NUREMBERG TRIALSHeld for the purpose of bringing Nazi war criminals to justice, the Nuremberg trials were a series of 13 trials carried out in Nuremberg, Germany, between 1945 and 1949. The defendants, who included Nazi Party officials and high-ranking military officers along with German industrialists, lawyers and doctors, were indicted on such charges as crimes against peace and crimes against humanity. Nazi leader Adolf Hitler (1889-1945) committed suicide and was never brought to trial. Although the legal justifications for the trials and their procedural innovations were controversial at the time, the Nuremberg trials are now regarded as a milestone toward the establishment of a permanent international court, and an important precedent for dealing with later instances of genocide and other crimes against humanity.THE ROAD TO THE NUREMBERG TRIALSShortly afterAdolf Hitlercame to power as chancellor of Germany in 1933, he and his Nazi government began implementing policies designed to persecute German-Jewish people and other perceived enemies of the Nazi state. Over the next decade, these policies grew increasingly repressive and violent and resulted, by the end ofWorld War II(1939-45), in the systematic, state-sponsored murder of some 6 million European Jews (along with an estimated 4 million to 6 million non-Jews).Did You Know?The death sentences imposed in October 1946 were carried out by Master Sergeant John C. Woods (1903-50), who told a reporter from Time magazine that he was proud of his work. "The way I look at this hanging job, somebody has to do it . . . ten men in 103 minutes. That's fast work."In December 1942, the Allied leaders of Great Britain, the United States and the Soviet Union issued the first joint declaration officially noting the mass murder of European Jewry and resolving to prosecute those responsible for violence against civilian populations, according to the United States Holocaust Memorial Museum (USHMM).Joseph Stalin(1878-1953), the Soviet leader, initially proposed the execution of 50,000 to 100,000 German staff officers. British Prime Minister Winston Churchill (1874-1965) discussed the possibility of summary execution (execution without a trial) of high-ranking Nazis, but was persuaded by American leaders that a criminal trial would be more effective. Among other advantages, criminal proceedings would require documentation of the crimes charged against the defendants and prevent later accusations that the defendants had been condemned without evidence.There were many legal and procedural difficulties to overcome in setting up the Nuremberg trials. First, there was no precedent for an international trial of war criminals. There were earlier instances of prosecution for war crimes, such as the execution of Confederate army officer Henry Wirz (1823-65) for his maltreatment of Union prisoners of war during theAmerican Civil War(1861-65); and the courts-martial held by Turkey in 1919-20 to punish those responsible for the Armenian genocide of 1915-16. However, these were trials conducted according to the laws of a single nation rather than, as in the case of the Nuremberg trials, a group of four powers (France, Britain, the Soviet Union and the U.S.) with different legal traditions and practices. The Allies eventually established the laws and procedures for the Nuremberg trials with the London Charter of the International Military Tribunal (IMT), issued on August 8, 1945. Among other things, the charter defined three categories of crimes: crimes against peace (including planning, preparing, starting or waging wars of aggression or wars in violation of international agreements), war crimes (including violations of customs or laws of war, including improper treatment of civilians and prisoners of war) and crimes against humanity (including murder, enslavement or deportation of civilians or persecution on political, religious or racial grounds). It was determined that civilian officials as well as military officers could be accused of war crimes. The city of Nuremberg (also known as Nurnberg) in the German state of Bavaria was selected as the location for the trials because its Palace of Justice was relatively undamaged by the war and included a large prison area. Additionally, Nuremberg had been the site of annual Nazi propaganda rallies; holding the postwar trials there marked the symbolic end of Hitlers government, the Third Reich.THE MAJOR WAR CRIMINALS TRIAL: 1945-46The best-known of the Nuremberg trials was the Trial of Major War Criminals, held from November 20, 1945, to October 1, 1946. The format of the trial was a mix of legal traditions: There were prosecutors and defense attorneys according to British and American law, but the decisions and sentences were imposed by a tribunal (panel of judges) rather than a single judge and a jury. The chief American prosecutor was Robert H. Jackson (1892-1954), an associate justice of the U.S. Supreme Court. Each of the four Allied powers supplied two judgesa main judge and an alternate.Twenty-four individuals were indicted, along with six Nazi organizations determined to be criminal (such as the Gestapo, or secret state police). One of the indicted men was deemed medically unfit to stand trial, while a second man killed himself before the trial began. Hitler and two of his top associates, Heinrich Himmler (1900-45) andJoseph Goebbels(1897-45), had each committed suicide in the spring of 1945 before they could be brought to trial. The defendants were allowed to choose their own lawyers, and the most common defense strategy was that the crimes defined in the London Charter were examples of ex post facto law; that is, they were laws that criminalized actions committed before the laws were drafted. Another defense was that the trial was a form of victors justicethe Allies were applying a harsh standard to crimes committed by Germans and leniency to crimes committed by their own soldiers.As the accused men and judges spoke four different languages, the trial saw the introduction of a technological innovation taken for granted today: instantaneous translation. IBM provided the technology and recruited men and women from international telephone exchanges to provide on-the-spot translations through headphones in English, French, German and Russian.In the end, the international tribunal found all but three of the defendants guilty. Twelve were sentenced to death, one in absentia, and the rest were given prison sentences ranging from 10 years to life behind bars. Ten of the condemned were executed by hanging on October 16, 1946. Hermann Gring (1893-1946), Hitlers designated successor and head of the Luftwaffe (German air force), committed suicide the night before his execution with a cyanide capsule he had hidden in a jar of skin medication.SUBSEQUENT TRIALS: 1946-49Following the Trial of Major War Criminals, there were 12 additional trials held at Nuremberg. These proceedings, lasting from December 1946 to April 1949, are grouped together as the Subsequent Nuremberg Proceedings. They differed from the first trial in that they were conducted before U.S. military tribunals rather than the international tribunal that decided the fate of the major Nazi leaders. The reason for the change was that growing differences among the four Allied powers had made other joint trials impossible. The subsequent trials were held in the same location at the Palace of Justice in Nuremberg.These proceedings included the Doctors Trial (December 9, 1946-August 20, 1947), in which 23 defendants were accused of crimes against humanity, including medical experiments on prisoners of war. In the Judges Trial (March 5-December 4, 1947), 16 lawyers and judges were charged with furthering the Nazi plan for racial purity by implementing the eugenics laws of the Third Reich. Other subsequent trials dealt with German industrialists accused of using slave labor and plundering occupied countries; high-ranking army officers accused of atrocities against prisoners of war; and SS officers accused of violence against concentration camp inmates. Of the 185 people indicted in the subsequent Nuremberg trials, 12 defendants received death sentences, 8 others were given life in prison and an additional 77 people received prison terms of varying lengths, according to the USHMM. Authorities later reduced a number of the sentences.AFTERMATHThe Nuremberg trials were controversial even among those who wanted the major criminals punished. Harlan Stone (1872-1946), chief justice of the U.S. Supreme Court at the time, described the proceedings as a sanctimonious fraud and a high-grade lynching party. William O. Douglas (1898-1980), then an associate U.S. Supreme Court justice, said the Allies substituted power for principle at Nuremberg.Nonetheless, most observers considered the trials a step forward for the establishment of international law. The findings at Nuremberg led directly to the United Nations Genocide Convention (1948) and Universal Declaration of Human Rights (1948), as well as the Geneva Convention on the Laws and Customs of War (1949). In addition, the International Military Tribunal supplied a useful precedent for the trials of Japanese war criminals in Tokyo (1946-48); the 1961 trial of Nazi leader Adolf Eichmann (1906-62); and the establishment of tribunals for war crimes committed in the former Yugoslavia (1993) and in Rwanda (1994).

Nuclear Tests Case (Australia & New Zealand v. France)

Procedural History:Proceeding before the International Court of Justice.

Overview:Australia and New Zealand (P) demanded that France (D) cease atmospheric nuclear tests in the South Pacific. France (D) completed a series of nuclear tests in the South Pacific. Australia and New Zealand (P) applied to the !.C.). demanding that France (D) cease testing immediately. While the case was pending, France (D) announced the series of tests was complete and that it did not plan any further such tests. France (D) moved to dismiss the applications.

Issue:May declarations made by way of unilateral acts have the effect of creating legal obligations?

Rule:declerations made by way of unilateral acts may have the effect of creating legal obligations.

Analysis:The unilateral statements made by French authorities were first communicated to the government of Australia. To have legal effect there was no need tor the statements to be directed to any particular state. The general nature and characteristics of the statements alone were relevant for evaluation of their legal implications.

Outcome:Yes.Declarations made by way of unilateral acts may have the effect of creating legal obligations. The sole relevant question is whether the language employed in any given declaration reveals a clear intention. One of the basic principles governing the creation and performance of legal obligations is the principle of good faith. The statements made by the President of the French Republic must be held to constitute an engagement of the State in regard to the circumstances and intention with which they were made. The statements made by the French authorities are therefore relevant and legally binding. Applications dismissed. - See more at: http://www.lawschoolcasebriefs.net/2012/04/nuclear-tests-case-australia-new.html#sthash.t5IzpFTU.dpuf

TEXACO vs LIBYABrief Fact Summary.A decree which attempted to nationalize all of Texacos (P) rights, interest and property in Libya was promulgated by Libya (D).

Synopsis of Rule of Law.Whenever reference is been made to general principles of law in the international arbitration context, it is always held to be a sufficient criterion for the internationalization of a contract.

Facts.A decree to nationalize all Texacos (P) rights, interest and property in Libya was promulgated by Libya (D). This action of the Libyan Government led Texaco (P) to request for arbitration, but it was refused by Libya (D). A sole arbitrator was however appointed by the International Court of Justice on Texacos request, and Libya (D) was found to have breached its obligations under the Deeds of Concessions and was also legally bound to perform in accordance with their terms.

Issue.Whenever reference is being made to general principles of law in the International arbitration context, can this be held to be a sufficient criterion for the internationalization of a contract?Held.Yes. Whenever reference is been made to general principles of law in the international arbitration context, it is always held to be a sufficient criterion for the internationalization of a contract. The lack of adequate law in the state considered and the need to protect the private contracting party against unilateral and abrupt modifications of law in the contracting state is a justification to the recourse to general principles. Though international law involves subjects of a diversified nature, legal international capacity is not solely attributable to a state. A private contracting party, unlike a state, has only a limited capacity and is limited to invoke only those rights that he derives from his contract.

Discussion.Applying Libyan law or international law in the arbitration proceedings was a conflict encountered by in this case. Though the contract itself deferred to Libyan law, the court noted that Libyan law does not preclude the application of international law, but that the two must be combined in order to verify that Libyan law complies with international law. Even though the right of a state to nationalize is recognized by international law, this right in itself is not a sufficient justification not to regard its contractual obligations

I. Facts

The arbitration originates from fourteen Deeds of Concession concluded between 1955 and 1968 between Libya and two United States companies, Texaco Overseas Petroleum Company and California Asiatic Oil Company (hereafter called the Companies). The majority of the Deeds of Concession were modified by consent of all parties in 1963, 1966, 1970 and 1971. The purpose of the modifications was to bring the Concessions into line with the amended Libyan Petroleum Laws (originally 1955, amended by Royal178Decrees in 1961, 1963 and 1965; in 1966 a consolidated version of the previous texts was made: Petroleum Law of August 1, 1966). The Concessions were a reproduction of a model contract which was provided in an annex to the text of the Petroleum Law 1955.The Royal Decree of November 9, 1961, modifying some of the provisions of the Petroleum Law of 1955, gave a more precise wording to clause 16 of the model contract which reads:'1. The Libyan Government, the (Petroleum) Commission and the competent authorities in the Provinces shall take all the steps that are necessary to ensure that the Company enjoys all the rights conferred upon it by this concession, and the contractual rights expressly provided for in this concession may not be infringed except by agreement of both parties.2. This concession shall be interpreted during the period of its effectiveness in accordance with the provisions of the Petroleum Law and the Regulations issued thereunder at the time of the grant of the concession, and any amendments to or cancellations of these Regulations shall not apply to the contractual rights of the Company except with its consent'.Clause 28 of the Deeds of Concession contained an extensive arbitral clause, the relevant parts of which will be referred to below.In 1973, 51% of the properties, rights and assets relating to the Deeds of Concession of the Companies, as well as of seven other oil companies was nationalized by a Decree. In the following year, on September 1, 1974, a Decree was issued, directed only to the Companies. By this Decree the entirety of all the properties, rights and assets relating to the fourteen Deeds of Concession, of which the Companies were holders, was nationalized. Under both Decrees the Companies concerned were at the same time declared solely responsible and liable for all the liabilities and debts or obligations arising from their activities. Both Decrees also provided for a committee to be appointed to determine the amount of compensation to be paid. It did not appear from any document submitted to the arbitration that this committee had functioned or that its members had been nominated.By the Decree of 1973, Amoseas, a company governed by foreign law, which was formed jointly by the Companies to be their operating entity in Libya, was to continue to carry out its activities for the account of the Companies to the extent of 49%, and for the account of the Libyan National Oil Company (N.O.C.), to the extent of 51%. The Decree of 1974 effected a fundamental change in Amoseas: it was converted into a non-profit company, the assets of which were completely owned by N.O.C. Amoseas lost its name and was renamed the 'Om el Jawabi Company'.The Companies thereupon notified the Libyan Government that recourse would be taken to arbitration by virtue of clause 28 of the Deeds of Concession. In accordance with clause 28 they designated their arbitrator. When the Libyan government abstained from designating its arbitrator, the Companies requested, as provided for in this situation by the same clause, the President of the International Court of Justice to designate a sole arbitrator. On December 18, 1974, the President of the I.C.J. appointed the French Law Professor Ren-Jean Dupuy as sole arbitrator.The arbitrator fixed Geneva as the place of the arbitral tribunal (where the award also was signed). Although the arbitrator had repeatedly notified the Libyan Government, and allowed extension of time to submit an answering memorial to the claims of the Companies, the Libyan Government did not participate in the arbitral proceedings. It should be noted that the arbitrator kept the Libyan Government informed of all stages of the proceedings, and each time transmitted to it all relevant documents. Moreover, throughout the preliminary award and the award on the merits, the arbitrator paid due attention to a Memorandum of the Libyan Government which was submitted to the President of the I.C.J. on July 26, 1974, setting forth the reasons for which, in its opinion, no arbitration should take place in the present case.III. Award on the Merits

1. BINDING NATURE OF THE DEEDS OF CONCESSION

C. Meaning and scope of internationalization of the contracts

The arbitrator made it clear that international law governing contractual relations between a State and a foreign private party means neither that the latter is assimilated to a State nor that the contract is assimilated to a treaty. It only means that 'for the purposes of interpretation and performance of the contract, it should be recognized that a private contracting party has specific international capacities'.Furthermore, considering that some contracts may be governed both by municipal law and by international law, the arbitrator held that the choice of law clause referred to the principles of Libyan law rather than to the rules of Libyan law. In this connection the arbitrator said:'The application of the principles of Libyan law does not have the effect of ruling out the application of the principles of international law, but quite the contrary: it simply requires us to combine the two in verifying the conformity of the first with the second'.Applying the principles stated above, the arbitrator declared that he would refer on the one hand to the principle of the binding force of contracts recognized by Libyan law, and on the other to the principle ofpacta sunt servandawhich is a general principle of law constituting an essential foundation of international law. The arbitrator found therefore on this point that the principles of Libyan law were in conformity with international law and concluded that the Deeds of Concession in dispute had a binding force.2. BREACH OF OBLIGATIONS BY LIBYA?

The second main question was whether the Libyan Government, in adopting the nationalization measures of 1973 and 1974, breached its obligations under the contracts. This question was examined under three types of reasons which could be envisaged in order to justify the behaviour of the Libyan Government. These reasons are summarized below under A, B and C.B. Concept of Sovereignty and Nature of Nationalization

At the outset the arbitrator stated here that 'the right of a State to nationalize is unquestionable today. It results from international customary law, established as the result of general practices considered by the international community as being the law'.The arbitrator questioned, however, whether the act of sovereignty which constitutes the nationalization authorizes a State to disregard its international commitments assumed by it within the framew ork of its sovereignty. In this respect the arbitrator drew a distinction between a nationalization concerning nationals of a State or a foreign party in respect of whom the State had made no particular commitment to guarantee and maintain their position, and a nationalization concerning an international contract. The former type is completely governed by the domestic law. But in the case of an internationalized contract the State has placed itself under international law. In the instant case the arbitrator investigated therefore whether Libya had undertaken international obligations which prevented it from taking nationalizing measures, and whether the disregard of such obligations is justified by the sovereign nature of such nationalization measures.(a)The arbitrator found first that both under Libyan law and international law the State has the power to make international commitments, including those with foreign private parties. Such a commitment cannot be regarded as a negation of its sovereignty, but, quite to the contrary, is a manifestation of such sovereignty. As a result a State cannot invoke its sovereignty to disregard commitments freely undertaken through the exercise of this same sovereignty.The arbitrator considered that Libya had undertaken specific commitments which could not be disregarded by the nationalization measures. The arbitrator referred here to the fact that Libya had granted a concession of a minimum duration of 50 years, and to the stabilization clause (clause 16, see under IFactsabove). This provision does not, in principle, impair the sovereignty of the Libyan State to legislate in the field of petroleum activities in respect of other persons. Clause 16 only makes such acts invalid as far as the Companies are concerned for a certain period of time. The arbitrator observed that:'The recognition by international law of the right to nationalize is not sufficient ground to empower a State to disregard its commitments, because the same law also recognizes the power of a State to commit itself internationally, especially by accepting the inclusion of stabilization clauses in a contract entered into with a foreign private party'.*The case has been settled in the meantime. The parties have agreed that Libya shall provide the companies with US $ 152 million of Libyan crude oil over the next 15 months, and that the companies shall terminate the arbitration proceedings

RESERVATIONS TO THE CONVENTION ON THE PREVENTIONAND PUNISHMENT OF THE CRIME OF GENOCIDEAdvisory Opinion of 28 May 1951The question concerning reservations to the Convention on the Prevention and Punishment of the Crime of Genocide had been referred for an advisory opinion to the Court by the General Assembly of the United Nations (G.A. resolution of November 16, 1950) in the following terms:"In so far as concerns the Convention on the Prevention and Punishment of the Crime of Genocide in the event of a State ratifying or acceding to the Convention subject to a reservation made either on ratification or on accession, or on signature followed by ratification:"I. Can the reserving State be regarded as being a party to the Convention while still maintaining its reservation if the reservation is objected to by one or more of the parties to the Convention but not by others?"II. If the answer to question I is in the affirmative, what is the effect of the reservation as between the reserving State and:(a)The parties which object to the reservation?(b)Those which accept it?"III. What would be the legal effect as regards the answer to question I if an objection to a reservation is made:(a)By a signatory which has not yet ratified?(b)By a State entitled to sign or accede but which has not yet done so?"Written statements on the matter were submitted to the Court by the following States and Organizations:The Organization of American States, the Union of Soviet Socialist Republics, the Hashemite Kingdom of Jordan, the United States of America, the United Kingdom of Great Britain and Northern Ireland, the Secretary-General of the United Nations, Israel, the International Labour Organisation, Poland, Czechoslovakia, the Netherlands, the People's Republic of Romania, the Ukrainian Soviet Socialist Republic, the People's Republic of Bulgaria, the Byelorussian Soviet Socialist Republic, the Republic of the Philippines.In addition, the Court heard oral statements submitted on behalf of the Secretary-General of the United Nations and of the Governments of Israel, the United Kingdom and France.By 7 votes to 5 the Court gave the following answers to the questions referred to:On Question I:a State which has made and maintained a reservation which has been objected to by one or more of the parties to the Convention but not by others, can be regarded as being a party to the Convention if the reservation is compatible with the object and purpose of the Convention; otherwise, that State cannot be regarded as being a party to the Convention.On Question II:(a)if a party to the Convention objects to a reservation which it considers to be incompatible with the object and purpose of the Convention, it can in fact consider that the reserving State is not a party to the Convention;(b)if, on the other hand, a party accept the reservation as being compatible with the object and purpose of the Convention, it can in fact consider that the reserving State is a party to the Convention;On Question III:(a)an objection to a reservation made by a signatory State which has not yet ratified the Convention can have the legal effect indicated in the reply to Question I only upon ratification. Until that moment it merely serves as a notice to the other State of the eventual attitude of the signatory State;(b)an objection to a reservation made by a State which is entitled to sign or accede but which has not yet done so is without legal effect.Two dissenting opinions were appended to the Opinion: one by Vice-President Guerrero and Judges Sir Arnold McNair, Read and Hsu Mo, the other by Judge Alvarez.** *In its Opinion, the Court begins by refuting the arguments put forward by certain Governments against its competence to exercise its advisory functions in the present case. The Court then dealt with the questions referred to it, after having noted that they were expressly limited to the Convention on Genocide and were purely abstract in character.The first question refers to whether a State which has made a reservation can, while maintaining it, be regarded as a party to the Convention on Genocide, when some of the parties object to the reservation. In its treaty relations, a State cannot be bound without its consent. A reservation can be effected only with its agreement. On the other hand, it is a recognised principle that a multilateral Convention is the result of an agreement freely concluded. To this principle was linked the notion of integrity of the Convention as adopted, a notion which, in its traditional concept, involved the proposition that no reservation was valid unless it was accepted by all contracting parties. This concept retains undisputed value as a principle, but as regards the Genocide Convention, its application is made more flexible by a variety of circumstances among which may be noted the universal character of the United Nations under whose auspices the Convention was concluded and the very wide degree of participation which the Convention itself has envisaged. This participation in conventions of this type has already given rise to greater flexibility in practice. More general resorts to reservations, very great allowance made to tacit assent to reservations, the admission of the State which has made the reservation as a party to the Convention in relation to the States which have accepted it, all these factors are manifestations of a new need for flexibility in the operation of multilateral conventions. Moreover, the Convention on Genocide, although adopted unanimously, is nevertheless the result of a series of majority votes-which may make it necessary for certain States to make reservations.In the absence of an article in the Convention providing for reservations, one cannot infer that they are prohibited. In the absence of any express provisions on the subject, to determine the possibility of making reservations as well as their effects, one must consider their character, their purpose, their provisions, their mode of preparation and adoption. The preparation of the Convention on Genocide shows that an undertaking was reached within the General Assembly on the faculty to make reservations and that it is permitted to conclude therefrom that States, becoming parties to the Convention, gave their assent thereto.What is the character of the reservations which may be made and the objections which may be raised thereto? The solution must be found in the special characteristics of the Convention on Genocide. The principles underlying the Convention are recognised by civilised nations as binding on States even without any conventional obligation. It was intended that the Convention would be universal in scope. Its purpose is purely humanitarian and civilising. The contracting States do not have any individual advantages or disadvantages nor interests of their own, but merely a common interest. This leads to the conclusion that the object and purpose of the Convention imply that it was the intention of the General Assembly and of the States which adopted it, that as many States as possible should participate. This purpose would be defeated if an objection to a minor reservation should produce complete exclusion from the Convention. On the other hand, the contracting parties could not have intended to sacrifice the very object of the Convention in favour of a vague desire to secure as many participants as possible. It follows that the compatibility of the reservation and the object and the purpose of the Convention is the criterion to determine the attitude of the State which makes the reservation and of the State which objects. Consequently, question I, on account of its abstract character, cannot be given an absolute answer. The appraisal of a reservation and the effect of objections depend upon the circumstances of each individual case.The Court then examined question II by which it was requested to say what was the effect of a reservation as between the reserving State and the parties which object to it and those which accept it. The same considerations apply. No State can be bound by a reservation to which it has not consented, and therefore each State, on the basis of its individual appraisals of the reservations, within the limits of the criterion of the object and purpose stated above, will or will not consider the reserving State to be a party to the Convention. In the ordinary course of events, assent will only affect the relationship between the two States. It might aim, however, at the complete exclusion from the Convention in a case where it was expressed by the adoption of a position on the jurisdictional plane: certain parties might consider the assent as incompatible with the purpose of the Convention, and might wish to settle the dispute either by special agreement or by the procedure laid down in the Convention itself.The disadvantages which result from this possible divergence of views are real. They could have been remedied by an article on reservations. They are mitigated by the common duty of the contracting States to be guided in their judgment by the compatibility or incompatibility of the reservation with the object and purpose of the Convention. It must clearly be assumed that the contracting States are desirous of preserving intact at least what is essential to the object of the Convention.The Court finally turned to question III concerning the effect of an objection made by a State entitled to sign and ratify but which had not yet done so, or by a State which has signed but has not yet ratified. In the former case, it would be inconceivable that a State possessing no rights under the Convention could exclude another State. The case of the signatory States is more favourable. They have taken certain steps necessary for the exercise of the right of being a party. This provisional status confers upon them a right to formulate as a precautionary measure objections which have themselves a provisional character. If signature is followed by ratification, the objection becomes final. Otherwise, it disappears. Therefore, the objection does not have an immediate legal effect but expresses and proclaims the attitude of each signatory State on becoming a party.

CASE CONCERNING UNITED STATES DIPLOMATIC ANDCONSULAR STAFF IN TEHRANJudgment of 24 May 1980In its Judgment in the case concerning United States Diplomatic and Consular Staff in Tehran, the Court decided (1) that Iran has violated and is skill violating obligations owed by it to the United States; (2) that these violations engage Iran's responsibility; (3) that the Government of Iran must immediately release the United States nationals held as hostages and place the premises of the Embassy in the hands of the protecting power; (4) that no member of the United States diplomatic or consular staff may be kept in Iran to be subjected to any form of judicial proceedings or to participate in them as a witness; (5) that Iran is under an obligation to make reparation for the injury caused to the United States, and (6) that the form and amount of such reparation, failing agreement between the parties, shall be settled by the Court. (The full text of the operative paragraph is reproduced below.)These decisions were adopted by large majorities: (1) and (2)-13 votes to 2; (3) and (4)-unanimously; (5)-12 votes to 3; (6)-14 votes to 1 (the votes are recorded by name below).** *A separate opinion was appended to the Judgment by Judge Lachs, who voted against operative paragraph 5. Dissenting opinions were appended by Judge Morozov, who voted against paragraphs1, 2, 5 and 6, and by Judge Tarazi, who voted against paragraphs 1, 2 and 5.Procedure before the Court(paras. 1-10)In its Judgment, the Court recalls that on 29 November 1979 the United States of America had instituted proceedings against Iran in a case arising out of the situation at its Embassy in Tehran and Consulates at Tabriz and Shiraz, and the seizure and detention as hostages of its diplomatic and consular staff in Tehran and two more citizens of the United States. The United States having at the same time requested the indication of provisional measures, the Court, by a unanimous Order of 15December 1979, indicated, pending final judgment, that the Embassy should immediately be given back and the hostages released (see Press Communiqu No. 80/1).The procedure then continued in accordance with the Statute and Rules of Court. The United States filed a Memorial, and on 18, 19 and 20 March 1980 the Court held a public hearing at the close of which the United States, in its final submissions, requested it to adjudge and declare,inter alia,that the Iranian Government had violated its international legal obligations to the United States and must: ensure the immediate release of the hostages; afford the United States diplomatic and consular personnel the protection and immunities to which they were entitled (including immunity from criminal jurisdiction) and provide them with facilities to leave Iran; submit the persons responsible for the crimes committed to the competent Iranian authorities for prosecution, or extradite them to the United States; and pay the United States reparation, in a sum to be subsequently determined by the Court.Iran took no part in the proceedings. It neither filed pleadings nor was represented at the hearing, and no submissions were therefore presented on its behalf. Its position was however defined in two letters addressed to the Court by its Minister for Foreign Affairs on 9 December 1979 and16March1980 respectively. In these the Minister maintainedinter aliathat the Court could not and should not take cognizance of the case.The Facts(paras. 11-32)The Court expresses regret that Iran did not appear before it to put forward its arguments. The absence of Iran from the proceedings brought into operation Article 53 of the Statute, under which the Court is required, before finding in the Applicant's favour, to satisfy itself that the allegations of fact on which the claim is based are well founded.In that respect the Court observes that it has had available to it, in the documents presented by the United States, a massive body of information from various sources, including numerous official statements of both Iranian and United States authorities. This information, the Court notes, is wholly concordant as to the main facts and has all been communicated to Iran without evoking any denial. The Court is accordingly satisfied that the allegations of fact on which the United States based its claim were well founded.Admissibility(paras. 33-44)Under the settled jurisprudence of the Court, it is bound, in applying Article 53 of its Statute, to investigate, on its own initiative, any preliminary question of admissibility or jurisdiction that may arise.On the subject of admissibility, the Court, after examining the considerations put forward in the two letters from Iran, finds that they do not disclose any ground for concluding that it could not or should not deal with the case. Neither does it find any incompatibility with the continuance of judicial proceedings before the Court in the establishment by the Secretary-General of the United Nations, with the agreement of both States, of a Commission given a mandate to undertake a fact-finding mission to Iran, hear Iran's grievances and facilitate the solution of the crisis between the two countries.Jurisdiction(paras. 45-55)Four instruments having been cited by the United States as bases for the Court's jurisdiction to deal with its claims, the Court finds that three, namely the Optional Protocols to the two Vienna Conventions of 1961 and 1963 on, respectively, Diplomatic and Consular Relations, and the 1955 Treaty of Amity, Economic Relations, and Consular Rights between the United States and Iran, do in fact provide such foundations.The Court, however, does not find it necessary in the present Judgment to enter into the question whether Article 13 of the fourth instrument so cited, namely the 1973 Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons including Diplomatic Agents, provides a basis for the exercise of its jurisdiction with respect to the United States' claims thereunder.MERITS:Attributability to the Iranian State of the acts complained of, and violation by Iran of certain obligations(paras. 56-94)The Court has also, under Article 53 of its Statute, to satisfy itself that the claims of the Applicant are well founded in law. To this end, it considers the acts complained of in order to determine how far, legally, they may be attributed to the Iranian State (as distinct from the occupiers of the Embassy) and whether they are compatible or incompatible with Iran's obligations under treaties in force or other applicable rules of international law.(a)The events of 4 November 1979(paras. 56-68)The first phase of the events underlying the Applicant's claims covers the armed attack on the United States Embassy carried out on 4 November 1979 by Muslim Student Followers of the Imam's Policy (further referred to as "the militants" in the Judgment), the overrunning of its premises, the seizure of its inmates as hostages, the appropriation of its property and archives, and the conduct of the Iranian authorities in the face of these occurrences.The Court points out that the conduct of the militants on that occasion could be directly attributed to the Iranian State only if it were established that they were in fact acting on its behalf. The information before the Court did not suffice to establish this with due certainty. However, the Iranian State-which, as the State to which the mission was accredited, was under obligation to take appropriate steps to protect the United States Embassy-did nothing to prevent the attack, stop it before it reached its completion or oblige the militants to withdraw from the premises and release the hostages. This inaction was in contrast with the conduct of the Iranian authorities on several similar occasions at the same period, when they had taken appropriate steps. It constituted, the Court finds, a clear and serious violation of Iran's obligations to the United States under Articles 22 (2), 24, 25, 26, 27 and 29 of the 1961 Vienna Convention on Diplomatic Relations, of Articles 5 and 36 of the 1963 Vienna Convention on Consular Relations, and of Article 11 (4) of the 1955 Treaty. Further breaches of the 1963 Convention had been involved in failure to protect the Consulates at Tabriz and Shiraz.The Court is therefore led to conclude that on 4 November 1979 the Iranian authorities were fully aware of their obligations under the conventions in force, and also of the urgent need for action on their part, that they had the means at their disposal to perform their obligations, but that they completely failed to do so.(b)Events since 4 November 1979(paras. 69-79)The second phase of the events underlying the United States' claims comprises the whole series of facts which occurred following the occupation of the Embassy by the militants. Though it was the duty of the Iranian Government to take every appropriate step to end the infringement of the inviolability of the Embassy premises and staff, and to offer reparation for the damage, it did nothing of the kind. Instead, expressions of approval were immediately heard from numerous Iranian authorities. Ayatollah Khomeini himself proclaimed the Iranian State's endorsement of both the seizure of the premises and the detention of the hostages. He described the Embassy as a "centre of espionage", declared that the hostages would (with some exceptions) remain "under arrest" until the United States had returned the former Shah and his property to Iran, and forbade all negotiation with the UnitedStates on the subject. Once organs of the Iranian State had thus given approval to the acts complained of and decided to perpetuate them as a means of pressure on the United States, those acts were transformed into acts of the Iranian State: the militants became agents of that State, which itself became internationally responsible for their acts. During the six months which ensued, the situation underwent no material change: the Court's Order of 15 December 1979 was publicly rejected by Iran, while the Ayatollah declared that the detention of the hostages would continue until the new Iranian parliament had taken a decision as to their fate.The Iranian authorities' decision to continue the subjection of the Embassy to occupation, and of its staff to detention as hostages, gave rise to repeated and multiple breaches of Iran's treaty obligations, additional to those already committed at the time of the seizure of the Embassy (1961 Convention: Arts.22, 24, 25, 26, 27 and 29 1963 Convention:inter alia,Art. 33; 1955 Treaty, Art. II (4)).With regard to the Charg d'affaires and the two other members of the United States mission who have been in the Iranian Ministry of Foreign Affairs since 4 November 1979 the Court finds that the Iranian authorities have withheld from them the protection and facilities necessary to allow them to leave the Ministry in safety. Accordingly, it appears to the Court that in their respect there have been breaches of Articles 26 and 29 of the 1961 Vienna Convention.Taking note, furthermore, that various Iranian authorities have threatened to have some of the hostages submitted to trial before a court, or to compel them to bear witness, the Court considers that, if put into effect, that intention would constitute a breach of Article 31 of the same Convention.(c)Possible existence of special circumstances(paras. 80-89)The Court considers that it should examine the question whether the conduct of the Iranian Government might be justified by the existence of special circumstances, for the Iranian Minister for Foreign Affairs had alleged in his two letters to the Court that the United States had carried out criminal activities in Iran. The Court considers that, even if these alleged activities could be considered as proven, they would not constitute a defence to the United States' claims, since diplomatic law provides the possibility of breaking off diplomatic relations, or of declaringpersona non "ratamembers of diplomatic or consular missions who may be carrying on illicit activities. The Court concludes that the Government of Iran had recourse to coercion against the United States Embassy and its staff instead of making use of the normal means at its disposal.(d)International responsibility(paras. 90-92)The Court finds that Iran, by committing successive and continuing breaches of the obligations laid upon it by the Vienna Conventions of 1961 and 1963, the 1955 Treaty, and the applicable rules of general international law, has incurred responsibility towards the United States. As a consequence, there is an obligation on the part of the Iranian State to make reparation for the injury caused to the United States. Since, however, the breaches are still continuing, the form and amount of such reparation cannot yet be determined.At the same time the Court considers it essential to reiterate the observations it made in its Order of 15 December 1979 on the importance of the principles of international law governing diplomatic and consular relations. After stressing the particular gravity of the case, arising out of the fact that it is not any private individuals or groups that have set at naught the inviolability of an embassy, but the very government of the State to which the mission is accredited, the Court draws the attention of the entire international community to the irreparable harm that may be caused by events of the kind before the Court. Such events cannot fail to undermine a carefully constructed edifice of law the maintenance of which is vital for the security and well-being of the international community.(e)United States operation in Iran on 24-25 April 1980(paras. 93 and 94)With regard to the operation undertaken in Iran by United States military units on 24-25April1980, the Court says that it cannot fail to express its concern. It feels bound to observe that an operation undertaken in those circumstances, from whatever motive, is of a kind calculated to undermine respect for the judicial process in international relations. Nevertheless, the question of the legality of that operation can have no bearing on the evaluation of Iran's conduct on 4 November 1979. The findings reached by the Court are therefore not affected by that operation.** *For these reasons, the Court gives the decision reproduced in full below.OPERATIVE PART OF JUDGMENTTHE COURT,* [Composed as follows:PresidentSirHumphreyWaldock;Vice-PresidentElias;JudgesForster, Gros, Lachs, Morozov, NagendraSingh, Ruda, Mosler, Tarazi, Oda, Ago, El-Erian, Sette-Camara and Baxter.]1. By thirteen votes [PresidentSir Humphrey Waldock;Vice-PresidentElias;JudgesForster, Gros, Lachs, NagendraSingh, Ruda, Mosler, Oda, Ago, El-Erian, Sette-Camara and Baxter.] to two [JudgesMorozov and Tarazi.],Decidesthat the Islamic Republic of Iran, by the conduct which the Court has set out in this Judgment, has violated in several respects, and is skill violating, obligations owed by it to the United States of America under international conventions in force between the two countries, as well as under long-established rules of general international law;2. By thirteen votes [PresidentSir Humphrey Waldock;Vice-PresidentElias;JudgesForster, Gros, Lachs, NagendraSingh, Ruda, Mosler, Oda, Ago, El-Erian, Sette-Camara and Baxter.] to two [JudgesMorozov and Tarazi.],Decidesthat the violations of these obligations engage the responsibility of the Islamic Republic of Iran towards the United States of America under international law;3. Unanimously,Decidesthat the Government of the Islamic Republic of Iran must immediately take all steps to redress the situation resulting from the events of 4 November 1979 and what followed from these events, and to that end:(a)must immediately terminate the unlawful detention of the United States Charg d'affaires and other diplomatic and consular staff and other United States nationals now held hostage in Iran, and must immediately release each and every one and entrust them to the protecting Power (Article 45 of the 1961 Vienna Convention on Diplomatic Relations);(b)must ensure that all the said persons have the necessary means of leaving Iranian territory, including means of transport;(c)must immediately place in the hands of the protecting Power the premises, property, archives and documents of the United States Embassy in Tehran and of its Consulates in Iran;4. Unanimously,Decidesthat no member of the United States diplomatic or consular staff may be kept in Iran to be subjected to any form of judicial proceedings or to participate in them as a witness;5. By twelve votes [PresidentSir Humphrey Waldock;Vice-PresidentElias;JudgesForster, Gros, NagendraSingh, Ruda, Mosler, Oda, Ago, El-Erian, Sette-Camara and Baxter.] to three [JudgesLachs, Morozov and Tarazi.],Decidesthat the Government of the Islamic Republic of ban is under an obligation to make reparation to the Government of the United States of America for the injury caused to the latter by the events of 4 November 1979 and what followed from these events;6. By fourteen votes [PresidentSir Humphrey Waldock;Vice-PresidentElias;JudgesForster, Gros, Lachs, NagendraSingh, Ruda, Mosler, Tarazi, Oda, Ago, El-Erian, Sette-Camara and Baxter.] to one [JudgeMorozov.],Decidesthat the form and amount of such reparation, failing agreement between the Parties, shall be settled by the Court, and reserves for this purpose the subsequent procedure in the case.__________

SUMMARY OF OPINIONS APPENDED TO THE JUDGMENTJudge Lachsindicated that he voted against the first part of operative paragraph 5, as he found it redundant. The responsibility having been established, the whole question of reparations should have been left to the subsequent procedure, including the question of form and amount as provided by the Judgment.The opinion stresses the importance of the Judgment for diplomatic law, and the major part of it is devoted to the question of the practical solution by diplomatic means of the dispute between the Parties. Once the legal issues have been clarified by the Judgment, the parties should take speedy action and make maximum efforts to dispel tension and mistrust, and in this a third-party initiative may be important. Judge Lachs visualizes a particular role for the Secretary-General of the United Nations in this respect and the work of a special commission or mediating body. In view of the gravity of the situation, the need for a resolution is urgent.** *In his dissenting opinion,Judge Morozovindicates that operative paragraph 1 of the Judgment is drafted in such a way that it is not limited to the question of the violation of the Vienna Conventions of 1961 and 1963, but also covers, if read with some paragraphs of the reasoning, the question of alleged violations of the 1955 Treaty of Amity, Economic Relations and Consular Rights between Iran and the United States; this treaty, he believes, does not provide the parties with an unconditional right to invoke the compulsory jurisdiction of the Court, and in the circumstances the Court has in fact no competence to consider the alleged violations.Furthermore, Judge Morozov observes, the United States committed during the period of the judicial deliberations many unlawful actions, culminating in the military invasion of the territory of the Islamic Republic of Iran, and has therefore lost the legal right to refer to the Treaty in its relations with Iran.Judge Morozov voted against operative paragraphs 2, 5 and 6 because he had noted that a series of actions was undertaken by the United States of America against Iran in the course of the judicial deliberations, in particular the freezing by the United States of very considerable Iranian assets, combined with the intention, clearly expressed in a statement made by the President of the United States on 7 April 1980 to make use of these assets, if need be, in accordance with decisions that would betaken in the domestic framework of the United States; that meant that the United States was acting as a "judge" in its own cause. In Judge Morozov's view, the situation, created by actions of the UnitedStates, in which the Court carried on its judicial deliberations in the case had no precedent in the whole history of the administration of international justice either before the Court or before any other international judicial institution. The United States, having caused severe damage to Iran, had lost the legal as well as the moral right to reparations from Iran, as mentioned in operative paragraphs 2, 5 and 6.Judge Morozov also finds that some paragraphs of the reasoning part of the Judgment describe the circumstances of the case in an incorrect or one-sided way.He considers that, without any prejudice to the exclusive competence of the Security Council, the Court, from a purely legal point of view, could have drawn attention to the undeniable fact that Article 51 of the United Nations Charter, establishing the right of self-defence to which the UnitedStates of America referred in connection with the events of 24-25 April, may be invoked only "if an armed attack occurs against a member of the United Nations", and that there is no evidence of any armed attack having occurred against the United States.Judge Morozov also stresses that some indication should have been included in the Judgment to the effect that the Court considered that settlement of the dispute between the United States and the Islamic Republic of Iran should be reached exclusively by peaceful means.** *Judge Tarazi voted in favour of operative paragraphs 3 and 4 of the Judgment, because he considered that the seizure of the embassy, and the detention as hostages of those present in it, constituted an act in breach of the provisions of the 1961 and 1963 Vienna Conventions on Diplomatic and Consular Relations.On the other hand, Judge Tarazi felt impelled to vote against operative paragraph 1, because he considered that only the 1961 and 1963 Vienna Conventions conferred jurisdiction on the Court in the present case.He also voted against paragraphs 2 and 5, because, in his view, the Court, at the present stage of the proceedings and considering the concomitant circumstances, could not make any ruling as to the responsibility of the Government of the Islamic Republic of Iran.On the other hand, Judge Tarazi voted in favour of paragraph 6, because he considered that, in the event of any reparations being owed, they should be determined and assessed by the International Court of Justice; it was not admissible for them to be the subject of proceedings in courts of domestic jurisdiction.

G.R. No. L-21897 October 22, 1963RAMON A. GONZALES,petitioner,vs.RUFINO G. HECHANOVA, as Executive Secretary, MACARIO PERALTA, JR., as Secretary of Defense, PEDRO GIMENEZ, as Auditor General, CORNELIO BALMACEDA, as Secretary of Commerce and Industry, and SALVADOR MARINO, Secretary of Justice,respondents.Ramon A. Gonzales in his own behalf as petitioner.Office of the Solicitor General and Estanislao Fernandez for respondents.CONCEPCION,J.:This is an original action for prohibition with preliminary injunction.It is not disputed that on September 22, 1963, respondent Executive Secretary authorized the importation of 67,000 tons of foreign rice to be purchased from private sources, and created a rice procurement committee composed of the other respondents herein1for the implementation of said proposed importation. Thereupon, or September 25, 1963, herein petitioner, Ramon A. Gonzales a rice planter, and president of the Iloilo Palay and Corn Planters Association, whose members are, likewise, engaged in the production of rice and corn filed the petition herein, averring that, in making or attempting to make said importation of foreign rice, the aforementioned respondents "are acting without jurisdiction or in excess of jurisdiction", because Republic Act No. 3452 which allegedly repeals or amends Republic Act No. 220 explicitly prohibits the importation of rice and corn "the Rice and Corn Administration orany other government agency;" that petitioner has no other plain, speedy and adequate remedy in the ordinary course of law; and that a preliminary injunction is necessary for the preservation of the rights of the parties during the pendency this case and to prevent the judgment therein from coming ineffectual. Petitioner prayed, therefore, that said petition be given due course; that a writ of preliminary injunction be forthwith issued restraining respondent their agents or representatives from implementing the decision of the Executive Secretary to import the aforementioned foreign rice; and that, after due hearing, judgment be rendered making said injunction permanent.Forthwith, respondents were required to file their answer to the petition which they did, and petitioner's pray for a writ of preliminary injunction was set for hearing at which both parties appeared and argued orally. Moreover, a memorandum was filed, shortly thereafter, by the respondents. Considering, later on, that the resolution said incident may require some pronouncements that would be more appropriate in a decision on the merits of the case, the same was set for hearing on the merits thereafter. The parties, however, waived the right to argue orally, although counsel for respondents filed their memoranda.I. Sufficiency of petitioner's interest.Respondents maintain that the status of petitioner as a rice planter does not give him sufficient interest to file the petition herein and secure the relief therein prayed for. We find no merit in this pretense. Apart from prohibiting the importation of rice and corn "by the Rice and Corn Administration or any other government agency". Republic Act No. 3452 declares, in Section 1 thereof, that "the policy of the Government" is to "engage in the purchase of these basic foodsdirectlyfrom those tenants, farmers, growers, producers and landownersin the Philippineswho wish to dispose of their products at a price that will afford them a fair and just return for their labor and capital investment. ... ." Pursuant to this provision, petitioner, as a planter with a rice land of substantial proportion,2is entitled to a chance to sell to the Government the rice it now seeks to buy abroad. Moreover, since the purchase of said commodity will have to be effected with public funds mainly raised by taxation, and as a rice producer and landowner petitioner must necessarily be a taxpayer, it follows that he has sufficient personality and interest to seek judicial assistance with a view to restraining what he believes to be an attempt to unlawfully disburse said funds.II. Exhaustion of administrative remedies.Respondents assail petitioner's right to the reliefs prayed for because he "has not exhausted all administrative remedies available to him before coming to court". We have already held, however, that the principle requiring the previous exhaustion of administrative remedies is not applicable where the question in dispute is purely a legal one",3or where the controverted act is "patently illegal" or was performed without jurisdiction or in excess of jurisdiction,4or where the respondent is a department secretary, whose acts as an alter-ego of the President bear the implied or assumed approval of the latter,5unless actually disapproved by him,6or where there are circumstances indicating the urgency of judicial intervention.7The case at bar fails under each one of the foregoing exceptions to the general rule. Respondents' contention is, therefore, untenable.III. Merits of petitioner's cause of action.Respondents question the sufficiency of petitioner's cause of action upon the theory that the proposed importation in question is not governed by Republic Acts Nos. 2207 and 3452, but was authorized by the President as Commander-in-Chief "for military stock pile purposes" in the exercise of his alleged authority under Section 2 of Commonwealth Act No. 1;8that in cases of necessity, the President "or his subordinates may take such preventive measure for the restoration of good order and maintenance of peace"; and that, as Commander-in-Chief of our armed forces, "the President ... is duty-bound to prepare for the challenge of threats of war or emergency withoutwaiting for any special authority".Regardless of whether Republic Act No. 3452 repeals Republic Act No. 2207, as contended by petitioner herein - on which our view need not be expressed we are unanimously of the opinion - assuming that said Republic Act No. 2207 is still in force that the two Acts are applicable to the proposed importation in question because the language of said laws is such as to include within the purview thereofallimportations of rice and corn into the Philippines". Pursuant to Republic Act No. 2207, "it shall be unlawful foranyperson, association, corporation orgovernment agencyto import rice and corn into any point in the Philippines", although, by way of exception, it adds, that"the President of the Philippinesmay authorize the importation of these commodities through any government agency that he may designate", is the conditions prescribed in Section 2 of said Act are present. Similarly, Republic Act No. 3452 explicitly enjoins "the Rice and Corn Administration orany government agency" from importing rice and corn.Respondents allege, however, that said provisions of Republic Act Nos. 2207 and 3452, prohibiting the importation of rice and corn by any "government agency", do not apply to importations "made by the Government itself", because the latter is not a "government agency". This theory is devoid of merit. The Department of National Defense and the Armed Forces of the Philippines, as well as respondents herein, and each and every officer and employee of our Government, our government agencies and/or agents. The applicability of said laws even to importations by the Government as such, becomes more apparent when we consider that:1. The importation permitted in Republic Act No. 2207 is to be authorized bythe "President of the Philippines"and, hence, by or on behalf of the Government of the Philippines;2. Immediately after enjoining the Rice and Corn administration and any other government agency from importing rice and corn, Section 10 of Republic Act No. 3452 adds "thatthe importation of rice and corn is left to private partiesupon payment of the corresponding taxes", thus indicating thatonly"private parties" may import rice under its provisions; and3. Aside from prescribing a fine not exceeding P10,000.00 and imprisonment of not more than five (5) years for those who shall violate any provision of Republic Act No. 3452 or any rule and regulation promulgated pursuant thereto, Section 15 of said Act provides that "if the offender is apublic officialand/or employees", he shall be subject to the additional penalty specified therein. A public official is an officerof the Government itself, as distinguished from officers or employees of instrumentalities of the Government. Hence,the duly authorized acts of the former are those of the Government, unlike those of a government instrumentality which may have a personality of its own, distinct and separate from that of the Government, as such. The provisions of Republic Act No. 2207 are, in this respect, even more explicit. Section 3 thereof provides a similar additional penalty for any "officer or employeeof the Government" who "violates, abets or tolerates the violation of any provision" of said Act. Hence, the intent to apply the same to transactions madeby the very governmentis patent.Indeed, the restrictions imposed in said Republic Acts are merelyadditionalto those prescribed in Commonwealth Act No. 138, entitled "An Act to give native products and domestic entities the preference in the purchase of articlesfor the Government." Pursuant to Section 1 thereof:The Purchase and Equipment Division of theGovernment of the Philippinesand other officers and employees of the municipal and provincial governmentsand the Government of the Philippinesand of chartered cities, boards, commissions,bureaus, departments, offices, agencies, branches, and bodies of any description, including government-owned companies, authorized to requisition, purchase, or contract or make disbursements for articles, materials, and supplies for public use, public buildings, or public works shallgive preference to materials... produced ...in the Philippinesor in the United States, andto domestic entities, subject to the conditions hereinbelow specified. (Emphasis supplied.)Under this provision, in all purchasesby the Government, including those made by and/or for the armed forces,preference shall be given to materials produced in the Philippines. The importation involved in the case at bar violates this general policy of our Government, aside from the provisions of Republic Acts Nos. 2207 and 3452.The attempt to justify the proposed importation by invoking reasons of national security predicated upon the "worsening situation in Laos and Vietnam", and "the recent tension created by the Malaysia problem" - and the alleged powers of the President as Commander-in-Chief of all armed forces in the Philippines, under Section 2 of the National Defense Act (Commonwealth Act No. 1), overlooks the fact that the protection of local planters of rice and corn in a manner that would foster and accelerate self-sufficiency in the local production of said commodities constitutes a factor that is vital to our ability to meet possible national emergency. Even if the intent in importing goods in anticipation of such emergency were to bolster up that ability, the latter would, instead, be impaired if the importation were so made as to discourage our farmers from engaging in the production of rice.Besides, the stockpiling of rice and corn for purpose of national security and/or national emergency is within the purview of Republic Act No. 3452. Section 3 thereof expressly authorizes the Rice and Corn Administration "to accumulate stocks as anational reservein such quantities as it may deem proper and necessary to meetany contingencies". Moreover, it ordains that"the buffer stocks held as a national reserve...be deposited by the administration throughout the country under the proper dispersal plans... and may be released only upon the occurrence of calamities oremergencies...". (Emphasis applied.)Again, the provisions of Section 2 of Commonwealth Act No. 1, upon which respondents rely so much, are not self-executory. They merely outline the general objectives of said legislation. The means for the attainment of those objectives are subject to congressional legislation. Thus, the conditions under which the services of citizens, as indicated in said Section 2, may be availed of, are provided for in Sections 3, 4 and 51 to 88 of said Commonwealth Act No. 1. Similarly, Section 5 thereof specifies the manner in which resources necessary for our national defense may be secured by the Government of the Philippines, but only "during a national mobilization",9which does not exist. Inferentially, therefore, in the absence of a national mobilization, said resources shall be produced in such manner as Congress may byotherlaws provide from time to time. Insofar as rice and corn are concerned, Republic Acts Nos. 2207 and 3452, and Commonwealth Act No. 138 are such laws.Respondents cite Corwin in support of their pretense, but in vain. An examination of the work cited10shows that Corwin referred to the powers of the President during "war time"11or when he has placed the country or a part thereof under "martial law".12Since neither condition obtains in the case at bar, said work merely proves that respondents' theory, if accepted, would, in effect, place the Philippines under martial law,withouta declaration of the Executive to that effect. What is worse, it would keep usperpetuallyunder martial law.It has been suggested that even if the proposed importation violated Republic Acts Nos. 2207 and 3452, it should, nevertheless, be permitted because "it redounds to the benefit of the people".Salus populi est suprema lex, it is said.If there were a local shortage of rice, the argumentmight havesome value. But the respondents, as officials of this Government, have expressly affirmed again and again that there is no rice shortage. And the importation is avowedly for stockpileof the Armynotthe civilian population.But let us follow the respondents' trend of thought. It has a more serious implication that appears on the surface. It implies that if an executive officer believes that compliance with a certain statute will not benefit the people, he is at liberty to disregard it. That idea must be rejected - we still live under a rule of law.And then, "the people" are either producers or consumers. Now as respondents explicitly admit Republic Acts Nos. 2207 and 3452 were approved by the Legislature for the benefit of producers and consumers, i.e., the people, it must follow that the welfare of the people lies precisely in thecompliancewith said Acts.It is not for respondent executive officers now to set their own opinions against that of the Legislature, and adopt means or ways to set those Acts at naught. Anyway, those laws permit importation but under certain conditions, which have not been, and should be complied with.IV. The contracts with Vietnam and BurmaIt is lastly contended that the Government of the Philippines has already entered into two (2) contracts for the Purchase of rice, one with the Republic of Vietnam, and another with the Government of Burma; that these contracts constitute valid executive agreements under international law; that such agreements became binding effective upon the signing thereof by representatives the parties thereto; that in case of conflict between Republic Acts Nos. 2207 and 3452 on the one hand, and aforementioned contracts, on the other, the latter should prevail, because, if a treaty and a statute are inconsistent with each other, the conflict must be resolved under the American jurisprudence in favor of the one which is latest in point of time; that petitioner herein assails the validity of acts of the Executive relative to foreign relations in the conduct of which the Supreme Court cannot interfere; and the aforementioned contracts have already been consummated, the Government of the Philippines having already paid the price of the rice involved therein through irrevocable letters of credit in favor of the sell of the said commodity. We find no merit in this pretense.The Court is not satisfied that the status of said tracts as alleged executive agreements has been sufficiently established. The parties to said contracts do not pear to have regarded the same as executive agreements. But, even assuming that said contracts may properly considered as executive agreements, the same are unlawful, as well as null and void, from a constitutional viewpoint, said agreements being inconsistent with the provisions of Republic Acts Nos. 2207 and 3452. Although the President may, under the American constitutional system enter into executive agreementswithoutprevious legislative authority, he maynot, by executive agreement, enter into a transaction which isprohibitedby statutes enacted prior thereto. Under the Constitution, the main function of the Executive is to enforce laws enacted by Congress. The former may not interfere in the performance of the legislative powers of the latter, except in the exercise of his veto power. He may not defeat legislative enactments that have acquired the status of law, byindirectly repealingthe same through an executive agreementproviding for the performance of the very act prohibited by said laws.The American theory to the effect that, in the event of conflict between atreatyand a statute, the one which is latest in point of time shall prevail, is not applicable to the case at bar, for respondents not only admit, but, alsoinsistthat the contracts adverted to are not treaties. Said theory may be justified upon the ground that treaties to which the United States is signatory require the advice and consent of its Senate, and, hence, of a branch of the legislative department. No such justification can be given as regards executive agreements not authorized by previous legislation, without completely upsetting the principle of separation of powers and the system of checks and balances which are fundamental in our constitutional set up and that of the United States.As regards the question whether an international agreement may be invalidated by our courts, suffice it to say that the Constitution of the Philippines has clearly settled it in the affirmative, by providing, in Section 2 of Article VIII thereof, that the Supreme Court may not be deprived "of its jurisdiction to review, revise, reverse, modify, or affirm on appeal,certiorari, or writ of error as the law or the rules of court may provide, final judgments and decrees of inferior courts in (1) All cases in which theconstitutionalityorvalidityof anytreaty, law, ordinance, or executive order or regulation is in question". In other words, our Constitution authorizes the nullification of a treaty, not only when it conflicts with the fundamental law,but, also, when it runs counter to an act of Congress.The alleged consummation of the aforementioned contracts with Vietnam and Burma doesnotrender this case academic, Republic Act No. 2207 enjoins our Government not fromentering into contractsfor the purchase of rice, but fromimportingrice, except under the conditions Prescribed in said Act. Upon the other hand, Republic Act No. 3452 has two (2) main features, namely: (a) it requires the Government to purchase rice and corndirectlyfrom our local planters, growers or landowners; and (b) it prohibitsimportationsof rice by the Government, and leaves such importations to private parties. The pivotal issue in this case is whether the proposedimportation which has not been consummated as yet is legally feasible.Lastly, a judicial declaration of illegality of the proposed importation would not compel our Government to default in the performance of such obligations as it may have contracted with the sellers of the rice in question, because, aside from the fact that said obligations may be complied withwithout importingthe commodity into the Philippines, the proposed importation may still be legalized by complying with the provisions of the aforementioned laws.V. The writ of preliminary injunction.The members of the Court have divergent opinions on the question whether or not respondents herein should be enjoined from implementing the aforementioned proposed importation. However, the majority favors the negative view, for which reason the injunction prayed for cannot be granted.WHEREFORE, judgment is hereby rendered declaring that respondent Executive Secretary had and has no power to authorize the importation in question; that he exceeded his jurisdiction in granting said authority; said importation is not sanctioned by law and is contrary to its provisions; and that, for lack of the requisite majority, the injunction prayed for must be and is, accordingly denied. It is so ordered.

G.R. No. L-41518 June 30, 1976GUERRERO'S TRANSPORT SERVICES, INC.,petitioner,vs.BLAYLOCK TRANSPORTATION SERVICES EMPLOYEES ASSOCIATION-KILUSAN (BTEA-KILUSAN), LABOR ARBITER FRANCISCO M. DE LOS REYES and JOSE CRUZ,respondents.ANTONIO,J.:Certiorari and prohibition with preliminary injunction to annul the Orders of the National Labor Relations Commission, of March 26, June 20 and September 25, 1975, as well as the Writ of Execution of September 26, 1975, issued in NLRC Case No. 214, and to restrain respondent Deputy Sheriff of Manila from implementing said writ.On June 1, 1972, the United states Naval Base authorities at Subic, Zambales, conducted a public bidding for a five-year contract for the right to operate and/or manage the transportation services inside the naval base. This bidding was won by Santiago Guerrero, owner- operator of Guerrero's Transport Services, Inc., herein petitioner, over Concepcion F. Blaylock, the then incumbent concessionaire doing business under the name of "Blaylock Transport Services", whose 395 employees are members of respondent union BTEA-KILUSAN. When petitioner, after the commencement of its operation on January 1, 1973, refused to employ the members of the respondent union, the latter. On January, 12, 1975, filed a complaint1with the National Labor Relations Commission2docketed as NLRC Case No. 214, against Guerrero's Transport Services, Inc. and Santiago Guerrero, to compel them to employ its members pursuant to Article 1, Section 2 of the RP-US Base Agreement dated May 27, 1968.3This case was dismissed by the National Labor Relations Commission on March 13, 1973, upon petitioner's motion to dismiss on jurisdictional grounds, there being no employer-employee relationship between theparties.4Respondent union then appealed said Order on March 26,1973 to the Secretary of the Department of Labor, who, instead of deciding the appeal, remanded the case for review to the NLRC which, subsequently, summoned both parties to a series of conferences. Thereafter, or on October .11, 1973, the NLRC issue a Resolution5ordering petitioner, among others, "to absorb all the complainants who filed their applications on or before the deadline" set by petitioner "on 15 November 1972 except those who may have derogatory records with the U.S. Naval Authorities in Subic, Zambales" and directing the Officer-in-charge of the provincial office of the Department of Labor in Olongapo City to "oversee the preparation of the list of those qualified for absorption in accordance with this resolution."Petitioner appealed to Secretary of Labor Blas F. Ople who, in turn, rendered a Decision on December 27, 1973, affirming said Resolution.6On January 22, 1974, Santiago A. Guerrero) appealed the decision to the President of the Philippines,7but on July 9, 1974, the President, through Assistant Executive Secretary Ronaldo B. Zamora, returned the case to the Secretary of Labor for appropriate action on the appeal, it appearing, that the same does not involve national interest.8In the meantime, the Provincial Director of the Labor Office in Zambales furnished, on August 2, 1974, petitioner9a list of forty-six (46) members of respondent union BTEA-KILUSAN and former drivers of the Blaylock Transport Service,10who are within the coverage of the decision of the Secretary of Labor, and requesting petitioner to report its action on the matter directly to the Chairman, NLRC, Manila. Subsequently, Santiago A. Guerrero received a letter dated September 24, 197411from Col. Levi L. Basilla, PC (GSC) Camp Olivas, San Fernando, Pampanga, requesting compliance with the Order dated July 19, 1974 of the NLRC in NLRC Case No. 214. In his reply letter dated October 4, 1974, Guerrero informed Col. Basilia that he had substantially complied with the decision of the Secretary of Labor affirming the NLRC Resolution of October 31, 1974 in NLRC Case No. 214, and that any apparent non-compliance therewith was attributable to the individual complainants who failed to submit themselves for processing and examination as requested by the authorities of the U.S. Naval Base in Subic, Zambales, preparatory to their absorption by petitioner.On January 18, 1975, Acting Executive Secretary Roberto V. Reyes, pursuant to Section 10 of Presidential Decree No. 21, directed the Chief of Constabulary to arrest the executive officers of petitioner.12On February 20, 1975, petitioner informed Secretary Reyes that it has substantially complied with the NLRC Resolution of October 31, 1975 as out of those listed by the Regional Labor Director, only a few passed the examination given and some of those who passed failed to comply with the final requirements of the U.S. Naval Base Authority; that only those who passed and complied with the requirements of the U.S. Naval Base Authority were extended appointments as early as December 16, 1974, but none of them, for evident lack of interest, has reported for work.13In his 1st endorsement dated March 26, 1975, Secretary Zamora required the Secretary of Labor to verify petitioner's allegations.14On the same date, respondent Labor Arbiter Francisco M. de los Reyes, upon a motion for execution filed by respondent union, issued an Order stating that "upon the finality thereof and by way of implementing any writ of execution that might be issued in this case, further hearings shall be held to determine the members of respondent union who are entitled to reinstatement in accordance with the basic guidelines finally determined in this case."15On June 20, 1975, respondent Labor Arbiter De los Reyes ordered the reinstatement of 129 individuals "to their former or substantially equivalent positions without loss of seniority and other rights and privileges".16On July 16,1975, respondent BTEA-KILUSAN filed a Motion for Issuance of Writ of Execution with respondent Labor Arbiter,17but this was objected to by petitioner contending that the Labor Arbiter has no jurisdiction over NLRC Case No. 214 and, therefore, his proceedings and orders resulting therefrom are null and void.18On September 1, 1975, the Provincial Director of the Zambales Labor Office, pursuant to the directive of the Secretary of Labor,19and the NLRC Resolution dated October 21, 197520submitted a detailed information to the Assistant Secretary of the Department of Labor on petitioner's compliance, "to enable the Department of Labor to formally close" NLRC Case No. 214.21On September 25, 1975, respondent Labor Arbiter, acting on the motion for execution filed by respondent union BTEA-KILUSAN, and finding that both the Orders, dated March 26 and June 20, 1975, have not been appealed pursuant to Article 223 of the Labor Code, declared said Orders final and executory and directed petitioner Guerrero's Transport Services, Inc. to reinstate the 129 complainants and to pay them the amount of P4,290.00 each, or a total of P592,110.00 as back wages covering the period from August 22, 1974 to September 20, 1975.22On September 26, 1975, respondent Labor Arbiter issued a writ directing the respondent Deputy Sheriff of Manila levy on the moneys and/or properties of petitioner,23and on the same date respondent Sheriff immediately serve said writ on petitioner who was given a period of five (5) days within which to comply therewith.It was on this factual environment that petitioner instituted the present petition for certiorari and prohibition with preliminary injunction on October 6, 1975. Petitioner asserts that the afore-mentioned Orders were issued by respondent Labor Arbiter without jurisdiction.As prayed for, this Court, on October 6, 1975, issued a temporary restraining order and required the respondents to file an answer within ten (10) days from notice.On October 11, 1975, respondent Labor Arbiter De los Reyes and Sheriff Jose Cruz filed their Comment by way of answer to the petition, explaining the legal justifications of their action on the premises.Upon motion filed on October 11, 1975 by respondent union BTEA-KILUSAN for reconsideration and to lift the temporary restraining order of October 6, 1975, this Court, on October 15, 1975, lifted said restraining order and set the case for hearing on Monday, October 20, 1975 at 3:00 p.m.At the hearing of this case on October 20, 1975, a Compromise Agreement was arrived at by the parties wherein they agreed to submit to the Office of t he Secretary of Labor the determination of members of the respondent union BTEA-KILUSAN who shall be reinstated or absorbed by the herein petitioner in the transportation service inside the naval base, which determination shall be considered final. This Court approved this agreement and enjoined "all the parties to strictly observe the terms thereof." This agreement is deemed to have superseded the Resolution of the National Labor Relations Commission of October 31, 1973, as affirmed by the Secretary of Labor on December 27, 1973.Pursuant to this agreement which was embodied in the Resolution of this Court of October 24, 1975, Secretary of Labor Blas F. Ople issued an Order dated November 13, 1975, the pertinent portion of which reads as follows:The issue submitted for resolution hinges on the credibility of the alleged applications. Considering that the employees are economically dependent on their jobs, they have all the reasons and zealousness to pursue their jobs within the legitimate framework of our laws. The applicant are no strangers to the pains and difficulties of unemployment. Because of these factors we cannot ignore the affidavits of proof presented by the employees concerned as against the declaration of the herein respondent. Firmly entrenched is the rule in this jurisdiction that doubts arising from labor disputes must be construed and interpreted in favor of the workers.RESPONSIVE TO THE FOREGOING, the National Labor Relations Commission through Arbiter Francisco delos Reyes is hereby directed to implement the absorption of the 175 members of the Blaylock Transport Employees Association (BTEA-KILUSAN) into the Guerrero Transport Services, subject to the following terms and conditions:1) that they werebona fide employeesof the Blaybock Transportation Service at the time its concession expired:2) that the appellantsshall pass final screening and approvalby the appropriate authorities of the U.S. Base concerned.Theapplicants to be processedfor absorption shall be those in the list of 46 submitted by OIC Liberator (Carino on 2 August 1974, and the list of 129 determined by Arbiter de los Reyes as embodied in the Writ of Execution issued on 25 September 1975.The Regional Director of Regional Office No. II, San Fernando, Pampanga, shall make available to the parties the facilities of that Office in the implementation of the aforesaid absorption process.24On November 24, 1975, in compliance with the aforesaid directive of the Secretary of Labor, Labor Arbiter Francisco M. delos Reyes conducted a hearing to receive evidence as to who were thebona fideemployees of the former concessionaire at the "time of its concession expire". Thereafter, Labor Arbiter De los Reyes issued an Order, dated November 25, 1975, listing in Annex "A" thereof, 174 employees who were bona fide employees of the private respondent, and transmitting a copy of said Order to the Base Commander, U.S. Naval Base, Olongapo City, with the request for the immediate screening and approval of their applications in accordance with applicable rules of said command. The pertinent portion of said Order reads as follows:As far as this Labor Arbiter is concerned, his only participation in this case refers to that portion of the Secretary of Labor's Order directing him to implement "* * * the absorption of the 175 members of the Blaylock Transport Employees Association (BTEA-KILUSAN) into the Guerrero Transport Services," subject to certain terms and conditions. Hence, any question of "prematurity" as espoused by respondent's counsel may not he entertained by this Labor Arbiter.Going now to the applicants who should be entitled to absorption, the Honorable Secretary of Labor specified that the same should be composed of the 46 submitted by OIC Liberator Carino on 2 August 1974 and the 129 applicants determined by this Labor Arbiter. Of the latter, only 128 will be named. A perusal of said list show that the name "Renato Carriaga" has been doubly listed. For convenience, these two listings have now been consolidated and alphabetically arranged and as an integral part of this Order has been made as Annex "A" (pp 1 to 6).For purposes of implementation, the initial step to be undertaken is for the submission of the name of the applicants to the U.S. Navy authorities concerned, which means the U. S. Naval Base at Olongapo City for the screening and approval by the appropriate authorities.Regarding the determination of whether the applicants arebona fideemployees of the Blaylock Transportation Service at the time its concession expired, the parties appear to be in agreement that the records of this case will eventually s