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The Nature and Function of International Law(Higgins, Chapter 1)

1. International law is not rules. It is a normative system. A normative system is asystem of conduct which is regarded by the actor, and the group as a whole, asbeing obligatory, and for which violation carries a price1.

2. The law is not only meant to resolve disputes, but also to secure certain values

that we desire like security and freedom. Indeed, if the law as a system iseffective, there would not be a need for disputes at all. This fundamental desire fordispute-avoidance is one of the primary goals of the proliferation of norms. Andeven if dispute could not totally be avoided, common norms would still dictatewhat the parameters of conduct would be.

3. In terms of the social purpose of international law, it is almost the same asdomestic law2, but in terms of operationalization, it is different in that domestic lawis applied vertically (i.e., from the authority to the subjects) while international lawis applied horizontally (i.e., imposed between states having equal status andsovereignty as regards one another)

4. THE NATURE OF INTERNATIONAL LAW. Higgins provides a framework for

analyzing international law as a process and not as a body of rules. Here is howHiggins explains the nature of international law:

a. IT IS THE DECISION-MAKING PROCESS ITSELF. It is a continuingprocess of authoritative decisions. This view rejects the notion of lawmerely as the impartial application of rules. International law is the entiredecision-making process, and not just the reference to the trend of pastdecisions which are termed rules.3This bias of Higgins toward the law-as-process argument runs counter to the teachings of legal theoryslegal positivism school4. Austin, for example, argues that if something islaw, then it must emanate from a sovereign who sets it upon persons in astate of subjection to the formers authority. Kelsen, seeking to givemeaning to positivism in a horizontal, decentralized international legalorder, where command and sovereign are notably lacking, proposed the

existence of a grundnorm which is the highest fundamental norm from

1The most important feature about a norm is that it is established through social conventionrather than positive legislation, i.e., it derives its validity from the fact that seeminglyeveryone for seemingly the longest time has held it to be true and desirable, and not fromthe fact that a law-making authority has expressly given it the status of a rule.2e.g., Domestic law is to road traffic as international law is to international aviation3 Higgins puts a premium on the contextualization of rules rather than mechanicallyapplying them. For Higgins, if international law is merely finding the rule and applying it, thenit would be highly ineffective because differing contexts cannot be adequately addressed byuniform rules. Said Higgins: the determination of what is the relevant rule is part of thedecision-makers function; and because the accumulated trend of past decisions shouldnever be applied oblivious of context.4Warning: ghosts of Legal Theory will be coming back to life in the following sentences.

Sison alert!

which all others derived their binding force. Higgins also cites theincreasing prominence of the critical legal studies school which, like thepolicy science approach (the approach which takes into considerationthe policy implications of every decision), believes that law is deeply-rooted in social theory and rejects law as rules and exceptions. However,the critical legal studies scholar will see law as contradictions or asessentially indeterminate at its core rather than as complementary orcompeting norms between which choices have to be made in particular

circumstances. This views lead to the pessimistic conclusion that whatinternational law can do is point out the problems but not assist in theachievement of goals.

b. IT IS ALSO ABOUT POWER. Critics say that international law, if it ismore than just the application of rules, would be confused with power orcontrol and not just authority (which they say the law is all about).Higgins counters that: to seek to contrast law with power isfundamentally flawed. It assumes that law is concerned only with theconcept of authority and not with power, or control. International law isindeed concerned with authoritybut not authority alone. It is also nottrue that power stands somehow counterpoised to authority, and isnothing to do with law, and is indeed inimical to it. The authority which

characterizes law exists not in a vacuum, but exactly where it intersectswith power. Authority cannot exist in the total absence of control.

c. IT IS ALSO ABOUT POLICY. Critics also counter that if internationallaw is to allow a leeway for the choosing of the best rule to apply insteadof just applying the rule that there is, it would be an instrument for politicsand would be applied based on the biases of the decision-makers.Fitzmaurices dissent5 illustrates this critical view. Higgins said that thiscritique rests on two propositions: that the correct legal view is to bearrived at by applying rules, and that the correct legal view has nothing todo with applying past decisions to current contexts by reference toobjectives or values that the law is designed to promote. Higginsanswers: Policy considerations, although they differ from rules, are anintegral part of that decision-making process which we call international

law; the assessment of so-called extra-legal considerations is part of thelegal process, just as the reference to the accumulation of past decisionsand current norms. A refusal to acknowledge political and social factorscannot keep law neutral, for even such refusal is not without political andsocial consequence. There is no avoiding the essential relationshipbetween law and politics. So how does one prevent being biased andpartial when given the chance to take political factors into consideration?Higgins proposes two safeguards: systematic consideration (make sure

5 In the 1962 South West Africa Cases, Fitzmaurice and Spender in a joint dissentingopinion stated: We are not unmindful of, nor are we insensible to, the variousconsiderations of a non-judicial character, social, humanitarian, and otherbut these arematters for the political rather than the legal arena. They cannot be allowed to deflect usfrom our duty of reaching a conclusion strictly on the basis of what we believe to be the

correct legal view.

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that ALL factors are properly considered and not only those which thedecision-maker selects consciously or otherwise) and open/ accountableconsideration (make the process open to public scrutiny and discussion).

d. IT ALSO HAS SOLID ANCHORS. Higgins does not believe that thepolicy-science approach (the approach which takes into considerationthe policy implications of every decision) requires one to find everymeans possible if the end is desirable, i.e., the process of international

law does not have to be as fluid and flexible as the decision-makersinterests would allow. First, trends of past decisions still have animportant role to play in the choices to be made, notwithstanding theimportance of both context and desired outcome. Where there isambiguity or uncertainty, the policy-directed choice can properly bemade. Second, no matter what, we will each know which legal claimsand decisions are intellectually supportable and which are not6. It istherefore a far-fetched idea that international law, in the hands ofdecision-makers, can be an irrational and incoherent hodgepodge of self-serving rules. Lastly, in international law, there are still certain norms thathave received such universal acceptance and validity as to enjoy thestatus of absolute rules because of the common interest involved inthem, like the prohibition on the use of certain weapons.

e. IT IS A COMMUNAL ENTERPRISE. Making choices in the process ofinternational law is not undertaken without some guiding principles; andthese guiding principles are the product of collective consensus.Proposing such principles predicate that certain views or assumptions asto what is desirable should prevail over others. For Higgins, it is thenecessary stuff of our very existence in community with others. Everyoneis entitled to participate in the identification and articulation as to whatthey perceive the values to be promoted. Many factors, including theresponsive chords struck in those to whom the arguments is made, willdetermine whether particular suggestions prevail.

f. IT ARISES FROM EITHER CONSENT OR NON-OPPOSITION.Higgins says that we have in international law a system in which norms

emerge either through express consent, or because there is noopposition or because it is thought that, sovereignty notwithstanding,opposition would not succeed to obligations being imposed in theabsence of such specific consent.

g. IT HAS BASIS IN RECIPROCITY, CONSENT, AND CONSENSUS.Reciprocity is a central element in the basis of obligation of internationallaw. As notions of natural justice are replaced by consent, so consenthas gradually been replaced by consensus. Consensus comes aboutbecause states perceive a reciprocal advantage in cautioning self-

6 Higgins also presents a counter-argument to critics by saying that it is a chimera tosuppose that, if only international law is perceived as the application of neutral rules, it willthen be invoked only in an unbiased manner. For Higgins, even the act of invoking

supposedly neutral rules can be an inherently political and not a value-devoid actuation.

restraint. It is rarely in the national interest to violate international law,even though there might be short-term advantages in doing so. For lawas a process of decision-making, this is enough.

5. Higgins acknowledges that there are some inherent contradictions in the legalsystem that make the process of international law more complex. Koskenniemi,however, argues that it is totally impossible to make a rational choice for thecommon good amongst these contradictions. For Koskenniemi, issues of

contextual justice require venturing into fields such as politics, social andeconomic casuistry which were formally delimited beyond the point at which legalargument is supposed to stop in order to remain legal. Higgins counters that lawcannot alone achieve justice. The making of legal choices will not even contributeto justice if it purports to totally ignore everything that is not rules. To remain legalis to ensure that decisions are made by those authorized to do so, with importantguiding reliance on past decisions, and with available choices being made on thebasis of community interests and for the promotion of common values.

6. Law-as-process encourages interpretation and choice that is more compatiblewith values we seek to promote and objectives we seek to achieve. According toHiggins, if one adopts this view of the law and moves away from the law-as-rulesparadigm, the distinction between lex lata (the law as it is) and lex ferenda (the

law as it might be) becomes less important. The law-as-process approach alsohas the advantage of being able to ably deal with lacunae7. The rule-based lawyercan say only that international law has nothing to say on the matter. But to theperson who views international law as process, there are still the tools forauthoritative decision-making on the problem (by the use of analogy, by referenceto context, by analysis of the alternative consequences) notwithstanding theabsence of a precise rule which must be applied.

7. Higgins also took note of the views from socialist scholars regarding the natureof international law. For pre-perestroika Marxists, international law was part of thesuperstructure of law. It was an attribute of the foreign policy of states, anexpression of the will of the ruling class. Where the will of the ruling classes of thesocialist and capitalist systems coincided, international law can exist. It existedside by side with socialist international law which is said to exist between the

various socialist countries. From the socialist perspective, international law wasnot universal because of its nature the coordination of the wills of socialist andcapitalist states.

8. From the viewpoint of developing countries, the primary concern is that thesubstance of international law has been adopted before these states havebecome independent, and so their contributions to the articulation of these normswere limited. However, these countries did not state that these norms are inimicalto them and that they were not bound by them upon achieving independence.

7Literally, an isolated area (derivative of the Spanish word laguna, meaning lake, which is

a body of water isolated within a surrounding mass of land); it is used to refer to legal issues

where there are no established legal solutions.

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International law has been widely accepted by the Third World as universal inapplication.

9. APPLICABILITY OF INTERNATIONAL LAW. Higgins explains that internationallaw applies to states, international organizations, individuals (their responsibility inthe conduct of war, fundamental freedoms) and in some cases applies indirectly(when they are required to comply with UN trade sanctions against a particularcountry).

10. BASIS OF OBLIGATION OF INTERNATIONAL LAW. Certainly not sanction asAustin would have it, because it would be difficult to enforce international lawthrough sanctions in the context of equally sovereign states. Some would say thatthe basis is natural law, because it is in the natural order of things that certainmatters should be regulated in a compulsory manner. Koskenniemi believes thatthe natural obligations of justice are essentially what is necessary for subsistenceand self-preservation. Others propose that the basis is consent, or thatinternational law is binding because the states agreed that it should be.Kosekenniemi criticizes the consent theory by pointing out that international law iswhatever states choose to regard as law, so that law cannot be an effectiveexternal constraint on their behavior. If states consent, then it is not law at all, butjust an agreement by them that their behavior will be regarded as normative.

Sources of International Law: Provenance and Problems(Higgins, Chapter 2)

This chapter will deal with the following questions:

a. Where do we find the substance of international law (IL)?b. What constitutes international law?c. What is the difference between a political proposal and a binding

rule?What we are concerned with in this chapter is the "identification ofinternational law. This latter topic is commonly termed sources ofinternational law'. It is really all about the provenance of norms.

It is strange that we spend so much time talking about the provenance of

the norms that bind the participants in the international legal system. Indomestic legal systems the sources of legal obligation are treated in amuch more matter-of-fact way: legislation primary or secondary, and, inthe common law, judicial decisions, are the sources. But we havebecome so preoccupied with jurisprudential debate about the sources ofinternational law that we have lost sight of the fact that it is an admissionof an uncertainty at the heart of the international legal system,uncertainty as to how we identify norms. The question of sources is thusof critical importance.

Starting point for the discussion of sources: Article 38 (i) of the Statute of

the International Court of Justice:

The Court, whose function is to decide in accordance withinternational law such disputes as are submitted to it, shall apply:

(a) international conventions, whether general or particular,establishing rules expressly recognized by the contesting states;

(b)international custom as evidence of a generalpractice acceptedas law;

(c) the general principles of law recognized bycivilized nations;(d) subject to the provisions of Article 59, judicialdecisions and theteachings of the most highly qualified publicists of the variousnations, as subsidiary means for the determination of rules of law.

It is interesting that the route to the identification of sources is via an

identification of what rules the ICJ will apply in resolving legal disputes.This has led some writers to contend that international law is defined asthat which the Court would apply in a given case. Higgins finds this toonarrow. For her, international law has to be identified by reference towhat the actors (most often states), often without benefit ofpronouncement by the ICJ, believe normativeintheir relations with eachother.

Custom

o Article 38 of the Statute contains the injunction that the Court should

apply 'international custom, as evidence of a general practiceaccepted as law'. This formulation speaks of custom as evidence ofa practice. Yet it is generally accepted that it is custom that is thesource to be applied, and that it is practice which evidences custom.But practice by itself is not evidence of the existence of a customthe norm must be 'accepted as law'. Thus, Article 38 could morecorrectly have been phrased to read 'international custom asevidenced bya general practice accepted as law'. In fact, this is theway the clause is interpreted in practice.

o One of the special characteristics of international law is that

violations of law can lead to the formation of new law. Whether onebelieves that international law consists of rules that have beenderived from consent or natural law; or whether international law is aprocess of decision-making, with appropriate reliance on past trendsof decision-making in the light of current context and desiredoutcomes, there still remains the question of how the 'rules' or the'trend of decision' change through time. And, in so far as these rulesor trends of decisions are based on custom, then there is the relatedquestion of what legal significance is to be given to practice that isinconsistent with the perceived rules or trends of decision.

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o For rule-based international lawyers (even to non-lawyers, intl

relations students, and a guy named Georg Schwarzenberger),repeated violations of these rules is a reflection of the reality that atthe end of the day international law is dependent upon power: and, ifthere is a divergence between the two, it is power politics that willprevail. From this perspective, thee reality is that there continue inexistence certain rules which regrettably are widely disobeyed, andit is the task of the international lawyer to point to the existence of

these rules and to take every opportunity to urge compliance withthemeven if the battle against power politics takes very manyyears.

o For those who view IL as process-based, that which we describe as

law is the confluence of authority and control. Where there issubstantial non-compliance, over a period of time, the normsconcerned begin to lose their normative character. What has beenlost is the community expectation that claimed requirements ofbehaviour reflect legal obligation. But even for them, there are somedifficult questions. What exactly causes a norm to lose its quality aslaw? Conceptually, this question is the same as that to be putregarding the formation of custom. To ask what is evidence of

practice required for the loss of obligatory quality of a norm is themirror of the evidence of practice required for the formation of thenorm in the first place.

o If a customary rule loses its normative quality when it is widely

ignored, over a significant period of time, does this not lead to arelativist view of the substantive content of international Iaw, withdisturbing implications? Consider the following possibilities:

(a) In the South West Africa Cases, South Africa argued thatthere was not in reality any norm of non-discrimination, asregardless of the way states voted on resolutions on this issuethe great majority of states routinely discriminated againstpersons of colour. This argument really arose in the context of

whether a norm of non-discrimination had ever developed andcome into existence.(b) On genocide: all states agree that IL prohibits genocide (andthat this total prohibition is today rooted in customaryinternational law and not just in treaty obligations). So what ifsome states from time to time engage in genocide? Here wemay safely answer that genocide, while it sometimes occursand while its very nature make all norm compliance shocking, iscertainly not the majority practice. The customary law thatprohibits genocide remains intact, notwithstanding appallingexamples of non-compliance.(c) On torture: No one doubts that there exists a normprohibiting torture. No state denies the existence of such anorm. But it is equally clear from, for example, the reports of

Amnesty International, that the great majority of statessystematically engage in torture. If one takes the view that non-compliance is relevant to the retention of normative quality, arewe to conclude that there is not really any prohibition of tortureunder customary international law? ICJ said in Nicaragua v.United States, when determining the law on intervention andpermitted use of force:

If state acts in a way prima facie incompatible with arecognized rule, but defends its conduct by appealingto exceptions or justifications contained within the ruleitself, then whether or not the State's conduct is in factjustifiable on that basis, the significance of thatattribute is to confirm rather than to weaken the rule.

o For those who do not view matters from the perspective of the battle

between 'legal rules' and 'power politics', this last type of examplepresents very real difficulties. Tne answer seems to have beenfound by some in embracing, if not a hierarchical normativity, then aweighted normativity. Oscar Schachter says, The rules againstaggression and on self-defence are not just another set of

international rules. They have a "higher normativity", a recognisedclaim to compliance that is different from the body of internationallaw rules. Essentially, the argument seems to be that, if these arenot treated as 'rules of higher normativity' than ordinary rules, thenthey cannot be treated differently from ordinary rules so far as theevidence of practice is concerned; and, if they cannot be treateddifferently, then disaster will ensue. To assert an immutable core ornorms which remain constant regardless of the attitudes of states isat once to insist upon one's own personal values (rather thaninternationally shared values) and to rely essentially on natural lawin doing so. This is a perfectly possible position. Schachter furthersays that this is why states and tribunals do not question thecontinued force of those rules because of 'inconsistent or insufficientpractice'. He refers to cases of- genocide and to the killing of

prisoners by their captors as not leading to the conclusion that theproscriptions no longer exist.

o Higgins approach: To say that the prescriptions against aggression

and on self-defence are 'necessary rules of coexistence' and'principles of minimum world order' is not to render these (rulesagainst genocide, discrimination, torture, prisoners of war) as aspecies of grundnorm in respect of which the normal requirementsof practice do not apply. Nor is the matter disposed of by noting thatthe prescriptions relating to aggression, use of force, protection ofprisoners of war, and genocide are widely regarded as jus cogens. Anorm that is jus cogens cannot be limited or derogated from byagreement between states in their relations with each other. I

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regards these norms as of critical importance, such that particularstates cannot 'contract out' of them. But that is not to say that theseprescriptions would somehow retain their normative quality if theworld community as a whole did not regard them as such. Thestatus of norms that we hold dear is to be protected by our efforts toinvoke and apply them, in turn ensuring that they do not totally losethe support of the great majority of states. But they cannot beartificially protected through classifying them as rules with a 'higher

normativity' which will continue to exist even if we fail to make statessee the value of giving such prescriptions a normative quality.

o The answer lies elsewhere. First, we must not lose sight of the fact

that it is the practice of the vast majority of states that is critical, bothin the formation of new norms and in their development and changeand possible death. No special attribution of a 'higher normativestatus' is needed.

o More difficult is the question of torture, because we are told, by

reputable bodies in a position to know, that the majority of states inthe world do engage in this repugnant practice. It is at this point thata further factor comes into play. New norms require both practice

and opinio juris (the belief that a norm is accepted as law) beforethey can be said to represent customary international law. And so itis with the gradual death of existing norms and their replacement byothers. The reason that the prohibition on torture continues to be arequirement of customary IL, even though widely abused, is notbecause it has a higher normative status that allows us to ignore theabuse, but because opinio juris as to its normative status continuesto exist. No state, not even a state that tortures, believes that theinternational law prohibition is undesirable and that it is not bound bythe prohibition. A new norm cannot emerge without both practiceand opinio juris; and an existing norm does not die without the greatmajority of states engaging in both a contrary practice andwithdrawing their opinio juris

Resolutions of International Organizations

o In 1963, Higgins wrote: The United Nations is a very appropriate

body to look to for indications of developments in international law,for international custom is to be deduced from the practice of States,which includes their international dealings as manifested by theirdiplomatic actions and public pronouncements. With thedevelopment of international organizations, the votes and views ofStates have come to have legal significance as evidence ofcustomary law . . . Collective acts of States, repeated by andacquiesced in by sufficient numbers with sufficient frequency,eventually attain the status of law. The existence of the UnitedNationsand especially its accelerated trend towards universality of

membership since 1955now provides a very clear, very

concentrated focal point for state practice. Here, then, is the reasonfor looking to United Nations practice in a search for the direction ofthe development of international law.

o Two points, after 30 years:

(a) first is how modest and indeed cautious those views are today,though in 1963 they were regarded as somewhat radical. There isnothing in this approach that suggests a belief in 'instant custom', or

that the distinction between decisions and recommendations is to beignored. The same was said by Judge Tanaka in his dissentingopinion in the South West Africa Cases (1966), that therequirements of custompractice, repetition, opinio jurismayoccur at an accelerated pace in the world of an internationalorganization. But he did not suggest that the mere existence of aresolution obviated the need for these requirements:

A State, instead of pronouncing its view to a few States directlyconcerned, has the opportunity, through the medium of theorganization, to declare its position to all members of theorganization and to know immediately their reaction on thesame matter. In former days, practice, repetition and opinio jurissive necessilatis, which arc the ingredients of customary

international law might be combined together in a very long andslow process extending over centuries. In the contemporary ageof highly developed techniques of communication andinformation, the formation of a custom through the medium ofinternational organizations is greatly facilitated and accelerated. . .

In his dissent in the Continental ShelfCases, he said that the speedof present communications had 'minimised the importance of thetime factor and has made possible the acceleration of the formationof customary international law.(b) the views I expressed in 1963 were directed to the place of UNpractice in the development of IL. There was in the theoreticalanalysis virtually no reference to resolutions as such. Resolutionsare but one manifestation of state practice. But in recent years there

has been an obsessive interest with resolutions as an isolatedphenomenon. The political bodies of international organizationsengage in debate, etc; in preparing drafts intended for treaties, etc;and in decision/making that may or may not imply a legal view upona particular issue. Some of these activities may result in resolutionsof one sort or another. But the current fashion is often to examinethe resolution to the exclusion of all else.

o Binding quality of resolutions

The binding or recommendatory quality of resolutions is closelyrelated to the concept of state consent. But, as was remarkedby Sir Kenneth Bailey in 1967: 'To say that a resolution is

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governments are under no legal obligations to comply with it.Does this relegate General Assembly resolutions wholly to thesphere of moral or legal precepts, with no relevance to law?

But the passing of binding decisions is not the only way in whichlaw development occurs. Legal consequence can also flow fromacts which are not, in the formal sense, 'binding'. And, further,law is developed by a variety of non-legislative acts which do

not seek to secure, in any direct sense, 'compliance' fromAssembly members; we refer here to the 'law-declaring'activities of the Assembly.

Illustrative of the distinction is the Namibia Advisory Opinion:The Court was faced with both General Assembly and SecurityCouncil resolutions that purported to terminate South Africa'smandate over South-West Africa. It found the Security Councilresolution binding, even though it could not be clearly identifiedas a traditional 'Chapter 7' resolution; and it found that theGeneral Assembly resolutions, while manifestly not binding,were not without legal effect, given the existence of a right toterminate and the Assembly's constitutional role in monitoring

the mandate. ICJ said: It would not be correct to assume that,because the General Assembly is in principle vested withrecommendatory powers, it is debarred from adopting, inspecific cases within the framework of its competence,resolutions which make determinations or have operativedesign.

In some international organizations even the term'recommendation' in its context sometimes signals more thanone would expect from a literal reliance on that word. Thus'recommendation' may still in context entail a duty ofcompliance or an obligation to act.

Further, other recommendations (e.g. those to establish

subsidiary bodies) entail financial consequences which arelegally incumbent upon all members, whether they voted forthem or not. (Illustrative is the ICJ Advisory Opinion on theExpenses Case).

On the internal and external competence of a UN organ: The

travaux have always made clear that in the course of theoperations from day to day of the various organs of theorganisation it is inevitable that each organ will interpret suchparts of the Charter as are applicable to its particular function.The repeated practice of the organ, in interpreting the treaty,may establish a practice that, if the treaty deals with makers ofgeneral international law, can ultimately harden into custom.

Although organ practice may not be good evidence of theintention of the original state parties, it is of probative value ascustomary law.

o Declaratory Resolutions

We turn to those activities where the international organizationis concerned with general international law rather than its ownprocedural powers or even the direct interpretation of its ownconstituent instrument. Prominent among such activities is thepassing of resolutions that purport to be declaratory ofcontemporary international law. Can we reject their legalrelevance simplyon the ground that they are recommendatory,or incapable of directly binding the membership at large? Whatstatus is therefore to be accorded to them?

Opinions:

(a) those who are deeply sceptical, in the generalized fashion,about the relevance of General Assembly resolutions(Judge Sir Gerald Fitzmaurice, Judge Stephen Schwebel,and Sir Francis Vallat, Professors David Johnson andGaetano Arangio-Ruiz). The Englishmen in this group allarrive at their position primarily by an emphasis in theirwritings, or judicial decisions, on the recommendatorynature of Assembly resolutions and their inability to bind.Schwebel and Arangio-Ruiz arrive at their position througha different route. They fully accept that resolutions cancontribute to the formation of customary international law,but express deep scepticism as to whether this reallyhappens. Arangio-Ruiz says that General Assemblyresolutions do not in fact contribute to the evolution ofcustom because states 'don't mean it'. That is to say,states often don't meaningfully support what a resolutionsays and they almost always do not mean that the

resolution is law.' Schwebel then adds a piercinglyimportant point, agreeing that states 'don't mean it', hesays: 'This may be as true or truer in the case of theunanimously adopted resolutions as in the case of majority-adopted resolutions. It may be truer still of resolutionsadopted by "consensus".Thus the size of the majority hasnothing to do with the intentions of the states voting for it.

(b) Those who downplay the significance of Assembly resolu-tions as non-binding, but accept that it would be whollyexceptional for any single resolution to have normativeresults. They argue rather that the decentralized method ofinternational law-making can cause the metamorphosis of'General Assembly recommendations from non-bindingresolutions to inchoate normative principles'.

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(c) The radical end, those who invest Assembly resolutionswith/considerably greater legal significance (Richard Falk,who wrote of quasi-legislative competence in the GeneralAssembly, and Jorge Castaneda, who argued that throughits repeated efforts to declare principles of IL, the GeneralAssembly has secured powers beyond therecommendatory powers listed in the UN Charter).

Issue: When we look at resolutions as a first step in theformation of custom, or as part of the evidence of the existenceof general practice, is it enough that we look at the resolutionsalone? Schwebel has insisted that, because opinio juris remainsa critical element, one must look to see if states 'mean' whatthey have voted for and looking at their practice outside theUnited Nations is one way we can ascertain this. (Illustration:the arbitral award of Professor Dupuy in the Texaco Case.Dupuy was engaged in trying to ascertain whether a resolutionexpressed a consensus on what was/the existing customaryrule.). But one must take care not to use General Assemblyresolutions as a shortcut to ascertaining international practice inits entirety on a matterpractice in the larger world arena is still

the relevant canvas, although UN resolutions are a part of thepicture. Resolutions cannot be a substitute for ascertainingcustom; this task will continue to require that other evidences ofstate practice be examined alongside those collective actsevidenced in General Assembly resolutions.

On Security Council Resolutions: Professor Tunkin indicated

that decisions of the UN Security Council are not strictlyspeaking sources of international law. They have an ad hoceffect and may create binding obligations, but they are notsometimes of general applicability. Higgins largely agree withthis view, though sometimes the substance of the SecurityCouncil work, and the fact that it is legal work repeated year inand year out, makes it engage in the processes of customary

development as well as the mere imposing of obligation.

o Conclusion: To answer the question What is the role of resolutions

of international organizations in the process of creatjKig norms in theinternational system?, look at the following:(a) subject-matter of the resolutions in question(b) whether they are binding or recommendatory(c) at the majorities supporting their adoption(d) at repeated practice in relation to them(e) at evidence ofopinio juris.

The Overlap between Treaty and Custom

o Provisions formulated in a treaty can in certain circumstances be

binding even on states which are not parties to the treaty. This canoccur if the provisions articulate what is already customaryinternational law (e.g. Vienna Convention). But some elements ofthe Vienna Convention represent new law, and those elements areundertaken only by the parties to the Convention. And if a treaty hascertain procedural or dispute settlement provisions built into it, anon-party will not be bound by those provisions, even if it is bound

by certain substantive norms contained in the treaty, because theyare already customary law. Thus, while not being bound by all theparticular provisions of the Genocide Convention, no non-ratifyingstate could claim to be free to commit genocide because was not aparty to that legal instrument.

o A much more difficult possibility may occurnamely, that provisions

in a treaty are new at the time they are formulated; but thatcustomary international law then develops in such a way as itself toembrace those new norms. (Illustration: North Sea Continental ShelfCases)

o Case background: The Netherlands and Denmark claimed that the

equidistance rule of Article 6 of the 1958 Continental ShelfConvention was binding upon the Federal Republic of Germany (anon-party) as a matter of customary law. The argument was that theequidistance rule of delimitation is, or must now be regarded asinvolving, a rule that is part of the corpus of general internationallaw; and, like other rules of general or customary international law,binding on the Federal Republic automatically and independently ofany specific assent, direct or indirect, given by the latter. Part of theproposition was based on an argument that the equidistanceprinciple had a 'juristic inevitability' in continental-shelf delimitation.But the other part of the Dutch and Danish claim was that the workof international legal bodies, state practice and indeed the influenceof the Geneva Convention itself had 'cumulatively evidenced or beencreative of the opinio juris sive necessiatis requisite to the formationof new rules of customary international law'. Court concluded thatArticle 6 'did not embody or crystallize any pre-existing or emergingrule of customary international law', but then moved to see if such arule had since come into being, 'partly because of its own impactpartly on the basis of subsequent state practiceand that this rule,being now a rule of customary international law [is] binding on allstates . . .' The Court noted that this would involve treating Article 6as a norm-creating provision which has constituted the foundation ofor has generated a rule which, while only conventional or contractualin its origin, has since passed into the general corpus ofinternationallaw, and is now accepted as such by the opinio juris, so as to havebecome binding even for countries which have never, and do not,become parties to the Convention. The Court characterized the

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process as one that is 'perfectly possible', but the result was 'notlightly to be regarded . . as having been attained'.

o What would be needed for the result to be attained:

(a) norm had first to be of a fundamentally norm-creating character.

(b) even without the passage of any considerable period of time', avery widespread participation in the Convention might suffice,'providred it included that of states, whose interests were

specially affected'. ('substantial participation by those whoseinterest are affected', echoed by Dupuy in Texaco vs. Libya)

(c) where non-parties applied the equidistance principle, said theCourt, 'the basis of their action can only be problematical andmust remain entirely speculative'. The Court found there was'not a "shred of evidence" that they believed themselves to beapplying a mandatory rule of international law'. This leads usright back to the problem of evidence for the establishment ofcustom, and in particular evidence as to opinio juris. And thereis a related question: is the evidence of opinio juris the samewhen the norm tells one what to do (e.g. draw an equidistantline) as when it proscribes certain actions (e.g. do not commitgenocide)?

o We can only say that the sources of international law are not

compartmentalized, but do indeed overlap, And it will always beharder to show an emerging mandatory requirement that isobligatory for states than to show an emerging relaxation of amandatory requirement, upon which states are entitled to rely.

Sources of Law and Legal Obligations

o Article 38 of the Statute speaks of general or special conventions as

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initially protesting state will not remain exempt from the applicationof the new customary rule.

o To summarize: General IL creates and contains norms which are

always obligatory. Treaties, in so far as they repeat the existingnorms, create neither the norms nor the obligation. Law-makingtreaties that seek to develop new norms are both the source of thecreation of the norm (though of course one can say the treaty is the

vehicle for the consentthat created the norm) and the mechanismfor making it obligatory upon the ratifying parties. If treaties areconcerned with norm-creation or elaboration and obligation, thenthere are other ways by which obligations simpliciter siteundertaken. Thus treaties can be made opposable to a third party,by specific acceptance of their contents or, in certain categories oftreaties, by state succession to such a treaty when it has beenconcluded by a state to which another state succeeds. Unilateralacts will be binding on the state making them only if they evidencean intention to be bound. That is the question of appreciation, onthe basis of all the facts and the context. The distinction that hasbeen drawn is between an intention to create a binding obligation,and the expression of a mere political intention. The law can signal

the criteria, but the difficult problem of application of the criteriaremains and cannot be short-circuited. Sometimes it is suggestedthat there has been a unilateral assumption of obligations not bystatements made, but by virtue of a state's conduct that is to say,an implicit assumption of obligation. The International Court ofJustice has made clear, in the North Sea Continental Shelf Caseand elsewhere that the unilateral assumption of obligations byconduct is not 'lightly to be presumed' and a 'very consistent courseof conduct' is necessary. Nor is it to be lightly presumed thatunilateral acts amount to a waiver of prior claimed rights. To bebinding, a unilateral act will require to be a representation of fact orpromised conduct, notified to the other party (or at least known byit). A failure to direct the obligation to a specific party will make theassumption of an obligation less likely (Burkina Faso v. Mali Case).

The unilateral act may be in oral or written form.

o Detrimental reliance upon the representation or promise by the

addressee of the unilateral representation or promise is frequentlyreferred to in the writings on unilateral acts. But, properly analysed,detrimental reliance seems more relevant to estoppel than to thebinding nature of the unilateral act. A unilateral act is either bindingor not, depending upon all the circumstances and whether it wasintended to create a legal obligation between the parties. It wouldseem that estoppel through detrimental reliance can operate toprevent such denial even when the unilateral act would not of itselfhave been regarded as binding. The case law seems tolerably clearthat detrimental reliance is distinct from the assumption of legal

obligation (e.g. Eastern Greenland case and Nuclear Test case).

Less clear is whether detrimental reliance really is required forestoppels to operate, Although the literature generallv assumes thisto be a requirement, the case law is more ambiguous.

Conclusion: Thirlway takes the view that at the end of the day IL is what

the International Court of Justice would declare it to be. He cautionsagainst a loose approach to the question of sources. But the reality isthat the Court itself often seems to approach the question of sources witha certain looseness. Where the status of a treaty or a resolution at theheart of the very issue under consideration by the Court is invoked, arather rigorous analysis of its status will ensue. But where resolutions ortreaties are invoked somewhat incidentally as evidence of law, a muchlooser approach will suffice. If IL is what the ICJ is likely to say it will be,thenall the intellectual arguments notwithstandingthe Court, as muchas the rest of us, is caught in the psychological moment: resolutions andtreaties apparently do matter.

KURODA vs. JALANDONI (MARCH 26, 1949)

PETITIONER: SHIGENORI KURODA

RESPONDENTS: Major General RAFAEL JALANDONI, Brigadier GeneralCALIXTO DUQUE, Colonel MARGARITO TORALBA, Colonel IRENEOBUENCONSEJO, Colonel PEDRO TABUENA, Major FEDERICO ARANAS ,MELVILLE S. HUSSEY and ROBERT PORTPONENTE: MORAN, C.J.

Kuroda, formerly a Lieutenant-General of the Japanese Imperial Army andCommanding General of the Japanese Imperial Forces in the Philippines during1943 and 1944, who is now charged before a Military Commission convened bythe Chief of Staff of the AFP, with having unlawfully disregarded and failed todischarge his duties as such commander to control the operations of members ofhis command, permitting them to commit brutal atrocities and other high crimesagainst noncombatant civilians and prisoners of the Imperial Japanese Forces, inviolation of the laws and customs of warcomes before this Court seeking toestablish the illegality of Executive Order No. 68 of the President of the RP; toenjoin and prohibit respondents Hussey and Port f rom participating in theprosecution of petitioners case before the Military Commission; and topermanently prohibit respondents from proceeding with the case of petitioner.In support of his case, petitioner tenders the following principal arguments:

First.That EO No. 68, establishing the National War Crimes Office is illegal onthe ground that it violates not only the provisions of our constitutional law but alsoour local laws, to say nothing of the fact (that) the Philippines is not a signatorynor an adherent to the Hague Convention on Rules and Regulations coveringLand Warfare and, therefore, petitioner is charged of crimes not based on law,national and international. Hence, petitioner argues-That in view of the fact thatthis commission has been organized by virtue of an unconstitutional law and an

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illegal order, this commission is without jurisdiction to try the case of thepetitioner.

Second.-That the participation in the prosecution of the case against petitionerbefore the Commission in behalf of the United States of America, of attorneysHussey and Port, who are not attorneys authorized by the Supreme Court topractice law in the Philippines, is a diminution of our personality as anindependent state, and their appointments as prosecutors are a violation of ourConstitution for the reason that they are not qualified to practice law in thePhilippines.

Third.-That Attorneys Hussey and Port have no personality as prosecutors, theUnited States not being a party in interest in the case.

ISSUE 1: WON EO 68 is CONSTITUTIONAL.HELD: YES. IT IS VALID & CONSTITUTIONAL

RP CONSTI ADOPTS THE GENERALLY ACCEPTED PRINCIPLES OF INTLLAW AS PART OF THE LAW OF THE NATION. EO68 and prescribing rules andregulations governing the trial of accused war criminals, was issued by thePresident of the Philippines on the 29th day of July, 1947. This Court holds thatthis order is valid and constitutional. Art. 2 of our Constitution provides in itssection 3, that The Philippines renounces war as an instrument of national policy,

and adopts the generally accepted principles of international law as part of the lawof the nation.

RP PRESIDENT ACTED IN ACCORDANCE WITH PRINCIPLES OF INTL LAW.In accordance with the generally accepted principles of intl law of the present day,including the Hague Convention, the Geneva Convention and significantprecedents of international jurisprudence established by the United Nations, allthose persons, military or civilian, who have been guilty of planning, preparing orwaging a war of aggression and of the commission of crimes and offensesconsequential and incidental thereto, in violation of the laws and customs of war,of humanity and civilization, are held accountable therefor. Consequently, in thepromulgation and enforcement of Executive Order No. 68, the President of thePhilippines has acted in conformity with the generally accepted principles and

policies of international law which are part of our Constitution.

EXERCISE OF COMMANDER-IN-CHIEF POWERS. The promulgation of said EOis an exercise by the President of his powers as Commander in Chief of all ourarmed forces, as upheld by this Court in the case of Yamashita when we saidWar is not ended simply because hostilities have ceased. After cessation ofarmed hostilities, incidents of war may remain pending which should be disposedof as in time of war. An important incident to a conduct of war is the adoption ofmeasures by the military command not only to repel and defeat the enemies butto seize and subject to disciplinary measures those enemies who in their attemptto thwart or impede our military effort have violated the law of war. Indeed, thepower to create a military commission for the trial and punishment of war criminalsis an aspect of waging war. And, in the language of a writer, a military commissionhas jurisdiction so long as a technical state of war continues. This includes the

period of an armistice, or military occupation, up to the effective date of a t reaty ofpeace, and may extend beyond, by treaty agreement. (Cowles, Trial of WarCriminals by Military Tribunals, American Bar Association Journal, June, 1944.)Consequently, the President as Commander in Chief is fully empowered toconsummate this unfinished aspect of war, namely, the trial and punishment ofwar criminals, through the issuance and enforcement of Executive Order No. 68.

ISSUE 2: WON THE MILITARY COMMISSION HAS JURISDICTION TO TRY

KURODA FOR ACT COMMITTED IN VIOLATION OF THE HAGUE & GENEVACONVENTION EVEN IF AT THE TIME THE ALLEGED ACTS WERECOMMITTED RP WAS NOT YET A SIGNATORY.HELD: YES. THEY HAVE JURISDICTION.

THE RULES & REGULATIONS OF THE HAGUE AND GENEVA CONVENTIONSFORM PART OF AND ARE WHOLLY BASED ON THE GENERALLYACCEPTED PRINCIPLES OF INTL LAW. Even if RP is not a signatory to theHague Conv. and signed the Geneva Conv. only in 1947, it cant be denied thatthe rules and regulations of the Hague and Geneva conv. form part of and arewholly based on the generally accepted principles of international law. In fact,these rules and principles were accepted by the 2 belligerent nations, US andJapan, who were signatories to the 2 Conventions. Such rules and principles,therefore, form part of the law of our nation even if RP was not a signatory to theconventions embodying them, for our Consti has been deliberately general andextensive in its scope and is not confined to the recognition of rules and principlesof international law as contained in treaties to which our government may havebeen or shall be a signatory.

EQUALLY BOUND TOGETHER WITH THE US AND WITH JAPAN. Furthermore,when the crimes charged against petitioner were allegedly committed, thePhilippines was under the sovereignty of the US, and thus we were equally boundtogether with the US and with Japan, to the rights and obligations contained in thetreaties between the belligerent countries. These rights and obligations were noterased by our assumption of full sovereignty. If at all, our emergence as a freestate entitles us to enforce the right, on our own, of trying and punishing thosewho committed crimes against our people. In this connection, it is well to

remember what we have said in the case of Laurel vs. Misa (76 Phil., 372): The change of our form of government from Commonwealth to Republic does notaffect the prosecution of those charged with the crime of treason committedduring the Commonwealth, because it is an offense against the same governmentand the same sovereign people...By the same token, war crimes committedagainst our people and our government while we were a Commonwealth, aretriable and punishable by our present Republic.

ISSUE 3: WON THE 2 AMERICAN LAWYERS MAY PARTICIPATE IN THEPROSECUTION.HELD: YES.

MILITARY COMMISSION IS A SPECIAL MILITARY TRIBUNAL GOVERNED BYA SPECIAL LAW AND NOT BY THE RULES OF COURT.

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two American attorneys, Hussey and Port, in the prosecution the case wasquestioned on the ground that said attorneys are not qualified to practice law inthe RP in accordance with our Rules of Court and the appointment of saidattorneys as prosecutors is violative of our national sovereignty. The Court did notagree since the Military Commission is a special military tribunal governed by aspecial law and not by the Rules of Court which govern ordinary civil courts. It hasalready been shown that EO 68 which provides for the organization of suchmilitary commissions is a valid and constitutional law. There is nothing in said

executive order which requires that counsel appearing before said commissionsmust be attorneys qualified to practice law in the Philippines in accordance withthe Rules of Court. In fact, it is common in military tribunals that counsel for theparties are usually military personnel who are neither attorneys nor evenpossessed of legal t raining.

APPLICATION OF PRINCIPLE OF COMITY. The appointment of the twoAmerican attorneys is not violative of our national sovereignty. It is only fair andproper that the US, which has submitted the vindication of crimes against hergovernment and her people to a tribunal of our nation, should be allowedrepresentation in the trial of those very crimes. If there has been anyrelinquishment of sovereignty, it has not been by our government but by the USGovernment which has yielded to us the trial and punishment of her enemies. Theleast that we could do in the spirit of comity is to allow them representation in saidtrials.

U.S. IS A PARTY-IN-INTEREST. Alleging that the US is not a party in interest inthe case, petitioner challenges the personality of attorneys Hussey and Port asprosecutors. It is of common knowledge that the United States and its peoplehave been equally, if not more greatly, aggrieved by the crimes with whichpetitioner stands charged before the Military Commission. It can be considered aprivilege for our Republic that a leader nation should submit the vindication of thehonor of its citizens and its government to a military tribunal of our country.

DISPOSITION: The Military Commission having been convened by virtue of avalid law, with jurisdiction over the crimes charged which fall under the provisionsof Executive Order No. 68, and having jurisdiction over the person of the petitioner

by having said petitioner in its custody, this Court will not interfere with the dueprocesses of such Military Commission.

Paras, Feria, Pablo, Bengzon, Briones, Tuason, Montemayor, and Reyes, JJ.,concur.

PERFECTO. J., Dissenting: (his opinion contained a copy of E.O. No. 68,refer to the orig.)

A military commission was created on December 1, 1948, to try Lt. Gen. Kurodafor violation of the laws and customs of land warfare. Hussey and Port, Americancitizens and not authorized by the SC to practice law, were appointed prosecutorsrepresenting the American CIC in the tr ial of the case.The charges against

petitioner has been filed since June 26, 1948, in the name of the People of thePhilippines as accusers.

HUSSEY & PORT CANT NOT APPEAR AS PROSECUTORS. There could notbe any question that said persons cannot appear as prosecutors in petitionerscase, as with such appearance they would be practicing law against the law.

THE LEGISLATIVE POWER IS TO BE EXERCISED EXCLUSIVELY BY

CONGRESS. EO 68 is a veritable piece of legislative measure, without the benefitof congressional enactment. The Constitution provides:The Legislative powers shall be vested in a Congress of the Philippines, whichshall consist of a Senate and a House of Representatives. (Section 1, Article VI.)While there is no express provision in the fundamental law prohibiting the exerciseof legislative power by agencies other than Congress, a reading of the wholecontext of the Constitution would dispel any doubt as to the constitutional intentthat the legislative power is to be exercised exclusively by Congress, subject onlyto the veto power of the President of the Philippines, to the specific provisionswhich allow the President of the Philippines to suspend the privileges of the writ ofhabeas corpus and to place any part of the Philippines under martial law, and tothe rule-making power expressly vested by the Constitution in the Supreme Court.There cannot be any question that the members of the Constitutional Conventionwere believers in the tripartite system of government as originally enunciated byAristotle. Because the powers vested by our Constitution to the severaldepartments of the government are in the nature of grants, not a recognition ofpre-existing powers, no department of government may exercise any power orauthority not expressly granted by the Constitution or by law by virtue of expressauthority of the Constitution.

EO 68 IS ESSENTIALLY LEGISLATIVE. Executive Order No. 68 establishes aNational War Crimes Office, and the power to establish government office isessentially legislative.The order provides that persons accused as war criminalsshall be tried by military commissions. Whether such a provision is substantive oradjective, it is clearly legislative in nature. It confers upon military commissionsjurisdiction to try all persons charged with war crimes. The power to define andallocate jurisdiction for the prosecution of persons accused of any crime is

exclusively vested by the Constitution in Congress. It provides rules of procedurefor the conduct of trials. This provision on procedural subject constitutes ausurpation of the rule-making power vested by the Constitution in the SupremeCourt. It authorizes military commissions to adopt additional rules of procedure. Ifthe President of the Philippines cannot exercise the rule-making power vested bythe Constitution in the Supreme Court, he cannot, with more reason, delegate thatpower to military commissions. It appropriates the sum of P700,000 for theexpenses of the National War Crimes Office established by the said ExecutiveOrder No. 69. This constitutes another usurpation of legislative power as thepower to vote appropriations belongs to Congress. Executive Order No. 68, is,therefore, null and void, because, through it, the President of the Philippinesusurped powers expressly vested by the Constitution in Congress and in theSupreme Court.

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EMERGENCY POWERS GRANTED TO THE PRES. BY COMMONWEALTHACT NO. 600, AS AMENDED BY COMMONWEALTH ACT NO. 620, ANDCOMMONWEALTH ACT NO. 671 CANNOT BE INVOKED. Challenged to showthe constitutional or legal authority under which the President of the Philippinesissued Executive Order No. 68, respondents could not give any definite answer.They attempted, however, to suggest that the President of the Philippines issuedExecutive Order No. 68 under the emergency powers granted to him byCommonwealth Act No. 600, as amended by Commonwealth Act No. 620, and

Commonwealth Act No. 671 [empowering the President to declare a State ofEmergency during a period of war and authorizing him to promulgate rules] (referto original for copy of said laws.) The Acts cannot validly be invoked, becausethey ceased to have any effect much before Executive Order No. 68 was issuedon July 29, 1947. Said Acts had elapsed upon the liberation of the Philippinesfrom the Japanese forces or, at the latest, when the surrender of Japan wassigned in Tokyo on September 2, 1945. Ssaid measures were enacted by theSecond National Assembly for the purpose of facing the emergency of animpending war and of the Pacific War that finally broke out with the attack of PearlHarbor on December 7, 1941. We approved said extraordinary measures, bywhich, under the exceptional circumstances then prevailing, legislative powerswere delegated to the President of the Philippines, by virtue of the followingprovisions of the Constitution:

In times of war or other national emergency, the Congress may by law authorizethe President, for a limited period and subject to such restrictions as it mayprescribe, to promulgate rules and regulations to carry out a declared nationalpolicy. (Article VI, section 26.)

It has never been the purpose of the National Assembly to extend the delegationbeyond the emergency created by the war, as to extend it farther would beviolative of the express provisions of the Constitution. We are of the opinion thatthere is no doubt on this question; but if there could still be any, the same shouldbe resolved in favor of the presumption that the National Assembly did not intendto violate the fundamental law. Only a few months after liberation and even beforethe surrender of Japan, or since the middle of 1945, the Congress started tofunction normally. The President still exercising legislative power in the form of

executive orders, under the so-called emergency powers would lead to a situationpregnant with dangers to peace and order, to the rights and liberties of the people,and to Philippine democracy.

VIOLATIVE OF DUE PROCESS & EQUAL PROTECTION. EO No. 68 is equallyoffensive to the Constitution because it violates the fundamental guarantees of thedue process and equal protection of the law. It is especially so, because it permitsthe admission of many kinds of evidence by which no innocent person can affordto get acquittal, and by which it is impossible to determine whether an accused isguilty or not beyond all reasonable doubt. The rules of evidence adopted inExecutive Order No. 68 are a reproduction of the regulations governing the trial oftwelve criminals, issued by General Douglas MacArthur, Commander in Chief ofthe United States Armed Forces in Western Pacific, for the purpose of trying,among others, Generals Yamashita and Homma. What we said in our concurring

and dissenting opinion to the decision promulgated in the Yamashita case, and inour concurring and dissenting opinion to the resolution disposing the Hommacase, are perfectly applicable to the offensive rules of evidence embodied in EO68. Said rules of evidence are repugnant to conscience as under them no justicecan be expected.

For all the foregoing, conformably with our position in the Yamasita and Hommacases, we vote to declare Executive Order No. 68 null and void and to grant the

petition. Petition denied.

YAMASHITA vs. STYER (Dec. 19, 1945)Petitioner: Tomoyuki YamashitaRespondent: Wilhelm D. Styer, Commanding General, United States ArmyForces, Western PacificNature: Original action in the Supreme Court. Habeas corpus and prohibition.Ponente: Moran, C.J.

PETITION FOR HABEAS CORPUS, PROHIBITION. Tomoyuki Yamashita wasformer commanding general of the 14th army group of the Japanese ImperialArmy in the Philippines, and now charged before an American MilitaryCommission (MC) with the most monstrous crimes ever committed against theAmericans and Filipinos. This is his petition for habeas corpus and prohibitionagainst Lt. Gen. Wilhelm D. Styer. Yamashita became a prisoner of war (POW) ofthe US when he surrendered, but his status was later changed when he wasconfined as an accused war criminal charged before an MC constituted by Styer;and he now asks that he be reinstated to his former POW status, and that the MCbe prohibited from further trying him, upon the following grounds:

(1) That the MC was not duly constituted, and, therefore without jurisdiction;(2) That the Philippines cannot be considered as an occupied territory, and theMC cannot exercise jurisdiction therein;(3) That Spain, the "protecting power" of Japan, has not been given notice of theimpending trial against Yamashita, contrary to the provisions of the GenevaConvention of July 27, 1929, and therefore, the MC has no jurisdiction to try him;

(4) That there is against him no charge of an offense against the laws of war; and(5) That the rules of procedure and evidence under which the MC purports to beacting denied him a fair trial.

ISSUE: WON his petition for habeas corpus is tenable.HELD: NO.

Habeas corpus improper when release isnt sought. His petition seeks nodischarge from confinement but merely his restoration to his former POW status -to be interned, not confined. The relative difference as to the degree ofconfinement in such cases is a matter of military measure, disciplinary incharacter, beyond the jurisdiction of civil courts.

ISSUE: WON his petition for prohibition against Styer will prosper.

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HELD: NO.

PROHIBIYION CANT ISSUE VS 1 NOT MADE A PARTY. Neither may thepetition for prohibition prosper. The MC is not made party respondent in this case,and although it may be acting, as alleged, without jurisdiction, no order may beissued in these proceedings requiring it to refrain from trying Yamashita.

CIVIL COURTS WITHOUT JURISDICTION OVER US ARMY DURING WAR.

Furthermore, this Court has no jurisdiction to entertain the petition even if thecommission be joined as respondent. As held in Raquiza vs. Bradford, "anattempt of our civil courts to exercise jurisdiction over the US Army before suchperiod (state of war) expires, would be considered as a violation of this country'sfaith" especially as here the person confined is an enemy charged with the mostheinous atrocities committed against Americans and Filipinos.

There is some doubt as to whether war has already ended. War is not endedsimply because hostilities have ceased. After cessation of armed hostilities,incidents of war may remain pending which should be disposed of as in time ofwar. As held in Ex parte Quirin (note a US case), "an important incident to aconduct of war is the adoption of measures by the military command not only torepel and defeat the enemies but to seize and subject to disciplinary measuresthose enemies who in their attempt to thwart or impede our military effort haveviolated the law of war." Indeed, the power to create a MC for the trial andpunishment of war criminals is an aspect of waging war. And a MC "hasjurisdiction so long as a technical state of war continues. This includes the periodof an armistice, or military occupation, up to the effective date of a treaty of peace,and may extend beyond, by treaty agreement." (Cowles, Trial of War Criminals byMilitary Tribunals.)

ISSUE: WON the MC has jurisdiction.HELD: YES.

THE PAYOMO DOCTRINEAs held in Payomo vs. Floyd, and this is applicable intime of war as well as in time of peace, this Court has no power to review uponhabeas corpus the proceedings of a military or naval tribunal, and that, in such

case, "the single inquiry, the test, is jurisdiction. That being established, thehabeas corpus must be denied and the petitioner remanded." (In re Grimley also a US case). Following this rule, we find that the MC has been validlyconstituted and it has jurisdiction both over the person of the petitioner and overthe offenses with which he is charged.

MILITARY COMMANDERS WITH POWER OVER MILITARY COMMISSIONS.The Commission has been validly constituted by Styler by order duly issued byGen. Douglas MacArthur, Commander in Chief, US Army Forces, Pacific, inaccordance with authority vested in him. Under paragraph 356 of the Rules ofLand Warfare, a MC for the trial and punishment of war criminals must bedesignated by the belligerent. And the belligerent's representative here is noneother than Gen. MacArthur. Articles of War Nos. 12 and 15 recognize the MCappointed by military command as an appropriate tribunal for the trial and

punishment of offenses against the law of war not ordinarily tried by court martial.Under the laws of war, a military commander has an implied power to appoint andconvene a MC. This is upon the theory that since the power to create a MC is anaspect of waging war, Military Commanders have that power unless expresslywithdrawn from them.

JURISDICTION OF THE MC. The MC thus duly constituted has jurisdiction bothover the person of Yamashita and over the offenses with which he is charged. It

has jurisdiction over his person by reason of his having fallen into the hands of theUS Army Forces. Under paragraph 347 of the Rules of Land Warfare, "thecommanders ordering the commission of such acts, or under whose authority theyare committed by their troops, may be punished by the belligerent into whosehands they may fall."

As to the jurisdiction of the MC over war crimes, the US SC said in Ex ParteQuirin: "From the very beginning of its history this Court has recognized andapplied the law of war as including that part of the law of nations which prescribes,for the conduct of war, the status, rights and duties of enemy nations as well as ofenemy individuals. By the Articles of War, and especially Article 15, Congress hasexplicitly provided, so far as it may constitutionally do so, that military tribunalsshall have jurisdiction to try offenders or offenses against the law of war inappropriate cases. Congress, in addition to making rules for the government ofour Armed Forces, has thus exercised its authority to define and punish offensesagainst the law of nations by sanctioning, within constitutional limitations, thejurisdiction of MCs to try persons and offenses which, according to the rules andprecepts of the law of nations, and more particularly the law of war, are cognizableby such tribunals."

Yamashita is charged before the MC sitting at Manila with having permittedmembers of his command "to commit brutal atrocities and other high crimesagainst the people of the US and of its allies and dependencies, particularly thePhilippines," (i.e. cruel and brutal massacre of civilians, devastation anddestruction of properties). These are offenses against the laws of war asdescribed in paragraph 347 of the Rules of Land Warfare.

ISSUE: WON the Philippines is an occupied territory of the US.HELD: YES.

AN OCCUPIED TERRITORY.According to the Regulations Governing the Trial ofWar Criminals in the Pacific, "the MC shall have jurisdiction over all of Japan andother areas occupied by the armed forces. The US Forces have occupied thePhilippines for the purpose of liberating the Filipino people from the shackles ofJapanese tyranny, and the creation of a MC for the trial and punishment ofJapanese war criminals is an incident of such war of liberation.

ISSUE: WON notice to Spain is required.HELD: NO.

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NOTICE NOT A PREREQUISITE. The Geneva Convention does not state thatnotice is a prerequisite to the jurisdiction of MCs appointed by the victoriousbelligerent. However, the unconditional surrender of Japan and her acceptance ofthe terms of the Potsdam Ultimatum are a clear waiver of such a notice. AlsoSpain has severed her diplomatic relations with Japan because of atrocitiescommitted by the Japanese troops against Spaniards in the Philippines.Apparently, therefore, Spain has ceased to be the protecting power of Japan.

ISSUE: WON Yamashita was denied a fair trial.HELD: This issue cannot be reviewed in a petition for habeas corpus.

PROCEDURE, NOT PROPER. The supposed irregularities committed by the MCin the admission of allegedly immaterial or hearsay evidence cannot divest thecommission of its jurisdiction and cannot be reviewed in a petition for habeascorpus.

For all the foregoing, petition is hereby dismissed, without costs.

Jaranilla, Feria, De Joya, Pablo, Hilado, Bengzon,and Briones, J.J., concur.

PARAS, J. I concur in the result.

OZAETA, J., concurring and dissenting:

LEGALLY CONSTITUTED THUS WITH JURISDICTION. I concur in the dismissalof the petition for habeas corpus and prohibition on the ground that the MC tryingYamashita has been legally constituted, and that such tribunal has jurisdiction totry and punish him for offenses against the law of war. (Ex parte Quirin)

RAQUIZA INAPPLICABLE. I dissent from that portion of the opinion which citesand applies its decision in Raquiza, to the effect that an attempt of our civil courtsto exercise jurisdiction over the US Army would be considered a violation of thiscountry's faith. The decision in Raquiza, from which I dissented, was based mainlyon the case of Coleman vs. Tennessee in which was mentioned merely by way ofargument the rule of international law to the effect that a foreign army, permitted to

march through a friendly country to be stationed in it, by permission of itsgovernment or sovereign, is exempt from the civil and criminal jurisdiction of theplace. After reviewing the facts and the ruling of the court in the Coleman case, Isaid in my dissent:

"Thus it is clear that the rule of international law above mentioned formed no partof the holding of the court in the said case Neither can such rule of internationallaw of itself be applicable to the relation between the Philippines and the US, forthe reason that the former is still under the sovereignty of the latter. The US Armyis not foreign to the Philippines. It is here not by permission or invitation of thePhilippine Government but by right of sovereignty of the US over the Philippines...The US has the same obligation to defend and protect the Philippines, as it has todefend and protect Hawaii or California, from foreign invasion. The citizens of the

Philippines owe the same allegiance to the USA as the citizens of any territory orState of the Union."The rule of international law mentioned in the Coleman case and erroneouslyapplied by analogy in the Raquiza case, has likewise no application whatever tothe case at bar.PERFECTO, J., concurring and dissenting:(From the reviewer: according to Justice Perfecto, the legal basis is customary

international law, specifically IHL the laws and customs of warfare.)

YAMASHITA SURRENDERS. Before Sept. 3, 1945, Yamashita was thecommanding general of the 14th Army Group of the Imperial Japanese Army inthe Philippines. On said date, he surrendered to the US Army at Baguio andbecame a POW of the US and was interned in New Bilibid Prison, in conformitywith the provision of article 9 of the Geneva Convention, relative to the treatmentof POWs, and of paragraph 82 of the Rules of Land Warfare of the United StatesWar Department.

WAR CRIMINAL. On Oct. 2, Styer charged Yamashita for violation of the laws ofwar, and it was alleged that between Oct. 9, 1944 to Sept. 2, 1945, Yamashitawhile commander of the armed forces of Japan, unlawfully disregarded and failedto discharge his duty as commander to control the operations of the members ofhis command, permitting them to commit brutal atrocities and other high crimesagainst the Americans and their allies, particularly the Filipinos. Thus Yamashitalost his POW status and was confined as an accused war criminal.

MILITARY COMMISSION. On Oct. 1, 1945, a MC was appointed to tryYamashita. At the same time several officers were designated to conduct theprosecution and several others to act as defense counsel. The MC was instructedto follow the provisions of the Sept. 24, 1945 letter, and was empowered to "makesuch rules for the conduct of the proceedings as it shall deem necessary for a fulland fair trial of the person before it. Such evidence shall be admitted as would, inthe opinion of the president of the commission, have probative value to areasonable man and is relevant and material to the charges before thecommission On the same day, by command of Gen. MacArthur, Styer was

instructed to immediately proceed with Yamashitas trial. Upon arraignment onOct. 8, Yamashita entered a plea of not guilty. The bill of particulars, along with thesupplemental bill of particulars, imputed 123 crimes to Yamashita. On Oct. 19, thedefense filed a motion to dismiss the case as the charge "fails to state a violationof the laws of war by the accused, and that the commission has no jurisdiction totry this cause." This was denied.

TRIAL. On the first day of trial, the prosecution offered in evidence an affidavit ofNaukata Utsunomia executed on Oct. 1 and subscribed and sworn to beforeCaptain Jerome Richard. The defense objected to the admission of the affidavit,invoking to said effect article 25 of the Articles of War prohibiting the introductionof depositions by the prosecution in a capital case in proceedings before a courtmartial or a MC. Hearsay evidence was also offered, but the defenses objection

to this was overruled. The defense counsel alleged then that the admission ofAlways will b

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hearsay evidence was against Article of War 38, the manual for courts-martial,and the rules of evidence in criminal cases in the district courts of the US.

Yamashita alleges that violations of legal rules of evidence have continued andare continuing during the trial. At the opening of the trial, "the prosecution statedthat no notice of impending trial had been given the protecting power of Japan bythe United States," such notice being required by article 60 of the GenevaConvention and of paragraph 133 of the Rules of Land Warfare, US War

Department.

Yamashita maintains that his confinement and trial as a war criminal are illegaland in violation of articles 1 and 3 of the Constitution of the US and its FifthAmendment, and article 3 of the Constitution of the Philippines, and of certainprovisions of the Geneva Convention.

ISSUE: WON Yamashitas rights are violated by his prosecution (he is deprived ofhis rights in this proceeding).HELD: NO.

POWS SUBJECT TO LAWS IN FORCE IN DETAINING ARMY. The Rules ofLand Warfare provide that "at the opening of a judicial proceeding directed againsta POW the detaining power shall advise the representative of the protectingpower thereof as soon as possible, and always before the date set for the openingof the trial. Article VIII of the Convention respecting the laws and customs of waron land provides: "POWs shall be subject to the laws, regulations, and orders inforce in the army of the State into whose hands they have fallen." Section 59 ofGeneral Orders No. 100, containing instructions for the government of US armiesin the field provides: "A POW remains answerable for his crimes committedagainst the captor's army or people, committed before he was captured, and forwhich he has not been punished by his own authorities."

HUMANE TREATMENT OF PRISONERS FROM ANCIENT GREECE, ROME.Many of the basic ideas which prevail today in the customs and usages of nationsand became part of the international law emerged from the human mind centuriesbefore the Christian Era. Such is the idea that prisoners of war are entitled to

humane treatment, that treasons of war should be discountenanced, and thatbelligerents must abstain from causing harm to non-combatants.

Some examples: In 427 B.C., when Alcibiades killed most of his captives includingthose who havent been in open hostilities against him, the Samian exilesremonstrated him. When the Mytileneans revolted from Athens, while anassembly initially ordered the Mytilenean males be killed, this was later revoked.Greeks did much to humanize warfare and to remove it from the atrocities whichprevailed amongst the most of the nations of antiquity. The Roman policy was lessrigorous than the Greeks. As stated by Virgilius, "the Roman policy from the firstwas, on the one hand, debellare super boo, to subdue the proud and arrogantpeoples and, on the other,parcellare subiectes, to spare those who havesubmitted." A rule existed in Rome which prohibited the killing or enslaving of mencaptured in conquered cities, and the devastation of the territories. Poets,

philosophers, artists, and men of intellectual distinction in general, thoughregarded as enemies, were honored and respected. Temples, priest, andembassies were considered inviolable. The right of sanctuary was universallyrecognized. Mercy was shown to suppliant and helpless captives. Safe-conductswere granted and respected. Burial of dead was permitted, and graves wereunmolested. It was considered wrong to cut off or poison the enemy's watersupply, or to make use of poisonous weapons.

ENTITLED TO ALL GUARANTEES ACCORDED TO PRISONERS. Impelled byirrepressible endeavors aimed towards the ideal, by the unconquerable naturalurge for improvement, by the unquenchable thirstiness of perfection in all ordersof life, humanity has been struggling during the last two dozen centuries todevelop an international law which could answer more and more faithfully thedemands of right and justice as expressed in principles which, weakly enunciatedat first in the rudimentary juristic sense of peoples of antiquity, by the inherentpower of their universal appeal to human conscience, at last were accepted,recognized, and consecrated by all the civilized nations of the world. Under theseprinciples, Yamashita is entitled to be accorded all the guarantees, protections,and defenses that all prisoners should have, according to the customs andusages, conventions and treaties, judicial decisions and executivepronouncements, and generally accepted opinions of thinkers, legal philosophersand other expounders of just rules and principles of international law. Theseriousness or unfathomable gravity of the charges against him must not be takeninto consideration in order that true justice may be administered in this case.

TREATMENT OF WAR CRIMINALS. "There is very little limitation on what avictorious nation can do with a vanquished State at the close of a war. Oneshudders to think what Germany and Japan would do if they were the victors! Butthe common law of nations probably requires a fair trial of offenders against warlaw as a prerequisite to punishment for alleged offenses; and the GenevaConvention so prescribed in the case of POWs. But in the final analysis a decentrespect for the opinion of mankind and the judgment of history is, in effect, avictorious belligerent's main limitation on its treatment of the surrendered at theclose of a war; and this is self-imposed. (Sheldon Glueck, War Criminals)."Formalized vengeance can bring only ephemeral satisfaction, with every

probability of ultimate regret; but vindication of law through legal process maycontribute substantially to the re-establishment of order and decency ininternational relations." (Report of the Subcommittee on the Trial and Punishmentof War Crimes). Centuries of civilization stretched between the summary slayingof the defeated in a war, and the employment of familiar process and protectionsof justice according to law to air the extent and nature of individual guilt and inthe civilized administration of justice, even the most loathsome criminal caughtredhanded must be given his day in court and an opportunity to interpose suchdefenses as he may have." (Sheldon Glueck)

TRIAL TO BE HELD WHERE THE ATROCITIES WERE DONE. The vast majorityof offenders will be tried in the domestic criminal or military tribunals of the injurednations. President Roosevelt, in condemning the crimes committed against thecivil population in occupied lands, announced that "the time will come when the

Always will b

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criminals will have to stand in courts of law in the very countries which they arenow oppressing, and to answer for their acts."

INTERNATIONAL TRIBUNAL.At the end of World War I, some Americanmembers of the commission on responsibilities opposed the creation of aninternational high tribunal on the grounds that it was unprecedented and that thereexisted no international statute or convention making violations of the laws andcustoms of warfare international crimes, defining such offenses more specifically

than the definitions to be found in the prohibitions of the unwritten or written law ofnations, affixing a specific punishment to each crime, and giving jurisdiction to aworld court. But Dr. Glueck believes that:

Provided the international tribunal affords as adequate a trial as the accusedwould have had in the court of any injured belligerent, he has no valid ground forcomplaint all courts were at one time unprecedented. The problems presentedby our epoch are unprecedented Can history show a better age than our own toinitiate a series of much-needed precedents? Few symbols of this new era whichheralds the neighborly cooperation of civilized peoples in the vindication of thelaws of civilized nations would be more impressive than an international criminalcourt, in which the plaintiff would be the world community The internationalcriminal court would be a more vivid symbol of the reign of justice of aninternational plane than even the permanent court at The Hague has been. In

domestic polity, the administration of criminal justice is the strongest pillar ofgovernment. The doing of justice on an international plane and under internationalauspices is even more important. It is indispensable to the survival, in theintercourse of nations, of the very traditions of law and justice The peerless andefficient administration of justice in the case of Axis war criminals is todayindispensable as a token to the peoples of the world, a sign that crimes committedby one country's subject against the people of another member of the family ofnations will be relentlessly punished even though they run into huge numbers,were committed by men in uniform, and are instigated by a Fuehrer endowed byhimself and his intoxicated followers with the attributes of a demigod."

"Adequate law for use by an international court now exists; and its enforcementby such a tribunal would violate no fundamental tenets of civilized nations. The

law for an international tribunal can be drawn from the rich reservoirs of commonand conventional law of nations and the principles, doctrines, and standards ofcriminal law that constitute the common denominator of all civilized penal codesThe punishment to be imposed by the international tribunal could be basedeither upon the punishments permitted by the law of nations in the case of piracyand violations of the laws and customs of warfare or upon those provided forcrimes of similar nature and gr

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