Nuclear Tests Case (Australia & New Zealand v. France) government of Australia.
government of Australia. To have legal effect there was no need tor the statements to be
International Court of Justice
1974 I.C.J. 253, 457
Facts
France (defendant) was performing atmospheric nuclear tests in the South Pacific. Australia
and New 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 of tests and that it did not plan to perform any
additional tests.
Rule of Law
The rule of law is the black letter law upon which the court rested its decision. To access this
section
Issue
The issue section includes the dispositive legal issue in the case phrased as a question. To
access this section
Holding and Reasoning
The holding and reasoning section includes:
A yes or no answer to the question framed in the issue section; DRC], as guaranteed by the United Nations Charter and the Charter of the Organization of
A summary of the majority or plurality opinion, using the CREAC method; and
The procedural disposition (e.g. reversed and remanded, affirmed, etc.).
Nuclear Tests Case (Australia & New Zealand v. France)
Procedural History:
Proceeding before the International Court of Justice.
Overview:
Australia and New Zealand (P) demanded that France (D) cease atmospheric nuclear tests
in the South Pacific. France (D) completed a series of nuclear tests in the South Pacific.
Australia and New Zealand (P) applied to the !.C.). demanding that France (D) cease testing
immediately. While the case was pending, France (D) announced the series of tests was
complete and that it did not plan any further such tests. France (D) moved to dismiss the
applications.
Issue:
May declarations made by way of unilateral acts have the effect of creating legal obligations?
Rule: Declarations made by way of unilateral acts may have the effect of creating legal
obligations.
Analysis:
The unilateral statements made by French authorities were first communicated to the
directed to any particular state. The general nature and characteristics of the statements
alone were relevant for evaluation of their legal implications.
Outcome:
Yes. Declarations made by way of unilateral acts may have the effect of creating legal
obligations. The sole relevant question is whether the language employed in any given
declaration reveals a clear intention. One of the basic principles governing the creation and
performance of legal obligations is the principle of good faith. The statements made by the
President of the French Republic must be held to constitute an engagement of the State in
regard to the circumstances and intention with which they were made. The statements made
by the French authorities are therefore relevant and legally binding. Applications dismissed.
Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic
Republic of the Congo v. Rwanda)
On 28 May 2002, the Democratic Republic of the Congo (DRC) filed in the Registry of the Court
an Application instituting proceedings against Rwanda for massive, serious and flagrant
violations of human rights and international humanitarian law resulting
from acts of armed aggression perpetrated by Rwanda on the territory of the Democratic
Republic of the Congo in flagrant breach of the sovereignty and territorial integrity [of the
African Unity.
The DRC stated in its Application that the Courts jurisdiction to deal with the dispute between
it and 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 Convention on the Elimination of All Forms of Racial
Discrimination, the 1948 Convention on the Prevention and Punishment of the Crime of
Genocide, the Constitution of the World Health Organization (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
of Unlawful Acts against the Safety of Civil Aviation. The DRC added that the jurisdiction of the
Court also derived from the supremacy of peremptory norms (jus cogens), as reflected in
certain international treaties and conventions, in the area of human rights.
On 28 May 2002, the date of the filing of the Application, the DRC also submitted a request for
the indication of provisional measures. Public hearings were held on 13 and 14 June 2002 on
that request. By 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 the absence of a manifest lack of jurisdiction, it
also rejected Rwandas request for the case to be removed from the List. The Court also found
that its findings in no way prejudged the question of its jurisdiction to deal with the merits of
the case or any questions relating to the admissibility of the Application or relating to the
merits themselves.
1
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 fixed 20 January 2003 and 20 May 2003, respectively, as the time-limits
for the filing of the Memorial of Rwanda and Counter-Memorial of the DRC. Those pleadings
were filed within the time-limits thus prescribed.
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 relied on, either because Rwanda (1) was not a party to them (as in the case
of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment) or (2) had made reservations to them (as in the case of the Convention on the
Prevention and Punishment of the Crime of Genocide and the Convention on the Elimination
of All Forms of Racial Discrimination), or because (3) other 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 of UNESCO
and the Montreal Convention for the Suppression of Unlawful Acts against the Safety of Civil
Aviation).
Since the Court had no jurisdiction to entertain the Application, it was not required to rule on
its admissibility. Mindful that the subject-matter of the dispute was very similar in nature to
that in the case between the Congo and Uganda, and that the reasons as to why the Court
would not proceed to an examination of the merits in the case between Congo and Rwanda
needed to be carefully explained, the Court stated that it was precluded by a number of
provisions in its Statute from taking any position on the merits of the claims made by the DRC.
It recalled, however, that there is a fundamental distinction between the acceptance by
States of the Courts jurisdiction and the conformity of their acts with international law. Thus,
[w]hether or not States have accepted the jurisdiction of the Court, they are 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.
Democratic Republic of Congo vs Rwanda
Brief Fact Summary. Rwanda (D) challenged the jurisdiction of the International Court of
Justice when a suit was filed against her by the Democratic Republic of the Congo (P).
Synopsis of Rule of Law. The International Court of Justice lacks jurisdiction based on a treaty
in which one party to such a treaty excludes dispute settlement obligations under the treaty
before becoming a party, and fails to take formal acts to bring about withdrawal of the
reservation.
Facts. In the suit filed by the Republic of the Congo (DRC) (P) against Rwanda (D), the DRC (P)
tried to base the jurisdiction of the International Court of Justice on nine treaties with dispute
settlement clauses that provided for such jurisdiction. Of the nine treaties, Rwanda (D)
excluded dispute settlement obligations in seven of the treaties while it was not party to the
remaining two. Based on the nature of its obligations, Rwanda (D) challenged the jurisdiction
of the International Court of Justice.
Discussions of some of the treaties were omitted by the excerpt. The treaties involved were
Convention on Privileges, Immunities of the Specialized Agencies, Genocide Convention,
Article IX, Convention on Racial Discrimination against Women, Article 29, World Health
Organization Constitution, Article 75. 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.
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 make formal acts to bring about withdrawal of the reservation?
Held.
(Judge not stated in casebook excerpt) Yes. The International Court of Justice lacks jurisdiction
based on a treaty in which one party to such a treaty excludes dispute settlement obligations
under the treaty before becoming a party and fails to take formal acts to bring about
withdrawal of the reservation.
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) minister of justice, Rwanda (D) never for once take formal acts to bring
about withdrawal of reservation. Deciding on whether to withdraw reservation with a states
domestic legal order is not the same as implementation of that decision by the national
authorities within the international legal order, which can only come to pass by notification to
the other state parties to the parties in question through the Secretary-General of the United
Nations.
Secondly, the existence of a dispute that implicates peremptory norms of general international
law does not imply that it is not part of the principles that jurisdiction always relies on the
consent of the parties. The treaty was however held not to form the basis of jurisdiction
because the DRC (P) failed to prove beyond reasonable doubt that it initiated arbitration
proceedings against Rwanda (D) under the Convention on Discrimination against Women.
Discussion. The analysis of the treaties in the casebook excerpt is similar to the Courts analysis
of treaties. The main principle here is that the I.C.J will not advance the case past the
preliminary matter of jurisdiction where a state has not granted consent to the I.C.Js
jurisdiction, whatever atrocities have in fact been committed by the non-consenting state.
Also, reversal of the position requires an overt act by the state in a situation like this, where
there is evidence of non-consent, in order to convince the Court that after all, consent to the
I.C.Js jurisdiction was granted.
Temple of Preah Vihear (Cambodia v. Thailand)
OVERVIEW OF THE CASE
Cambodia complained that Thailand had occupied a piece of its territory surrounding the ruins
of the Temple of Preah Vihear, a place of pilgrimage and worship for Cambodians, and asked
2
the Court to declare that territorial sovereignty over the Temple belonged to it and that
Thailand was under an obligation to withdraw the armed detachment stationed there since
1954. Thailand filed preliminary objections to the Courts jurisdiction, which were rejected in
a Judgment given on 26 May 1961. In its Judgment on the 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 work
of a Mixed Delimitation Commission showed the Temple on the Cambodian side of the
boundary. Thailand asserted various arguments aimed at showing that the map had no binding
character. One of its contentions was that the map had never been accepted by Thailand or,
alternatively, that if Thailand had accepted it, it had done so only because of a mistaken belief
that the frontier indicated corresponded to the watershed line. The Court found that Thailand
had indeed accepted the map and concluded that the Temple was situated on Cambodian
territory. It also held that Thailand was under an obligation to withdraw any military or police
force stationed there and to restore to Cambodia any objects removed from the ruins since
1954.
Whaling in the Antarctic (Australia v. Japan: New Zealand intervening)
OVERVIEW OF THE CASE
Proceedings were instituted on 31 May 2010 by Australia, which accused Japan of pursuing a
large-scale program of whaling under the Second Phase of its Japanese Whale Research
Program under Special Permit in the Antarctic (JARPA II), in breach of obligations assumed
by Japan under the 1946 International Convention for the Regulation of Whaling and of other
international obligations for the preservation of marine mammals and the marine
environment.
In the Judgment it rendered on 31 March 2014, the Court first found that it had jurisdiction to
entertain the case, rejecting Japans argument that the dispute fell within the scope of a
reservation contained in Australias declaration recognizing the Courts jurisdiction as
compulsory. It then turned to the question of the interpretation and application of Article VIII
of the 1946 Convention, paragraph 1 of which states that the parties may grant to any of
[their] nationals a special permit authorizing that national to kill, take and treat whales for
purposes of scientific research.
With respect to the interpretation of that provision, the Court first observed that, although
Article VIII gives discretion to a State party to the Convention to reject the request for a special
permit, whether the killing, taking and treating of whales pursuant to a requested special
permit is for purposes of scientific research cannot depend simply on that States perception.
In the view of the Court, the two elements of the phrase for purposes of (1) scientific research
(2) are cumulative.
As regards the application of that same provision, the Court indicated that JARPA II could
broadly be described as a scientific research programme. It then turned to the question of
whether it was for purposes of scientific research that lethal methods were used. To answer
that question, it examined whether the programmes design and implementation were
reasonable in relation to achieving its stated research objectives. The Court considered that
the evidence before it did not establish that such was the case. It concluded that the special
permits issued by Japan for the killing, taking and treating of whales in connection with JARPA
II were not granted for purposes of scientific research pursuant to Article VIII, paragraph 1,
of the 1946 Convention.
The Court then turned to the implications of that conclusion, in light of Australias contention
that Japan 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 and factory ships, and the prohibition on commercial
whaling in the Southern Ocean Sanctuary), it considered the question of remedies. Since JARPA
II was an ongoing programme, it ordered Japan to revoke any extant authorization, permit or
licence to kill, take or treat whales in relation to JARPA II, and to refrain from granting any
further permits under Article VIII, paragraph 1, of the Convention, in pursuance of that
programme.
Pulp Mills on the River Uruguay (Argentina v. Uruguay)
OVERVIEW OF THE CASE
On 4 May 2006, Argentina filed an Application instituting proceedings against Uruguay
concerning alleged breaches by Uruguay of obligations incumbent upon it under the Statute
of the River Uruguay, a treaty signed by the two States on 26 February 1975 (hereinafter the
1975 Statute) for the purpose of establishing the joint machinery necessary for the optimum
and rational utilization of that part of the river which constitutes their joint boundary. In its
Application, Argentina charged Uruguay with having unilaterally authorized the construction
of two pulp mills on the River Uruguay without complying with the obligatory prior notification
and consultation procedures under the 1975 Statute. Argentina claimed that those mills posed
a threat to the river and its environment and were likely to impair the quality of the rivers
waters and to cause significant transboundary damage to Argentina. As basis for the Courts
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 negotiations may be submitted by either party to the Court.
Argentinas Application was accompanied by a request for the indication of provisional
measures, whereby 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 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 Statute, and from any other action
which might aggravate the dispute or render its settlement more difficult. Public hearings on
the request for the indication of provisional measures were held on 8 and 9 June 2006. By an
Order of 13 July 2006, the Court found that the circumstances, as they then presented
3
themselves to it, were not such as to require the exercise of its power under Article 41 of the
Statute to indicate provisional measures.
On 29 November 2006, Uruguay in turn submitted a request for the indication of provisional
measures on the grounds that, from 20 November 2006, organized groups of Argentine citizens
had blockaded a vital international bridge over the River Uruguay, that that action was
causing it considerable economic prejudice and that Argentina had made no effort to end the
blockade. At the end of its request, Uruguay asked the Court to order Argentina to take all
reasonable and appropriate steps . . . to prevent or end the interruption of transit between
Uruguay and Argentina, including the blockading of bridges or roads between the two States
; to abstain from any measure that might aggravate, extend or make more difficult the
settlement of this dispute ; and to abstain from any other measure which might prejudice
the rights of Uruguay in dispute before the Court. Public hearings on the request for the
indication of provisional measures were held on 18 and 19 December 2006. By an Order of 23
January 2007, the Court found that the circumstances, as they then presented themselves to
it, were not such as to require the exercise of its power under Article 41 of the Statute.
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 Argentina and a Rejoinder by Uruguay. Those pleadings were filed
within the prescribed time-limits.
Following public hearings held between 14 September 2009 and 2 October 2009, the Court
delivered its Judgment on 20 April 2010. With respect to Argentinas argument that projects
had been authorized by Uruguay in violation of the mechanism for prior notification and
consultation laid down by Articles 7 to 13 of the 1975 Statute (the procedural violations), the
Court noted that Uruguay had not informed the Administrative Commission of the River
Uruguay of the projects as prescribed in the Statute. The 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 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, Uruguay had violated the 1975 Statute.
With respect to Argentinas contention that the industrial activities authorized by Uruguay had
had, or would have, an adverse impact on the quality of the waters of the river and the area
affected by it, and had caused significant damage to the quality of the waters of the river and
significant transboundary damage to Argentina (the substantive violations), the Court found,
based on a detailed examination of the Parties arguments, that there was
no conclusive evidence in the record to show that Uruguay has not acted with the requisite
degree of due diligence or that the discharges of effluent from the Orion (Botnia) mill have had
deleterious effects or caused harm to living resources or to the quality of the water or the
ecological balance of the river since it started its operations in November 2007.
Consequently, the Court concluded that Uruguay had not breached substantive obligations
under the 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 the necessary means to promote the equitable utilization of
the river, while protecting its environment.
Argentina v. Uruguay (Case Concerning Pulp Mills on the River Uruguay)
Facts
The Statute of the River Uruguay (Statute), a 1975 treaty between Uruguay (defendant) and
Argentina (plaintiff), established the Administrative Commission of the River Uruguay (CARU),
a bilateral commission intended to facilitate the nations joint management of the Uruguay
River (River), which formed the international boundary between the two nations. Article 7 of
the Statute required a party planning any 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. Argentina and Uruguay
also agreed that the acting party was required to undertake an environmental-impact
assessment to determine the extent of any damage that the plan might cause. Article 41 of the
Statute imposed a substantive obligation upon the nations to protect the marine life of the
River and to prevent pollution through the implementation of appropriate regulations.
Uruguay authorized two companies, Botnia and ENCE, to build two pulp mills next to the River.
Argentina argued that the authorizations violated procedural as well as substantive obligations
under the Statute because Uruguay (1) did not refer its plans to CARU, (2) did not notify
Argentina of the plans, and (3) conducted an insufficient environmental-impact assessment
because Uruguay did not consider alternative mill sites as 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 the
International Court of Justice, requesting that the already constructed Botnia mill be taken
down.
Rule of Law
The rule of law is the black letter law upon which the court rested its decision. To access this
section
Issue
The issue section includes the dispositive legal issue in the case phrased as a question. To
access this section
Holding and Reasoning
The holding and reasoning section includes:
A yes or no answer to the question framed in the issue section;
A summary of the majority or plurality opinion, using the CREAC method; and
The procedural disposition (e.g. reversed and remanded, affirmed, etc.).
Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France)
OVERVIEW OF THE CASE
4
On 9 January 2006, the Republic of Djibouti filed an Application against the French Republic in
respect of a dispute :
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 Mutual Assistance in Criminal Matters between the
[Djiboutian] Government and the [French] Government, of 27 September 1986, and in breach
of other international obligations borne by [France] to . . . Djibouti.
In its Application, Djibouti also alleged that these acts constituted a violation of the Treaty of
Friendship and Co-operation concluded between France and Djibouti on 27 June 1977. Djibouti
indicated that it sought to found the jurisdiction of the Court on Article 38, paragraph 5, of the
Rules of Court. This provision applies when a State submits a dispute to the Court, proposing
to found the Courts jurisdiction upon a consent yet to be given or manifested by the State
against which the Application is made. This was the second occasion that the Court had been
called upon to pronounce on a dispute brought before it by an Application based on Article 38,
paragraph 5, of its Rules (forum prorogatum). France consented to the jurisdiction of the Court
by a letter, dated 25 July 2006 in which it specified that this consent was valid only for the
purposes of the case, within the meaning of Article 38, paragraph 5, i.e., in respect of the
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.
In a Judgment rendered on 4 June 2008, the Court, having read Djiboutis Application together
with Frances letter in order to determine the extent of the mutual consent of the Parties,
concluded that (a) it 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 May 2005 and the
summonses addressed to two senior Djiboutian officials on 3 and 4 November 2004 and 17
June 2005 ; (c) it had jurisdiction to adjudicate upon the dispute concerning the summons
addressed to the President of the Republic of Djibouti on 14 February 2007 ; and (d) it had no
jurisdiction to adjudicate upon the dispute concerning the arrest warrants issued against two
senior Djiboutian officials on 27 September 2006.
Having established the precise scope of its jurisdiction in the case, the Court turned first to the
alleged 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 law having a certain bearing on relations between the Parties,
the Court concluded that the fields of 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.
The Court then turned to the allegation that France had violated its obligations under the 1986
Convention 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 information held by a party). The Convention also provides
for exceptions to this envisaged co-operation. Since the French judicial authorities refused to
transmit the requested case file, a key question in the case 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 given by the French
investigating judge for refusing the request for mutual assistance fell within the scope 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 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 17 of the 1986 Convention.
Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France)
The dispute between France and Djibouti arose in relation to the investigation into the death
of the French Judge Bernard Borrel in Djibouti in 1995. Djiboutis Application concerned 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. Djibouti maintained that the refusal constitutes a violation of Frances international
obligations under the Treaty of Friendship and Co-operation signed by the two States on 27
June 1977 and the Convention on Mutual Assistance in Criminal Matters between France and
Djibouti, dated 27 September 1986.
On 4 June 2008, the International Court of Justice (ICJ) rendered its judgement in the case. In
its Judgment, the Court unanimously found that France failed to meet its international
obligations by not giving the reasons for its refusal to execute a letter rogatory issued by
Djibouti in 2004. The Court also determined that its finding of this violation constitutes
appropriate satisfaction. The Court did not uphold any of the other final submissions
presented by Djibouti.
Fisheries Jurisdiction (United Kingdom of Great Britain and Northern Ireland v. Iceland)
OVERVIEW OF THE CASE
On 14 April and 5 June 1972, respectively, the United Kingdom and the Federal Republic of
Germany instituted proceedings against Iceland concerning a dispute over the proposed
extension by Iceland, as from 1 September 1972, of the limits of its exclusive fisheries
jurisdiction from a distance of 12 to a distance of 50 nautical miles. Iceland declared that the
Court lacked jurisdiction, and declined to be represented in the proceedings or file pleadings.
At the request of the United Kingdom and the Federal Republic, the Court in 1972 indicated,
5
and in 1973 confirmed, provisional measures to the effect that Iceland should refrain from
implementing, with respect to their vessels, the new regulations regarding the extension of
the zone of its exclusive fishing rights, and that the annual catch of those vessels in the
disputed area should be limited to certain maxima. In Judgments delivered on 2 February 1973,
the Court found that it possessed jurisdiction ; and in Judgments on the merits of 25 July 1974,
it found that the Icelandic regulations. constituting a unilateral extension of exclusive fishing
rights to a limit of 50 nautical miles were not opposable to either the United Kingdom or the
Federal Republic, that Iceland was not entitled unilaterally to exclude their fishing vessels from
the disputed area, and that the Parties were under mutual obligations to undertake
negotiations in good faith for the equitable solution of their differences.
Fisheries Jurisdiction (United Kingdom of Great Britain and Northern Ireland v. Iceland)
Brief Fact Summary. Because some circumstances changed, Iceland (D) claimed that a fishing
treaty it had with the United Kingdom (P) was no longer applicable.
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 the obligations still to be performed.
Facts. Icelands (D) claim to a 12-mile fisheries limit was recognized by the United Kingdom (P)
in 1961 in return for Icelands (D) agreement that any dispute concerning Icelandic fisheries
jurisdiction beyond the 12-mile limit be referred to the International Court of Justice. An
application was filed before the I.C.J. when Iceland (D) proposed to extend its exclusive
fisheries jurisdiction from 12 to 50 miles around its shores in 1972. By postulating that changes
in circumstances since the 12-mile limit was now generally recognized was the ground upon
which Iceland (D) stood to argue that the agreement was no longer valid. Iceland (D) also
asserted that there would be a failure of consideration for the 1961 agreement.
Issue. In order that a change of circumstances may give rise to a ground for invoking the
termination of a treaty, is it necessary that it has resulted in a radical transformation of the
extent of the obligation still to be performed?
Held. Yes. 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 the obligations 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 Notes.
Discussion. Recourse to the I.C.J. in the event of a dispute was the original agreement between
the parties. The economy of Iceland (D) is dependent on fishing. The merit of Iceland (D)
argument was not reached by the Court in this case, however, but rather dealt with the
jurisdictional issues.
Gabkovo-Nagymaros Project (Hungary/Slovakia)
On 2 July 1993 the Governments of the Republic of Hungary and of the Slovak Republic notified
jointly to the Registry of the Court a Special Agreement, signed at Brussels on 7 April 1993, for
the submission to the Court of certain issues arising out of differences which had existed
between the Republic of Hungary and the Czech and Slovak Federal Republic regarding the
implementation and the termination of the Budapest Treaty of 16 September 1977 on the
Construction and Operation of the Gabkovo-Nagymaros Barrage System and on the
construction and operation of the provisional solution. The Special Agreement records that
the Slovak Republic is in this respect the sole successor State of the Czech and Slovak Federal
Republic. In Article 2 of the Special Agreement, the Court was asked to say : (a) whether the
Republic of Hungary was entitled to suspend and subsequently abandon, in 1989, the works
on the Nagymaros project and on that part of the Gabkovo project for which the Treaty
attributed responsibility 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 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 to
determine the legal consequences, including the rights and obligations for the Parties, arising
from its 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.
In June 1995, the Agent of Slovakia requested the Court to visit the site of the Gabkovo-
Nagymaros 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.
In its Judgment of 25 September 1997, the Court asserted that Hungary was not entitled to
suspend and subsequently abandon, in 1989, the works on the Nagymaros project and on the
6
part of the Gabkovo project for which it was responsible, and that Czechoslovakia was
entitled to proceed, in November 1991, to the provisional solution as described by the terms
of the Special Agreement. On the other hand, the Court stated that Czechoslovakia was not
entitled to put into operation, from October 1992, the barrage 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
ensure the achievement of the objectives of the said Treaty, in accordance with such
modalities as they might agree upon. Further, Hungary was to compensate Slovakia for the
damage sustained by 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 compensate Hungary for the damage it had
sustained on account of the putting into operation of the dam by Czechoslovakia and its
maintenance in service by Slovakia.
On 3 September 1998, Slovakia filed in the Registry of the Court a request for an additional
Judgment in 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 the Parties had conducted a series of negotiations of
the modalities for executing the 1997 Judgment and had initialled a draft Framework
Agreement, which had been approved by the Slovak Government. 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 signed at Brussels on 7 April 1993 by itself and Hungary. After the filing by Hungary
of a statement of its position on Slovakias request, the Parties resumed negotiations and
informed the Court on a regular basis of the progress in them.
Gabckovo-Nagymaros (Hungary v. Slovakia)
On 2 July 1993, Hungary and Slovakia notified the ICJ that a Special Agreement existed between
Hungary and Czechoslovakia regarding the implementation and the termination of the
Budapest Treaty of 16 September 1977 on the Construction and Operation of the Gabkovo-
Nagymaros System of Locks on the Danube. The Special Agreement identified Slovakia as the
sole successor of the State of Czechoslovakia. In its Judgment of 1997, the Court asserted that
Hungary was not entitled to suspend and subsequently abandon, in 1989, the Nagymaros
project and the part of the Gabkovo project for which it was 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 was not entitled to put into operation, from October 1992, the system of locks
in question, and that Slovakia, as successor to Czechoslovakia, had become Party to the Treaty
of 16 September 1977 as of 1 January 1993.
Brief Fact Summary. Hungary (P) claimed that Czechoslovakia (D) violated the provisions of a
treaty when it appropriated the waters of the Danube River to construct a dam.
Synopsis of Rule of Law. Watercourse states shall participate in the use, development and
protection of an international watercourse in an equitable and reasonable manner.
Facts. In 1977, Hungary (P) and Czechoslovakia (D) signed a Treaty for the construction of dams
and other projects along the Danube River that bordered both nations. Czechoslovakia (D)
began work on damming 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 associated with the project,
to which Czechoslovakia (D) had unlawfully unilaterally assumed control of a shared resource.
Issue. Shall watercourse states participate in the use, development and protection of an
international watercourse in an equitable and reasonable manner?
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 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.
Discussion. The Courts decision was that the joint regime must be restored. In order to
achieve most of the Treatys objectives, common utilization of shared water resources was
necessary. Hence, the defendant was not authorized to proceed without the plaintiffs
consent.
7
 Page 124 U. S. 191

Whitney v. Robertson, 124 U.S. 190 (1888) Decided January 9, 1888
ERROR TO THE CIRCUIT COURT OF THE UNITED
STATES FOR THE SOUTHERN DISTRICT OF NEW YORK
Syllabus
The Treaty of February 8, 1861, with the Dominican Republic (art. 9) provides that
"No higher or other duty shall be imposed on the importation into the United states of any
article the growth, produce, or manufacture of the Dominican Republic, or of her fisheries,
than are or shall be payable on the like articles the growth, produce, or manufacture of any
other foreign country or of its fisheries."
The Convention of January 30, 1575, with the King of the Hawaiian Islands provides for the
importation into the United States, free of duty, of various articles, the produce and
manufacture of those islands (among which were sugars), in consideration of certain
concessions made by the King of the Hawaiian Islands to the United States. Held that this
provision in the treaty with the Dominican Republic did not authorize the admission into the
United States, duty free, of similar sugars, the growth, produce, or 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.
S. 116.
By the Constitution of the United States, a treaty and a statute are placed on the same footing,
and if the two are inconsistent, the one last in date will control, provided the stipulation of the
treaty on the subject is self-executing.
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 under the treaty with the King of those islands and the act of
Congress passed to carry the treaty into effect. They were duly entered at the custom house
at the port of New York, the plaintiffs claiming that by 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.
The complaint set forth the facts as to the importation of the goods; the claim of the plaintiffs
that they 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, and its denial by him, and the payment, under protest, of the
duties exacted, and concluded with a prayer for judgment for the amount. The defendant
demurred to the complaint, the demurrer was sustained, and final judgment was entered in
his favor; to review which the case is brought here.
The treaty with the King of the Hawaiian Islands provides for the importation into the United
States, free of duty, of various articles, the produce and manufacture of those islands, in
consideration, among other things, of like exemption from duty on the importation into that
country of sundry specified articles which are the produce and manufacture of the United
States. 19 Stat. 625. The language of the first two articles of the treaty, which recite the
reciprocal engagements of the two countries, declares that they are made in consideration
Page 124 U. S. 192

This was an action to recover back duties alleged to have been illegally exacted. Verdict for the
"of the rights and privileges," and "as an equivalent therefor," which one concedes to the
defendant and judgment on the verdict. The plaintiffs sued out this writ of error.
other.

MR. JUSTICE FIELD delivered the opinion of the Court.

The plaintiffs rely for a like exemption of the sugars imported by them from San Domingo upon
the ninth article of the treaty with the Dominican Republic, which is as follows:
The plaintiffs are merchants doing business in the City of New York, and in August, 1882, they
imported a large quantity

8
"No higher or other duty shall be imposed on the importation into the United States of any
article, the growth, produce, or manufacture of the Dominican Republic, or of her fisheries,
and no higher or other duty shall be imposed on the importation into the Dominican Republic
of any article, the growth, produce, 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."
15 Stat. 475.
In Bartram v. Robertson, decided at the last term, 122 U. S. 116, we held that brown and
unrefined sugars, the produce and manufacture of the Island of St. Croix, which is part of the
dominions of the King of Denmark, were not exempt from duty by force of the treaty with that
country, because similar goods from the Hawaiian Islands were thus exempt. The first article
of the treaty with Denmark provided that the contracting parties should not grant "any
particular favor" to other nations in respect to commerce and navigation which should not
immediately become common to the other party, who should "enjoy the same freely if the
concession were freely made, and upon allowing the same compensation if the concession
were conditional." 11 Stat. 719. The fourth article provided that no "higher or other duties"
should be imposed by either party on the importation of any article which is its produce or
manufacture into the country of the other party than is payable on like articles, being the
produce or manufacture of any other foreign country. And we held in the case mentioned that
"Those stipulations, even if conceded to be self-executing by the way of a proviso or exception
to the general law imposing the duties, do not cover concessions like those made to the
Hawaiian Islands for a valuable consideration. They were pledges of the two contracting
parties, the United States and the King of
Page 124 U. S. 193
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 goods of like character imported from any other
country. They imposed an obligation upon both countries to avoid hostile legislation in that
respect, but they were not intended to interfere with special arrangements with other
countries founded upon a concession of special privileges."
The counsel for the plaintiffs meet this position by pointing to the omission in the treaty with
the Republic of San Domingo of the provision as to free concessions, and concessions upon
compensation, contending that the omission precludes any concession, in respect of
commerce and navigation, by our government to another country without that concession's
being at once extended to San Domingo. We do not think that the absence of this provision
changes the obligations of the United States. The ninth article of the 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 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 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 intended to preclude itself from such
engagements with other countries which might in the future be of the highest importance to
its interests.
But independently of considerations of this nature, there is another and complete answer to
the pretensions of the plaintiffs. The act of Congress under which the duties were collected
authorized their exaction. It is of general application, making no exception in favor of goods of
any country. It was passed
Page 124 U. S. 194
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 two or more independent nations, and is so regarded by writers
on public law. For the infraction of its provisions, a remedy must be sought by the injured party
through reclamations upon the other. When the stipulations are not self-executing, they can
only be enforced pursuant to legislation to carry them into effect, and such legislation is as
much subject to modification and repeal by Congress as legislation upon any other subject. If
the treaty contains stipulations which are self-executing -- that is, require no legislation to
make them operative -- to that extent they have the force and effect of a legislative enactment.
Congress may modify such provisions so far as they bind the United States, or supersede them
altogether. By the Constitution, a treaty is placed on the same footing, and made of like
obligation, with an act of legislation. Both are declared by that instrument to be the supreme
law of the land, and no superior efficacy is given to either over the other. When the two relate
to the same subject, the courts will 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 made is
dissatisfied with the action of the legislative department, it may present its complaint to the
9
executive head of the government and take such other measures as it may deem essential for
the protection of its interests. The courts can afford no redress. Whether the complaining
nation has just cause 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 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
Page 124 U. S. 195
one party so that it was no longer obligatory on the other; whether the views and acts of a
foreign sovereign had given just occasion to the legislative department of our government to
withhold the 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, 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 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 the reasons were good or bad.
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 courts is to construe and give effect to the
latest expression of the sovereign will. In Head Money Cases, 112 U. S. 580, it was objected to
an act of Congress that it violated provisions contained in treaties 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
subject it held that
"so far as a treaty made by the United States with any foreign nation can be 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."
Judgment affirmed.
Whitney v. Robertson
Brief Fact Summary. The claim which Whitney (P) brought before the court was that a treaty
between the U.S and the 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.
Synopsis of Rule of Law. Where a treaty and an act of legislation conflict, the one last in date
will control.
Facts. The claim which Whitney (P) brought before the court was that a treaty between the
U.S and the 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.
Issue. Where a treaty and an act of legislation conflict, will the one last in date control?
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.
Discussion. A later inconsistent statute does not abrogate or repeal a treaty. The treaty still
exists as an international obligation although the terms of the treaty may not be enforceable.
Head Money Cases, 112 U.S. 580 (1884)
IN ERROR TO THE CIRCUIT COURT OF THE UNITED STATES
FOR THE EASTERN DISTRICT OF NEW YORK
Syllabus
The act of Congress of August 8, 1882, "to regulate immigration," which imposes upon the
owners of steam or sailing vessels who shall bring passengers from a foreign port into a port
of the United States, a duty of fifty
Page 112 U. S. 581
10
cents for every such passenger not a citizen of this country, is a valid exercise of the power to
regulate commerce with foreign nations.
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 Constitution, and necessarily decided that, when Congress did pass such a
statute, which it has done in this case, it would be valid.
The contribution levied on the ship owner by this statue is designed to mitigate the evils
incident to immigration from abroad by raising a fund for that purpose, and it is not, in the
sense of the Constitution, a tax subject to the limitations imposed by that instrument on the
general taxing power of Congress.
A tax is uniform, within the meaning of the constitutional provision on that subject, when it
operates with the same effect in all places where the subject of it is found, and is not wanting
in such uniformity 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 enforce them. With this, judicial courts have nothing
to do.
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 the supreme law of the land in all courts where
such rights are to be tried.
But in this respect, so far as the provisions of a treaty can become the subject of judicial
cognizance in the courts of the country, they are subject to such acts as Congress may pass
for their enforcement, modification, or repeal.
These suits were brought to recover back sums collected at various times as duties on
immigrants arriving in the United States, under the provision of the act of August 3, 1882, 23
Stat. 21,
"that there shall be levied, collected, and paid a duty of fifty cents for each and every
passenger not a citizen of the United States, who shall come by steam or sail vessel from a
foreign port to any port within the United States."
Protests were filed against each payment, and all other steps required as foundations for the
actions were taken. In the Edye Case, there was a trial, jury being waived, a finding of facts, a
judgment, and exceptions. 18 Fed.Rep. 13. In the Cunard Cases, judgment was entered in
favor of the collector
Page 112 U. S. 582
on demurrer to the complaints. The causes were brought here on writs of error.
Page 112 U. S. 586
MR. JUSTICE MILLER delivered the opinion of the court.
These cases all involve the same questions of law, and have been argued before this court
together.
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 Circuit Court on demurrer to the declaration.
They will be disposed of here in one opinion, which will have reference to the case as made
by the record in Edye & Another v. Robertson.
The suit is brought to recover from Robertson the sum of money received by him, as
collector of the port of New York, from plaintiffs on account of their landing in that port
passengers from foreign ports, not 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."
The petition of plaintiffs and the agreed facts, which are
Page 112 U. S. 587
also made the finding of the court to which the case was submitted without a jury, are the
same with regard to each of many arrivals of vessels of the plaintiffs, except as to the name
11
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.
The following are admitted to be the facts in this action:
"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 Holland and the United States of America as consignees and agents."
"That on the 2d day of October, 1882, there arrived, consigned to the plaintiffs, the Dutch
ship Leerdam, owned by certain citizens or subjects of the Kingdom of Holland and belonging
to the nationality of Holland, at the port of New York. She had sailed from the foreign port of
Rotterdam, in Holland, bound to New York, and carried 382 persons not citizens of tile United
States."
"That, among said 382 persons, 20 were severally under the age of one year, and 9 were
severally between the ages of one year and eight years."
"That, upon the arrival of said steamship Leerdam within the collection district of New York,
the master 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 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 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 the
oath of the master, was, with the manifest of the cargo, delivered by the master to the
defendant as collector
Page 112 U. S. 588
of customs of the port of New York on the entry of said vessel."
"That it appears from the said list of passengers and duplicate that the said 382 persons were
each and every one subjects of Holland or other foreign powers in treaty of peace, amity, and
commerce with the United States."
"That the said passenger manifest also states the total number of passengers, and shows that
20 of them were under one year of age, and 59 between the ages of one year and eight
years."
"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 passengers, being fifty cents for each of said 382 passengers."
"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 on said vessel for said sum of 191 dollars."
"On the defendants' making such demand, the plaintiffs paid the same and protested against
the payment thereof."
"That a copy of the protest in regard to said Leerdam is annexed to the complaint, marked
No. 1, and is a correct copy of the protest."
"That, on the same day, the plaintiffs duly appealed to the Secretary of the Treasury from
such decision of the collector, and that the paper marked Appeal No. 2, annexed to the
complaint, is a copy of said appeal."
"On the 18th of October, 1882, the Secretary of the Treasury sustained the action of the
defendant, and this action is brought within ninety days after the rendering of such
decision."
"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,' approved August 3, 1882. "
Page 112 U. S. 589
On the facts as thus agreed and as found by the Circuit Court, a judgment was rendered in
favor of defendant, which we are called upon to review.
There is no complaint by plaintiffs that the defendant violated this act in any respect but one,
namely, 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.
12
The supposed exception of this class of passengers does not arise out of any language found
in this act to 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 provision limits the number of passengers
which the vessel may carry by the number of cubic feet of space in which they are to be
carried, and it declares that, in making this calculation, children of the ages 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 immigrants, children are as likely to require its aid as adults, probably more so. They
are certainly within 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.
The other errors assigned, however numerous or in whatever language presented, all rest on
the proposition that the act of Congress requiring the collector to demand and receive from
the master, owner, or consignee of each vessel arriving from a foreign port fifty cents for
every passenger whom he brings into a port of the United States who is not a citizen, is
without warrant in the Constitution, and is void.
The substance of the act is found in its first section, namely:
"An Act to Regulate Immigration"
"Be it enacted by the Senate and House of Representatives of the United States of America in
Congress assembled, That there shall be levied, collected, and paid a duty of fifty cents
Page 112 U. S. 590
for each and every passenger, not a citizen of the United States, who shall come by steam or
sail vessel from a foreign port to any port within the United States. The said duty shall be
paid to the collector of customs of the port to which such passenger shall come, or if there be
no collector at such port, then to 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 used,
under the direction of the Secretary of the Treasury, to defray the expense of regulating
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."
22 Stat. 214.
The act further authorizes the Secretary to use the aid of any State organization or officer for
carrying 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 prescribed by him. It directs that such officers shall go on
board vessels arriving from abroad, and if, on 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 permitted to
land.
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 needs it, and for the return of those who are not permitted to land.
This act of Congress is similar in its essential features to many statutes enacted by States of
the Union for the protection of their own citizens and for the good of the immigrants who
land at seaports within their borders.
That the purpose of these statutes is humane, is highly beneficial to the poor and helpless
immigrant, and is essential to
Page 112 U. S. 591
the protection of the people in whose midst they are deposited by the steamships, is beyond
dispute. That the power to pass such laws should exist in some legislative body in this
country is equally clear. This court has decided distinctly and frequently, and always after a
full hearing from able counsel, that it does not belong to the States. That decision did not
rest in any case on the ground that the State and its 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 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 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 population of criminals, paupers, and diseased persons
without making any provision to preserve them from starvation and its concomitant
sufferings even for the first few days after they have left the vessel.
13
This court is not only asked to decide this, but it is asked to overrule its decision, several
times made with unanimity, that the power does reside in Congress, is conferred upon that
body by the express language 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.
That these statutes are regulations of commerce -- of commerce with foreign nations -- is
conceded in the argument in this case, and that they constitute a regulation of that class
which belongs exclusively to 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.
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
"it is the
Page 112 U. S. 592
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 that should arrive in the port of said city the sum of one dollar for
each steerage passenger brought in such vessel, is repugnant to the Constitution and laws of
the United States, and therefore void."
An examination of the opinions of the judges shows that, if the majority agreed upon any one
reason for 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 because they held that this power belonged to the class which
the States might exercise until it was 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.
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 remove the objections held good against it in
the Passenger Cases, the question of its constitutional 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 power of
Congress.
"As already indicated," says the court,
"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 nations.'"
The court then, referring to the transportation of passengers from European ports to those
of the United States, says:
"It has become a part of our commerce with foreign nations, of vast interest to this country
as well as to the immigrants who come among us, to find a welcome and a home within our
borders. . . .
Page 112 U. S. 593
Is the regulation of this great system a regulation of commerce? Can it be doubted that a law
which prescribes the terms on which vessels shall engage in it is a law regulating this branch
of commerce?"
The court adds:
"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 to all vessels, a serious question, which has long
been matter of contest and complaint, may be effectually and satisfactorily settled."
And, for this reason, the statute of New York was held void.
In the case of the Commissioners of Immigration v. North German Lloyd, 92 U. S. 259, a
similar statute of Louisiana was held void for the same reason. And in the case of Chy Lung v.
Freeman, 92 U. S. 275, 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 foreign nations."
14
In the case of People v. Compagnie Generale Transatlantique, 107 U. S. 59, where the State
of New York, having again modified her statute, it was again held void, the court said:
"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"
(referring to the cases just cited), "that there is little to say beyond affirming the judgment of
the Circuit Court, which was based on those decisions "
It cannot be said that these cases do not govern the present, though there was not then
before us any 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 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
Page 112 U. S. 594
State statutes invalid, that a similar statute by Congress would be valid.
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.
But counsel for plaintiffs, assuming that Congress, in the enactment of this law, is exercising
the taxing power conferred by the first clause of section of article I of the Constitution, and
can derive no aid in support of its action from any other grant of power in that instrument,
argues that all the restraints and qualifications found there in regard to any form of taxation
are limitations upon the exercise of the power in this case. The clause is in the following
language:
"The Congress shall have power to lay and collect taxes, duties, imposts, and excises, to pay
the debts and provide for the common defence and the general welfare of the United States;
but all duties, imposts, and excises shall be uniform throughout the United States."
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.
The uniformity here prescribed has reference to the various localities in which the tax is
intended to operate. "It shall be uniform throughout the United States." Is the tax on tobacco
void because, in many of the States, no tobacco is raised or manufactured? Is the tax on
distilled spirits void because a few States pay three-fourths of the revenue arising from it?
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 bringing passengers from foreign countries into this, by ocean
navigation, is uniform and operates precisely alike in every port of the United States where
such passengers can be landed. It is said that the statute violates the rule of uniformity and
the provision of the Constitution that
"no preference shall be given by any regulation of commerce or revenue to the ports of one
State over those of
Page 112 U. S. 595
another"
because it does not apply to passengers arriving in this country by railroad or other inland
mode of conveyance. But the law applies to all ports alike, and evidently gives no preference
to one over another, but is uniform in its operation in all ports of the United States. It may be
added that the evil to be remedied by this legislation has no existence on our inland borders,
and immigration in that quarter 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 Tax Cases, 92 U. S. 575, 92 U. S.
612. Here, there is substantial uniformity within the meaning and purpose of the
Constitution.
If it were necessary to prove that the imposition of this contribution on owners of ships is
made for the 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 we are not permitted to inquire.
But the true answer to all these objections is that the power exercised in this instance is not
the taxing power. The burden imposed on the ship owner by this statute is the mere incident
of the regulation of commerce -- of that branch of foreign commerce which is involved in
immigration. The title of the act, "An Act to regulate immigration," is well chosen. It
describes, as well as any short sentence can describe it, the real purpose and effect of the
15
statute. Its provisions, from beginning to end, relate to the subject of immigration, and they
are aptly designed to mitigate the evils inherent in the business of bringing foreigners to this
country, as those evils affect both the immigrant and the people among whom he is suddenly
brought and left to his own resources.
It is true, not much is said about protecting the ship owner. But he is the man who reaps the
profit from the transaction, who has the means to protect himself, and knows well how to do
it, and whose 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
Page 112 U. S. 596
meaning of the Constitution. The money thus raised, though paid into the Treasury, is
appropriated in advance to the uses of the statute, and does not go to the general support of
the government. It constitutes a fund raised from those who are engaged in the
transportation of these passengers, and 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.
If this is an expedient regulation of commerce by Congress, and the end to be attained is one
falling within that power, the act is not void, because, within a loose and more extended
sense than was used in the Constitution, it is called a tax. In the case of Veazie Bank v.
Fenno, 8 Wall. 533, 75 U. S. 549, the 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
the notes of the national banks. It was not subject, therefore, to the rules which would
invalidate an ordinary, tax pure and simple.
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 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." The reason of this is that, though it was a
burden, or tax, in some sense, and measured by the tonnage of the vessel, it was but a
charge for services rendered, or for conveniences furnished by the city, and was not a
tonnage tax within the meaning of the Constitution. This principle was reaffirmed in the case
of Packet Co. v. St. Louis, 100 U. S. 423.
We are clearly of opinion that, in the exercise of its power to regulate immigration, and in
the very act of exercising that power, it was competent for Congress to impose this
contribution on the ship owner engaged in that business.
Page 112 U. S. 597
Another objection to the validity of this act of Congress is that it violates provisions contained
in 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 these treaties on any just construction of them. Though laws similar
to this have long been enforced by the State of New York, in the great metropolis of foreign
trade where four-fifths of these passengers have been landed, no complaint has been made
by any foreign nation to ours of the violation of treaty obligations by the enforcement of
those laws.
But we do not place the defence of the act of Congress against this objection upon that
suggestion.
We are of opinion that, so far as the provisions in that act may be found to be in conflict with
any treaty with a foreign nation, they must prevail in all the judicial courts of this country.
We had supposed that 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 case, and two others dissented. But six judges took
part in the decision, and the two who dissented placed that dissent upon the ground that
Congress did not intend that the tax on tobacco should extend to the Cherokee tribe. They
referred to the existence of the treaty which would be violated if the statute 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 opinion of all the judges who heard the case. See United States v.
McBratney, 104 U. S. 621-623.
The precise question involved here, namely, a supposed conflict between an act of Congress
imposing a customs duty and a treaty with Russia on that subject, in force when the act was
passed, came before the Circuit Court for the District of Massachusetts in 1855. It received
the consideration of that eminent jurist Mr. Justice Curtis of this court, who, in a very learned
Page 112 U. S. 598
16
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 very recent case in the Ninth Circuit, that of Ah Lung, 18 Fed.Rep.
28, on a writ of habeas corpus, has delivered an opinion sustaining the same doctrine in
reference to a statute regulating the immigration of Chinamen into this country. In
the Clinton Bridge Case, Woolworth 150, 156, the writer of this opinion expressed the same
views as did Judge Woodruff, on full consideration, in Ropes v. Clinch, 8 Blatchford 304, and
Judge Wallace, in the same circuit, in Bartram v. Robertson, 15 Fed.Rep. 212.
It is very difficult to understand how any different doctrine can be sustained.
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 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 provisions which confer certain rights
upon the citizens or subjects of one of the nations residing in the territorial limits of the
other, which partake of the nature of municipal law and which are capable of 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 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
"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."
A treaty, then, is a law of the land, as an act of Congress is whenever its provisions prescribe
a rule by which the rights of the private
Page 112 U. S. 599
citizen or subject may be determined. And when such rights are of a nature to be enforced in
a court of justice, that court resorts to the treaty for a rule of decision for the case 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
unchangeable. The Constitution gives it no superiority over an act of Congress in this respect,
which may be repealed or modified by an act of a later date. Nor is there anything in its
essential character, or in the branches of the government by which the treaty is made, which
gives it this superior sanctity.
A treaty is made by the President and the Senate. Statutes are made by the President, the
Senate, and 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 all three of the bodies participate. And such is,
in fact, the case in a declaration of war, which must be made by Congress and which, when
made, usually suspends or destroys existing treaties between the nations thus at war.
In short, we are of opinion that, so far as a treaty made by the United States with any foreign
nation can 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.
Other objections are made to this statute. Some of these relate not to the power of Congress
to pass the act, but to the expediency or justice of the measure, of which Congress, and not
the courts, are the sole judges -- such as its unequal operation on persons not paupers or
criminals and its effect in compelling the ultimate payment of the sum demanded for each
passenger by that passenger himself. Also that the money is to be drawn from the Treasury
without an appropriation by Congress. The act itself makes the 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
Page 112 U. S. 600
by Congress, if that be necessary, by another statute.
It is enough to say that, Congress having the power to pass a law regulating immigration as a
part of commerce of this country with foreign nations, we see nothing in the statute by
which it has here exercised that power forbidden by any other part of the Constitution.
The judgment of the Circuit Court in all the cases is Affirmed.
EDYE VS ROBERTSON (or the HEAD MONEY CASES)
Facts:
The suit is brought to recover from Robertson, collector of the port of New York, sum
of money he received from the plaintiffs, on account of their landing in that port, passengers
17
not citizens of the United States. The collection was based on the act of Congress entitled An
act to regulate immigration 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 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 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 severally under age of one year and 59 were
severally between the ages of one year and eight years. On this account, Robertson, the
collector of the said port, decided that the plaintiffs must pay a duty of 191 dollars for the said
passengers costing 50 cents for each of the 382 passengers before they be permitted to land.
The plaintiffs paid and protested against the payment.
The circuit court rendered judgment in favor of the defendant and which is called
upon review.
Issue: Whether the act of Congress violates treaties by the Unites States with friendly nations?
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.
Held:
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 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 provision which confer certain rights upon the citizens
or subjects of one nations residing in the territorial limits of the other, which partake of the
nature of municipal law, and which are capable of enforcement as between private parties in
the courts of the country.
...The constitution of the United States places provisions in the treaties in the same
category as 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 law of the land.
A treaty, then, is a law of the land as an act of Congress is, whenever its provisions
prescribe a rule by which the rights of the private citizen or subject may be determined. And
when such rights are of a nature to be enforced in a court of justice, that court resorts to the
treaty for a rule decision for the case 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 unchangeable. The constitution gives it no superiority over and act of Congress
in this respect, which may be repealed or modified by an act of a later date. Nor is there
anything in its essential character, or in branches of the government by which the treaty is
made, which gives it this superior sanctity.
The court opined that so far as a treaty made by the United States with any foreign
nation can 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.
The judgment of the circuit court is affirmed.
G.R. No. L-2662 March 26, 1949
SHIGENORI KURODA, petitioner,
vs.
Major General RAFAEL JALANDONI, Brigadier General CALIXTO DUQUE, Colonel
MARGARITO TORALBA, Colonel IRENEO BUENCONSEJO, Colonel PEDRO TABUENA, Major
FEDERICO ARANAS, MELVILLE S. HUSSEY and ROBERT PORT, respondents.
Pedro Serran, Jose G. Lukban, and Liberato B. Cinco for petitioner.
Fred Ruiz Castro Federico Arenas Mariano Yengco, Jr., Ricardo A. Arcilla and S. Melville Hussey
for respondents.
MORAN, C.J.:
Shigenori Kuroda, formerly a Lieutenant-General of the Japanese Imperial Army and
Commanding General of the Japanese Imperial Forces in The Philippines during a period
covering 19433 and 19444 who is now charged before a military Commission convened by the
Chief of Staff of the Armed forces of the Philippines with having unlawfully disregarded and
failed "to discharge his duties as such command, permitting them to commit brutal atrocities
and other high crimes against noncombatant civilians and prisoners of the 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
18
and prohibit respondents Melville S. Hussey and Robert Port from participating in the
prosecution of petitioner's case before the Military Commission and to permanently prohibit
respondents from proceeding with the case of petitioners.
In support of his case petitioner tenders the following principal arguments.
First. "That Executive Order No. 68 is illegal on the ground that it violates not only the
provision of our 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 petitioners is charged of 'crimes' not based
on law, national and international." Hence petitioner argues "That in view off the fact that
this commission has been empanelled by virtue of an unconstitutional law an illegal order this
commission is without jurisdiction to try herein petitioner."
Second. That the participation in the prosecution of the case against petitioner before the
Commission in behalf of the United State of America of attorneys Melville Hussey and Robert
Port who are not attorneys authorized by the Supreme Court to practice law in the Philippines
is a diminution of our 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.
Third. That Attorneys Hussey and Port have no personality as prosecution the United State
not being a party in interest in the case.
Executive Order No. 68, establishing a National War Crimes Office prescribing rule and
regulation governing the trial of accused war criminals, was issued by the President of the
Philippines on the 29th days of July, 1947 This Court holds that this order is valid and
constitutional. Article 2 of our Constitution provides in its section 3, that
The Philippines renounces war as an instrument of national policy and adopts the generally
accepted principles of international law as part of the of the nation.
In accordance with the generally accepted principle of international law of the present day
including the Hague Convention the Geneva Convention and significant precedents of
international jurisprudence 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 accountable therefor.
Consequently in the promulgation and enforcement of Execution Order No. 68 the President
of the Philippines has acted in conformity with the generally accepted and policies of
international law which are part of the our Constitution.
The promulgation of said executive order is an exercise by the President of his power as
Commander in chief of all our armed forces as upheld by this Court in the case of
Yamashita vs. Styer (L-129, 42 Off. Gaz., 664) 1 when we said
War is not ended simply because hostilities have ceased. After cessation of armed hostilities
incident of war may remain pending which should be disposed of as in time of war. An
importance incident to a 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 the power to create a military
commission for the trial and punishment of war criminals is an aspect of waging war. And in
the language of a writer a military commission has jurisdiction so long as a technical state of
war continues. This includes the period of an armistice or military occupation up to the
effective of a treaty of peace and may extend beyond by treaty agreement. (Cowles Trial of
War Criminals by Military Tribunals, America Bar Association Journal June, 1944.)
Consequently, the President as Commander in Chief is fully empowered to consummate this
unfinished aspect of war namely the trial and punishment of war criminal through the issuance
and enforcement of Executive Order No. 68.
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 regulation of the Hague and Geneva conventions form, part of and are
wholly based on the generally accepted principals of international law. In facts these rules and
principles were accepted by the two 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 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.
Furthermore when the crimes charged against petitioner were allegedly committed the
Philippines was 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
19
assumption of full sovereignty. If at all our emergency as a free state entitles us to enforce the
right on our own of trying and punishing those who committed crimes against crimes against
our people. In this connection it is well to remember what we have said in the case of Laurel
vs. Misa (76 Phil., 372):
. . . The change of our form government from Commonwealth to Republic does not affect the
prosecution of those charged with the crime of treason committed during then
Commonwealth because it is an offense against the same sovereign people. . . .
By the same token war crimes committed against our people and our government while we
were a Commonwealth are triable and punishable by our present Republic.
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.
The Military Commission having been convened by virtue of a valid law with jurisdiction over
the crimes charged which fall under the provisions of Executive Order No. 68, and having said
petitioner in its custody, this Court will not interfere with the due process of such Military
commission.
For all the foregoing the petition is denied with costs de oficio.
Paras, Feria, Pablo, Bengzon, Tuason, Montemayor and Reyes, JJ., concur.

Petitioner challenges the participation of two American attorneys namely Melville S. Hussey
and Robert Port in the prosecution of his case on the ground that said attorney's are not
qualified to practice law in Philippines in accordance with our Rules of court and the Separate Opinions
appointment of said attorneys as prosecutors is violative of our national sovereignty.
PERFECTO, J., dissenting:
In the first place respondent Military Commission is a special military tribunal governed by a
special law and not by the Rules of court which govern ordinary civil court. It has already been A military commission was empanelled on December 1, 1948 to try Lt. Gen. Shigenori Kuroda
shown that Executive Order No. 68 which provides for the organization of such military for Violation of the laws and customs of land warfare.
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
Melville S. Hussey and Robert Port, American citizens and not authorized by the Supreme Court
practice law in the Philippines in accordance with the Rules of Court. In facts it is common in
to practice law were appointed prosecutor representing the American CIC in the trial of the
military tribunals that counsel for the parties are usually military personnel who are neither
case.
attorneys nor even possessed of legal training.

The commission was empanelled under the authority of Executive Order No. 68 of the
Secondly the appointment of the two American attorneys is not violative of our nation
President of the Philippines the validity of which is challenged by petitioner on constitutional
sovereignty. It is only fair and proper that United States, which has submitted the vindication
grounds. Petitioner has also challenged the personality of Attorneys Hussey and Port to appear
of crimes against her government and her people to a tribunal of our nation should be allowed
as prosecutors before the commission.
representation in the trial of those very crimes. If there has been any relinquishment of
sovereignty it has not been by our government but by the United State Government which has
The charges against petitioner has been filed since June 26, 1948 in the name of the people of
yielded to us the trial and punishment of her enemies. The least that we could do in the spirit
the Philippines as accusers.
of comity is to allow them representation in said trials.

We will consideration briefly the challenge against the appearance of Attorneys Hussey and
Alleging that the United State is not a party in interest in the case petitioner challenges the
Port. It appearing that they are aliens and have not been authorized by the Supreme Court to
personality of attorneys Hussey and Port as prosecutors. It is of common knowledge that the
practice law there could not be any question that said person cannot appear as prosecutors in
United State and its people have been equally if not more greatly aggrieved by the crimes with
petitioner case as with such appearance they would be practicing law against the law.
which petitioner stands charged before the Military Commission. It can be considered a

20
Said violation vanishes however into insignificance at the side of the momentous question
involved in the challenge against the validity of Executive Order No. 68. Said order is challenged
on several constitutional ground. To get a clear idea of the question raised it is necessary to
read the whole context of said order which is reproduced as follows:
EXECUTIVE ORDER NO. 68.
ESTABLISHING A NATIONAL WAR CRIMES OFFICE AND PRESCRIBING RULES AND REGULATION
GOVERNING THE TRIAL OF ACCUSED WAR CRIMINAL.
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 of accomplishing the speedy trial of all Japanese accused of
war crimes committed in the Philippines and prescribe the rules and regulation such trial.
The National War crimes office is established within the office of the Judge Advocate General
of the Army of the Philippines and shall function under the direction supervision and control
of the Judge Advocate 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.
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.
The following rules and regulation shall govern the trial off person accused as war criminals:
ESTABLISHMENT OF MILITARY COMMISSIONS
(a) General. person accused as war criminal shall be tried by military commission to be
convened by or under the authority of the Philippines.
II. JURISDICTION
(a) Over Person. Thee military commission appointed hereunder shall have jurisdiction over
all persons charged with war crimes who are in the custody of the convening authority at the
time of the trial.
(b) Over Offenses. The military commission established hereunder shall have jurisdiction
over all offenses including but not limited to the following:
(1) The planning preparation initiation or waging of a war of aggression or a war in violation of
international treaties agreement or assurance or participation in a common plan or conspiracy
for the accomplishment of any of the foregoing.
(2) Violation of the laws or customs of war. Such violation shall include but not be limited to
murder ill-treatment or deportation to slave labor or for other purpose of civilian population
of or in occupied territory; murder or ill-treatment of prisoners of war or internees or person
on the seas or elsewhere; improper treatment of hostage; plunder of public or private property
wanton destruction of cities towns or village; or devastation not justified by military necessity.
(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.
III. MEMBERSHIP OF COMMISSIONS
(a) Appointment. The members of each military commission shall be appointed by the
President of the Philippines or under authority delegated by him. Alternates may be appointed
by the convening authority. 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 proceeding had evidence
taken in that case shall be made known to the said new member or alternate. This facts shall
be announced by the president of the commission in open court.
(b) Number of Members. Each commission shall consist of not less than three (3) members.
(c) Qualifications. The convening authority shall appoint to the commission persons whom
he determines to be competent to perform the duties involved and not disqualified by
personal interest or 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 far as concerns the commission on an
objection to the admissibility of evidence offered during the trial.
21
(d) Voting. Except as to the admissibility of evidence all rulings and finding of the
Commission shall be by majority vote except that conviction and sentence shall be by the
affirmative vote of not less than conviction and sentence shall be by the affirmative vote of
not less than two-thirds (2\3) of the member present.
(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.
IV. PROSECUTORS
(a) Appointment. The convening authority shall designate one or more person to conduct
the prosecution before each commission.
(b) Duties. The duties of the prosecutor are:
(1) To prepare and present charges and specifications for reference to a commission.
(2) To prepare cases for trial and to conduct the prosecution before the commission of all cases
referred for trial.
V. POWER AND PROCEDURE OF COMMISSION
(a) Conduct of the Trial. A Commission shall:
(1) Confine each trial strictly to fair and expeditious hearing on the issues raised by the charges,
excluding irrelevant issues or evidence and preventing any unnecessary delay or interference.
(2) Deal summarily with any contumacy or contempt, imposing any appropriate punishment
therefor.
(3) Hold public session when otherwise decided by the commission.
(4) Hold each session at such time and place as it shall determine, or as may be directed by the
convening authority.
(b) Rights of the Accused. The accused shall be entitled:
(1) To have in advance of the trial a copy of the charges and specifications clearly worded so
as to apprise the accused of each offense charged.
(2) To be represented, prior to and during trial, by counsel appointed by the convening
authority or counsel of his own choice, or to conduct his own defense.
(3) To testify in his own behalf and have his counsel present relevant evidence at the trial in
support of his defense, and cross-examine each adverse witness who personally appears
before the commission.
(4) To have the substance of the charges and specifications, the proceedings and any
documentary evidence translated, when he is unable otherwise to understand them.
(c) Witnesses. The Commission shall have power:
(1) To summon witnesses and require their attendance and testimony; to administer oaths or
affirmations to witnesses and other persons and to question witnesses.
(2) To require the production of documents and other evidentiary material.
(3) To delegate the Prosecutors appointed by the convening authority the powers and duties
set forth in (1) and (2) above.
(4) To have evidence taken by a special commissioner appointed by the commission.
(d) Evidence.
(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 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) Any document, irrespective of its classification, which appears to the commission to have
been signed or issued by any officer, department, agency or member of the armed forces of
any Government without proof of the signature or of the issuance of the document.
22
(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 report.
(c) Affidavits, depositions or other signed statements.
(d) Any diary, letter to other document, including sworn statements, appearing to the
commission to contain information relating to the charge.
(e) A copy of any document or other secondary evidence of the contents, if the original is not
immediately available.
(2) The commission shall take judicial notice of facts of common knowledge, official
government documents of any nation, and the proceedings, records and findings of military or
other agencies of any of the United Nation.
(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.
(4) The official position of the accused shall not absolve him from responsibility nor be
considered in 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.
(5) All purposed confessions or statements of the accused shall bee admissible in evidence
without any showing that they were voluntarily made. If it is shown that such confession or
statement was procured by mean which the commission believe to have been of such a
character that may have caused the accused to make a false statement the commission may
strike out or disregard any such portion thereof as was so procured.
(e) Trial Procedure. The proceedings of each trial shall be conducted substantially as follows
unless modified by the commission to suit the particular circumstances:
(1) Each charge and specification shall be read or its substance stated in open court.
(2) The presiding member shall ask each accused whether he pleads "Guilty" or "Not guilty."
(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 commission thereupon may rule upon the admissibility of such evidence.
(4) The witnesses and other evidence for the prosecution shall be heard or presented. At the
close of the case for the prosecution, the commission may, on motion of the defense for a
finding of not guilty, consider and rule whether he evidence before the commission may defer
action on any such motion and permit or require the prosecution to reopen its case and
produce any further available evidence.
(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 where upon the commission may rule upon the admissibility of such
evidence.
(6) The witnesses and other evidence for the defense shall be heard or presented. Thereafter,
the prosecution and defense may introduce such evidence in rebuttal as the commission may
rule as being admissible.
(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 the convening authority, announce in open court its judgment and sentence if any.
The commission may state the reason on which judgment is based.
( f ) Record of Proceedings. Each commission shall make a separate record of its proceeding
in the trial of each case brought before it. The record shall be prepared by the prosecutor under
the direction of the 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.
(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 determine to be proper.
(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
23
purpose of his review the Chief of Staff shall create a Board of Review to be composed of not
more than three officers none of whom shall be on duty with or assigned to the Judge Advocate
General's Office. The Chief of Staff shall have authority to approve, mitigate remit in whole or
in part, commute, suspend, reduce or otherwise alter the sentence imposed, or (without
prejudice to the accused) remand the case for rehearing before a new military 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 any other tribunal.
VI. RULE-MAKING POWER
Supplementary Rule and Forms. Each commission shall adopt rules and forms to govern its
procedure, 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.
VII. The amount of amount of seven hundred thousand pesos is hereby set aside out of the
appropriations 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 Judge Advocate General as approved by the President. The
buildings, fixtures, installations, messing, and billeting equipment and other property herefore
used by then Legal Section, Manila Branch, of the General Headquarters, Supreme Commander
for the Allied Power, which will be turned over by the United States 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.
Executive Order No. 64, dated August 16, 1945, is hereby repealed.
Done in the City of Manila, this 29th day of July in the year of Our Lord, nineteen hundred and
forty-seven, and of the Independence of the Philippines, the second.
MANUEL ROXAS
President of the Philippines
By the President:
EMILIO ABELLO
Chief of the Executive Office
EXECUTIVE LEGISLATION
Executive Order No. 68 is a veritable piece of Legislative measure, without the benefit of
congressional enactment.
The first question that is trust at our face spearheading a group of other no less important
question, is whether or not the President of the Philippines may exercise the legislative power
expressly vested in Congress by the Constitution. .
The Constitution provides:
The Legislative powers shall be vested in a Congress of the Philippines which shall consist of a
Senate and 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 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 any part of the
Philippines under martial law, and to the rule-making power expressly vested by the
Constitution in the Supreme Court.
There cannot be any question that the member of the Constitutional Convention were
believers in the 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 Constitution, after which ours has been patterned, has
allocated the three power of government legislative, executive, judicial to distinct and
separate department of government.
Because the power vested by our Constitution to the several department of the government
are in the nature of grants, not recognition of pre-existing power, no department of
government may exercise any power or authority not expressly granted by the Constitution or
by law by virtue express authority of the Constitution.
Executive Order No. 68 establishes a National War Crimes Office and the power to establish
government office is essentially legislative.
24
The order provides that person accused as war criminals shall be tried by military commissions.
Whether such a provision is substantive or adjective, it is clearly legislative in nature. It confers
upon military commissions jurisdiction to try all persons charge with war crimes. The power to
define and allocate jurisdiction for the prosecution of person accused of any crime is
exclusively vested by the Constitution in Congress. .
It provides rules of procedure for the conduct of trial of trial. This provision on procedural
subject constitutes a usurpation of the rule-making power vested by Constitution in the
Supreme Court.
It authorized military commission to adopt additional rule of procedure. If the President of the
Philippines 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.
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 vote appropriations belongs to Congress.
Executive Order No. 68., is, therefore, null and void, because, though it the President of the
Philippines usurped power expressly vested by the Constitution in Congress and in the
Supreme Court.
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 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. 671, both of which are transcribed
below:
COMMONWEALTH ACT NO. 600.
AN ACT DECLARING A STATE OF EMERGENCY AND AUTHORIZING THE PRESIDENT TO
PROMULGATE RULES AND REGULATION TO SAFEGUARD THE INTEGRITY OF THE PHILIPPINES
AND TO INSURE THE TRANQUILITY OF ITS INHABITANTS.
Be it enacted by the National Assembly of the Philippines:
SECTION 1. The existence of war in many parts of the world has created a national emergency
which makes it necessary to invest the President of the Philippines with extraordinary power
in order to safeguard the 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 by providing means for the speedy
evacuation of the civilian population the establishment of an air protective service and the
organization of volunteer guard units, and to adopt such other measures as he may deem
necessary for the interest of the public. To carry out this policy the President is authorized to
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 or repealed by the Congress of Philippines. Such rules and regulation may
embrace the following objects: (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 such services as may bee necessary in
the public interest; (3) to take over farm lands in order to prevent or shortage of crops and
hunger and destitution; (4) to take over industrial establishment in order to insure adequate
production, controlling wages and profits therein; (5) to prohibit lockouts and strikes whenever
necessary to prevent the unwarranted suspension of work in productive enterprises or in the
interest of 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 productive enterprises; (8) to commandership and other
means of transportation in order to maintain, as 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 of articles or
commodities of prime necessity, both imported and locally produced or manufactured; and
(11) to prevent, locally or generally, scarcity, monopolization, hoarding injurious speculations,
and private control affecting the supply, distribution and movement of foods, clothing, fuel,
fertilizer, chemical, building, material, implements, machinery, and equipment required in
agriculture and industry, with power to requisition these commodities subject to the payment
of just compensation. (As amended by Com. Act No. 620.)
SEC. 2. For the purpose of administering this Act and carrying out its objective, the President
may designate any officer, without additional compensation, or any department, bureau,
office, or instrumentality of the National Government.
SEC. 3. Any person, firm, or corporation found guilty of the violation of any provision of this
Act or of this Act or any of the rules or regulations promulgated by the President under the
authority of section one of 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
25
committed by a firm or corporation, the manager, managing director, or person charge with
the management of the business of such firm, or corporation shall be criminally responsible
therefor.
SEC. 4. The President shall report to the national Assembly within the first ten days from the
date of the opening of its next regular session whatever action has been taken by him under
the authority herein granted.
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 and ninety-eight.
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.
SEC. 7. This Act shall take upon its approval.
Approved, August 19, 1940.
COMMONWEALTH ACT NO. 671
AN ACT DECLARING A STATE OF TOTAL EMERGENCY AS A RESULT OF WAR INVOLVING THE
PHILIPPINES AND AUTHORIZING THE PRESIDENT TO PROMULGATE RULE AND REGULATIONS
TO MEET SUCH EMERGENCY.
Be it enacted the National Assembly of the Philippines;
SECTION 1. The existed of war between the United State and other countries of Europe and
Asia, which involves the Philippines, makes it necessary to invest the President with
extraordinary powers in order to meet the resulting emergency.
SEC. 2. Pursuant to the provision of Article VI, section 16, of the Constitution, the President is
hereby authorized, during the existence of the emergency, to promulgate such rules and
regulation as he may deem necessary to carry out the national policy declared in section 1
hereof. Accordingly, he is, among other things, empowered (a) to transfer the seat of the
Government or any of its subdivisions, branches, department, offices, agencies or
instrumentalities; (b) to reorganize the Government of the Commonwealth including the
determination of the order of precedence of the heads of the Executive Department; (c) to
create new subdivision, branches, departments, offices, agency or instrumentalities of
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, suspend, or abolish those in existence; (f) to raise funds through the
issuance of bonds or otherwise, and to authorize the expensive of the proceeds thereof; (g) to
authorize the National, provincial, city or 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 may deem necessary to enable
the Government to fulfill its responsibilities and to maintain and enforce its authority.
SEC. 3. The President of the Philippines report thereto all the rules and regulation promulgated
by him under the power herein granted.
SEC. 4. This Act shall take effect upon its approval and the rules and regulations. promulgated
hereunder shall be in force and effect until the Congress of the Philippines shall otherwise
provide.
Approved December 16, 1941.
The above Acts cannot validly be invoked, Executive Order No. 68 was issued on July 29, 1947.
Said Acts 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.
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 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 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 virtue
of the following provisions of the Constitution:
In time of war or other national emergency, the Congress may by law authorize the President,
for a limited period and subject to such restrictions as it may prescribe to promulgate rules
and regulations to carry out declared national policy. (Article VI, section 26.)
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
26
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 should be resolved in favor of the presumption that the
National Assembly did not intend to violate the fundamental law.
The absurdity of the contention that the emergency Acts continued in effect even after the
surrender of Japan can not be gainsaid. Only a few months after liberation and even before
the surrender of Japan, or since the middle of 1945, the Congress started to function normally.
In the hypothesis that the contention can prevail, then, since 1945, that is, four years ago, even
after the Commonwealth was already replaced by the Republic of the Philippines with the
proclamation of our Independence, two district, separate and independence legislative organs,
Congress and the President of the Philippines would have been and would continue
enacting laws, the former to enact laws of every nature including those of emergency
character, and the latter to enact laws, in the form of executive orders, under the so-called
emergency powers. The situation would be pregnant with dangers to peace and order to the
rights and liberties of the people and to Philippines democracy.
Should there be any disagreement between Congress and the President of the Philippines, a
possibility that no one can dispute the President of the Philippines may take advantage of he
long recess of Congress (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 guarantees of the due process and equal protection of the law. It is especially so,
because it permit the admission of many kinds evidence by which no innocent person can
afford to get acquittal and by which it is impossible to determine whether an accused is guilty
or not beyond all reasonable doubt.
The rules of evidence adopted in Executive Order No. 68 are a reproduction of the regulation
governing the trial of twelve criminal, issued by General Douglas Mac Arthur, Commander in
Chief of the United State Armed Forces in Western Pacific, for the purpose of trying among
other, General Yamashita and Homma. What we said in our concurring and dissenting opinion
to the decision promulgated on December 19, 1945, in the Yamashita case, L-129, and in our
concurring and dissenting opinion to the resolution of January 23, 1946 in disposing the
Homma case, L-244, are perfectly applicable to the offensive rules of evidence in Executive
Order No. 68. Said rules of evidence are repugnant to conscience as under them no justice can
expected.
For all the foregoing, conformably with our position in the Yamashita and Homma cases, we
vote to declare Executive Order No. 68 null and void and to grant petition.
KURODA VS. JALANDONI
83 Phil. 171 (1949) Court of the Philippines
Facts:
Kuroda, Lieutenant General of the Japanese Imperial Army, was prosecuted for war crimes
before the Military Commission set up by Executive Order No. 68 of the President of the
Philippines. Kuroda challenged the legality and constitutionality of the Military Commission
and contended that it lacked jurisdiction to try him for violation of the Hague and Geneva
Conventions on the Laws of War, since the Philippines was not a signatory to these
conventions.
Issue: Whether or not the established Military Commission is legal and constitutional.
Held:
The court ruled that the Military Commission was legal and constitutional base on the citation
of Article II, 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.
The court ruled that in accordance with the generally accepted principles of international law
of the present day, including the Hague Convention, the Geneva Convention, and significant
precedents of international jurisprudence established by the United Nations, all those persons,
military or civilian, who had 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, were held accountable
therefore. Although the Philippines was not a signatory to the 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
enforcement of Executive Order No. 68, the President of the Philippines had acted in
conformity with the generally accepted principles and policies of international law which are
part of our Constitution.
27
SENATOR AQUILINO PIMENTEL, JR., G.R. No. 158088 The Rome Statute established the International Criminal Court which shall have the power to
REP. ETTA ROSALES, PHILIPPINE exercise its jurisdiction over persons for the most serious crimes of international concern xxx
COALITION FOR THE ESTABLISHMENT and shall be complementary to the national criminal jurisdictions. [1] Its jurisdiction covers the
OF THE INTERNATIONAL Present: crime of genocide, crimes against humanity, war crimes and the crime of aggression as defined
CRIMINAL COURT, TASK FORCE in the Statute.[2] The Statute was opened for signature by all states in Rome on July 17, 1998
DETAINEES OF THE PHILIPPINES, Davide, Jr., C.J., and had remained open for signature until December 31, 2000 at the United Nations
FAMILIES OF VICTIMS OF Puno, Headquarters in New York. The Philippines signed the Statute on December 28, 2000
INVOLUNTARY DISAPPEARANCES, Panganiban, through Charge d AffairsEnrique A. Manalo of the Philippine Mission to the United
BIANCA HACINTHA R. ROQUE, Quisumbing, Nations.[3] Its provisions, however, require that it be subject to ratification, acceptance or
HARRISON JACOB R. ROQUE, Ynares-Santiago, approval of the signatory states.[4]
AHMED PAGLINAWAN, RON P. SALO, *Sandoval-Gutierrez,
LEAVIDES G. DOMINGO, EDGARDO *Carpio, Petitioners filed the instant petition to compel the respondents the Office of the Executive
CARLO VISTAN, NOEL VILLAROMAN, Austria-Martinez, Secretary and the Department of Foreign Affairs to transmit the signed text of the treaty to
CELESTE CEMBRANO, LIZA ABIERA, *Corona, the Senate of the Philippines for ratification.
JAIME ARROYO, MARWIL LLASOS, Carpio Morales,
CRISTINA ATENDIDO, ISRAFEL Callejo, Sr., It is the theory of the petitioners that ratification of a treaty, under both domestic law and
FAGELA, and ROMEL BAGARES, Azcuna, international law, is a function of the Senate. Hence, it is the duty of the executive department
Petitioners, Tinga, to transmit the signed copy of the Rome Statute to the Senate to allow it to exercise its
Chico-Nazario, and discretion with respect to ratification of treaties. Moreover, petitioners submit that the
- versus - Garcia, JJ. 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 of Treaties enjoining
OFFICE OF THE EXECUTIVE the states to refrain from acts which would defeat the object and purpose of a treaty when
SECRETARY, represented by Promulgated: they have signed the treaty prior to ratification unless they have made their intention clear not
HON. ALBERTO ROMULO, and the to become parties to the treaty.[5]
DEPARTMENT OF FOREIGN
AFFAIRS, represented by HON. BLAS OPLE, July 6, 2005 The Office of the Solicitor General, commenting for the respondents, questioned the standing
Respondents. of the petitioners to file the instant suit. It also contended that the petition at bar violates the
rule on hierarchy of courts. On the substantive issue raised by petitioners, respondents argue
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x that the executive department has no duty to transmit the Rome Statute to the Senate for
concurrence.
DECISION
A petition for mandamus may be filed when any tribunal, corporation, board, officer or person
PUNO J.: unlawfully neglects the performance of an act which the law specifically enjoins as a duty
resulting from an office, trust, or station.[6] We have held that to be given due course, a petition
This is a petition for mandamus filed by petitioners to compel the for mandamus must have been instituted by a party aggrieved by the alleged inaction of any
Office of the Executive Secretary and the Department of Foreign Affairs to transmit the signed tribunal, corporation, board or person which unlawfully excludes said party from the
copy of the Rome Statute of the International Criminal Court to the Senate of the Philippines enjoyment of a legal right. The petitioner in every case must therefore be an aggrieved party
for its concurrence in accordance with Section 21, Article VII of the 1987 Constitution. in the sense that he possesses a clear legal right to be enforced and a direct interest in the duty
or act to be performed.[7] The Court will exercise its power of judicial review only if the case is

28
brought before it by a party who has the legal standing to raise the constitutional or legal
question. Legal standing means a personal and substantial interest in the case such that the
party has sustained or will sustain direct injury as a result of the government act that is being
challenged. The term interest is material interest, an interest in issue and to be affected by the
decree, as distinguished from mere interest in the question involved, or a mere incidental
interest.[8]
The petition at bar was filed by Senator Aquilino Pimentel, Jr. who asserts his legal standing to
file the suit as member of the Senate; Congresswoman Loretta Ann Rosales, a member of the
House of Representatives and Chairperson of its Committee on Human Rights; the Philippine
Coalition for the Establishment of the International Criminal Court which is composed of
individuals and corporate entities dedicated to the Philippine ratification of the Rome Statute;
the Task Force Detainees of the Philippines, a juridical entity with the avowed purpose of
promoting the cause of human rights and human rights victims 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
two (2) and one (1), respectively, at the time of filing of the instant petition, and suing under
the doctrine of inter-generational rights enunciated in the case of Oposa vs. Factoran,
Jr.;[9] and a group of fifth year working law students from the University of the Philippines
College of Law who are suing as taxpayers.
The question in standing is whether a party has alleged such a personal stake in the outcome
of the controversy as to assure that concrete adverseness which sharpens the presentation of
issues upon which the court so largely depends for illumination of difficult constitutional
questions.[10]
We find that among the petitioners, only Senator Pimentel has the legal standing to file the
instant suit. The other petitioners maintain their standing as advocates and defenders of
human rights, and as citizens of the country. They have not shown, however, that they have
sustained or will sustain a direct injury from 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 available under our
national laws to protect our citizens against human rights violations and petitioners can always
seek redress for any abuse in our domestic courts.
As regards Senator Pimentel, it has been held that to the extent the powers of Congress are
impaired, so is the power of each member thereof, since his office confers a right to participate
in the exercise of the powers of that institution.[11] Thus, legislators have the standing to
maintain inviolate the prerogatives, 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 executive branch, in this
case, the Rome Statute. The petition seeks to order the executive branch to transmit the copy
of the treaty to the Senate to allow it to exercise such authority. Senator Pimentel, as member
of the institution, certainly has the legal standing to assert such authority of the Senate.
We now go to the substantive issue. The core issue in this petition for mandamus is whether
the Executive Secretary and the Department of Foreign Affairs have a ministerial duty to
transmit to the Senate the copy of the Rome Statute signed by a member of the Philippine
Mission to the United Nations even without the signature of the President.
We rule in the negative. In our system of government, the President, being the head of state,
is regarded as the sole organ and authority in external relations and is the countrys sole
representative with foreign nations.[12] As the chief architect of foreign policy, the President
acts as the countrys mouthpiece with respect to international affairs. Hence, the President is
vested with the authority to deal with foreign states and governments, extend or withhold
recognition, maintain diplomatic relations, enter into treaties, and otherwise transact the
business of foreign relations.[13] In the realm of treaty-making, the President has the sole
authority to negotiate with other states.
Nonetheless, while the President has the sole authority to negotiate and enter into treaties,
the Constitution provides a limitation to his power by requiring the concurrence of 2/3 of all
the members of the Senate for the validity of the treaty entered into by him. Section 21, Article
VII of the 1987 Constitution provides that no treaty or international agreement shall be valid
and effective unless concurred in by at least two-thirds of all the Members of the Senate. The
1935 and the 1973 Constitution also required the concurrence by the legislature to the treaties
entered into by the executive. Section 10 (7), Article VII of the 1935 Constitution provided:
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.
Section 14 (1) Article VIII of the 1973 Constitution stated:
Sec. 14. (1) Except as otherwise provided in this Constitution, no treaty shall be valid and
effective unless concurred in by a majority of all the Members of the Batasang Pambansa.
29
The participation of the legislative branch in the treaty-making process was deemed essential
to provide a check on the executive in the field of foreign relations.[14] By requiring the
concurrence of the legislature in the treaties entered into by the President, the Constitution
ensures a healthy system of checks and balance necessary in the nations pursuit of political
maturity and growth.[15]
In filing this petition, the petitioners interpret Section 21, Article VII of the 1987 Constitution
to mean that the power to ratify treaties belongs to the Senate.
We disagree. Justice Isagani Cruz, in his book on International Law, describes the treaty-
making process in this wise: The usual steps in the treaty-making process are: negotiation,
signature, ratification, and exchange of the instruments of ratification. The treaty may then be
submitted for registration and publication under the U.N. Charter, although this step is not
essential to the validity of the agreement as between the parties.
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, which they exhibit to the other negotiators at the start of the formal
discussions. It is standard practice for one of the parties to submit a draft of the proposed
treaty which, together with the counter-proposals, 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 the points
under consideration.
If and when the negotiators finally decide on the terms of the treaty, the same is opened
for signature. 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 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 bring home to his own state.
Ratification, which is the next step, is the formal act by which a state confirms and accepts the
provisions of a treaty concluded by its representatives. The purpose of ratification is to enable
the contracting states to examine the treaty more closely and to give them an opportunity
to refuse to be bound by it should 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.
xxx
The last step in the treaty-making process is the exchange of the instruments of ratification,
which usually 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]
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 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 the states authorized representative in the
diplomatic mission. Ratification, on the other hand, is the 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 government.[17] Thus, Executive
Order No. 459 issued by President Fidel V. Ramos on November 25, 1997 provides the
guidelines in the negotiation of international agreements and its ratification. It mandates that
after the treaty has been signed by the Philippine representative, the same shall be
transmitted to the 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 receipt of the concurrence of the Senate,
the Department of Foreign Affairs shall comply with the provisions of the treaty to render it
effective. Section 7 of Executive Order No. 459 reads:
Sec. 7. Domestic Requirements for the Entry into Force of a Treaty or an Executive
Agreement. The domestic requirements for the entry into force of a treaty or an executive
agreement, or any amendment thereto, shall be as follows:
A. Executive Agreements.
i. All executive agreements shall be transmitted to the Department of Foreign Affairs after their
signing for the preparation of the ratification papers. The transmittal shall include the
highlights of the agreements and the benefits which will accrue to the Philippines arising from
them.
ii. The Department of Foreign Affairs, pursuant to the endorsement by the concerned agency,
shall 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 action.
30
B. Treaties.
i. All treaties, regardless of their designation, shall comply with the requirements provided in
sub-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 President. A certified true copy of the treaties, in such
numbers as may be required by the Senate, together with a certified true copy of the
ratification instrument, shall accompany the submission of the treaties to the Senate.
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.
Petitioners submission that the Philippines is bound under treaty law and international law to
ratify the treaty which it has signed is without basis. The signature does not signify the final
consent of the state to the treaty. It is the ratification that binds the state to the provisions
thereof. In fact, the Rome Statute itself requires that the signature of the representatives of
the states be subject to ratification, acceptance or approval of the signatory states. Ratification
is the act by which the provisions of a treaty are formally confirmed and approved by a State.
By ratifying a treaty signed in its behalf, a state expresses its 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 duty to carefully
study the contents of the treaty and ensure that they are not inimical to the interest 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, the requirement of ratification of treaties would be pointless and futile.
It has been held that a state has 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?
HELD: The President, being the head of state, is regarded as the sole organ and authority in
external relations and is the countys sole representative with foreign nations. As the chief
architect of foreign policy, the President acts as the countrys mouthpiece with respect to
international affairs. Hence, the President is vested with the authority to deal with foreign
states and governments, extend or withhold recognition, maintain diplomatic relations, enter
into treaties, and otherwise transact the business of foreign relations.
The role of the Senate, however, is limited only to giving or withholding its consent, or
concurrence, to the ratification.
Thus, this petition is DISMISSED. This Court has no jurisdiction over actions seeking to enjoin
the President in the performance of his official duties.
31