be imposed by either party on the importation of any article which is its produce or manufacture an act of legislation. Both are declared by that instrument to be the supreme law of the land, and no
into the country of the other party than is payable on like articles, being the produce or manufacture of superior efficacy is given to either over the other. When the two relate to the same subject, the courts will
any other foreign country. And we held in the case mentioned that always endeavor to construe them so as to give effect to both, if that can be done without violating the
language of either; but if the two are inconsistent, the one last in date will control the other, provided
always the stipulation of the treaty on the subject is self-executing. If the country with which the treaty is
"Those stipulations, even if conceded to be self-executing by the way of a proviso or exception to the made is dissatisfied with the action of the legislative department, it may present its complaint to the
general law imposing the duties, do not cover concessions like those made to the Hawaiian Islands for a executive head of the government and take such other measures as it may deem essential for the
valuable consideration. They were pledges of the two contracting parties, the United States and the King protection of its interests. The courts can afford no redress. Whether the complaining nation has just cause
of of complaint or our country was justified in its legislation are not matters for judicial cognizance. In Taylor
v. Morton, 2 Curtis 454, 459, this subject was very elaborately considered at the circuit by Mr. Justice Curtis
Page 124 U. S. 193 of this Court, and he held that whether a treaty with a foreign sovereign had been violated by him; whether
the consideration of a particular stipulation of the treaty had been voluntarily withdrawn by
Denmark, to each other that, in the imposition of duties on goods imported into one of the countries which
were the produce or manufacture of the other, there should be no discrimination against them in favor of Page 124 U. S. 195
goods of like character imported from any other country. They imposed an obligation upon both countries

7
one party so that it was no longer obligatory on the other; whether the views and acts of a foreign Discussion. A later inconsistent statute does not abrogate or repeal a treaty. The treaty still exists as an
sovereign had given just occasion to the legislative department of our government to withhold the international obligation although the terms of the treaty may not be enforceable.
execution of a promise contained in a treaty, or to act in direct contravention of such promise were not
judicial questions; that the power to determine these matters had not been confided to the judiciary,
Head Money Cases, 112 U.S. 580 (1884)
which has no suitable means to exercise it, but to the executive and legislative departments of our
government, and that they belong to diplomacy and legislation, and not to the administration of the laws.
And he justly observed as a necessary consequence of these views that if the power to determine these IN ERROR TO THE CIRCUIT COURT OF THE UNITED STATES
matters is vested in Congress, it is wholly immaterial to inquire whether by the act assailed it has departed
from the treaty or not, or whether such departure was by accident or design, and if the latter, whether FOR THE EASTERN DISTRICT OF NEW YORK
the reasons were good or bad.

Syllabus
In these views we fully concur. It follows, therefore, that when a law is clear in its provisions, its validity
cannot be assailed before the courts for want of conformity to stipulations of a previous treaty not already
executed. Considerations of that character belong to another department of the government. The duty of The act of Congress of August 8, 1882, "to regulate immigration," which imposes upon the owners of
the courts is to construe and give effect to the latest expression of the sovereign will. In Head Money steam or sailing vessels who shall bring passengers from a foreign port into a port of the United States, a
Cases, 112 U. S. 580, it was objected to an act of Congress that it violated provisions contained in treaties duty of fifty
with foreign nations, but the Court replied that so far as the provisions of the act were in conflict with any
treaty, they must prevail in all the courts of the country, and after a full and elaborate consideration of the Page 112 U. S. 581
subject it held that
cents for every such passenger not a citizen of this country, is a valid exercise of the power to regulate
"so far as a treaty made by the United States with any foreign nation can be the subject of judicial commerce with foreign nations.
cognizance in the courts of this country, it is subject to such acts as Congress may pass for its enforcement,
modification, or repeal."
Though the previous cases in this court on that subject related to State statutes only, they held those
statutes void on the ground that authority to enact them was vested exclusively in Congress by the
Judgment affirmed. Constitution, and necessarily decided that, when Congress did pass such a statute, which it has done in
this case, it would be valid.
Whitney v. Robertson
The contribution levied on the ship owner by this statue is designed to mitigate the evils incident to
Brief Fact Summary. The claim which Whitney (P) brought before the court was that a treaty between immigration from abroad by raising a fund for that purpose, and it is not, in the sense of the
the U.S and the Dominican Republic guaranteed that no higher duty would be assessed on goods from Constitution, a tax subject to the limitations imposed by that instrument on the general taxing power of
the Dominican Republic than was assessed on goods from any other country and that duties had been Congress.
wrongfully assessed on his sugar imports.
A tax is uniform, within the meaning of the constitutional provision on that subject, when it operates
Synopsis of Rule of Law. Where a treaty and an act of legislation conflict, the one last in date will with the same effect in all places where the subject of it is found, and is not wanting in such uniformity
control. because the thing taxed is not equally distributed in all parts of the United States.

A treaty is primarily a compact between independent nations, and depends for the enforcement of its
provisions on the honor and the interest of the governments which are parties to it. If these fail, its
infraction becomes the subject of international reclamation and negotiation, which may lead to war to
Facts. The claim which Whitney (P) brought before the court was that a treaty between the U.S and the enforce them. With this, judicial courts have nothing to do.
Dominican Republic guaranteed that no higher duty would be assessed on goods from the Dominican
Republic than was assessed on goods from any other country and that duties had been wrongfully
assessed on his sugar imports. But a treaty may also confer private rights on citizens or subjects of the contracting powers which are of
a nature to be enforced in n court of justice, and which, in cases otherwise cognizable in such courts,
furnish rules of decision. The Constitution of the United States makes the treaty, while in force, a part of
Issue. Where a treaty and an act of legislation conflict, will the one last in date control? the supreme law of the land in all courts where such rights are to be tried.

Held. (Field, J.). Yes. The one with a later date will control where a treaty and an act of legislation
conflict. The act of congress under which the duties were collected was passed after the treaty and
therefore is controlling. Affirmed.
8
But in this respect, so far as the provisions of a treaty can become the subject of judicial cognizance in The following are admitted to be the facts in this action:
the courts of the country, they are subject to such acts as Congress may pass for their enforcement,
modification, or repeal.
"I. That the plaintiffs are partners in trade in the city of New York under the firm name of Funch, Edye &
Co., and carry on the business of transporting passengers and freight upon the high seas between
These suits were brought to recover back sums collected at various times as duties on immigrants Holland and the United States of America as consignees and agents."
arriving in the United States, under the provision of the act of August 3, 1882, 23 Stat. 21,
"That on the 2d day of October, 1882, there arrived, consigned to the plaintiffs, the Dutch ship Leerdam,
"that there shall be levied, collected, and paid a duty of fifty cents for each and every passenger not a owned by certain citizens or subjects of the Kingdom of Holland and belonging to the nationality of
citizen of the United States, who shall come by steam or sail vessel from a foreign port to any port within Holland, at the port of New York. She had sailed from the foreign port of Rotterdam, in Holland, bound
the United States." to New York, and carried 382 persons not citizens of tile United States."

Protests were filed against each payment, and all other steps required as foundations for the actions "That, among said 382 persons, 20 were severally under the age of one year, and 9 were severally
were taken. In the Edye Case, there was a trial, jury being waived, a finding of facts, a judgment, and between the ages of one year and eight years."
exceptions. 18 Fed.Rep. 13. In the Cunard Cases, judgment was entered in favor of the collector
"That, upon the arrival of said steamship Leerdam within the collection district of New York, the master
Page 112 U. S. 582 thereof gave, in pursuance to section nine of the passenger act of 1882, and delivered to the custom
house officer, who first came on board the vessel and made demand therefor, a correct list, signed by
the master, of all the passengers taken on board of said Leerdam at said Rotterdam, specifying
on demurrer to the complaints. The causes were brought here on writs of error.
separately the names of the cabin passengers, their age, sex, calling, and the country of which they are
citizens, and also the name, age, sex, calling, and native country of each emigrant passenger or
Page 112 U. S. 586 passengers other than cabin passengers, and their intended destination or location, and in all other
respects complying with said ninth section, and a duplicate of the aforesaid list of passengers, verified by
MR. JUSTICE MILLER delivered the opinion of the court. the oath of the master, was, with the manifest of the cargo, delivered by the master to the defendant as
collector

These cases all involve the same questions of law, and have been argued before this court together.
Page 112 U. S. 588

The case at the head of the list presents all the facts in the form of an agreed statement signed by
counsel, and it therefore brings the questions before us very fully. The other two were decided by the of customs of the port of New York on the entry of said vessel."
Circuit Court on demurrer to the declaration.
"That it appears from the said list of passengers and duplicate that the said 382 persons were each and
They will be disposed of here in one opinion, which will have reference to the case as made by the every one subjects of Holland or other foreign powers in treaty of peace, amity, and commerce with the
record in Edye & Another v. Robertson. United States."

The suit is brought to recover from Robertson the sum of money received by him, as collector of the port "That the said passenger manifest also states the total number of passengers, and shows that 20 of them
of New York, from plaintiffs on account of their landing in that port passengers from foreign ports, not were under one year of age, and 59 between the ages of one year and eight years."
citizens of the United States, at the rate of fifty cents for each of such passengers, under the act of
Congress of August 3, 1882, entitled " An Act to regulate immigration." "That said collector, before allowing complete entry of said vessel, as collector decided, on the 12th day
of October, 1882, that the plaintiffs must pay a duty of one hundred and ninety-one dollars for said
The petition of plaintiffs and the agreed facts, which are passengers, being fifty cents for each of said 382 passengers."

Page 112 U. S. 587 "That, by the regulations of the Treasury Department, the nonpayment of said 191 dollars would have
permitted the defendant to refuse the complete entry of the vessel, or to refuse to give her a clearance
from the port of New York to her home port, and such imposition would have created an apparent lien
also made the finding of the court to which the case was submitted without a jury, are the same with on said vessel for said sum of 191 dollars."
regard to each of many arrivals of vessels of the plaintiffs, except as to the name of the vessel and the
number and age of the passengers. The statement as to the arrival first named, which is here given, will
be sufficient for them all for the purposes of this opinion. "On the defendants' making such demand, the plaintiffs paid the same and protested against the
payment thereof."

9
"That a copy of the protest in regard to said Leerdam is annexed to the complaint, marked No. 1, and is a Page 112 U. S. 590
correct copy of the protest."
for each and every passenger, not a citizen of the United States, who shall come by steam or sail vessel
"That, on the same day, the plaintiffs duly appealed to the Secretary of the Treasury from such decision from a foreign port to any port within the United States. The said duty shall be paid to the collector of
of the collector, and that the paper marked Appeal No. 2, annexed to the complaint, is a copy of said customs of the port to which such passenger shall come, or if there be no collector at such port, then to
appeal." the collector of customs nearest thereto, by the master, owner, agent, or consignee of every such vessel,
within twenty-four hours after the entry thereof into such port. The money thus collected shall be paid
into the United States Treasury, and shall constitute a fund to be called the immigrant fund, and shall be
"On the 18th of October, 1882, the Secretary of the Treasury sustained the action of the defendant, and
used, under the direction of the Secretary of the Treasury, to defray the expense of regulating
this action is brought within ninety days after the rendering of such decision."
immigration under this act, and for the care of immigrants arriving in the United States, for the relief of
such as are in distress, and for the general purposes and expenses of carrying this act into effect."
"That the payment set forth in the complaint herein was levied and collected by defendant, and the
same was paid under and in pursuance of an act of Congress, entitled 'An Act to regulate Immigration,'
22 Stat. 214.
approved August 3, 1882. "

The act further authorizes the Secretary to use the aid of any State organization or officer for carrying
Page 112 U. S. 589
into effect the beneficent objects of this law by distributing the fund in accordance with the purpose for
which it was raised, not exceeding in any port the sum received from it, under rules and regulations to be
On the facts as thus agreed and as found by the Circuit Court, a judgment was rendered in favor of prescribed by him. It directs that such officers shall go on board vessels arriving from abroad, and if, on
defendant, which we are called upon to review. examination, they shall find any convict, lunatic, idiot, or any person unable to take care of himself or
herself without becoming a public charge, they shall report to the collector, and such person shall not be
There is no complaint by plaintiffs that the defendant violated this act in any respect but one, namely, permitted to land.
that it did not authorize him to demand anything for the twenty children under one year old, and for the
fifty-nine who were between the ages of one year and eight years. It is also enacted that convicts, except for political offences, shall be returned to the nations to which
they belong. And the Secretary is directed to prepare rules for the protection of the immigrant who
The supposed exception of this class of passengers does not arise out of any language found in this act to needs it, and for the return of those who are not permitted to land.
regulate immigration, nor any policy on which it is founded, but it is based by counsel on a provision of
an act approved one day earlier than this, entitled "An Act to regulate the carriage of passengers by sea." This act of Congress is similar in its essential features to many statutes enacted by States of the Union for
This provision limits the number of passengers which the vessel may carry by the number of cubic feet of the protection of their own citizens and for the good of the immigrants who land at seaports within their
space in which they are to be carried, and it declares that, in making this calculation, children of the ages borders.
mentioned need not be counted. In reference to the space they will occupy, this principle is reasonable.
But, as regards the purpose of the immigration act to raise a fund for the sick, the poor, and the helpless
That the purpose of these statutes is humane, is highly beneficial to the poor and helpless immigrant,
immigrants, children are as likely to require its aid as adults, probably more so. They are certainly within
and is essential to
the definition of the word passenger when otherwise within the purview of the act. They are certainly
within the definition of the word "passenger" when otherwise within the purview of the act. This branch
of the case requires no further consideration. Page 112 U. S. 591

The other errors assigned, however numerous or in whatever language presented, all rest on the the protection of the people in whose midst they are deposited by the steamships, is beyond dispute.
proposition that the act of Congress requiring the collector to demand and receive from the master, That the power to pass such laws should exist in some legislative body in this country is equally clear.
owner, or consignee of each vessel arriving from a foreign port fifty cents for every passenger whom he This court has decided distinctly and frequently, and always after a full hearing from able counsel, that it
brings into a port of the United States who is not a citizen, is without warrant in the Constitution, and is does not belong to the States. That decision did not rest in any case on the ground that the State and its
void. people were not deeply interested in the existence and enforcement of such laws, and were not capable
of enforcing them if they had the power to enact them, but on the ground that the Constitution, in the
division of powers which it declares between the States and the general government, has conferred this
The substance of the act is found in its first section, namely:
power on the latter to the exclusion of the former. We are now asked to decide that it does not exist in
Congress, which is to hold that it does not exist at all -- that the framers of the Constitution have so
"An Act to Regulate Immigration" worded that remarkable instrument that the ships of all nations, including our own, can, without
restraint or regulation, deposit here, if they find it to their interest to do so, the entire European
"Be it enacted by the Senate and House of Representatives of the United States of America in Congress population of criminals, paupers, and diseased persons without making any provision to preserve them
assembled, That there shall be levied, collected, and paid a duty of fifty cents from starvation and its concomitant sufferings even for the first few days after they have left the vessel.

10
This court is not only asked to decide this, but it is asked to overrule its decision, several times made with "It has become a part of our commerce with foreign nations, of vast interest to this country as well as to
unanimity, that the power does reside in Congress, is conferred upon that body by the express language the immigrants who come among us, to find a welcome and a home within our borders. . . .
of the Constitution, and the attention of Congress directed to the duty which arises from that language
to pass the very law which is here in question.
Page 112 U. S. 593

That these statutes are regulations of commerce -- of commerce with foreign nations -- is conceded in
Is the regulation of this great system a regulation of commerce? Can it be doubted that a law which
the argument in this case, and that they constitute a regulation of that class which belongs exclusively to
prescribes the terms on which vessels shall engage in it is a law regulating this branch of commerce?"
Congress is held in all the cases in this court. It is upon these propositions that the court has decided in
all these cases that the State laws are void. Let us examine those decisions for a moment.
The court adds:
In the Passenger Cases, so called, the report of which occupies the pages of 7 Howard from page 48 U. S.
283 to 48 U. S. 573, mostly with opinions of the judges, the order of the court is that "We are of opinion that this whole subject has been confided to Congress by the Constitution; that
Congress can more appropriately and with more acceptance exercise it than any other body known to
our law, State or national; that, by providing a system of laws in these matters, applicable to all ports and
"it is the
to all vessels, a serious question, which has long been matter of contest and complaint, may be
effectually and satisfactorily settled."
Page 112 U. S. 592
And, for this reason, the statute of New York was held void.
opinion of this court that the statute law of New York, by which the health commissioner of the city of
New York is declared entitled to demand and receive from the master of every vessel from a foreign port
In the case of the Commissioners of Immigration v. North German Lloyd, 92 U. S. 259, a similar statute of
that should arrive in the port of said city the sum of one dollar for each steerage passenger brought in
Louisiana was held void for the same reason. And in the case of Chy Lung v. Freeman, 92 U. S. 275,
such vessel, is repugnant to the Constitution and laws of the United States, and therefore void."
decided at the same term, the statute of California on the same subject was also held void because, in
the language of the headnote to the report, it "invades the right of Congress to regulate commerce with
An examination of the opinions of the judges shows that, if the majority agreed upon any one reason for foreign nations."
this order, it was because the law was a regulation of commerce, the power over which that Constitution
had placed exclusively in Congress. The same examination will show that several judges denied this
In the case of People v. Compagnie Generale Transatlantique, 107 U. S. 59, where the State of New York,
because they held that this power belonged to the class which the States might exercise until it was
having again modified her statute, it was again held void, the court said:
assumed by Congress. It is very clear that, if any such act of Congress had existed then as the one now
before us, the decision of the court would have been nearer to unanimity.
"It has been so repeatedly decided by this court that such a tax as this is a regulation of commerce with
foreign nations, confided by the Constitution to the exclusive control of Congress"
In the case of Henderson v. The Mayor of New York, 92 U. S. 259, the whole subject is reviewed, and, in
the light of the division in this court in the Passenger Cases, it is considered, on principle, as if for the first
time. In that case, after the statute of New York had been modified in such a manner as was supposed to (referring to the cases just cited), "that there is little to say beyond affirming the judgment of the Circuit
remove the objections held good against it in the Passenger Cases, the question of its constitutional Court, which was based on those decisions "
validity was again brought before this court, when it was held void by the unanimous judgment of all its
members. And this was upon the distinct ground that it was a regulation of commerce solely within the It cannot be said that these cases do not govern the present, though there was not then before us any
power of Congress. act of Congress whose validity was in question, for the decisions rest upon the ground that the State
statutes were void only because Congress, and not the States, was authorized by the Constitution to pass
"As already indicated," says the court, them, and for the reason that Congress could enact such laws, and for that reason alone were the acts of
the State held void. It was, therefore, of the essence of the decision which held the
"the provisions of the Constitution of the United States on which the principal reliance is placed to make
void the statute of New York is that which gives to Congress the right 'to regulate commerce with foreign Page 112 U. S. 594
nations.'"
State statutes invalid, that a similar statute by Congress would be valid.
The court then, referring to the transportation of passengers from European ports to those of the United
States, says: We are not disposed to reconsider those cases, or to resort to other reasons for holding that they were
well decided. Nor do we feel that further argument in support of them is needed.

11
But counsel for plaintiffs, assuming that Congress, in the enactment of this law, is exercising the taxing "An Act to regulate immigration," is well chosen. It describes, as well as any short sentence can describe
power conferred by the first clause of section of article I of the Constitution, and can derive no aid in it, the real purpose and effect of the statute. Its provisions, from beginning to end, relate to the subject
support of its action from any other grant of power in that instrument, argues that all the restraints and of immigration, and they are aptly designed to mitigate the evils inherent in the business of bringing
qualifications found there in regard to any form of taxation are limitations upon the exercise of the foreigners to this country, as those evils affect both the immigrant and the people among whom he is
power in this case. The clause is in the following language: suddenly brought and left to his own resources.

"The Congress shall have power to lay and collect taxes, duties, imposts, and excises, to pay the debts It is true, not much is said about protecting the ship owner. But he is the man who reaps the profit from
and provide for the common defence and the general welfare of the United States; but all duties, the transaction, who has the means to protect himself, and knows well how to do it, and whose
imposts, and excises shall be uniform throughout the United States." obligations in the premises need the aid of the statute for their enforcement. The sum demanded of him
is not, therefore, strictly speaking, a tax or duty within the
In this view, it is objected that the tax is not levied to provide for the common defence and general
welfare of the United States, and that it is not uniform throughout the United States. Page 112 U. S. 596

The uniformity here prescribed has reference to the various localities in which the tax is intended to meaning of the Constitution. The money thus raised, though paid into the Treasury, is appropriated in
operate. "It shall be uniform throughout the United States." Is the tax on tobacco void because, in many advance to the uses of the statute, and does not go to the general support of the government. It
of the States, no tobacco is raised or manufactured? Is the tax on distilled spirits void because a few constitutes a fund raised from those who are engaged in the transportation of these passengers, and
States pay three-fourths of the revenue arising from it? who make profit out of it, for the temporary care of the passengers whom they bring among us and for
the protection of the citizens among whom they are landed.
The tax is uniform when it operates with the same force and effect in every place where the subject of it
is found. The tax in this case, which, as far as it can be called a tax, is an excise duty on the business of If this is an expedient regulation of commerce by Congress, and the end to be attained is one falling
bringing passengers from foreign countries into this, by ocean navigation, is uniform and operates within that power, the act is not void, because, within a loose and more extended sense than was used
precisely alike in every port of the United States where such passengers can be landed. It is said that the in the Constitution, it is called a tax. In the case of Veazie Bank v. Fenno, 8 Wall. 533, 75 U. S. 549, the
statute violates the rule of uniformity and the provision of the Constitution that enormous tax of eight percent per annum on the circulation of State banks, which was designed and did
have the effect to drive all such circulation out of existence, was upheld because it was a means properly
adopted by Congress to protect the currency which it had created, namely, the legal tender notes and
"no preference shall be given by any regulation of commerce or revenue to the ports of one State over
the notes of the national banks. It was not subject, therefore, to the rules which would invalidate an
those of
ordinary, tax pure and simple.

Page 112 U. S. 595


So also, in the case of the Packet Co. v. Keokuk, 95 U. S. 80, the city of Keokuk, having by ordinance
imposed a wharfage fee or tax for the use of a wharf owned by the city, the amount of which was
another" regulated by the tonnage of the vessel, this was held not to be a tonnage tax within the meaning of the
constitutional provision that "no State shall, without the consent of Congress, lay any duty of tonnage."
because it does not apply to passengers arriving in this country by railroad or other inland mode of The reason of this is that, though it was a burden, or tax, in some sense, and measured by the tonnage of
conveyance. But the law applies to all ports alike, and evidently gives no preference to one over another, the vessel, it was but a charge for services rendered, or for conveniences furnished by the city, and was
but is uniform in its operation in all ports of the United States. It may be added that the evil to be not a tonnage tax within the meaning of the Constitution. This principle was reaffirmed in the case
remedied by this legislation has no existence on our inland borders, and immigration in that quarter of Packet Co. v. St. Louis, 100 U. S. 423.
needed no such regulation. Perfect uniformity and perfect equality of taxation, in all the aspects in which
the human mind can view it, is a baseless dream, as this court has said more than once. State Railroad We are clearly of opinion that, in the exercise of its power to regulate immigration, and in the very act of
Tax Cases, 92 U. S. 575, 92 U. S. 612. Here, there is substantial uniformity within the meaning and exercising that power, it was competent for Congress to impose this contribution on the ship owner
purpose of the Constitution. engaged in that business.

If it were necessary to prove that the imposition of this contribution on owners of ships is made for the Page 112 U. S. 597
general welfare of the United States, it would not be difficult to show that it is so, and particularly that it
is among the means which Congress may deem necessary and proper for that purpose, and beyond this
Another objection to the validity of this act of Congress is that it violates provisions contained in
we are not permitted to inquire.
numerous treaties of our government with friendly nations, and several of the articles of these treaties
are annexed to the careful brief of counsel. We are not satisfied that this act of Congress violates any of
But the true answer to all these objections is that the power exercised in this instance is not the taxing these treaties on any just construction of them. Though laws similar to this have long been enforced by
power. The burden imposed on the ship owner by this statute is the mere incident of the regulation of the State of New York, in the great metropolis of foreign trade where four-fifths of these passengers
commerce -- of that branch of foreign commerce which is involved in immigration. The title of the act,
12
have been landed, no complaint has been made by any foreign nation to ours of the violation of treaty A treaty, then, is a law of the land, as an act of Congress is whenever its provisions prescribe a rule by
obligations by the enforcement of those laws. which the rights of the private

But we do not place the defence of the act of Congress against this objection upon that suggestion. Page 112 U. S. 599

We are of opinion that, so far as the provisions in that act may be found to be in conflict with any treaty citizen or subject may be determined. And when such rights are of a nature to be enforced in a court of
with a foreign nation, they must prevail in all the judicial courts of this country. We had supposed that justice, that court resorts to the treaty for a rule of decision for the case before it as it would to a statute.
the question here raised was set at rest in this court by the decision in the case of The Cherokee
Tobacco, 11 Wall. 616. It is true, as suggested by counsel, that three judges of the court did not sit in the
But, even in this aspect of the case, there is nothing in this law which makes it irrepealable or
case, and two others dissented. But six judges took part in the decision, and the two who dissented
unchangeable. The Constitution gives it no superiority over an act of Congress in this respect, which may
placed that dissent upon the ground that Congress did not intend that the tax on tobacco should extend
be repealed or modified by an act of a later date. Nor is there anything in its essential character, or in the
to the Cherokee tribe. They referred to the existence of the treaty which would be violated if the statute
branches of the government by which the treaty is made, which gives it this superior sanctity.
was so construed as persuasive against such a construction, but they nowhere intimated that, if the
statute was correctly construed by the court, it was void because it conflicted with the treaty, which they
would have done if they had held that view. On the point now in controversy, it was therefore the A treaty is made by the President and the Senate. Statutes are made by the President, the Senate, and
opinion of all the judges who heard the case. See United States v. McBratney, 104 U. S. 621-623. the House of Representatives. The addition of the latter body to the other two in making a law certainly
does not render it less entitled to respect in the matter of its repeal or modification than a treaty made
by the other two. If there be any difference in this regard, it would seem to be in favor of an act in which
The precise question involved here, namely, a supposed conflict between an act of Congress imposing a
all three of the bodies participate. And such is, in fact, the case in a declaration of war, which must be
customs duty and a treaty with Russia on that subject, in force when the act was passed, came before
made by Congress and which, when made, usually suspends or destroys existing treaties between the
the Circuit Court for the District of Massachusetts in 1855. It received the consideration of that eminent
nations thus at war.
jurist Mr. Justice Curtis of this court, who, in a very learned

In short, we are of opinion that, so far as a treaty made by the United States with any foreign nation can
Page 112 U. S. 598
become the subject of judicial cognizance in the courts of this country, it is subject to such acts as
Congress may pass for its enforcement, modification, or repeal.
opinion, exhausted the sources of argument on the subject, holding that, if there were such conflict, the
act of Congress must prevail in a judicial forum. Taylor v. Morton, 2 Curtis 454. And Mr. Justice Field, in a
Other objections are made to this statute. Some of these relate not to the power of Congress to pass the
very recent case in the Ninth Circuit, that of Ah Lung, 18 Fed.Rep. 28, on a writ of habeas corpus, has
act, but to the expediency or justice of the measure, of which Congress, and not the courts, are the sole
delivered an opinion sustaining the same doctrine in reference to a statute regulating the immigration of
judges -- such as its unequal operation on persons not paupers or criminals and its effect in compelling
Chinamen into this country. In the Clinton Bridge Case, Woolworth 150, 156, the writer of this opinion
the ultimate payment of the sum demanded for each passenger by that passenger himself. Also that the
expressed the same views as did Judge Woodruff, on full consideration, in Ropes v. Clinch, 8 Blatchford
money is to be drawn from the Treasury without an appropriation by Congress. The act itself makes the
304, and Judge Wallace, in the same circuit, in Bartram v. Robertson, 15 Fed.Rep. 212.
appropriation, and, even if this be not warranted by the Constitution, it does not make void the demand
for contribution, which may yet be appropriated
It is very difficult to understand how any different doctrine can be sustained.
Page 112 U. S. 600
A treaty is primarily a compact between independent nations. It depends for the enforcement of its
provisions on the interest and the honor of the governments which are parties to it. If these fail, its
by Congress, if that be necessary, by another statute.
infraction becomes the subject of international negotiations and reclamations, so far as the injured party
chooses to seek redress, which may, in the end, be enforced by actual war. It is obvious that, with all
this, the judicial courts have nothing to do, and can give no redress. But a treaty may also contain It is enough to say that, Congress having the power to pass a law regulating immigration as a part of
provisions which confer certain rights upon the citizens or subjects of one of the nations residing in the commerce of this country with foreign nations, we see nothing in the statute by which it has here
territorial limits of the other, which partake of the nature of municipal law and which are capable of exercised that power forbidden by any other part of the Constitution.
enforcement as between private parties in the courts of the country. An illustration of this character is
found in treaties which regulate the mutual rights of citizens and subjects of the contracting nations in The judgment of the Circuit Court in all the cases is Affirmed.
regard to rights of property by descent or inheritance when the individuals concerned are aliens. The
Constitution of the United States places such provisions as these in the same category as other laws of
Congress by its declaration that EDYE VS ROBERTSON (or the HEAD MONEY CASES)

Facts:
"this Constitution and the laws made in pursuance thereof, and all treaties made or which shall be made
under authority of the United States, shall be the supreme law of the land."
13
The suit is brought to recover from Robertson, collector of the port of New York, sum of money The court opined that so far as a treaty made by the United States with any foreign nation can
he received from the plaintiffs, on account of their landing in that port, passengers not citizens of the become the subject of judicial cognizance in the courts of this country, it is subject to such acts as Congress
United States. The collection was based on the act of Congress entitled “An act to regulate immigration” may pass for its enforcement, modification, or repeal.”
on August 3, 1882. The act provides that there shall be levied, collected, and paid a duty of 50 cents for
each and every passenger, not a citizen of the United States, who shall come by steam or sail vessel from The judgment of the circuit court is affirmed.
a foreign port to any port within the United States. The said duty shall be paid to the collector of customs
of the port where the passenger shall come.

The plaintiffs are partners in trade in the city of New York under the firm name Funch, Edye &
Co. involved in the business of transporting passengers and freight upon the high seas between Holland G.R. No. L-2662 March 26, 1949
and the United States of America as consignees and agents. On October 2, 1882, it sailed to the port of
New York and carried 382 persons not citizens of United States and among said persons, there were 20 SHIGENORI KURODA, petitioner,
severally under age of one year and 59 were severally between the ages of one year and eight years. On vs.
this account, Robertson, the collector of the said port, decided that the plaintiffs must pay a duty of 191 Major General RAFAEL JALANDONI, Brigadier General CALIXTO DUQUE, Colonel MARGARITO
dollars for the said passengers costing 50 cents for each of the 382 passengers before they be permitted TORALBA, Colonel IRENEO BUENCONSEJO, Colonel PEDRO TABUENA, Major FEDERICO ARANAS,
to land. The plaintiffs paid and protested against the payment. MELVILLE S. HUSSEY and ROBERT PORT, respondents.

The circuit court rendered judgment in favor of the defendant and which is called upon review.
Pedro Serran, Jose G. Lukban, and Liberato B. Cinco for petitioner.
Issue: Whether the act of Congress violates treaties by the Unites States with friendly nations? Fred Ruiz Castro Federico Arenas Mariano Yengco, Jr., Ricardo A. Arcilla and S. Melville Hussey for
respondents.
The opinion of the court is that as far as the provisions of the act may be found to be in conflict
with any treaty with foreign nation, the act must prevail in all judicial courts of this country. MORAN, C.J.:

Held:
Shigenori Kuroda, formerly a Lieutenant-General of the Japanese Imperial Army and Commanding General
“A treaty is primarily a compact between independent nations. It depends for the enforcement of the Japanese Imperial Forces in The Philippines during a period covering 19433 and 19444 who is now
of its provisions on the interest and the honor of the governments which are parties to it. If these fail, its charged before a military Commission convened by the Chief of Staff of the Armed forces of the Philippines
infraction becomes the subject of international negotiations and reclamations, so far as the injured party with having unlawfully disregarded and failed "to discharge his duties as such command, permitting them
chooses to seek redress, which may in the end be enforced by actual war. It is obvious that with all this to commit brutal atrocities and other high crimes against noncombatant civilians and prisoners of the
the judicial courts have nothing to do and can give no redress. Imperial Japanese Forces in violation of the laws and customs of war" — comes before this Court seeking
to establish the illegality of Executive Order No. 68 of the President of the Philippines: to enjoin and
But a treaty may also contain provision which confer certain rights upon the citizens or subjects prohibit respondents Melville S. Hussey and Robert Port from participating in the prosecution of
of one nations residing in the territorial limits of the other, which partake of the nature of municipal law, petitioner's case before the Military Commission and to permanently prohibit respondents from
and which are capable of enforcement as between private parties in the courts of the country. proceeding with the case of petitioners.

...The constitution of the United States places provisions in the treaties in the same category as In support of his case petitioner tenders the following principal arguments.
other laws of Congress by its declaration that “this constitution and the laws made in pursuance thereof,
and all treaties made or which shall be made under authority of the United States, shall be the supreme
First. — "That Executive Order No. 68 is illegal on the ground that it violates not only the provision of our
law of the land”.
constitutional law but also our local laws to say nothing of the fact (that) the Philippines is not a signatory
nor an adherent to the Hague Convention on Rules and Regulations covering Land Warfare and therefore
A treaty, then, is a law of the land as an act of Congress is, whenever its provisions prescribe a
petitioners is charged of 'crimes' not based on law, national and international." Hence petitioner argues
rule by which the rights of the private citizen or subject may be determined. And when such rights are of
— "That in view off the fact that this commission has been empanelled by virtue of an unconstitutional
a nature to be enforced in a court of justice, that court resorts to the treaty for a rule decision for the case
law an illegal order this commission is without jurisdiction to try herein petitioner."
before it as it would to a statute.

But even in this aspect of the case there is nothing in this law which makes it irrepealable or Second. — That the participation in the prosecution of the case against petitioner before the Commission
unchangeable. The constitution gives it no superiority over and act of Congress in this respect, which may in behalf of the United State of America of attorneys Melville Hussey and Robert Port who are not
be repealed or modified by an act of a later date. Nor is there anything in its essential character, or in attorneys authorized by the Supreme Court to practice law in the Philippines is a diminution of our
branches of the government by which the treaty is made, which gives it this superior sanctity. personality as an independent state and their appointment as prosecutor are a violation of our
Constitution for the reason that they are not qualified to practice law in the Philippines.

14
Third. — That Attorneys Hussey and Port have no personality as prosecution the United State not being a Furthermore when the crimes charged against petitioner were allegedly committed the Philippines was
party in interest in the case. under the sovereignty of United States and thus we were equally bound together with the United States
and with Japan to the right and obligation contained in the treaties between the belligerent countries.
These rights and obligation were not erased by our assumption of full sovereignty. If at all our emergency
Executive Order No. 68, establishing a National War Crimes Office prescribing rule and regulation
as a free state entitles us to enforce the right on our own of trying and punishing those who committed
governing the trial of accused war criminals, was issued by the President of the Philippines on the 29th
crimes against crimes against our people. In this connection it is well to remember what we have said in
days of July, 1947 This Court holds that this order is valid and constitutional. Article 2 of our Constitution
the case of Laurel vs. Misa (76 Phil., 372):
provides in its section 3, that —

. . . The change of our form government from Commonwealth to Republic does not affect the prosecution
The Philippines renounces war as an instrument of national policy and adopts the generally accepted
of those charged with the crime of treason committed during then Commonwealth because it is an offense
principles of international law as part of the of the nation.
against the same sovereign people. . . .

In accordance with the generally accepted principle of international law of the present day including the
By the same token war crimes committed against our people and our government while we were a
Hague Convention the Geneva Convention and significant precedents of international jurisprudence
Commonwealth are triable and punishable by our present Republic.
established by the United Nation all those person military or civilian who have been guilty of planning
preparing or waging a war of aggression and of the commission of crimes and offenses consequential and
incidental thereto in violation of the laws and customs of war, of humanity and civilization are held Petitioner challenges the participation of two American attorneys namely Melville S. Hussey and Robert
accountable therefor. Consequently in the promulgation and enforcement of Execution Order No. 68 the Port in the prosecution of his case on the ground that said attorney's are not qualified to practice law in
President of the Philippines has acted in conformity with the generally accepted and policies of Philippines in accordance with our Rules of court and the appointment of said attorneys as prosecutors is
international law which are part of the our Constitution. violative of our national sovereignty.

The promulgation of said executive order is an exercise by the President of his power as Commander in In the first place respondent Military Commission is a special military tribunal governed by a special law
chief of all our armed forces as upheld by this Court in the case of Yamashita vs. Styer (L-129, 42 Off. Gaz., and not by the Rules of court which govern ordinary civil court. It has already been shown that Executive
664) 1 when we said — Order No. 68 which provides for the organization of such military commission is a valid and constitutional
law. There is nothing in said executive order which requires that counsel appearing before said commission
must be attorneys qualified to practice law in the Philippines in accordance with the Rules of Court. In facts
War is not ended simply because hostilities have ceased. After cessation of armed hostilities incident of
it is common in military tribunals that counsel for the parties are usually military personnel who are neither
war may remain pending which should be disposed of as in time of war. An importance incident to a
attorneys nor even possessed of legal training.
conduct of war is the adoption of measure by the military command not only to repel and defeat the
enemies but to seize and subject to disciplinary measure those enemies who in their attempt to thwart or
impede our military effort have violated the law of war. (Ex parte Quirin 317 U.S., 1; 63 Sup. Ct., 2.) Indeed Secondly the appointment of the two American attorneys is not violative of our nation sovereignty. It is
the power to create a military commission for the trial and punishment of war criminals is an aspect of only fair and proper that United States, which has submitted the vindication of crimes against her
waging war. And in the language of a writer a military commission has jurisdiction so long as a technical government and her people to a tribunal of our nation should be allowed representation in the trial of
state of war continues. This includes the period of an armistice or military occupation up to the effective those very crimes. If there has been any relinquishment of sovereignty it has not been by our government
of a treaty of peace and may extend beyond by treaty agreement. (Cowles Trial of War Criminals by but by the United State Government which has yielded to us the trial and punishment of her enemies. The
Military Tribunals, America Bar Association Journal June, 1944.) least that we could do in the spirit of comity is to allow them representation in said trials.

Consequently, the President as Commander in Chief is fully empowered to consummate this unfinished Alleging that the United State is not a party in interest in the case petitioner challenges the personality of
aspect of war namely the trial and punishment of war criminal through the issuance and enforcement of attorneys Hussey and Port as prosecutors. It is of common knowledge that the United State and its people
Executive Order No. 68. have been equally if not more greatly aggrieved by the crimes with which petitioner stands charged before
the Military Commission. It can be considered a privilege for our Republic that a leader nation should
submit the vindication of the honor of its citizens and its government to a military tribunal of our country.
Petitioner argues that respondent Military Commission has no Jurisdiction to try petitioner for acts
committed in violation of the Hague Convention and the Geneva Convention because the Philippines is
not a signatory to the first and signed the second only in 1947. It cannot be denied that the rules and The Military Commission having been convened by virtue of a valid law with jurisdiction over the crimes
regulation of the Hague and Geneva conventions form, part of and are wholly based on the generally charged which fall under the provisions of Executive Order No. 68, and having said petitioner in its custody,
accepted principals of international law. In facts these rules and principles were accepted by the two this Court will not interfere with the due process of such Military commission.
belligerent nation the United State and Japan who were signatories to the two Convention, Such rule and
principles therefore form part of the law of our nation even if the Philippines was not a signatory to the
For all the foregoing the petition is denied with costs de oficio.
conventions embodying them for our Constitution has been deliberately general and extensive in its scope
and is not confined to the recognition of rule and principle of international law as continued inn treaties
to which our government may have been or shall be a signatory. Paras, Feria, Pablo, Bengzon, Tuason, Montemayor and Reyes, JJ., concur.

15
The National War Crimes Office shall maintain direct liaison with the Legal Section General Headquarters,
Supreme Commander for the Allied power and shall exchange with the said Office information and
evidence of war crimes.
Separate Opinions

The following rules and regulation shall govern the trial off person accused as war criminals:
PERFECTO, J., dissenting:

ESTABLISHMENT OF MILITARY COMMISSIONS


A military commission was empanelled on December 1, 1948 to try Lt. Gen. Shigenori Kuroda for Violation
of the laws and customs of land warfare.
(a) General. — person accused as war criminal shall be tried by military commission to be convened by or
under the authority of the Philippines.
Melville S. Hussey and Robert Port, American citizens and not authorized by the Supreme Court to practice
law were appointed prosecutor representing the American CIC in the trial of the case.
II. JURISDICTION
The commission was empanelled under the authority of Executive Order No. 68 of the President of the
Philippines the validity of which is challenged by petitioner on constitutional grounds. Petitioner has also (a) Over Person. — Thee military commission appointed hereunder shall have jurisdiction over all persons
challenged the personality of Attorneys Hussey and Port to appear as prosecutors before the commission. charged with war crimes who are in the custody of the convening authority at the time of the trial.

The charges against petitioner has been filed since June 26, 1948 in the name of the people of the (b) Over Offenses. — The military commission established hereunder shall have jurisdiction over all
Philippines as accusers. offenses including but not limited to the following:

We will consideration briefly the challenge against the appearance of Attorneys Hussey and Port. It (1) The planning preparation initiation or waging of a war of aggression or a war in violation of international
appearing that they are aliens and have not been authorized by the Supreme Court to practice law there treaties agreement or assurance or participation in a common plan or conspiracy for the accomplishment
could not be any question that said person cannot appear as prosecutors in petitioner case as with such of any of the foregoing.
appearance they would be practicing law against the law.
(2) Violation of the laws or customs of war. Such violation shall include but not be limited to murder ill-
Said violation vanishes however into insignificance at the side of the momentous question involved in the treatment or deportation to slave labor or for other purpose of civilian population of or in occupied
challenge against the validity of Executive Order No. 68. Said order is challenged on several constitutional territory; murder or ill-treatment of prisoners of war or internees or person on the seas or elsewhere;
ground. To get a clear idea of the question raised it is necessary to read the whole context of said order improper treatment of hostage; plunder of public or private property wanton destruction of cities towns
which is reproduced as follows: or village; or devastation not justified by military necessity.

EXECUTIVE ORDER NO. 68. (3) Murder extermination enslavement deportation and other inhuman acts committed against civilian
population before or during the war or persecution on political racial or religion ground in executive of or
in connection with any crime defined herein whether or not in violation of the local laws.
ESTABLISHING A NATIONAL WAR CRIMES OFFICE AND PRESCRIBING RULES AND REGULATION GOVERNING
THE TRIAL OF ACCUSED WAR CRIMINAL.
III. MEMBERSHIP OF COMMISSIONS
I, Manuel Roxas president of the Philippines by virtue of the power vested in me by the Constitution and
laws of the Philippines do hereby establish a National War Crimes Office charged with the responsibility (a) Appointment. — The members of each military commission shall be appointed by the President of the
of accomplishing the speedy trial of all Japanese accused of war crimes committed in the Philippines and Philippines or under authority delegated by him. Alternates may be appointed by the convening authority.
prescribe the rules and regulation such trial. Such shall attend all session of the commission, and in case of illness or other incapacity of any principal
member, an alternate shall take the place of that member. Any vacancy among the members or alternates,
occurring after a trial has begun, may be filled by the convening authority but the substance of all
The National War crimes office is established within the office of the Judge Advocate General of the Army
proceeding had evidence taken in that case shall be made known to the said new member or alternate.
of the Philippines and shall function under the direction supervision and control of the Judge Advocate
This facts shall be announced by the president of the commission in open court.
General. It shall proceed to collect from all available sources evidence of war crimes committed in the
Philippines from the commencement of hostilities by Japan in December 1941, maintain a record thereof
and bring about the prompt trial maintain a record thereof and bring about the prompt trial of the accused. (b) Number of Members. — Each commission shall consist of not less than three (3) members.

16
(c) Qualifications. — The convening authority shall appoint to the commission persons whom he (2) To be represented, prior to and during trial, by counsel appointed by the convening authority or counsel
determines to be competent to perform the duties involved and not disqualified by personal interest or of his own choice, or to conduct his own defense.
prejudice, provided that no person shall be appointed to hear a case in which he personally investigated
or wherein his presence as a witness is required. One specially qualified member whose ruling is final in so
(3) To testify in his own behalf and have his counsel present relevant evidence at the trial in support of his
far as concerns the commission on an objection to the admissibility of evidence offered during the trial.
defense, and cross-examine each adverse witness who personally appears before the commission.

(d) Voting. — Except as to the admissibility of evidence all rulings and finding of the Commission shall be
(4) To have the substance of the charges and specifications, the proceedings and any documentary
by majority vote except that conviction and sentence shall be by the affirmative vote of not less than
evidence translated, when he is unable otherwise to understand them.
conviction and sentence shall be by the affirmative vote of not less than two-thirds (2\3) of the member
present.
(c) Witnesses. — The Commission shall have power:
(e) Presiding Member. — In the event that the convening authority does not name one of the member as
the presiding member, the senior officer among the member of the Commission present shall preside. (1) To summon witnesses and require their attendance and testimony; to administer oaths or affirmations
to witnesses and other persons and to question witnesses.
IV. PROSECUTORS
(2) To require the production of documents and other evidentiary material.
(a) Appointment. — The convening authority shall designate one or more person to conduct the
prosecution before each commission. (3) To delegate the Prosecutors appointed by the convening authority the powers and duties set forth in
(1) and (2) above.
(b) Duties. — The duties of the prosecutor are:
(4) To have evidence taken by a special commissioner appointed by the commission.
(1) To prepare and present charges and specifications for reference to a commission.
(d) Evidence.
(2) To prepare cases for trial and to conduct the prosecution before the commission of all cases referred
for trial. (1) The commission shall admit such evidence as in its opinion shall be of assistance in proving or disproving
the charge, or such as in the commission's opinion would have probative value in the mind of a reasonable
man. The commission shall apply the rules of evidence and pleading set forth herein with the greatest
V. POWER AND PROCEDURE OF COMMISSION
liberality to achieve expeditious procedure. In particular, and without limiting in any way the scope of the
foregoing general rules, the following evidence may be admitted:
(a) Conduct of the Trial. — A Commission shall:
(a) Any document, irrespective of its classification, which appears to the commission to have been signed
(1) Confine each trial strictly to fair and expeditious hearing on the issues raised by the charges, excluding or issued by any officer, department, agency or member of the armed forces of any Government without
irrelevant issues or evidence and preventing any unnecessary delay or interference. proof of the signature or of the issuance of the document.

(2) Deal summarily with any contumacy or contempt, imposing any appropriate punishment therefor. (b) Any report which appears to the commission to have been signed or issued by the International Red
Cross or a member of any medical service personnel, or by any investigator or intelligence officer, or by
any other person whom commission considers as possessing knowledge of the matters contained in the
(3) Hold public session when otherwise decided by the commission.
report.

(4) Hold each session at such time and place as it shall determine, or as may be directed by the convening
(c) Affidavits, depositions or other signed statements.
authority.

(d) Any diary, letter to other document, including sworn statements, appearing to the commission to
(b) Rights of the Accused. — The accused shall be entitled:
contain information relating to the charge.

(1) To have in advance of the trial a copy of the charges and specifications clearly worded so as to apprise
(e) A copy of any document or other secondary evidence of the contents, if the original is not immediately
the accused of each offense charged.
available.

17
(2) The commission shall take judicial notice of facts of common knowledge, official government ( f ) Record of Proceedings. — Each commission shall make a separate record of its proceeding in the trial
documents of any nation, and the proceedings, records and findings of military or other agencies of any of each case brought before it. The record shall be prepared by the prosecutor under the direction of the
of the United Nation. commission and submitted to the defense counsel. The commission shall be responsible for its accuracy.
Such record, certified by the presiding member of the commission or his successor, shall be delivered to
the convening authority as soon as possible after the trial.
(3) A commission may require the prosecution and the defense to make a preliminary offer of proof
whereupon the commission may rule in advance on the admissibility of such evidence.
(g) Sentence. — The commission may sentence an accused, upon conviction to death by hanging or
shooting, imprisonment for life or for any less term, fine or such other punishment as the commission shall
(4) The official position of the accused shall not absolve him from responsibility nor be considered in
determine to be proper.
mitigation of punishment. Further action pursuant to an order of the accused's superior, or of his
Government, shall not constitute a defense, but may be considered in mitigation of punishment if the
commission determines that justice so requires. (h) Approval of Sentence. — No. sentence of a military commission shall be carried into effect until
approved by the chief off Staff: Provided, That no sentence of death or life imprisonment shall be carried
into execution until confirmed by the President of the Philippines. For the purpose of his review the Chief
(5) All purposed confessions or statements of the accused shall bee admissible in evidence without any
of Staff shall create a Board of Review to be composed of not more than three officers none of whom shall
showing that they were voluntarily made. If it is shown that such confession or statement was procured
be on duty with or assigned to the Judge Advocate General's Office. The Chief of Staff shall have authority
by mean which the commission believe to have been of such a character that may have caused the accused
to approve, mitigate remit in whole or in part, commute, suspend, reduce or otherwise alter the sentence
to make a false statement the commission may strike out or disregard any such portion thereof as was so
imposed, or (without prejudice to the accused) remand the case for rehearing before a new military
procured.
commission; but he shall not have authority to increase the severity of the sentence. Except as herein
otherwise provided the judgment and sentence of a commission shall final and not subject to review by
(e) Trial Procedure. — The proceedings of each trial shall be conducted substantially as follows unless any other tribunal.
modified by the commission to suit the particular circumstances:
VI. RULE-MAKING POWER
(1) Each charge and specification shall be read or its substance stated in open court.
Supplementary Rule and Forms. — Each commission shall adopt rules and forms to govern its procedure,
(2) The presiding member shall ask each accused whether he pleads "Guilty" or "Not guilty." not inconsistent with the provision of this Order, or such rules and forms as may be prescribed by the
convening authority]or by the President of the Philippines.
(3) The prosecution shall make its opening statement."(4) The presiding member may at this or any other
time require the prosecutor to state what evidence he proposes to submit to the commission and the VII. The amount of amount of seven hundred thousand pesos is hereby set aside out of the appropriations
commission thereupon may rule upon the admissibility of such evidence. for the Army of the Philippines for use by the National War Crimes Office in the accomplishment of its
mission as hereinabove set forth, and shall be expended in accordance with the recommendation of the
(4) The witnesses and other evidence for the prosecution shall be heard or presented. At the close of the Judge Advocate General as approved by the President. The buildings, fixtures, installations, messing, and
case for the prosecution, the commission may, on motion of the defense for a finding of not guilty, consider billeting equipment and other property herefore used by then Legal Section, Manila Branch, of the General
and rule whether he evidence before the commission may defer action on any such motion and permit or Headquarters, Supreme Commander for the Allied Power, which will be turned over by the United States
require the prosecution to reopen its case and produce any further available evidence. Army to the Philippines Government through the Foreign Liquidation Commission and the Surplus
Property Commission are hereby specification reserved for use off the National War Crimes Office.

(5) The defense may make an opening statement prior to presenting its case. The presiding member may,
at this any other time require the defense to state what evidence it proposes to submit to the commission Executive Order No. 64, dated August 16, 1945, is hereby repealed.
where upon the commission may rule upon the admissibility of such evidence.
Done in the City of Manila, this 29th day of July in the year of Our Lord, nineteen hundred and forty-seven,
(6) The witnesses and other evidence for the defense shall be heard or presented. Thereafter, the and of the Independence of the Philippines, the second.
prosecution and defense may introduce such evidence in rebuttal as the commission may rule as being
admissible.
MANUEL ROXAS
President of the Philippines
(7) The defense and thereafter the prosecution shall address the commission.

(8) The commission thereafter shall consider the case in closed session and unless otherwise directed by By the President:
the convening authority, announce in open court its judgment and sentence if any. The commission may
state the reason on which judgment is based.
18
EMILIO ABELLO It authorized military commission to adopt additional rule of procedure. If the President of the Philippines
Chief of the Executive Office cannot exercise the rule -making power vested by the Constitution in the Supreme Court, he cannot, with
more reason, delegate that power to military commission.
EXECUTIVE LEGISLATION
It appropriates the sum of P7000,000 for the expenses of the National War Crimes office established by
the said Executive Order No. 68. This constitutes another usurpation of legislative power as the power to
Executive Order No. 68 is a veritable piece of Legislative measure, without the benefit of congressional
vote appropriations belongs to Congress.
enactment.

Executive Order No. 68., is, therefore, null and void, because, though it the President of the Philippines
The first question that is trust at our face spearheading a group of other no less important question, is
usurped power expressly vested by the Constitution in Congress and in the Supreme Court.
whether or not the President of the Philippines may exercise the legislative power expressly vested in
Congress by the Constitution. .
Challenged to show the constitutional or legal authority under which the President issued Executive Order
No. 68, respondent could not give any definite answer. They attempted, however, to suggest that the
The Constitution provides:
President of the Philippines issued Executive Order No. 68 under the emergency power granted to him by
Commonwealth Act No. 600, as amended by Commonwealth Act No. 620, and Commonwealth Act No.
The Legislative powers shall be vested in a Congress of the Philippines which shall consist of a Senate and 671, both of which are transcribed below:
House of Representatives. (Section 1, Article VI.)

While there is no express provision in the fundamental law prohibiting the exercise of legislative power by
agencies other than Congress, a reading of the whole context of the Constitution would dispel any doubt
COMMONWEALTH ACT NO. 600.
as to the constitutional intent that the legislative power is to be exercised exclusively by Congress, subject
only to the veto power of the President of the President of the Philippines, to the specific provision which
allow the president of the Philippines to suspend the privileges of the writ of habeas corpus and to place AN ACT DECLARING A STATE OF EMERGENCY AND AUTHORIZING THE PRESIDENT TO PROMULGATE RULES
any part of the Philippines under martial law, and to the rule-making power expressly vested by the AND REGULATION TO SAFEGUARD THE INTEGRITY OF THE PHILIPPINES AND TO INSURE THE TRANQUILITY
Constitution in the Supreme Court. OF ITS INHABITANTS.

There cannot be any question that the member of the Constitutional Convention were believers in the Be it enacted by the National Assembly of the Philippines:
tripartite system of government as originally enunciated by Aristotle, further elaborated by Montequieu
and accepted and practiced by modern democracies, especially the United State of America, whose
SECTION 1. The existence of war in many parts of the world has created a national emergency which makes
Constitution, after which ours has been patterned, has allocated the three power of government —
it necessary to invest the President of the Philippines with extraordinary power in order to safeguard the
legislative, executive, judicial — to distinct and separate department of government.
integrity of the Philippines and to insure the tranquility of its inhabitants, by suppressing espionage,
lawlessness, and all subversive to the people adequate shelter and clothing and sufficient food supply, and
Because the power vested by our Constitution to the several department of the government are in the by providing means for the speedy evacuation of the civilian population the establishment of an air
nature of grants, not recognition of pre-existing power, no department of government may exercise any protective service and the organization of volunteer guard units, and to adopt such other measures as he
power or authority not expressly granted by the Constitution or by law by virtue express authority of the may deem necessary for the interest of the public. To carry out this policy the President is authorized to
Constitution. promulgate rules and regulations which shall have the force and effect off law until the date of
adjournment of the next regulation which shall have the force and effect of law until the date of
adjournment of the next regular session of the First Congress of the Philippines, unless sooner amended
Executive Order No. 68 establishes a National War Crimes Office and the power to establish government
or repealed by the Congress of Philippines. Such rules and regulation may embrace the following objects:
office is essentially legislative.
(1) to suppress espionage and other subversive activities; (2) to require all able-bodied citizens (a) when
not engaged in any lawful occupation, to engage in farming or other productive activities or (b) to perform
The order provides that person accused as war criminals shall be tried by military commissions. Whether such services as may bee necessary in the public interest; (3) to take over farm lands in order to prevent
such a provision is substantive or adjective, it is clearly legislative in nature. It confers upon military or shortage of crops and hunger and destitution; (4) to take over industrial establishment in order to insure
commissions jurisdiction to try all persons charge with war crimes. The power to define and allocate adequate production, controlling wages and profits therein; (5) to prohibit lockouts and strikes whenever
jurisdiction for the prosecution of person accused of any crime is exclusively vested by the Constitution in necessary to prevent the unwarranted suspension of work in productive enterprises or in the interest of
Congress. . national security; (6) to regulate the normal hours of work for wage-earning and salaried employees in
industrial or business undertakings of all kinds; (7) to insure an even distribution of labor among the
It provides rules of procedure for the conduct of trial of trial. This provision on procedural subject productive enterprises; (8) to commandership and other means of transportation in order to maintain, as
constitutes a usurpation of the rule-making power vested by Constitution in the Supreme Court. much as possible, adequate and continued transportation facilities; (9) to requisition and take over any
public service or enterprise for use or operation by the Government;(10) to regulate rents and the prices
19
of articles or commodities of prime necessity, both imported and locally produced or manufactured; and deem necessary to carry out the national policy declared in section 1 hereof. Accordingly, he is, among
(11) to prevent, locally or generally, scarcity, monopolization, hoarding injurious speculations, and private other things, empowered (a) to transfer the seat of the Government or any of its subdivisions, branches,
control affecting the supply, distribution and movement of foods, clothing, fuel, fertilizer, chemical, department, offices, agencies or instrumentalities; (b) to reorganize the Government of the
building, material, implements, machinery, and equipment required in agriculture and industry, with Commonwealth including the determination of the order of precedence of the heads of the Executive
power to requisition these commodities subject to the payment of just compensation. (As amended by Department; (c) to create new subdivision, branches, departments, offices, agency or instrumentalities of
Com. Act No. 620.) government and to abolish any of those already existing; (d) to continue in force laws and appropriation
which would lapse or otherwise became inoperative, and to modify or suspend the operation or
application of those of an administrative character; (e) to imposed new taxes or to increase, reduce,
SEC. 2. For the purpose of administering this Act and carrying out its objective, the President may designate
suspend, or abolish those in existence; (f) to raise funds through the issuance of bonds or otherwise, and
any officer, without additional compensation, or any department, bureau, office, or instrumentality of the
to authorize the expensive of the proceeds thereof; (g) to authorize the National, provincial, city or
National Government.
municipal governments to incur in overdrafts for purposes that he may approve; (h) to declare the
suspension of the collection of credits or the payment of debts; and (i) to exercise such other power as he
SEC. 3. Any person, firm, or corporation found guilty of the violation of any provision of this Act or of this may deem necessary to enable the Government to fulfill its responsibilities and to maintain and enforce
Act or any of the rules or regulations promulgated by the President under the authority of section one of its authority.
this Act shall be punished by imprisonment of not more than ten years or by a fine of not more than ten
thousand pesos, or by both. If such violation is committed by a firm or corporation, the manager, managing
SEC. 3. The President of the Philippines report thereto all the rules and regulation promulgated by him
director, or person charge with the management of the business of such firm, or corporation shall be
under the power herein granted.
criminally responsible therefor.

SEC. 4. This Act shall take effect upon its approval and the rules and regulations. promulgated hereunder
SEC. 4. The President shall report to the national Assembly within the first ten days from the date of the
shall be in force and effect until the Congress of the Philippines shall otherwise provide.
opening of its next regular session whatever action has been taken by him under the authority herein
granted.
Approved December 16, 1941.
SEC. 5. To carry out the purposed of this Act, the President is authorized to spend such amounts as may
be necessary from the sum appropriated under section five Commonwealth Act Numbered four hundred The above Acts cannot validly be invoked, Executive Order No. 68 was issued on July 29, 1947. Said Acts
and ninety-eight. had elapsed upon the liberation of the Philippines form the Japanese forces or, at the latest, when the
surrender of Japan was signed in Tokyo on September 2, 1945.
SEC. 6. If any province of this Act shall be declared by any court of competent jurisdiction to be
unconstitutional and void, such declaration shall not invalidate the remainder of this Act. When both Acts were enacted by the Second National Assembly, we happened to have taken direct part
in their consideration and passage, not only as one of the members of said legislative body as chairman of
the Committee on Third Reading population Known as the "Little Senate." We are, therefore in a position
SEC. 7. This Act shall take upon its approval.
to state that said measures were enacted by the second national Assembly for the purpose of facing the
emergency of impending war and of the Pacific War that finally broke out with the attack of Pearl Harbor
Approved, August 19, 1940. on December 7, 1941. We approved said extraordinary measures, by which under the exceptional
circumstances then prevailing legislative power were delegated to the President of the Philippines, by
COMMONWEALTH ACT NO. 671 virtue of the following provisions of the Constitution:

AN ACT DECLARING A STATE OF TOTAL EMERGENCY AS A RESULT OF WAR INVOLVING THE PHILIPPINES In time of war or other national emergency, the Congress may by law authorize the President, for a limited
AND AUTHORIZING THE PRESIDENT TO PROMULGATE RULE AND REGULATIONS TO MEET SUCH period and subject to such restrictions as it may prescribe to promulgate rules and regulations to carry out
EMERGENCY. declared national policy. (Article VI, section 26.)

Be it enacted the National Assembly of the Philippines; It has never been the purpose of the National Assembly to extend the delegation beyond the emergency
created by the war as to extend it farther would be violative of the express provision of the Constitution.
We are of the opinion that there is no doubt on this question.; but if there could still be any the same
SECTION 1. The existed of war between the United State and other countries of Europe and Asia, which should be resolved in favor of the presumption that the National Assembly did not intend to violate the
involves the Philippines, makes it necessary to invest the President with extraordinary powers in order to fundamental law.
meet the resulting emergency.

The absurdity of the contention that the emergency Acts continued in effect even after the surrender of
SEC. 2. Pursuant to the provision of Article VI, section 16, of the Constitution, the President is hereby Japan can not be gainsaid. Only a few months after liberation and even before the surrender of Japan, or
authorized, during the existence of the emergency, to promulgate such rules and regulation as he may since the middle of 1945, the Congress started to function normally. In the hypothesis that the contention
20
can prevail, then, since 1945, that is, four years ago, even after the Commonwealth was already replaced The court ruled that in accordance with the generally accepted principles of international law of the
by the Republic of the Philippines with the proclamation of our Independence, two district, separate and present day, including the Hague Convention, the Geneva Convention, and significant precedents of
independence legislative organs, — Congress and the President of the Philippines — would have been and international jurisprudence established by the United Nations, all those persons, military or civilian, who
would continue enacting laws, the former to enact laws of every nature including those of emergency had been guilty of planning, preparing or waging a war of aggression and of the commission of crimes and
character, and the latter to enact laws, in the form of executive orders, under the so-called emergency offenses consequential and incidental thereto, in violation of the laws and customs of war, of humanity
powers. The situation would be pregnant with dangers to peace and order to the rights and liberties of the and civilization, were held accountable therefore. Although the Philippines was not a signatory to the
people and to Philippines democracy. conventions embodying them, our Constitution has been deliberately general and extensive in its scope
and is not confined to the recognition of rules and principles of international law as contained in treaties
to which our government may have been or shall be a signatory. Consequently, in the promulgation and
Should there be any disagreement between Congress and the President of the Philippines, a possibility
enforcement of Executive Order No. 68, the President of the Philippines had acted in conformity with the
that no one can dispute the President of the Philippines may take advantage of he long recess of Congress
generally accepted principles and policies of international law which are part of our Constitution.
(two-thirds of every year ) to repeal and overrule legislative enactments of Congress, and may set up a
veritable system of dictatorship, absolutely repugnant to the letter and spirit of the Constitution.

Executive Order No. 68 is equally offensive to the Constitution because it violates the fundamental
SENATOR AQUILINO PIMENTEL, JR., G.R. No. 158088
guarantees of the due process and equal protection of the law. It is especially so, because it permit the
REP. ETTA ROSALES, PHILIPPINE
admission of many kinds evidence by which no innocent person can afford to get acquittal and by which it
COALITION FOR THE ESTABLISHMENT
is impossible to determine whether an accused is guilty or not beyond all reasonable doubt.
OF THE INTERNATIONAL Present:
CRIMINAL COURT, TASK FORCE
The rules of evidence adopted in Executive Order No. 68 are a reproduction of the regulation governing DETAINEES OF THE PHILIPPINES, Davide, Jr., C.J.,
the trial of twelve criminal, issued by General Douglas Mac Arthur, Commander in Chief of the United State FAMILIES OF VICTIMS OF Puno,
Armed Forces in Western Pacific, for the purpose of trying among other, General Yamashita and Homma. INVOLUNTARY DISAPPEARANCES, Panganiban,
What we said in our concurring and dissenting opinion to the decision promulgated on December 19, 1945, BIANCA HACINTHA R. ROQUE, Quisumbing,
in the Yamashita case, L-129, and in our concurring and dissenting opinion to the resolution of January 23, HARRISON JACOB R. ROQUE, Ynares-Santiago,
1946 in disposing the Homma case, L-244, are perfectly applicable to the offensive rules of evidence in AHMED PAGLINAWAN, RON P. SALO, *Sandoval-Gutierrez,
Executive Order No. 68. Said rules of evidence are repugnant to conscience as under them no justice can LEAVIDES G. DOMINGO, EDGARDO *Carpio,
expected. CARLO VISTAN, NOEL VILLAROMAN, Austria-Martinez,
CELESTE CEMBRANO, LIZA ABIERA, *Corona,
For all the foregoing, conformably with our position in the Yamashita and Homma cases, we vote to declare JAIME ARROYO, MARWIL LLASOS, Carpio Morales,
Executive Order No. 68 null and void and to grant petition. CRISTINA ATENDIDO, ISRAFEL Callejo, Sr.,
FAGELA, and ROMEL BAGARES, Azcuna,
Petitioners, Tinga,
KURODA VS. JALANDONI Chico-Nazario, and
83 Phil. 171 (1949) Court of the Philippines - versus - Garcia, JJ.

Facts: OFFICE OF THE EXECUTIVE


SECRETARY, represented by Promulgated:
Kuroda, Lieutenant General of the Japanese Imperial Army, was prosecuted for war crimes before the HON. ALBERTO ROMULO, and the
Military Commission set up by Executive Order No. 68 of the President of the Philippines. Kuroda DEPARTMENT OF FOREIGN
challenged the legality and constitutionality of the Military Commission and contended that it lacked AFFAIRS, represented by HON. BLAS OPLE, July 6, 2005
jurisdiction to try him for violation of the Hague and Geneva Conventions on the Laws of War, since the Respondents.
Philippines was not a signatory to these conventions.
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x
Issue: Whether or not the established Military Commission is legal and constitutional.

Held: DECISION

The court ruled that the Military Commission was legal and constitutional base on the citation of Article II, PUNO J.:
Section 3 of the Philippine Constitution declaring that “the Philippine adopts the generally accepted
principles of international law as part of the law of the nation”.
This is a petition for mandamus filed by petitioners to compel the
Office of the Executive Secretary and the Department of Foreign Affairs to transmit the signed copy of the

21
Rome Statute of the International Criminal Court to the Senate of the Philippines for its concurrence in juridical entity with the avowed purpose of promoting the cause of human rights and human rights victims
accordance with Section 21, Article VII of the 1987 Constitution. in the country; the Families of Victims of Involuntary Disappearances, a juridical entity duly organized and
existing pursuant to Philippine Laws with the avowed purpose of promoting the cause of families and
victims of human rights violations in the country; Bianca Hacintha Roque and Harrison Jacob Roque, aged
The Rome Statute established the International Criminal Court which shall have the power to exercise its
two (2) and one (1), respectively, at the time of filing of the instant petition, and suing under the doctrine
jurisdiction over persons for the most serious crimes of international concern xxx and shall be
of inter-generational rights enunciated in the case of Oposa vs. Factoran, Jr.;[9] and a group of fifth year
complementary to the national criminal jurisdictions.[1] Its jurisdiction covers the crime of genocide, crimes
working law students from the University of the Philippines College of Law who are suing as taxpayers.
against humanity, war crimes and the crime of aggression as defined in the Statute. [2] The Statute was
opened for signature by all states in Rome on July 17, 1998 and had remained open for signature until
December 31, 2000 at the United Nations Headquarters in New York. The Philippines signed the Statute The question in standing is whether a party has alleged such a personal stake in the outcome of the
on December 28, 2000 through Charge d AffairsEnrique A. Manalo of the Philippine Mission to the United controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which
Nations.[3] Its provisions, however, require that it be subject to ratification, acceptance or approval of the the court so largely depends for illumination of difficult constitutional questions.[10]
signatory states.[4]
We find that among the petitioners, only Senator Pimentel has the legal standing to file the instant suit.
Petitioners filed the instant petition to compel the respondents the Office of the Executive Secretary and The other petitioners maintain their standing as advocates and defenders of human rights, and as citizens
the Department of Foreign Affairs to transmit the signed text of the treaty to the Senate of the Philippines of the country. They have not shown, however, that they have sustained or will sustain a direct injury from
for ratification. the non-transmittal of the signed text of the Rome Statute to the Senate. Their contention that they will
be deprived of their remedies for the protection and enforcement of their rights does not persuade. The
Rome Statute is intended to complement national criminal laws and courts. Sufficient remedies are
It is the theory of the petitioners that ratification of a treaty, under both domestic law and international
available under our national laws to protect our citizens against human rights violations and petitioners
law, is a function of the Senate. Hence, it is the duty of the executive department to transmit the signed
can always seek redress for any abuse in our domestic courts.
copy of the Rome Statute to the Senate to allow it to exercise its discretion with respect to ratification of
treaties. Moreover, petitioners submit that the Philippines has a ministerial duty to ratify the Rome Statute
under treaty law and customary international law. Petitioners invoke the Vienna Convention on the Law As regards Senator Pimentel, it has been held that to the extent the powers of Congress are impaired, so
of Treaties enjoining the states to refrain from acts which would defeat the object and purpose of a treaty is the power of each member thereof, since his office confers a right to participate in the exercise of the
when they have signed the treaty prior to ratification unless they have made their intention clear not to powers of that institution.[11] Thus, legislators have the standing to maintain inviolate the prerogatives,
become parties to the treaty.[5] powers and privileges vested by the Constitution in their office and are allowed to sue to question the
validity of any official action which they claim infringes their prerogatives as legislators. The petition at bar
invokes the power of the Senate to grant or withhold its concurrence to a treaty entered into by the
The Office of the Solicitor General, commenting for the respondents, questioned the standing of the
executive branch, in this case, the Rome Statute. The petition seeks to order the executive branch to
petitioners to file the instant suit. It also contended that the petition at bar violates the rule on hierarchy
transmit the copy of the treaty to the Senate to allow it to exercise such authority. Senator Pimentel, as
of courts. On the substantive issue raised by petitioners, respondents argue that the executive department
member of the institution, certainly has the legal standing to assert such authority of the Senate.
has no duty to transmit the Rome Statute to the Senate for concurrence.

We now go to the substantive issue. The core issue in this petition for mandamus is whether the Executive
A petition for mandamus may be filed when any tribunal, corporation, board, officer or person unlawfully
Secretary and the Department of Foreign Affairs have a ministerial duty to transmit to the Senate the copy
neglects the performance of an act which the law specifically enjoins as a duty resulting from an office,
of the Rome Statute signed by a member of the Philippine Mission to the United Nations even without the
trust, or station.[6] We have held that to be given due course, a petition for mandamus must have been
signature of the President.
instituted by a party aggrieved by the alleged inaction of any tribunal, corporation, board or person which
unlawfully excludes said party from the enjoyment of a legal right. The petitioner in every case must
therefore be an aggrieved party in the sense that he possesses a clear legal right to be enforced and a We rule in the negative. In our system of government, the President, being the head of state, is regarded
direct interest in the duty or act to be performed.[7] The Court will exercise its power of judicial review only as the sole organ and authority in external relations and is the countrys sole representative with foreign
if the case is brought before it by a party who has the legal standing to raise the constitutional or legal nations.[12] As the chief architect of foreign policy, the President acts as the countrys mouthpiece with
question. Legal standing means a personal and substantial interest in the case such that the party has respect to international affairs. Hence, the President is vested with the authority to deal with foreign states
sustained or will sustain direct injury as a result of the government act that is being challenged. The term and governments, extend or withhold recognition, maintain diplomatic relations, enter into treaties, and
interest is material interest, an interest in issue and to be affected by the decree, as distinguished from otherwise transact the business of foreign relations.[13] In the realm of treaty-making, the President has
mere interest in the question involved, or a mere incidental interest.[8] the sole authority to negotiate with other states.

The petition at bar was filed by Senator Aquilino Pimentel, Jr. who asserts his legal standing to file the suit Nonetheless, while the President has the sole authority to negotiate and enter into treaties, the
as member of the Senate; Congresswoman Loretta Ann Rosales, a member of the House of Constitution provides a limitation to his power by requiring the concurrence of 2/3 of all the members of
Representatives and Chairperson of its Committee on Human Rights; the Philippine Coalition for the the Senate for the validity of the treaty entered into by him. Section 21, Article VII of the 1987 Constitution
Establishment of the International Criminal Court which is composed of individuals and corporate entities provides that no treaty or international agreement shall be valid and effective unless concurred in by at
dedicated to the Philippine ratification of the Rome Statute; the Task Force Detainees of the Philippines, a least two-thirds of all the Members of the Senate. The 1935 and the 1973 Constitution also required the

22
concurrence by the legislature to the treaties entered into by the executive. Section 10 (7), Article VII of The last step in the treaty-making process is the exchange of the instruments of ratification, which usually
the 1935 Constitution provided: also signifies the effectivity of the treaty unless a different date has been agreed upon by the parties.
Where ratification is dispensed with and no effectivity clause is embodied in the treaty, the instrument is
deemed effective upon its signature.[16] [emphasis supplied]
Sec. 10. (7) The President shall have the power, with the concurrence of two-thirds of all the Members of
the Senate, to make treaties xxx.
Petitioners arguments equate the signing of the treaty by the Philippine representative with ratification.
It should be underscored that the signing of the treaty and the ratification are two separate and distinct
Section 14 (1) Article VIII of the 1973 Constitution stated:
steps in the treaty-making process. As earlier discussed, the signature is primarily intended as a means of
authenticating the instrument and as a symbol of the good faith of the parties. It is usually performed by
Sec. 14. (1) Except as otherwise provided in this Constitution, no treaty shall be valid and effective unless the states authorized representative in the diplomatic mission. Ratification, on the other hand, is the
concurred in by a majority of all the Members of the Batasang Pambansa. formal act by which a state confirms and accepts the provisions of a treaty concluded by its representative.
It is generally held to be an executive act, undertaken by the head of the state or of the
The participation of the legislative branch in the treaty-making process was deemed essential to provide government.[17] Thus, Executive Order No. 459 issued by President Fidel V. Ramos on November 25, 1997
a check on the executive in the field of foreign relations.[14] By requiring the concurrence of the legislature provides the guidelines in the negotiation of international agreements and its ratification. It mandates that
in the treaties entered into by the President, the Constitution ensures a healthy system of checks and after the treaty has been signed by the Philippine representative, the same shall be transmitted to the
balance necessary in the nations pursuit of political maturity and growth.[15] Department of Foreign Affairs. The Department of Foreign Affairs shall then prepare the ratification papers
and forward the signed copy of the treaty to the President for ratification. After the President has ratified
the treaty, the Department of Foreign Affairs shall submit the same to the Senate for concurrence. Upon
In filing this petition, the petitioners interpret Section 21, Article VII of the 1987 Constitution to mean that receipt of the concurrence of the Senate, the Department of Foreign Affairs shall comply with the
the power to ratify treaties belongs to the Senate. provisions of the treaty to render it effective. Section 7 of Executive Order No. 459 reads:

We disagree. Justice Isagani Cruz, in his book on International Law, describes the treaty-making process in Sec. 7. Domestic Requirements for the Entry into Force of a Treaty or an Executive Agreement. The
this wise: The usual steps in the treaty-making process are: negotiation, signature, ratification, and domestic requirements for the entry into force of a treaty or an executive agreement, or any amendment
exchange of the instruments of ratification. The treaty may then be submitted for registration and thereto, shall be as follows:
publication under the U.N. Charter, although this step is not essential to the validity of the agreement as
between the parties.
A. Executive Agreements.

Negotiation may be undertaken directly by the head of state but he now usually assigns this task to his
authorized representatives. These representatives are provided with credentials known as full powers, i. All executive agreements shall be transmitted to the Department of Foreign Affairs after their signing for
which they exhibit to the other negotiators at the start of the formal discussions. It is standard practice for the preparation of the ratification papers. The transmittal shall include the highlights of the agreements
one of the parties to submit a draft of the proposed treaty which, together with the counter-proposals, and the benefits which will accrue to the Philippines arising from them.
becomes the basis of the subsequent negotiations. The negotiations may be brief or protracted, depending
on the issues involved, and may even collapse in case the parties are unable to come to an agreement on ii. The Department of Foreign Affairs, pursuant to the endorsement by the concerned agency, shall
the points under consideration. transmit the agreements to the President of the Philippines for his ratification. The original signed
instrument of ratification shall then be returned to the Department of Foreign Affairs for appropriate
If and when the negotiators finally decide on the terms of the treaty, the same is opened for signature. action.
This step is primarily intended as a means of authenticating the instrument and for the purpose of
symbolizing the good faith of the parties; but, significantly, it does not indicate the final consent of the B. Treaties.
state in cases where ratification of the treaty is required. The document is ordinarily signed in accordance
with the alternat, that is, each of the several negotiators is allowed to sign first on the copy which he will
i. All treaties, regardless of their designation, shall comply with the requirements provided in sub-
bring home to his own state.
paragraph[s] 1 and 2, item A (Executive Agreements) of this Section. In addition, the Department of Foreign
Affairs shall submit the treaties to the Senate of the Philippines for concurrence in the ratification by the
Ratification, which is the next step, is the formal act by which a state confirms and accepts the provisions President. A certified true copy of the treaties, in such numbers as may be required by the Senate, together
of a treaty concluded by its representatives. The purpose of ratification is to enable the contracting states with a certified true copy of the ratification instrument, shall accompany the submission of the treaties to
to examine the treaty more closely and to give them an opportunity to refuse to be bound by it should the Senate.
they find it inimical to their interests. It is for this reason that most treaties are made subject to the
scrutiny and consent of a department of the government other than that which negotiated them.
ii. Upon receipt of the concurrence by the Senate, the Department of Foreign Affairs shall comply with the
provision of the treaties in effecting their entry into force.
xxx

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Petitioners submission that the Philippines is bound under treaty law and international law to ratify the HELD: The President, being the head of state, is regarded as the sole organ and authority in external
treaty which it has signed is without basis. The signature does not signify the final consent of the state to relations and is the county’s sole representative with foreign nations. As the chief architect of foreign
the treaty. It is the ratification that binds the state to the provisions thereof. In fact, the Rome Statute policy, the President acts as the country’s mouthpiece with respect to international affairs. Hence, the
itself requires that the signature of the representatives of the states be subject to ratification, acceptance President is vested with the authority to deal with foreign states and governments, extend or withhold
or approval of the signatory states. Ratification is the act by which the provisions of a treaty are formally recognition, maintain diplomatic relations, enter into treaties, and otherwise transact the business of
confirmed and approved by a State. By ratifying a treaty signed in its behalf, a state expresses its foreign relations.
willingness to be bound by the provisions of such treaty. After the treaty is signed by the states
representative, the President, being accountable to the people, is burdened with the responsibility and
The role of the Senate, however, is limited only to giving or withholding its consent, or concurrence, to the
the duty to carefully study the contents of the treaty and ensure that they are not inimical to the interest
ratification.
of the state and its people. Thus, the President has the discretion even after the signing of the treaty by
the Philippine representative whether or not to ratify the same. The Vienna Convention on the Law of
Treaties does not contemplate to defeat or even restrain this power of the head of states. If that were so, Thus, this petition is DISMISSED. This Court has no jurisdiction over actions seeking to enjoin the President
the requirement of ratification of treaties would be pointless and futile. It has been held that a state has in the performance of his official duties.
no legal or even moral duty to ratify a treaty which has been signed by its plenipotentiaries.[18] There is no
legal obligation to ratify a treaty, but it goes without saying that the refusal must be based on substantial
grounds and not on superficial or whimsical reasons. Otherwise, the other state would be justified in taking
offense.[19]

It should be emphasized that under our Constitution, the power to ratify is vested in the President, subject
to the concurrence of the Senate. The role of the Senate, however, is limited only to giving or withholding
its consent, or concurrence, to the ratification.[20] Hence, it is within the authority of the President to refuse
to submit a treaty to the Senate or, having secured its consent for its ratification, refuse to ratify
it.[21] Although the refusal of a state to ratify a treaty which has been signed in its behalf is a serious step
that should not be taken lightly,[22] such decision is within the competence of the President alone, which
cannot be encroached by this Court via a writ of mandamus. This Court has no jurisdiction over actions
seeking to enjoin the President in the performance of his official duties.[23] The Court, therefore, cannot
issue the writ of mandamus prayed for by the petitioners as it is beyond its jurisdiction to compel the
executive branch of the government to transmit the signed text of Rome Statute to the Senate.

IN VIEW WHEREOF, the petition is DISMISSED. SO ORDERED.

Pimentel Jr. vs Office of the Exe. Sec. Case Brief

Senator Aquilino Pimentel, Jr. et al. vs. Office of the Executive Secretary represented by Hon. Alberto
Romulo, Department of Foreign Affairs represented by Hon. Blas Ople

FACTS: On July 17, 1998, the Rome Statute was opened for signature at its headquarter in New York. On
December 28, 2000, three days before its deadline for signing, the Philippines through its Charge d’ Affairs,
Enrique A. Manalo signed the Statute. By its provision, however, it is requiring that it be ratified by the
accepting states.

Senator Aquilino Pimentel, file this petition to compel the Hon. Alberto Romulo (Executive Secretary) and
Hon. Blas Ople (Department of Foreign Affairs) – respondents in this case – to transmit the signed
document to the Senate for ratification.

Hon. Alberto Romulo and Hon. Blas Ople, on the other hand, argue that they as representative of the
Executive Department have no duty to transmit the Rome Statute to the Senate for concurrence.

ISSUE: Who has the power to ratify the Rome Statute?


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