GOVPH (/)

Vinuya v. Executive Secretary, G.R. No.

162230, April 28, 2010
April 28, 2010 (https://www.o5cialgazette.gov.ph/2010/04/28/vinuya-v-executive-secretary-g-r-no-162230-april-
28-2010/)

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 162230 April 28, 2010

ISABELITA C. VINUYA, VICTORIA C. DELA PEÑA, HERMINIHILDA MANIMBO, LEONOR H.

SUMAWANG, CANDELARIA L. SOLIMAN, MARIA L. QUILANTANG, MARIA L. MAGISA,
NATALIA M. ALONZO, LOURDES M. NAVARO, FRANCISCA M. ATENCIO, ERLINDA
MANALASTAS, TARCILA M. SAMPANG, ESTER M. PALACIO, MAXIMA R. DELA CRUZ,
BELEN A. SAGUM, FELICIDAD TURLA, FLORENCIA M. DELA PEÑA, EUGENIA M. LALU,
JULIANA G. MAGAT, CECILIA SANGUYO, ANA ALONZO, RUFINA P. MALLARI, ROSARIO M.
ALARCON, RUFINA C. GULAPA, ZOILA B. MANALUS, CORAZON C. CALMA, MARTA A.
GULAPA, TEODORA M. HERNANDEZ, FERMIN B. DELA PEÑA, MARIA DELA PAZ B.
CULALA, ESPERANZA MANAPOL, JUANITA M. BRIONES, VERGINIA M. GUEVARRA,
MAXIMA ANGULO, EMILIA SANGIL, TEOFILA R. PUNZALAN, JANUARIA G. GARCIA,
PERLA B. BALINGIT, BELEN A. CULALA, PILAR Q. GALANG, ROSARIO C. BUCO,
GAUDENCIA C. DELA PEÑA, RUFINA Q. CATACUTAN, FRANCIA A. BUCO, PASTORA C.
GUEVARRA, VICTORIA M. DELA CRUZ, PETRONILA O. DELA CRUZ, ZENAIDA P. DELA
CRUZ, CORAZON M. SUBA, EMERINCIANA A. VINUYA, LYDIA A. SANCHEZ, ROSALINA M.
BUCO, PATRICIA A. BERNARDO, LUCILA H. PAYAWAL, MAGDALENA LIWAG, ESTER C.
BALINGIT, JOVITA A. DAVID, EMILIA C. MANGILIT, VERGINIA M. BANGIT, GUILLERMA S.
BALINGIT, TERECITA PANGILINAN, MAMERTA C. PUNO, CRISENCIANA C. GULAPA,
SEFERINA S. TURLA, MAXIMA B. TURLA, LEONICIA G. GUEVARRA, ROSALINA M.
CULALA, CATALINA Y. MANIO, MAMERTA T. SAGUM, CARIDAD L. TURLA, et al. In their
capacity and as members of the “Malaya Lolas Organization”, Petitioners,
vs.
THE HONORABLE EXECUTIVE SECRETARY ALBERTO G. ROMULO, THE HONORABLE
SECRETARY OF FOREIGN AFFAIRS DELIA DOMINGO-ALBERT, THE HONORABLE
SECRETARY OF JUSTICE MERCEDITAS N. GUTIERREZ, and THE HONORABLE SOLICITOR
GENERAL ALFREDO L. BENIPAYO, Respondents.

DECISION

DEL CASTILLO, J.:

The Treaty of Peace with Japan, insofar as it barred future claims such as those asserted
by plaintiffs in these actions, exchanged full compensation of plaintiffs for a future peace.
History has vindicated the wisdom of that bargain. And while full compensation for
plaintiffs’ hardships, in the purely economic sense, has been denied these former prisoners
and countless other survivors of the war, the immeasurable bounty of life for themselves
and their posterity in a free society and in a more peaceful world services the debt.1

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

Factual Antecedents

This is an original Petition for Certiorari under Rule 65 of the Rules of Court with an
application for the issuance of a writ of preliminary mandatory injunction against the O5ce
of the Executive Secretary, the Secretary of the Department of Foreign Affairs (DFA), the
Secretary of the Department of Justice (DOJ), and the O5ce of the Solicitor General (OSG).

Petitioners are all members of the MALAYA LOLAS, a non-stock, non-pro\t organization
registered with the Securities and Exchange Commission, established for the purpose of
providing aid to the victims of rape by Japanese military forces in the Philippines during the
Second World War.

Petitioners narrate that during the Second World War, the Japanese army attacked villages
and systematically raped the women as part of the destruction of the village. Their
communities were bombed, houses were looted and burned, and civilians were publicly
tortured, mutilated, and slaughtered. Japanese soldiers forcibly seized the women and held
them in houses or cells, where they were repeatedly raped, beaten, and abused by
Japanese soldiers. As a result of the actions of their Japanese tormentors, the petitioners
have spent their lives in misery, having endured physical injuries, pain and disability, and
mental and emotional suffering.2

Petitioners claim that since 1998, they have approached the Executive Department through
the DOJ, DFA, and OSG, requesting assistance in \ling a claim against the Japanese
o5cials and military o5cers who ordered the establishment of the “comfort women”
stations in the Philippines. However, o5cials of the Executive Department declined to
assist the petitioners, and took the position that the individual claims of the comfort
women for compensation had already been fully satis\ed by Japan’s compliance with the
Peace Treaty between the Philippines and Japan.

Issues

Hence, this petition where petitioners pray for this court to (a) declare that respondents
committed grave abuse of discretion amounting to lack or excess of discretion in refusing
to espouse their claims for the crimes against humanity and war crimes committed
against them; and (b) compel the respondents to espouse their claims for o5cial apology
and other forms of reparations against Japan before the International Court of Justice
(ICJ) and other international tribunals.

Petitioners’ arguments

Petitioners argue that the general waiver of claims made by the Philippine government in
the Treaty of Peace with Japan is void. They claim that the comfort women system
established by Japan, and the brutal rape and enslavement of petitioners constituted a
crime against humanity,3 sexual slavery,4 and torture.5 They allege that the prohibition
against these international crimes is jus cogens norms from which no derogation is
possible; as such, in waiving the claims of Filipina comfort women and failing to espouse
their complaints against Japan, the Philippine government is in breach of its legal
obligation not to afford impunity for crimes against humanity. Finally, petitioners assert
that the Philippine government’s acceptance of the “apologies” made by Japan as well as
funds from the Asian Women’s Fund (AWF) were contrary to international law.

Respondents’ Arguments

Respondents maintain that all claims of the Philippines and its nationals relative to the war
were dealt with in the San Francisco Peace Treaty of 1951 and the bilateral Reparations
Agreement of 1956.6
Article 14 of the Treaty of Peace7 provides:

Article 14. Claims and Property

a) It is recognized that Japan should pay reparations to the Allied Powers for the
damage and suffering caused by it during the war. Nevertheless it is also recognized
that the resources of Japan are not presently su5cient, if it is to maintain a viable
economy, to make complete reparation for all such damage and suffering and at the
present time meet its other obligations.

b) Except as otherwise provided in the present Treaty, the Allied Powers waive all
reparations claims of the Allied Powers, other claims of the Allied Powers and their
nationals arising out of any actions taken by Japan and its nationals in the course of
the prosecution of the war, and claims of the Allied Powers for direct military costs of
occupation.

In addition, respondents argue that the apologies made by Japan8 have been satisfactory,
and that Japan had addressed the individual claims of the women through the atonement
money paid by the Asian Women’s Fund.

Historical Background

The comfort women system was the tragic legacy of the Rape of Nanking. In December
1937, Japanese military forces captured the city of Nanking in China and began a “barbaric
campaign of terror” known as the Rape of Nanking, which included the rapes and murders
of an estimated 20,000 to 80,000 Chinese women, including young girls, pregnant mothers,
and elderly women.9

In reaction to international outcry over the incident, the Japanese government sought ways
to end international condemnation10 by establishing the “comfort women” system. Under
this system, the military could simultaneously appease soldiers’ sexual appetites and
contain soldiers’ activities within a regulated environment.11 Comfort stations would also
prevent the spread of venereal disease among soldiers and discourage soldiers from
raping inhabitants of occupied territories.12

Daily life as a comfort woman was “unmitigated misery.”13 The military forced victims into
barracks-style stations divided into tiny cubicles where they were forced to live, sleep, and
have sex with as many 30 soldiers per day.14 The 30 minutes allotted for sexual relations
with each soldier were 30-minute increments of unimaginable horror for the women.15
Disease was rampant.16 Military doctors regularly examined the women, but these checks
were carried out to prevent the spread of venereal diseases; little notice was taken of the
frequent cigarette burns, bruises, bayonet stabs and even broken bones iniicted on the
women by soldiers.

Fewer than 30% of the women survived the war.17 Their agony continued in having to suffer
with the residual physical, psychological, and emotional scars from their former lives.
Some returned home and were ostracized by their families. Some committed suicide.
Others, out of shame, never returned home.18

Efforts to Secure Reparation

The most prominent attempts to compel the Japanese government to accept legal
responsibility and pay compensatory damages for the comfort women system were
through a series of lawsuits, discussion at the United Nations (UN), resolutions by various
nations, and the Women’s International Criminal Tribunal. The Japanese government, in
turn, responded through a series of public apologies and the creation of the AWF.19

Lawsuits
In December 1991, Kim Hak-Sun and two other survivors \led the \rst lawsuit in Japan by
former comfort women against the Japanese government. The Tokyo District Court
however dismissed their case.20 Other suits followed,21 but the Japanese government has,
thus far, successfully caused the dismissal of every case.22

Undoubtedly frustrated by the failure of litigation before Japanese courts, victims of the
comfort women system brought their claims before the United States (US). On September
18, 2000, 15 comfort women \led a class action lawsuit in the US District Court for the
District of Columbia23 “seeking money damages for [allegedly] having been subjected to
sexual slavery and torture before and during World War II,” in violation of “both positive and
customary international law.” The case was \led pursuant to the Alien Tort Claims Act
(“ATCA”),24 which allowed the plaintiffs to sue the Japanese government in a US federal
district court.25 On October 4, 2001, the district court dismissed the lawsuit due to lack of
jurisdiction over Japan, stating that “[t]here is no question that this court is not the
appropriate forum in which plaintiffs may seek to reopen x x x discussions nearly half a
century later x x x [E]ven if Japan did not enjoy sovereign immunity, plaintiffs’ claims are
non-justiciable and must be dismissed.”

The District of Columbia Court of Appeals a5rmed the lower court’s dismissal of the
case.26 On appeal, the US Supreme Court granted the women’s petition for writ of
certiorari, vacated the judgment of the District of Columbia Court of Appeals, and
remanded the case.27 On remand, the Court of Appeals a5rmed its prior decision, noting
that “much as we may feel for the plight of the appellants, the courts of the US simply are
not authorized to hear their case.”28 The women again brought their case to the US
Supreme Court which denied their petition for writ of certiorari on February 21, 2006.

Efforts at the United Nations

In 1992, the Korean Council for the Women Drafted for Military Sexual Slavery by Japan
(KCWS), submitted a petition to the UN Human Rights Commission (UNHRC), asking for
assistance in investigating crimes committed by Japan against Korean women and
seeking reparations for former comfort women.29 The UNHRC placed the issue on its
agenda and appointed Radhika Coomaraswamy as the issue’s special investigator. In 1996,
Coomaraswamy issued a Report rea5rming Japan’s responsibility in forcing Korean
women to act as sex slaves for the imperial army, and made the following
recommendations:

A. At the national level

137. The Government of Japan should:

(a) Acknowledge that the system of comfort stations set up by the Japanese Imperial
Army during the Second World War was a violation of its obligations under
international law and accept legal responsibility for that violation;

(b) Pay compensation to individual victims of Japanese military sexual slavery

according to principles outlined by the Special Rapporteur of the Sub-Commission on
Prevention of Discrimination and Protection of Minorities on the right to restitution,
compensation and rehabilitation for victims of grave violations of human rights and
fundamental freedoms. A special administrative tribunal for this purpose should be set
up with a limited time-frame since many of the victims are of a very advanced age;

(c) Make a full disclosure of documents and materials in its possession with regard to
comfort stations and other related activities of the Japanese Imperial Army during the
Second World War;

(d) Make a public apology in writing to individual women who have come forward and
can be substantiated as women victims of Japanese military sexual slavery;
 (e) Raise awareness of these issues by amending educational curricula to reiect
historical realities;

(f) Identify and punish, as far as possible, perpetrators involved in the recruitment and
institutionalization of comfort stations during the Second World War.

Gay J. McDougal, the Special Rapporteur for the UN Sub-Commission on Prevention of

Discrimination and Protection of Minorities, also presented a report to the Sub-Committee
on June 22, 1998 entitled Contemporary Forms of Slavery: Systematic Rape, Sexual Slavery
and Slavery-like Practices During Armed Coniict. The report included an appendix entitled
An Analysis of the Legal Liability of the Government of Japan for ‘Comfort Women
Stations’ established during the Second World War,30 which contained the following
\ndings:

68. The present report concludes that the Japanese Government remains liable for grave
violations of human rights and humanitarian law, violations that amount in their totality to
crimes against humanity. The Japanese Government’s arguments to the contrary, including
arguments that seek to attack the underlying humanitarian law prohibition of enslavement
and rape, remain as unpersuasive today as they were when they were \rst raised before the
Nuremberg war crimes tribunal more than 50 years ago. In addition, the Japanese
Government’s argument that Japan has already settled all claims from the Second World
War through peace treaties and reparations agreements following the war remains equally
unpersuasive. This is due, in large part, to the failure until very recently of the Japanese
Government to admit the extent of the Japanese military’s direct involvement in the
establishment and maintenance of these rape centres. The Japanese Government’s
silence on this point during the period in which peace and reparations agreements between
Japan and other Asian Governments were being negotiated following the end of the war
must, as a matter of law and justice, preclude Japan from relying today on these peace
treaties to extinguish liability in these cases.
69. The failure to settle these claims more than half a century after the cessation of
hostilities is a testament to the degree to which the lives of women continue to be
undervalued. Sadly, this failure to address crimes of a sexual nature committed on a
massive scale during the Second World War has added to the level of impunity with which
similar crimes are committed today. The Government of Japan has taken some steps to
apologize and atone for the rape and enslavement of over 200,000 women and girls who
were brutalized in “comfort stations” during the Second World War. However, anything less
than full and unquali\ed acceptance by the Government of Japan of legal liability and the
consequences that iow from such liability is wholly inadequate. It must now fall to the
Government of Japan to take the necessary \nal steps to provide adequate redress.

The UN, since then, has not taken any o5cial action directing Japan to provide the
reparations sought.

Women’s International War Crimes

Tribunal

The Women’s International War Crimes Tribunal (WIWCT) was a “people’s tribunal”
established by a number of Asian women and human rights organizations, supported by an
international coalition of non-governmental organizations.31 First proposed in 1998, the
WIWCT convened in Tokyo in 2000 in order to “adjudicate Japan’s military sexual violence,
in particular the enslavement of comfort women, to bring those responsible for it to justice,
and to end the ongoing cycle of impunity for wartime sexual violence against women.”

After examining the evidence for more than a year, the “tribunal” issued its verdict on
December 4, 2001, \nding the former Emperor Hirohito and the State of Japan guilty of
crimes against humanity for the rape and sexual slavery of women.32 It bears stressing,
however, that although the tribunal included prosecutors, witnesses, and judges, its
judgment was not legally binding since the tribunal itself was organized by private citizens.
Action by Individual Governments

On January 31, 2007, US Representative Michael Honda of California, along with six co-
sponsor representatives, introduced House Resolution 121 which called for Japanese
action in light of the ongoing struggle for closure by former comfort women. The
Resolution was formally passed on July 30, 2007,33 and made four distinct demands:

[I]t is the sense of the House of Representatives that the Government of Japan (1) should
formally acknowledge, apologize, and accept historical responsibility in a clear and
unequivocal manner for its Imperial Armed Forces’ coercion of young women into sexual
slavery, known to the world as “comfort women”, during its colonial and wartime
occupation of Asia and the Paci\c Islands from the 1930s through the duration of World
War II; (2) would help to resolve recurring questions about the sincerity and status of prior
statements if the Prime Minister of Japan were to make such an apology as a public
statement in his o5cial capacity; (3) should clearly and publicly refute any claims that the
sexual enslavement and tra5cking of the “comfort women” for the Japanese Imperial
Army never occurred; and (4) should educate current and future generations about this
horrible crime while following the recommendations of the international community with
respect to the “comfort women.”34

In December 2007, the European Parliament, the governing body of the European Union,
drafted a resolution similar to House Resolution 121.35 Entitled, “Justice for Comfort
Women,” the resolution demanded: (1) a formal acknowledgment of responsibility by the
Japanese government; (2) a removal of the legal obstacles preventing compensation; and
(3) unabridged education of the past. The resolution also stressed the urgency with which
Japan should act on these issues, stating: “the right of individuals to claim reparations
against the government should be expressly recognized in national law, and cases for
reparations for the survivors of sexual slavery, as a crime under international law, should be
prioritized, taking into account the age of the survivors.”
The Canadian and Dutch parliaments have each followed suit in drafting resolutions
against Japan. Canada’s resolution demands the Japanese government to issue a formal
apology, to admit that its Imperial Military coerced or forced hundreds of thousands of
women into sexual slavery, and to restore references in Japanese textbooks to its war
crimes.36 The Dutch parliament’s resolution calls for the Japanese government to uphold
the 1993 declaration of remorse made by Chief Cabinet Secretary Yohei Kono.

The Foreign Affairs Committee of the United Kingdom’s Parliament also produced a report
in November, 2008 entitled, “Global Security: Japan and Korea” which concluded that
Japan should acknowledge the pain caused by the issue of comfort women in order to
ensure cooperation between Japan and Korea.

Statements of Remorse made by representatives of the Japanese government

Various o5cials of the Government of Japan have issued the following public statements
concerning the comfort system:

a) Statement by the Chief Cabinet Secretary Yohei Kono in 1993:

The Government of Japan has been conducting a study on the issue of wartime “comfort
women” since December 1991. I wish to announce the \ndings as a result of that study.

As a result of the study which indicates that comfort stations were operated in extensive
areas for long periods, it is apparent that there existed a great number of comfort women.
Comfort stations were operated in response to the request of the military authorities of the
day. The then Japanese military was, directly or indirectly, involved in the establishment
and management of the comfort stations and the transfer of comfort women. The
recruitment of the comfort women was conducted mainly by private recruiters who acted
in response to the request of the military. The Government study has revealed that in many
cases they were recruited against their own will, through coaxing coercion, etc., and that, at
times, administrative/military personnel directly took part in the recruitments. They lived in
misery at comfort stations under a coercive atmosphere.

As to the origin of those comfort women who were transferred to the war areas, excluding
those from Japan, those from the Korean Peninsula accounted for a large part. The Korean
Peninsula was under Japanese rule in those days, and their recruitment, transfer, control,
etc., were conducted generally against their will, through coaxing, coercion, etc.

Undeniably, this was an act, with the involvement of the military authorities of the day, that
severely injured the honor and dignity of many women. The Government of Japan would
like to take this opportunity once again to extend its sincere apologies and remorse to all
those, irrespective of place of origin, who suffered immeasurable pain and incurable
physical and psychological wounds as comfort women.

It is incumbent upon us, the Government of Japan, to continue to consider seriously, while
listening to the views of learned circles, how best we can express this sentiment.

We shall face squarely the historical facts as described above instead of evading them, and
take them to heart as lessons of history. We hereby reiterated our \rm determination never
to repeat the same mistake by forever engraving such issues in our memories through the
study and teaching of history.

As actions have been brought to court in Japan and interests have been shown in this
issue outside Japan, the Government of Japan shall continue to pay full attention to this
matter, including private researched related thereto.

b) Prime Minister Tomiichi Murayama’s Statement in 1994

On the issue of wartime “comfort women”, which seriously stained the honor and dignity of
many women, I would like to take this opportunity once again to express my profound and
sincere remorse and apologies”
c) Letters from the Prime Minister of Japan to Individual Comfort Women

The issue of comfort women, with the involvement of the Japanese military authorities at
that time, was a grave affront to the honor and dignity of a large number of women.

As Prime Minister of Japan, I thus extend anew my most sincere apologies and remorse to
all the women who endured immeasurable and painful experiences and suffered incurable
physical and psychological wounds as comfort women.

I believe that our country, painfully aware of its moral responsibilities, with feelings of
apology and remorse, should face up squarely to its past history and accurately convey it
to future generations.

d) The Diet (Japanese Parliament) passed resolutions in 1995 and 2005

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

e) Various Public Statements by Japanese Prime Minister Shinzo Abe

I have talked about this matter in the Diet sessions last year, and recently as well, and to
the press. I have been consistent. I will stand by the Kono Statement. This is our consistent
position. Further, we have been apologizing sincerely to those who suffered immeasurable
pain and incurable psychological wounds as comfort women. Former Prime Ministers,
including Prime Ministers Koizumi and Hashimoto, have issued letters to the comfort
women. I would like to be clear that I carry the same feeling. This has not changed even
slightly. (Excerpt from Remarks by Prime Minister Abe at an Interview by NHK, March 11,
2007).
I am apologizing here and now. I am apologizing as the Prime Minister and it is as stated in
the statement by the Chief Cabinet Secretary Kono. (Excerpt from Remarks by Prime
Minister Abe at the Budget Committee, the House of Councilors, the Diet of Japan, March
26, 2007).

I am deeply sympathetic to the former comfort women who suffered hardships, and I have
expressed my apologies for the extremely agonizing circumstances into which they were
placed. (Excerpt from Telephone Conference by Prime Minister Abe to President George W.
Bush, April 3, 2007).

I have to express sympathy from the bottom of my heart to those people who were taken
as wartime comfort women. As a human being, I would like to express my sympathies, and
also as prime minister of Japan I need to apologize to them. My administration has been
saying all along that we continue to stand by the Kono Statement. We feel responsible for
having forced these women to go through that hardship and pain as comfort women under
the circumstances at the time. (Excerpt from an interview article “A Conversation with
Shinzo Abe” by the Washington Post, April 22, 2007).

x x x both personally and as Prime Minister of Japan, my heart goes out in sympathy to all
those who suffered extreme hardships as comfort women; and I expressed my apologies
for the fact that they were forced to endure such extreme and harsh conditions. Human
rights are violated in many parts of the world during the 20th Century; therefore we must
work to make the 21st Century a wonderful century in which no human rights are violated.
And the Government of Japan and I wish to make signi\cant contributions to that end.
(Excerpt from Prime Minister Abe’s remarks at the Joint Press Availability after the summit
meeting at Camp David between Prime Minister Abe and President Bush, April 27, 2007).

The Asian Women’s Fund

Established by the Japanese government in 1995, the AWF represented the government’s
concrete attempt to address its moral responsibility by offering monetary compensation to
victims of the comfort women system.37 The purpose of the AWF was to show atonement
of the Japanese people through expressions of apology and remorse to the former
wartime comfort women, to restore their honor, and to demonstrate Japan’s strong respect
for women.38

The AWF announced three programs for former comfort women who applied for
assistance: (1) an atonement fund paying ¥2 million (approximately $20,000) to each
woman; (2) medical and welfare support programs, paying ¥2.5-3 million ($25,000-
$30,000) for each woman; and (3) a letter of apology from the Japanese Prime Minister to
each woman. Funding for the program came from the Japanese government and private
donations from the Japanese people. As of March 2006, the AWF provided ¥700 million
(approximately $7 million) for these programs in South Korea, Taiwan, and the Philippines;
¥380 million (approximately $3.8 million) in Indonesia; and ¥242 million (approximately
$2.4 million) in the Netherlands.

On January 15, 1997, the AWF and the Philippine government signed a Memorandum of
Understanding for medical and welfare support programs for former comfort women. Over
the next \ve years, these were implemented by the Department of Social Welfare and
Development.

Our Ruling

Stripped down to its essentials, the issue in this case is whether the Executive Department
committed grave abuse of discretion in not espousing petitioners’ claims for o5cial
apology and other forms of reparations against Japan.

The petition lacks merit.

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

Baker v. Carr39 remains the starting point for analysis under the political question doctrine.
There the US Supreme Court explained that:

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

In Tañada v. Cuenco,40 we held that political questions refer “to those questions which,
under the Constitution, are to be decided by the people in their sovereign capacity, or in
regard to which full discretionary authority has been delegated to the legislative or
executive branch of the government. It is concerned with issues dependent upon the
wisdom, not legality of a particular measure.”

Certain types of cases often have been found to present political questions.41 One such
category involves questions of foreign relations. It is well-established that “[t]he conduct of
the foreign relations of our government is committed by the Constitution to the executive
and legislative—’the political’—departments of the government, and the propriety of what
may be done in the exercise of this political power is not subject to judicial inquiry or
decision.”42 The US Supreme Court has further cautioned that decisions relating to foreign
policy are delicate, complex, and involve large elements of prophecy. They are and should
be undertaken only by those directly responsible to the people whose welfare they advance
or imperil. They are decisions of a kind for which the Judiciary has neither aptitude,
facilities nor responsibility.43

To be sure, not all cases implicating foreign relations present political questions, and
courts certainly possess the authority to construe or invalidate treaties and executive
agreements.44 However, the question whether the Philippine government should espouse
claims of its nationals against a foreign government is a foreign relations matter, the
authority for which is demonstrably committed by our Constitution not to the courts but to
the political branches. In this case, the Executive Department has already decided that it is
to the best interest of the country to waive all claims of its nationals for reparations against
Japan in the Treaty of Peace of 1951. The wisdom of such decision is not for the courts to
question. Neither could petitioners herein assail the said determination by the Executive
Department via the instant petition for certiorari.

In the seminal case of US v. Curtiss-Wright Export Corp.,45 the US Supreme Court held that
“[t]he President is the sole organ of the nation in its external relations, and its sole
representative with foreign relations.”

It is quite apparent that if, in the maintenance of our international relations, embarrassment
—perhaps serious embarrassment—is to be avoided and success for our aims achieved,
congressional legislation which is to be made effective through negotiation and inquiry
within the international \eld must often accord to the President a degree of discretion and
freedom from statutory restriction which would not be admissible where domestic affairs
alone involved. Moreover, he, not Congress, has the better opportunity of knowing the
conditions which prevail in foreign countries, and especially is this true in time of war. He
has his con\dential sources of information. He has his agents in the form of diplomatic,
consular and other o5cials. x x x
This ruling has been incorporated in our jurisprudence through Bayan v. Executive
Secretary46 and Pimentel v. Executive Secretary;47 its overreaching principle was, perhaps,
best articulated in (now Chief) Justice Puno’s dissent in Secretary of Justice v. Lantion:48

x x x The conduct of foreign relations is full of complexities and consequences, sometimes

with life and death signi\cance to the nation especially in times of war. It can only be
entrusted to that department of government which can act on the basis of the best
available information and can decide with decisiveness. x x x It is also the President who
possesses the most comprehensive and the most con\dential information about foreign
countries for our diplomatic and consular o5cials regularly brief him on meaningful events
all over the world. He has also unlimited access to ultra-sensitive military intelligence data.
In \ne, the presidential role in foreign affairs is dominant and the President is traditionally
accorded a wider degree of discretion in the conduct of foreign affairs. The regularity, nay,
validity of his actions are adjudged under less stringent standards, lest their judicial
repudiation lead to breach of an international obligation, rupture of state relations,
forfeiture of con\dence, national embarrassment and a plethora of other problems with
equally undesirable consequences.

The Executive Department has determined that taking up petitioners’ cause would be
inimical to our country’s foreign policy interests, and could disrupt our relations with Japan,
thereby creating serious implications for stability in this region. For us to overturn the
Executive Department’s determination would mean an assessment of the foreign policy
judgments by a coordinate political branch to which authority to make that judgment has
been constitutionally committed.

In any event, it cannot reasonably be maintained that the Philippine government was
without authority to negotiate the Treaty of Peace with Japan. And it is equally true that,
since time immemorial, when negotiating peace accords and settling international claims:
x x x [g]overnments have dealt with x x x private claims as their own, treating them as
national assets, and as counters, `chips’, in international bargaining. Settlement
agreements have lumped, or linked, claims deriving from private debts with others that
were intergovernmental in origin, and concessions in regard to one category of claims
might be set off against concessions in the other, or against larger political considerations
unrelated to debts.49

Indeed, except as an agreement might otherwise provide, international settlements

generally wipe out the underlying private claims, thereby terminating any recourse under
domestic law. In Ware v. Hylton,50 a case brought by a British subject to recover a debt
con\scated by the Commonwealth of Virginia during the war, Justice Chase wrote:

I apprehend that the treaty of peace abolishes the subject of the war, and that after peace
is concluded, neither the matter in dispute, nor the conduct of either party, during the war,
can ever be revived, or brought into contest again. All violences, injuries, or damages
sustained by the government, or people of either, during the war, are buried in oblivion; and
all those things are implied by the very treaty of peace; and therefore not necessary to be
expressed. Hence it follows, that the restitution of, or compensation for, British property
con\scated, or extinguished, during the war, by any of the United States, could only be
provided for by the treaty of peace; and if there had been no provision, respecting these
subjects, in the treaty, they could not be agitated after the treaty, by the British government,
much less by her subjects in courts of justice. (Emphasis supplied).

This practice of settling claims by means of a peace treaty is certainly nothing new. For
instance, in Dames & Moore v. Regan,51 the US Supreme Court held:

Not infrequently in affairs between nations, outstanding claims by nationals of one country
against the government of another country are “sources of friction” between the two
sovereigns. United States v. Pink, 315 U.S. 203, 225, 62 S.Ct. 552, 563, 86 L.Ed. 796 (1942).
To resolve these di5culties, nations have often entered into agreements settling the claims
of their respective nationals. As one treatise writer puts it, international agreements
settling claims by nationals of one state against the government of another “are
established international practice reiecting traditional international theory.” L. Henkin,
Foreign Affairs and the Constitution 262 (1972). Consistent with that principle, the United
States has repeatedly exercised its sovereign authority to settle the claims of its nationals
against foreign countries. x x x Under such agreements, the President has agreed to
renounce or extinguish claims of United States nationals against foreign governments in
return for lump-sum payments or the establishment of arbitration procedures. To be sure,
many of these settlements were encouraged by the United States claimants themselves,
since a claimant’s only hope of obtaining any payment at all might lie in having his
Government negotiate a diplomatic settlement on his behalf. But it is also undisputed that
the “United States has sometimes disposed of the claims of its citizens without their
consent, or even without consultation with them, usually without exclusive regard for their
interests, as distinguished from those of the nation as a whole.” Henkin, supra, at 262-263.
Accord, Restatement (Second) of Foreign Relations Law of the United States § 213 (1965)
(President “may waive or settle a claim against a foreign state x x x [even] without the
consent of the [injured] national”). It is clear that the practice of settling claims continues
today.

Respondents explain that the Allied Powers concluded the Peace Treaty with Japan not
necessarily for the complete atonement of the suffering caused by Japanese aggression
during the war, not for the payment of adequate reparations, but for security purposes. The
treaty sought to prevent the spread of communism in Japan, which occupied a strategic
position in the Far East. Thus, the Peace Treaty compromised individual claims in the
collective interest of the free world.

This was also the \nding in a similar case involving American victims of Japanese slave
labor during the war.52 In a consolidated case in the Northern District of California,53 the
court dismissed the lawsuits \led, relying on the 1951 peace treaty with Japan,54 because
of the following policy considerations:
The o5cial record of treaty negotiations establishes that a fundamental goal of the
agreement was to settle the reparations issue once and for all. As the statement of the
chief United States negotiator, John Foster Dulles, makes clear, it was well understood that
leaving open the possibility of future claims would be an unacceptable impediment to a
lasting peace:

Reparation is usually the most controversial aspect of peacemaking. The present peace is
no exception.

On the one hand, there are claims both vast and just. Japan’s aggression caused
tremendous cost, losses and suffering.

On the other hand, to meet these claims, there stands a Japan presently reduced to four
home islands which are unable to produce the food its people need to live, or the raw
materials they need to work. x x x

The policy of the United States that Japanese liability for reparations should be sharply
limited was informed by the experience of six years of United States-led occupation of
Japan. During the occupation the Supreme Commander of the Allied Powers (SCAP) for
the region, General Douglas MacArthur, con\scated Japanese assets in conjunction with
the task of managing the economic affairs of the vanquished nation and with a view to
reparations payments. It soon became clear that Japan’s \nancial condition would render
any aggressive reparations plan an exercise in futility. Meanwhile, the importance of a
stable, democratic Japan as a bulwark to communism in the region increased. At the end
of 1948, MacArthur expressed the view that “[t]he use of reparations as a weapon to retard
the reconstruction of a viable economy in Japan should be combated with all possible
means” and “recommended that the reparations issue be settled \nally and without delay.”

That this policy was embodied in the treaty is clear not only from the negotiations history
but also from the Senate Foreign Relations Committee report recommending approval of
the treaty by the Senate. The committee noted, for example:
Obviously insistence upon the payment of reparations in any proportion commensurate
with the claims of the injured countries and their nationals would wreck Japan’s economy,
dissipate any credit that it may possess at present, destroy the initiative of its people, and
create misery and chaos in which the seeds of discontent and communism would iourish.
In short, [it] would be contrary to the basic purposes and policy of x x x the United States x
x x.

We thus hold that, from a municipal law perspective, that certiorari will not lie. As a general
principle—and particularly here, where such an extraordinary length of time has lapsed
between the treaty’s conclusion and our consideration—the Executive must be given ample
discretion to assess the foreign policy considerations of espousing a claim against Japan,
from the standpoint of both the interests of the petitioners and those of the Republic, and
decide on that basis if apologies are su5cient, and whether further steps are appropriate
or necessary.

The Philippines is not under any international obligation to espouse petitioners’ claims.

In the international sphere, traditionally, the only means available for individuals to bring a
claim within the international legal system has been when the individual is able to
persuade a government to bring a claim on the individual’s behalf.55 Even then, it is not the
individual’s rights that are being asserted, but rather, the state’s own rights. Nowhere is this
position more clearly reiected than in the dictum of the Permanent Court of International
Justice (PCIJ) in the 1924 Mavrommatis Palestine Concessions Case:

By taking up the case of one of its subjects and by resorting to diplomatic action or
international judicial proceedings on his behalf, a State is in reality asserting its own right
to ensure, in the person of its subjects, respect for the rules of international law. The
question, therefore, whether the present dispute originates in an injury to a private interest,
which in point of fact is the case in many international disputes, is irrelevant from this
standpoint. Once a State has taken up a case on behalf of one of its subjects before an
international tribunal, in the eyes of the latter the State is sole claimant.56
Since the exercise of diplomatic protection is the right of the State, reliance on the right is
within the absolute discretion of states, and the decision whether to exercise the discretion
may invariably be iniuenced by political considerations other than the legal merits of the
particular claim.57 As clearly stated by the ICJ in

Barcelona Traction:

The Court would here observe that, within the limits prescribed by international law, a State
may exercise diplomatic protection by whatever means and to whatever extent it thinks \t,
for it is its own right that the State is asserting. Should the natural or legal person on
whose behalf it is acting consider that their rights are not adequately protected, they have
no remedy in international law. All they can do is resort to national law, if means are
available, with a view to furthering their cause or obtaining redress. The municipal
legislator may lay upon the State an obligation to protect its citizens abroad, and may also
confer upon the national a right to demand the performance of that obligation, and clothe
the right with corresponding sanctions. However, all these questions remain within the
province of municipal law and do not affect the position internationally.58 (Emphasis
supplied)

The State, therefore, is the sole judge to decide whether its protection will be granted, to
what extent it is granted, and when will it cease. It retains, in this respect, a discretionary
power the exercise of which may be determined by considerations of a political or other
nature, unrelated to the particular case.

The International Law Commission’s (ILC’s) Draft Articles on Diplomatic Protection fully
support this traditional view. They (i) state that “the right of diplomatic protection belongs
to or vests in the State,”59 (ii) a5rm its discretionary nature by clarifying that diplomatic
protection is a “sovereign prerogative” of the State;60 and (iii) stress that the state “has the
right to exercise diplomatic protection on behalf of a national. It is under no duty or
obligation to do so.”61
It has been argued, as petitioners argue now, that the State has a duty to protect its
nationals and act on his/her behalf when rights are injured.62 However, at present, there is
no su5cient evidence to establish a general international obligation for States to exercise
diplomatic protection of their own nationals abroad.63 Though, perhaps desirable, neither
state practice nor opinio juris has evolved in such a direction. If it is a duty internationally, it
is only a moral and not a legal duty, and there is no means of enforcing its ful\llment.64

We fully agree that rape, sexual slavery, torture, and sexual violence are morally
reprehensible as well as legally prohibited under contemporary international law.65
However, petitioners take quite a theoretical leap in claiming that these proscriptions
automatically imply that that the Philippines is under a non-derogable obligation to
prosecute international crimes, particularly since petitioners do not demand the imputation
of individual criminal liability, but seek to recover monetary reparations from the state of
Japan. Absent the consent of states, an applicable treaty regime, or a directive by the
Security Council, there is no non-derogable duty to institute proceedings against Japan.
Indeed, precisely because of states’ reluctance to directly prosecute claims against
another state, recent developments support the modern trend to empower individuals to
directly participate in suits against perpetrators of international crimes.66 Nonetheless,
notwithstanding an array of General Assembly resolutions calling for the prosecution of
crimes against humanity and the strong policy arguments warranting such a rule, the
practice of states does not yet support the present existence of an obligation to prosecute
international crimes.67 Of course a customary duty of prosecution is ideal, but we cannot
\nd enough evidence to reasonably assert its existence. To the extent that any state
practice in this area is widespread, it is in the practice of granting amnesties, immunity,
selective prosecution, or de facto impunity to those who commit crimes against
humanity.”68

Even the invocation of jus cogens norms and erga omnes obligations will not alter this
analysis. Even if we sidestep the question of whether jus cogens norms existed in 1951,
petitioners have not deigned to show that the crimes committed by the Japanese army
violated jus cogens prohibitions at the time the Treaty of Peace was signed, or that the
duty to prosecute perpetrators of international crimes is an erga omnes obligation or has
attained the status of jus cogens.

The term erga omnes (Latin: in relation to everyone) in international law has been used as a
legal term describing obligations owed by States towards the community of states as a
whole. The concept was recognized by the ICJ in Barcelona Traction:

x x x an essential distinction should be drawn between the obligations of a State towards

the international community as a whole, and those arising vis-à-vis another State in the
\eld of diplomatic protection. By their very nature, the former are the concern of all States.
In view of the importance of the rights involved, all States can be held to have a legal
interest in their protection; they are obligations erga omnes.

Such obligations derive, for example, in contemporary international law, from the outlawing
of acts of aggression, and of genocide, as also from the principles and rules concerning
the basic rights of the human person, including protection from slavery and racial
discrimination. Some of the corresponding rights of protection have entered into the body
of general international law … others are conferred by international instruments of a
universal or quasi-universal character.

The Latin phrase, ‘erga omnes,’ has since become one of the rallying cries of those sharing
a belief in the emergence of a value-based international public order. However, as is so
often the case, the reality is neither so clear nor so bright. Whatever the relevance of
obligations erga omnes as a legal concept, its full potential remains to be realized in
practice.69

The term is closely connected with the international law concept of jus cogens. In
international law, the term “jus cogens” (literally, “compelling law”) refers to norms that
command peremptory authority, superseding coniicting treaties and custom. Jus cogens
norms are considered peremptory in the sense that they are mandatory, do not admit
derogation, and can be modi\ed only by general international norms of equivalent
authority.70

Early strains of the jus cogens doctrine have existed since the 1700s,71 but peremptory
norms began to attract greater scholarly attention with the publication of Alfred von
Verdross’s iniuential 1937 article, Forbidden Treaties in International Law.72 The
recognition of jus cogens gained even more force in the 1950s and 1960s with the ILC’s
preparation of the Vienna Convention on the Law of Treaties (VCLT).73 Though there was a
consensus that certain international norms had attained the status of jus cogens,74 the ILC
was unable to reach a consensus on the proper criteria for identifying peremptory norms.

After an extended debate over these and other theories of jus cogens, the ILC concluded
ruefully in 1963 that “there is not as yet any generally accepted criterion by which to
identify a general rule of international law as having the character of jus cogens.”75 In a
commentary accompanying the draft convention, the ILC indicated that “the prudent
course seems to be to x x x leave the full content of this rule to be worked out in State
practice and in the jurisprudence of international tribunals.”76 Thus, while the existence of
jus cogens in international law is undisputed, no consensus exists on its substance,77
beyond a tiny core of principles and rules.78

Of course, we greatly sympathize with the cause of petitioners, and we cannot begin to
comprehend the unimaginable horror they underwent at the hands of the Japanese
soldiers. We are also deeply concerned that, in apparent contravention of fundamental
principles of law, the petitioners appear to be without a remedy to challenge those that
have offended them before appropriate fora. Needless to say, our government should take
the lead in protecting its citizens against violation of their fundamental human rights.
Regrettably, it is not within our power to order the Executive Department to take up the
petitioners’ cause. Ours is only the power to urge and exhort the Executive Department to
take up petitioners’ cause.
WHEREFORE, the Petition is hereby DISMISSED.

SO ORDERED.

MARIANO C. DEL CASTILLO

Associate Justice

WE CONCUR:

REYNATO S. PUNO
Chief Justice

ANTONIO T. CARPIO RENATO C. CORONA

Associate Justice Associate Justice

CONCHITA CARPIO MORALES PRESBITERO J. VELASCO, JR.

Associate Justice Associate Justice

ANTONIO EDUARDO B. NACHURA TERESITA J. LEONARDO-DE CASTRO

Associate Justice Associate Justice

ARTURO D. BRION DIOSDADO M. PERALTA

Associate Justice Associate Justice

LUCAS P. BERSAMIN ROBERTO A. ABAD

Associate Justice Associate Justice
 MARTIN S. VILLARAMA, JR. JOSE PORTUGAL PEREZ
Associate Justice Associate Justice

JOSE CATRAL MENDOZA

Associate Justice

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, it is hereby certi\ed that the
conclusions in the above Decision had been reached in consultation before the case was
assigned to the writer of the opinion of the Court.

REYNATO S. PUNO
Chief Justice

Notes:

1 In Re World War II Era Japanese Forced Labor Litigation, 114 F. Supp. 2d 939 (N.D. Cal.
2000).

2 U.N. Doc. E/CN.4/1996/53/Add.1 (January 4, 1996), Report of the Special Rapporteur on

violence against women, its causes and consequences, Ms. Radhika Coomaraswamy, in
accordance with Commission on Human Rights resolution 1994/45.

3 Treaty and customary law both provide that when rape is committed as part of a
widespread or systematic attack directed at any civilian population, regardless of its
international or internal character, then it constitutes one of the gravest crimes against
humanity. This principle is codi\ed under Article 6(c) of the 1945 Nuremberg Charter as
well as Article 5(c) of the Tokyo Charter, which enumerated “murder, extermination,
enslavement, deportation, and other inhumane acts committed against any civilian
populations, before or during the war” as crimes against humanity, and extended in scope
to include imprisonment, torture and rape by Control Council Law No. 10.

4 Article 1 of the Slavery Convention provides:

For the purpose of the present Convention, the following de\nitions are agreed upon:

(1) Slavery is the status or condition of a person over whom any or all of the powers
attaching to the right of ownership are exercised.

(2) The slave trade includes all acts involved in the capture, acquisition or disposal of a
person with intent to reduce him to slavery; all acts involved in the acquisition of a
slave with a view to selling or exchanging him; all acts of disposal by sale or exchange
of a slave acquired with a view to being sold or exchanged, and, in general, every act of
trade or transport in slaves.

Slavery, Servitude, Forced Labour and Similar Institutions and Practices Convention
of 1926 (Slavery Convention of 1926), 60 L.N.T.S. 253, entered into force March 9,
1927.

5 Torture is de\ned as any act by which severe pain or suffering, whether physical or
mental, is intentionally iniicted on a person for such purposes as obtaining from him or a
third person, information or a confession, punishing him for an act he or a third person has
committed or is suspected of having committed, or intimidating or coercing him or a third
person, or for any reason based on discrimination of any kind, when such pain or suffering
is iniicted by or at the instigation of or with the consent or acquiescence of a public o5cial
or other person acting in an o5cial capacity. It does not include pain or suffering arising
only from, inherent in or incidental to lawful sanctions. (Convention Against Torture, Article
1.1)
6 Signed at San Francisco, September 8, 1951; Initial entry into force: April 28, 1952. The
treaty was signed by Argentina, Australia, Belgium, Bolivia, Brazil, Cambodia, Canada, Chile,
Colombia, Costa Rica, Cuba, Czechoslovakia, Dominican Republic, Ecuador, Egypt, El
Salvador, Ethiopia, France, Greece, Guatemala, Haiti, Honduras, Indonesia, Iran, Iraq, Japan,
Laos, Lebanon, Liberia, Luxembourg, Mexico, the Netherlands, New Zealand, Nicaragua,
Norway, Pakistan, Panama, Paraguay, Peru, The Philippines, Poland, Saudi Arabia, the
Soviet Union, Sri Lanka, South Africa, Syria, Turkey, the United Kingdom, the United States,
Uruguay, Venezuela, Vietnam. The signatories for the Republic of the Philippines were
Carlos P. Romulo, J.M. Elizalde, Vicente Francisco, Diosdado Macapagal, Emiliano Tirona,
and V.G. Sinco.

7 Signed in San Francisco, September 8, 1951, rati\ed by the Philippine Senate on July 16,
1956. Signed by the Philippine President on July 18, 1956. Entered into force on July 23,
1956.

8 On September 21, 1992, the Japanese Embassy formally con\rmed to the Philippine
government the involvement of the Japanese Imperial Army in the establishment of
comfort women stations.

In May 1993, Japan approved textbooks featuring an account of how comfort women
were forced to work as prostitutes for the Japanese Imperial Army.

On August 4, 1993, Japanese Prime Minister Miyazawa, before resigning, formally

apologized to women all over the world who were forced to serve as comfort women:

The Japanese government regrets and sincerely apologizes for the unbearable pain
that these women regardless of their nationalities, suffered while being forced to work
as so-called comfort women.
 The Japanese government expresses its heartfelt sentiments of reiection and apology
to all the women for their many sufferings and the injuries to mind and body that
cannot be healed.

The Philippine government, under the administration of then President Fidel V. Ramos,
accepted the formal apology given the Japanese Government. Though the formal
apology came late, it is a most welcome gesture from the government of Japan, which
has been very supportive of our economic development.

9 Richard J. Galvin, The Case for a Japanese Truth Commission Covering World War II Era
Japanese War Crimes, 11 Tul. J. Int’l & Comp. L. 59, 64 (2003).

10See Argibay, Ad Litem Judge, International Criminal Tribunal for the Former Yugoslavia,
Speech at the Stefan A. Riesenfeld Symposium: Sexual Slavery and the “Comfort Women”
of World War II, in 21 Berkeley J. Int’l L. 375, 376 (2003).

11 Id.

12 Nearey, Seeking Reparations in the New Milleunium: Will Japan Compensate the
“Comfort Women” of World War II?, 15 Temp. Int’l & Comp. L.J. 121, 134 (2001).

13 Ustinia Dolgopol & Snehal Paranjape, Comfort Women: An Un\nished Ordeal 15 (1994).

14 Id. at 48.

15 See Johnson, Comment, Justice for “Comfort Women”: Will the Alien Tort Claims Act
Bring Them the Remedies They Seek?, 20 Penn St. Int’l L. Rev. 253, 260 (2001).

16Id. at 261. Soldiers disregarded rules mandating the use of condoms, and thus many
women became pregnant or infected with sexually transmitted diseases.
17 Boling, Mass Rape, Enforced Prostitution, and the Japanese Imperial Army: Japan
Eschews International Legal Responsibility? 3 Occasional Papers/Reprint Series
Contemporary Asian Studies 8 (1995).

18 Id.

19 Yamamoto et al., Race, Rights and Reparation 435-38 (2001).

20 Meade, From Shanghai to Globocourt: An Analysis of the “Comfort Women’s” Defeat in

Hwang v. Japan, 35 Vand. J. Transnat’l L. 211, 233 (2002).

21 Numerous lawsuits immediately followed, including lawsuits \led by the Korean Council
for Women Drafted for Sexual Slavery, and a suit by a Dutch former comfort woman; Fisher,
Japan’s Postwar Compensation Litigation, 22 Whittier L. Rev. 35, 44 (2000).

22 The lower court ruling in Ha v. Japan has been the lone courtroom victory for comfort
women. On December 25, 1992, ten Korean women \led the lawsuit with the Yamaguchi
Prefectural Court, seeking an o5cial apology and compensation from the Japanese
government. The plaintiffs claimed that Japan had a moral duty to atone for its wartime
crimes and a legal obligation to compensate them under international and domestic laws.
More than \ve years later, on April 27, 1998, the court found the Japanese government
guilty of negligence and ordered it to pay ¥300,000, or $2,270, to each of the three
plaintiffs. However, the court denied plaintiffs’ demands that the government issue an
o5cial apology. Both parties appealed, but Japan’s High Court later overturned the ruling.
See Park, Broken Silence: Redressing the Mass Rape and Sexual Enslavement of Asian
Women by the Japanese Government in an Appropriate Forum, 3 Asian-Pac. L. & Pol’y J. 40
(2002); Kim & Kim, Delayed Justice: The Case of the Japanese Imperial Military Sex Slaves,
16 UCLA Pac. Basin L.J. 263 (1998). Park, Comfort Women During WW II: Are U.S. Courts a
Final Resort for Justice?, 17 Am. U. Int’l L. Rev. 403, 408 (2002).
23Hwang Geum Joo v. Japan (“Hwang I”), 172 F. Supp. 2d 52 (D.D.C. 2001), a5rmed, 332
F.3d 679 (D.C. Cir. 2003), vacated, 542 U.S. 901 (2004), remanded to 413 F.3d 45 (D.C. Cir.
2005), cert. denied, 126 S. Ct. 1418 (2006).

24 Alien Tort Claims Act, 28 U.S.C. § 1350 (2000). The ATCA gives US federal district courts
original jurisdiction to adjudicate civil cases and award tort damages for violations of the
law of nations or United States treaties. See Ahmed, The Shame of Hwang v. Japan: How
the International Community Has Failed Asia’s “Comfort Women, 14 Tex. J. Women & L.
121, 141-42 (2004).

25 Under the ATCA, when a “cause of action is brought against a sovereign nation, the only
basis for obtaining personal jurisdiction over the defendant is through an exception to the
Foreign Sovereign Immunities Act (FSIA).” See Jeffords, Will Japan Face Its Past? The
Struggle for Justice for Former Comfort Women, 2 Regent J. Int’l L. 145, 158 (2003/2004).
The FSIA (28 U.S.C. § 1604 (1994 & Supp. 1999).) grants foreign states immunity from
being sued in US district courts unless the state waives its immunity or the claims fall
within certain enumerated exceptions. The Japanese government successfully argued that
it is entitled to sovereign immunity under the FSIA. The government additionally argued
that post-war treaties had resolved the issue of reparations, which were non-justiciable
political questions.

26 See Hwang Geum Joo v. Japan (“Hwang II”), 332 F.3d 679, 680-81 (D.C. Cir. 2003),
vacated, 542 U.S. 901 (2004), remanded to 413 F.3d 45 (D.C. Cir. 2005), cert. denied, 126 S.
Ct. 1418 (2006).

27 See Hwang Geum Joo v. Japan (“Hwang III”), 542 U.S. 901 (2004) (memorandum),
remanded to 413 F.3d 45 (D.C. Cir. 2005), cert. denied, 126 S. Ct. 1418 (2006).

28 Id.
29 Soh, The Comfort Women Project, San Francisco State University (1997-2001),
http://online.sfsu.edu/~soh/comfortwomen.html, at 1234-35.

30 An Analysis Of The Legal Liability Of The Government Of Japan For “Comfort Women
Stations” Established During The Second World War (Appendix); Report on Contemporary
Forms of Slavery: Systematic rape, sexual slavery and slavery-like practices During Armed
Coniict, Final report submitted by Ms. Gay J. McDougall, Special Rapporteur, Sub-
Commission on Prevention of Discrimination and Protection of Minorities, Commission on
Human Rights (Fiftieth Session) E/CN.4/Sub.2/1998/13 (June 22, 1998).

31 Chinkin, Women’s International Tribunal on Japanese Sexual Slavery, 95 Am. J. Int’l. L.

335 (2001).

32 A large amount of evidence was presented to the tribunal for examination. Sixty-four
former comfort women from Korea and other surrounding territories in the Asia-Paci\c
region testi\ed before the court. Testimony was also presented by historical scholars,
international law scholars, and two former Japanese soldiers. Additional evidence was
submitted by the prosecution teams of ten different countries, including: North and South
Korea, China, Japan, the Philippines, Indonesia, Taiwan, Malaysia, East Timor, and the
Netherlands. Id. at 336.

33 Press Release, Congressman Mike Honda, Rep. Honda Calls on Japan to Apologize for
World War II Exploitation of “Comfort Women” (January 31, 2007).

34 H.R. Res. 121, 110th Cong. (2007) (enacted).

35 European Parliament, Human rights: Chad, Women’s Rights in Saudi Arabia, Japan’s
Wartime Sex Slaves, Dec. 17, 2007, http:// www.europarl.europa.eu/sides/getDoc.do?
language=EN&type=IM-PRESS&reference=20071210BRI14639&secondRef=ITEM-008-EN.
36 The Comfort Women–A History of Trauma, http://
taiwan.yam.org.tw/womenweb/conf_women/index_e.html.

37 Yamamoto et al., supra note 19 at 437. The government appointed Bunbei Hara, former
Speaker of the Upper House of the Diet, as the \rst President of the Asian Women’s Fund
(1995-1999). Former Prime Minister Tomiichi Murayama succeeded Hara as the second
president of the program (1999-present). See Jeffords, supra note 25 at 158.

38 The Asian Women’s Fund, http://www.awf.or.jp/english/project_ atonement.html, at 55.

39369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962).

40 103 Phil 1051, 1068 (1957).

41 See Baker v. Carr, 369 U.S. at 211-222.

42 Oetjen v. Central Leather Co., 246 U.S. 297, 302 (1918).

43 Chicago & S. Air Lines, Inc. v. Waterman S.S. Corp., 333 U.S. 103, 111 (1948).

44 Constitution, Art. VIII, Sec. 5(2)(a).

45 299 US 304, 57 S. Ct. 216, 81 L. Ed, 255 (1936).

46 396 Phil 623, 663 (2000). We held:

By constitutional \at and by the intrinsic nature of his o5ce, the President, as head of
State, is the sole organ and authority in the external affairs of the country. In many
ways, the President is the chief architect of the nation’s foreign policy; his “dominance
in the \eld of foreign relations is (then) conceded.” Wielding vast powers and iniuence,
his conduct in the external affairs of the nation, as Jefferson describes, is “executive
altogether”.
47 501 Phil. 304, 313 (2005). We stated:

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 country’s sole representative
with foreign nations. As the chief architect of foreign policy, the President acts as the
country’s 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. In the realm of treaty-making, the President
has the sole authority to negotiate with other states.

48 379 Phil. 165, 233-234 (2004).

49 Henkin, Foreign Affairs and the Constitution 300 (2d 1996); see Dames and Moore v.
Regan, 453 U.S. 654, 688, 101 S.Ct. 2972, 69 L.Ed.2d 918 (1981) (upholding the President’s
authority to settle claims of citizens as “a necessary incident to the resolution of a major
foreign policy dispute between our country and another [at least] where … Congress
acquiesced in the President’s action”); Am. Ins. Ass’n v. Garamendi, 539 U.S. 396, 424, 123
S.Ct. 2374, 156 L.Ed.2d 376 (2003) (acknowledging “President’s authority to provide for
settling claims in winding up international hostilities”). See also Akbayan Citizens Action
Party (“Akbayan”) v. Aquino, G.R. No. 170516, July 16, 2008, 558 SCRA 468, 517 where we
held that:

x x x While, on \rst impression, it appears wise to deter Philippine representatives from

entering into compromises, it bears noting that treaty negotiations, or any negotiation
for that matter, normally involve a process of quid pro quo, and oftentimes negotiators
have to be willing to grant concessions in an area of lesser importance in order to
obtain more favorable terms in an area of greater national interest.

50 3 U.S. (3 Dall.) 199, 230, 1 L.Ed. 568 (1796).

51 453 U.S. 654, 101 S.Ct. 2972 (1981) (re the establishment of the Iran-United States
Claims Tribunal following the seizure of American personnel as hostages at the American
Embassy in Tehran).

52 Bazyler, The Holocaust Restitution Movement in Comparative Perspective, 20 Berkeley J.

Int’l. L. 11, 25-32 (2002).

53 In Re World War II Era Japanese Forced Labor Litigation, supra note 1.

54 Treaty of Peace with Japan 1951, 136 UNTS 45.

55 The conceptual understanding that individuals have rights and responsibilities in the
international arena does not automatically mean that they have the ability to bring
international claims to assert their rights. Thus, the Permanent Court of International
Justice declared that “it is scarcely necessary to point out that the capacity to possess civil
rights does not necessarily imply the capacity to exercise those rights oneself.” Appeal
from a Judgment of the Hungaro/Czeochoslovak Mixed Arbitral Tribunal, Judgment, 1933,
PCIJ, Ser. A/B No. 61, p. 208 at 231.

56 PCIJ, Ser. A, No. 2, p. 11, at 16. This traditional view was repeated by the PCIJ in the
Panevezys-Saldutiskis Railway Case, the Case Concerning the Payment of Various Serbian
Loans issued in France, Judgment of July 12, 1929, PCIJ Reports, Series A No. 20;and in
the Case Concerning the Factory at Chorzow, Judgment of September 13, 1928, Merits,
PCIJ Reports, Series A No. 17. The ICJ has adopted it in the Reparation for injuries suffered
in the service of the United Nations Advisory Opinion: ICJ Reports 1949, p. 174; the
Nottebohm Case (second phase) Judgment of April 6, 1955: ICJ Reports 1955, p. 4 at p. 24;
the Interhandel Case (Judgment of March 21st, 1959: ICJ Reports 1959, p. 6 at p. 27) and
the Barcelona Traction, Light and Power Company, Limited case, (Belg. v. Spain), 1970 I.C.J.
3, 32 (Feb. 5).
57 See Borchard, E., Diplomatic Protection of Citizens Abroad at VI (1915). Under this view,
the considerations underlying the decision to exercise or not diplomatic protection may
vary depending on each case and may rely entirely on policy considerations regardless of
the interests of the directly-injured individual, and the State is not required to provide
justi\cation for its decision.

58 Barcelona Traction, Light and Power Company, Limited, case, supra note 56, at p. 44 par.
78.

59ILC First Reading Draft Articleson Diplomatic Protection, U.N. Doc. A/CN.4/484, ILC
Report, A/53/10(F), par. 60, Commentary to Draft Article 2, par. (1); see also, Commentary
to Draft Article 1, par. (3), and text of Draft Article 2.

60 Report of the International Law Commission on the work of its 50th session, supra note
60, par. 77.

61ILC First Reading Draft Articles on Diplomatic Protection, supra note 60, commentary to
Draft Article 2, par. (2).

62 For instance, Special Rapporteur Dugard proposed that the ILC adopt in its Draft Articles
a provision under which States would be internationally obliged to exercise diplomatic
protection in favor of their nationals injured abroad by grave breaches to jus cogens norms,
if the national so requested and if he/she was not afforded direct access to an
international tribunal. The proposed article reads as follows:

Article [4]1. Unless the injured person is able to bring a claim for such injury before a
competent international court or tribunal, the State of his/her nationality has a legal
duty to exercise diplomatic protection on behalf of the injured person upon request, if
the injury results from a grave breach of a jus cogens norm attributable to another
State. 2. The state of nationality is relieved of this obligation if: (a) The exercise of
diplomatic protection would seriously endanger the overriding interests of the State
and/or its people; (b) Another State exercises diplomatic protection on behalf of the
injured person; (c) The injured person does not have the effective and dominant
nationality of the State. States are obliged to provide in their municipal law for the
enforcement of this right before a competent domestic court or other independent
national authority”. Special Rapporteur John Dugard, appointed in 1999, First Report on
Diplomatic Protection, par. 74 (UN Doc. A/CN.4/506 (March 7, 2000) and Corr. 1 (June
7, 2000) and Add. 1 (April 20, 2000).

However, the proposal was not accepted by the ILC, as “the question was still not ripe
for treatment” because “the State practice and their opinio juris still had not evolved in
such direction”. OVcial Records of the General Assembly: 55th session, Supplement No.
10, Doc. A/55/10 (2000), Report of the ILC on the work of its 52nd session, p. 131.
Instead, Draft Article 19, entitled ‘Recommended Practice’, suggests that states should
be encouraged to exercise diplomatic protection ‘especially when signi\cant injury
occurred’ to the national. Drafted in soft language, the Article does not purport to
create any binding obligations on the state.

In addition, some States have incorporated in their municipal law a duty to exercise
diplomatic protection in favor of their nationals. (Dugard identi\es this “obligation” to
exist in the Constitutions of Albania, Belarus, Bosnia and Herzegovina, Bulgaria,
Cambodia, China, Croatia, Estonia, Georgia, Guyana, Hungary, Italy, Kazakhstan, Lao
People’s Democratic Republic, Latvia, Lithuania, Poland, Portugal, Republic of Korea,
Romania, Russian Federation, Spain, the former Yugoslav Republic of Macedonia,
Turkey, Ukraine, Viet Nam and Yugoslavia, albeit with different reaches. J. Dugard, First
Report on diplomatic protection, supra note 13, par. 80), but their enforceability is also,
to say the least, questionable (in many cases there are not even courts competent to
review the decision). Moreover, their existence in no way implies that international law
imposes such an obligation, simply suggesting “that certain States consider
 diplomatic protection for their nationals abroad to be desirable” (ILC First Reading Draft
Articles on Diplomatic Protection, supra note 60, Commentary to Draft Article 2, par
(2)).

63 Even decisions of national courts support the thesis that general international law as it
stands does not mandate an enforceable legal duty of diplomatic protection.

The traditional view has been challenged in the UK in a case arising from the unlawful
detention by the US of prisoners in Guantanamo Bay. In Abbasi v. Secretary of State for
Foreign and Commonwealth Affairs ([2002] EWCA Civ 1316, 19 September 2002), the
applicant (a British national) sought judicial review of the adequacy of the diplomatic
actions of the British government with the US government. The UK Court of Appeals
came to the conclusion that diplomatic protection did not as such give rise to an
enforceable duty under English Law. It found that “on no view would it be appropriate
to order the Secretary of State to make any speci\c representations to the United
States, even in the face of what appears to be a clear breach of a fundamental human
right, as it is obvious that this would have an impact on the conduct of foreign policy.”

Courts in the UK have also repeatedly held that the decisions taken by the executive in
its dealings with foreign states regarding the protection of British nationals abroad are
non-justiciable.

(1) R. v. Secretary of State for Foreign and Commonwealth Affairs, ex parte Pirbhai (107
ILR 462 (1985):

“x x x in the context of a situation with serious implications for the conduct of

international relations, the courts should act with a high degree of circumspection in
the interests of all concerned. It can rarely, if ever, be for judges to intervene where
diplomats fear to tread.” (p.479, per Sir John Donaldson MR)
(2) R. v. Secretary of State for Foreign and Commonwealth Affairs, ex parte Ferhut Butt
(116 ILR 607 (1999):

“The general rule is well established that the courts should not interfere in the conduct
of foreign relations by the Executive, most particularly where such interference is likely
to have foreign policy repercussions (see R. v. Secretary of State for Foreign and
Commonwealth Affairs, ex parte Everett [1989] 1 QB 811 at 820). This extends to
decisions whether or not to seek to persuade a foreign government of any international
obligation (e.g. to respect human rights) which it has assumed. What if any approach
should be made to the Yemeni authorities in regard to the conduct of the trial of these
terrorist charges must be a matter for delicate diplomacy and the considered and
informed judgment of the FCO. In such matters the courts have no supervisory role.”
(p. 615, per Lightman J).

“Whether and when to seek to interfere or to put pressure on in relation to the legal
process, if ever it is a sensible and a right thing to do, must be a matter for the
Executive and no one else, with their access to information and to local knowledge. It
is clearly not a matter for the courts. It is clearly a high policy decision of a government
in relation to its foreign relations and is not justiciable by way of judicial review.” (p.622,
per Henry LJ).

(3) R. (Suresh and Manickavasagam) v. Secretary of State for the Home Department
[2001] EWHC Admin 1028 (unreported, 16 November 2001):

“… there is, in my judgment, no duty upon the Secretary of State to ensure that other
nations comply with their human rights obligations. There may be cases where the
United Kingdom Government has, for example by diplomatic means, chosen to seek to
persuade another State to take a certain course in its treatment of British nationals;
but there is no duty to do so.” (paragraph 19, per Sir Richard Tucker).
 The South African Constitutional Court in Kaunda and others v. President of the
Republic of South Africa and others (Case CCCT23/04) recognized the constitutional
basis of the right of diplomatic protection as enshrined in the South African
Constitution, but went on to hold that the nature and extent of this obligation was an
aspect of foreign policy within the discretion of the executive.

64 Borchard, E., Diplomatic Protection of Citizens Abroad, 29 (1915).

65 The concept of rape as an international crime is relatively new. This is not to say that
rape has never been historically prohibited, particularly in war. But modern-day sensitivity to
the crime of rape did not emerge until after World War II. In the Nuremberg Charter, the
word rape was not mentioned. The article on crimes against humanity explicitly set forth
prohibited acts, but rape was not mentioned by name. (For example, the Treaty of Amity
and Commerce between Prussia and the United States provides that in time of war all
women and children “shall not be molested in their persons.” The Treaty of Amity and
Commerce, Between his Majesty the King of Prussia and the United States of America, art.
23, Sept. 10, 1785, U.S.-Pruss., 8 Treaties & Other Int’l Agreements Of The U.S. 78, 85. The
1863 Lieber Instructions classi\ed rape as a crime of “troop discipline.” (Mitchell, The
Prohibition of Rape in International Humanitarian Law as a Norm of Jus cogens: Clarifying
the Doctrine, 15 Duke J. Comp. Int’l. L. 219, 224). It speci\ed rape as a capital crime
punishable by the death penalty (Id. at 236). The 1907 Hague Convention protected women
by requiring the protection of their “honour.” (“Family honour and rights, the lives of
persons, and private property, as well as religious convictions and practice, must be
respected.” Convention (IV) Respecting the Laws & Customs of War on Land, art. 46, Oct.
18, 1907. General Assembly resolution 95 (I) of December 11, 1946 entitled, “A5rmation of
the Principles of International Law recognized by the Charter of the Nürnberg Tribunal”;
General Assembly document A/64/Add.1 of 1946; See Agreement for the Prosecution and
Punishment of the Major War Criminals of the European Axis, Aug. 8, 1945, 59 Stat. 1544,
82 U.N.T.S. 279. Article 6(c) of the Charter established crimes against humanity as the
following:
CRIMES AGAINST HUMANITY: namely, murder, extermination, enslavement,
deportation, and other inhumane acts committed against any civilian population,
before or during the war, or persecutions on political, racial or religious grounds in
execution of or in connection with any crime within the Jurisdiction of the Tribunal,
whether or not in violation of the domestic law of the country where perpetrated.

The Nuremberg Judgment did not make any reference to rape and rape was not
prosecuted. (Judge Gabrielle Kirk McDonald, The International Criminal Tribunals
Crime and Punishment in the International Arena,7 ILSA J. Int’l. Comp. L. 667, 676.)
However, International Military Tribunal for the Far East prosecuted rape crimes, even
though its Statute did not explicitly criminalize rape. The Far East Tribunal held General
Iwane Matsui, Commander Shunroku Hata and Foreign Minister Hirota criminally
responsible for a series of crimes, including rape, committed by persons under their
authority. (The Tokyo Judgment: Judgment Of The International Military Tribunal For
The Far East 445-54 (1977).

The \rst mention of rape as a speci\c crime came in December 1945 when Control
Council Law No. 10 included the term rape in the de\nition of crimes against humanity.
Law No. 10, adopted by the four occupying powers in Germany, was devised to
establish a uniform basis for prosecuting war criminals in German courts. (Control
Council for Germany, Law No. 10: Punishment of Persons Guilty of War Crimes, Crimes
Against Peace and Against Humanity, Dec. 20, 1945, 3 O5cial Gazette Control Council
for Germany 50, 53 (1946))

The 1949 Geneva Convention Relative to the Treatment of Prisoners of War was the
\rst modern-day international instrument to establish protections against rape for
women. Geneva Convention Relative to the Protection of Civilian Persons in Time of
War, Aug. 12, 1949, art. 27, 6 U.S.T. 3316, 75 U.N.T.S. 287 (entry into force Oct. 20,
1950) [hereinafter Fourth Geneva Convention]. Furthermore, the ICC, the ICTY, and the
International Criminal Tribunal for Rwanda (ICTR) have signi\cantly advanced the
crime of rape by enabling it to be prosecuted as genocide, a war crime, and a crime
against humanity.

Rape is clearly emerging as a core crime within humanitarian law. (Appleman, Military
Tribunals and International Crimes 299 (1954); Meron, Human Rights and
Humanitarian Norms as Customary Law 47 (1989). A major step in this legal
development came in 1949, when rape and sexual assault were included in the Geneva
Conventions. Rape is included in the following acts committed against persons
protected by the 1949 Geneva Conventions: “willful killing, torture or inhuman
treatment, including biological experiments; willfully causing great suffering or serious
injury to body or health.” Rape as a violation of the laws or customs of war generally
consists of violations of Article 3 of the 1949 Geneva Conventions, which, in part,
prohibits “violence to life and person, in particular mutilation, cruel treatment and
torture; outrages upon personal dignity, in particular humiliating and degrading
treatment.” (See Geneva Convention for the Amelioration of the Condition of the
Wounded and Sick in Armed Forces in the Field, art. 3(1)(c), 75 U.N.T.S. 31; Geneva
Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked
Members of Armed Forces at Sea, art. 3(1)(c), 75 U.N.T.S. 85; Geneva Convention
Relative to the Treatment of Prisoners of War, art. 3(1)(c), 75 U.N.T.S. 973; Fourth
Geneva Convention, supra note 23, art. 3(1)(c).

Article 27 of the Fourth Geneva Convention, directed at protecting civilians during time
of war, states that “women shall be especially protected against any attack on their
honour, in particular against rape, enforced prostitution, or any form of indecent
assault.”

Protocol I of the Geneva Conventions continues to expand the protected rights by

providing that “women shall be the object of special respect and shall be protected in
particular against rape, forced prostitution and any form of indecent assault.” (Protocol
 Additional to the Geneva Conventions of August 12, 1949, and Relating to the
Protection of Victims of International Armed Coniicts (Protocol I), Article 76(1), 1125
U.N.T.S. 4).

66 For instance, the International Criminal Court was established to deal with the “most
serious crimes of concern to the international community,” with jurisdiction over genocide,
crimes against humanity, and war crimes, as de\ned in the Rome Statute. The ICC
Prosecutor can investigate allegations of crimes not only upon referral from the Security
Council and state parties, but also on information from victims, non-governmental
organizations or any other reliable source (Article 15). See also the Statute of the
International Tribunal for the Prosecution of Persons Responsible for Serious Violations of
International Humanitarian Law Committed in the Territory of the Former Yugoslavia since
1991, U.N. Doc. S/25704 at 36, annex (1993) and S/25704/Add.1 (1993), adopted by
Security Council on 25 May 1993, U.N. Doc. S/RES/827 (1993).

67 Scharf, The Letter of the Law: The Scope of the International Legal Obligation To
Prosecute Human Rights Crimes, 59(4) Law & Contemp. Probs. 41, 59 (1996). Dugard,
Dealing with Crimes of a Past Regime: Is Amnesty Still an Option?, 12 Leiden J. Int’l L.
1001, 1003 (1999). Gavron, Amnesties in Light of Developments in International Law and
the Establishment of the International Criminal Court, 51 Int’l & Comp. L.Q. 91, 106 (2002).

68 O’Shea, Amnesty for Crime in International Law and Practice 35 (2002).

69 Bruno Simma’s much-quoted observation encapsulates this feeling of disappointment:

‘Viewed realistically, the world of obligations erga omnes is still the world of the “ought”
rather than of the “is”’ The Charter of the United Nations: A commentary 125 (Simma, ed.
1995). See Tams, Enforcing Obligations Erga omnes in International Law (2005). In all
cases where this principle has been cited, even the ICJ has found a way to avoid giving
force to the claims based on the erga omnes character of the obligation, despite having
recognized them in principle. In the South West Africa Case, the ICJ declared that an action
popularis was incompatible with existing international law. In the Nicaragua case, it evaded
the consequences of a violation of erga omnes obligations by treating human rights
conventions as self-contained regimes. Nicaragua v. US, Merits, ICJ Reports 1986, 14 et
seq. (134, par. 267): “However, where human rights are protected by international
conventions, that protection takes the form of such arrangements for monitoring or
ensuring respect for human rights as are provided for in the conventions themselves.” In
the East Timor Case, it denied jurisdiction on the ground that Indonesia was an
“indispensable third party” to the proceedings which had not accepted jurisdiction.
(Portugal v. Australia, ICJ Reports 1995, 90 (102, par 29) “Portugal’s assertion that the right
of peoples to self-determination… has an erga omnes character, is irreproachable.”

70 See Vienna Convention on the Law of Treaties art. 53, opened for signature May 23,
1969, 1155 U.N.T.S. 331, 8 I.L.M. 679 [hereinafter VCLT].

71 Classical publicists such as Hugo Grotius, Emer de Vattel, and Christian Wolff drew upon
the Roman law distinction between jus dispositivum (voluntary law) and jus scriptum
(obligatory law) to differentiate consensual agreements between states from the
“necessary” principles of international law that bind all states as a point of conscience
regardless of consent. (See Hugonis Grotii, De Jure Belli et Pacis [On the Law of War and
Peace] (William Whewell ed. & trans., John W. Parker, London 2009) (1625); Emer de Vattel,
Le Droit des Gens ou Principes de la Loi Naturelle [The Law of Nations or Principles of
Natural Law] §§ 9, 27 (1758) (distinguishing “le Droit des Gens Naturel, ou Nécessaire”
from “le Droit Volontaire”); Christian Wolff, Jus Gentium Methodo Scienti\ca Pertractorum
[A Scienti\c Method for Understanding the Law of Nations] ¶ 5 (James Brown Scott ed.,
Joseph H. Drake trans., Clarendon Press 1934) (1764)). Early twentieth-century publicists
such as Lassa Oppenheim and William Hall asserted that states could not abrogate certain
“universally recognized principles” by mutual agreement. (William Hall, A Treatise on
International Law 382-83 (8th ed. 1924) (asserting that “fundamental principles of
international law” may “invalidate [], or at least render voidable,” coniicting international
agreements); 1 Lassa Oppenheim, International Law 528 (1905).) Judges on the
Permanent Court of International Justice a5rmed the existence of peremptory norms in
international law by referencing treaties contra bonos mores (contrary to public policy) in a
series of individual concurring and dissenting opinions. (For example, in the 1934 Oscar
Chinn Case, Judge Schücking’s iniuential dissent stated that neither an international court
nor an arbitral tribunal should apply a treaty provision in contradiction to bonos mores.
Oscar Chinn Case, 1934 P.C.I.J. (ser. A/B) No. 63, at 149-50 (Dec. 12) (Schücking, J.,
dissenting).

72 Verdross argued that certain discrete rules of international custom had come to be
recognized as having a compulsory character notwithstanding contrary state agreements.
At \rst, Verdross’s vision of international jus cogens encountered skepticism within the
legal academy. These voices of resistance soon found themselves in the minority, however,
as the jus cogens concept gained enhanced recognition and credibility following the
Second World War. (See Lauri Hannikainen, Peremptory Norms (Jus cogens) in
International Law: Historical Development, Criteria, Present Status 150 (1988) (surveying
legal scholarship during the period 1945-69 and reporting that “about eighty per cent [of
scholars] held the opinion that there are peremptory norms existing in international law”).

73 In March 1953, the ILC’s Special Rapporteur, Sir Hersch Lauterpacht, submitted for the
ILC’s consideration a partial draft convention on treaties which stated that “[a] treaty, or any
of its provisions, is void if its performance involves an act which is illegal under
international law and if it is declared so to be by the International Court of Justice.” Hersch
Lauterpacht, Law of Treaties: Report by Special Rapporteur, [1953] 2 Y.B. Int’l L. Comm’n 90,
93, U.N. Doc. A/CN.4/63.

74 See Summary Records of the 877th Meeting, [1966] 1 Y.B. Int’l L. Comm’n 227, 230-231,
U.N. Doc. A/CN.4/188 (noting that the “emergence of a rule of jus cogens banning
aggressive war as an international crime” was evidence that international law contains
“minimum requirement[s] for safeguarding the existence of the international community”).
75 Second Report on the Law of Treaties, [1963] 2 Y.B. Int’l L. Comm’n 1, 52, U.N. Doc.
A/CN.4/156.

76 Id. at 53.

77 While the ICJ recently endorsed the jus cogens concept for the \rst time in its 2006
Judgment on Preliminary Objections in Armed Activities on the Territory of the Congo
(Congo v. Rwanda), it declined to clarify jus cogens’s legal status or to specify any criteria
for identifying peremptory norms. (Armed Activities on the Territory of the Congo,
Jurisdiction of the Court and Admissibility of the Application (Dem. Rep. Congo v. Rwanda)
(Judgment of February 3, 2006), at 31-32, available at http://www.icj-
cij.org/docket/\les/126/10435.pdf.

In some municipal cases, courts have declined to recognize international norms as

peremptory while expressing doubt about the proper criteria for identifying jus cogens.
(See, e.g., Sampson v. Federal Republic of Germany, 250 F.3d 1145, 1149 (7th Cir.
2001) (expressing concern that jus cogens should be invoked “[o]nly as a last resort”)).

In other cases, national courts have accepted international norms as peremptory, but
have hesitated to enforce these norms for fear that they might thereby compromise
state sovereignty. (See, e.g., Bouzari v. Iran, [2004] 71 O.R.3d 675 (Can.) (holding that
the prohibition against torture does not entail a right to a civil remedy enforceable in a
foreign court)).

In Congo v. Rwanda, for example, Judge ad hoc John Dugard observed that the ICJ
had refrained from invoking the jus cogens concept in several previous cases where
peremptory norms manifestly clashed with other principles of general international
law. (See Armed Activities on the Territory of the Congo (Dem. Rep. Congo v. Rwanda)
(Judgment of February 3, 2006), at 2 (Dissenting Opinion of Judge Dugard))
 Similarly, the European Court of Human Rights has addressed jus cogens only once, in
Al-Adsani v. United Kingdom, when it famously rejected the argument that jus cogens
violations would deprive a state of sovereign immunity. Al-Adsani v. United Kingdom,
2001-XI Eur. Ct. H.R. 79, ¶ 61).

78 Sztucki, Jus cogens and the Vienna Convention on the Law of Treaties 119-123 (1974).

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