NUREMBERG TRIALS

Held 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 TRIALS

Shortly after Adolf Hitler came 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 of World 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
the American 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: 1945-46

The 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) and Joseph 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: 1946-49

Following 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.

AFTERMATH
The Nuremberg trials were controversial even among those who wanted the major criminals punished. Harlan Stone (18721946), chief justice of the U.S. Supreme Court at the time, described the proceedings as a sanctimonious fraud and a highgrade 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-australianew.html#sthash.t5IzpFTU.dpuf

TEXACO vs LIBYA
Brief 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 Royal

178

Decrees 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 of pacta sunt servanda which 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 I Facts above). 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 PREVENTION

AND PUNISHMENT OF THE CRIME OF GENOCIDE
Advisory Opinion of 28 May 1951
The 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 AND

CONSULAR STAFF IN TEHRAN
Judgment of 24 May 1980
In 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 paragraphs 1, 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
15 December 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 and16 March 1980 respectively. In these the Minister maintained inter alia that 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 United States 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 declaring persona non "rata members 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 24-25 April 1980, 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 JUDGMENT
THE COURT,* [Composed as follows: President Sir Humphrey Waldock; Vice-President Elias; Judges Forster, Gros, Lachs,
Morozov, Nagendra Singh, Ruda, Mosler, Tarazi, Oda, Ago, El-Erian, Sette-Camara and Baxter.]
1. By thirteen votes [President Sir Humphrey Waldock; Vice-President Elias; Judges Forster, Gros, Lachs, Nagendra Singh,
Ruda, Mosler, Oda, Ago, El-Erian, Sette-Camara and Baxter.] to two [Judges Morozov and Tarazi.],
Decides that 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 [President Sir Humphrey Waldock; Vice-President Elias; Judges Forster, Gros, Lachs, Nagendra Singh,
Ruda, Mosler, Oda, Ago, El-Erian, Sette-Camara and Baxter.] to two [Judges Morozov and Tarazi.],
Decides that 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,
Decides that 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,
Decides 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. By twelve votes [President Sir Humphrey Waldock; Vice-President Elias; Judges Forster, Gros, Nagendra Singh, Ruda,
Mosler, Oda, Ago, El-Erian, Sette-Camara and Baxter.] to three [JudgesLachs, Morozov and Tarazi.],
Decides that 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 [President Sir Humphrey Waldock; Vice-President Elias; Judges Forster, Gros, Lachs, Nagendra Singh,
Ruda, Mosler, Tarazi, Oda, Ago, El-Erian, Sette-Camara and Baxter.] to one [Judge Morozov.],
Decides that 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 JUDGMENT

Judge Lachs indicated 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 thirdparty 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 Morozov indicates 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 United States, 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 United States 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, 1963

RAMON 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 herein1 for 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 or any 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 foods directly from those tenants,
farmers, growers, producers and landowners in the Philippines who 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,2 is 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",3 or where the controverted act
is "patently illegal" or was performed without jurisdiction or in excess of jurisdiction,4 or 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,5 unless actually
disapproved by him,6 or where there are circumstances indicating the urgency of judicial intervention.7 The 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;8 that 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 without waiting 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 thereof all importations of rice and corn into the Philippines". Pursuant to Republic Act No. 2207, "it
shall be unlawful for any person, association, corporation orgovernment agency to import rice and corn into any point in the
Philippines", although, by way of exception, it adds, that "the President of the Philippines may 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 or any 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 by the "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 "that the importation of rice and corn is left to private parties upon payment of
the corresponding taxes", thus indicating that only "private parties" may import rice under its provisions; and
3. 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 a public official and/or employees", he shall be subject to the additional penalty
specified therein. A public official is an officer of 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 employee of the Government" who "violates, abets or tolerates the violation of any
provision" of said Act. Hence, the intent to apply the same to transactions made by the very government is patent.
Indeed, the restrictions imposed in said Republic Acts are merely additional to those prescribed in Commonwealth Act No.
138, entitled "An Act to give native products and domestic entities the preference in the purchase of articles for the
Government." Pursuant to Section 1 thereof:
The Purchase and Equipment Division of the Government of the Philippines and other officers and employees of the
municipal and provincial governments and the Government of the Philippines and 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 shall give preference to materials ...
produced ... in the Philippines or in the United States, and to domestic entities, subject to the conditions hereinbelow
specified. (Emphasis supplied.)
Under this provision, in all purchases by 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
a national reserve in such quantities as it may deem proper and necessary to meet any 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 or emergencies ...". (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 by other laws 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 cited10 shows that Corwin
referred to the powers of the President during "war time"11 or when he has placed the country or a part thereof under "martial
law".12 Since 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, without a declaration of the Executive to that effect. What is worse, it would
keep us perpetually under 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 argument might have some 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
stockpile of the Army not the 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 the compliance with 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 Burma
It 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 agreements without previous
legislative authority, he may not, by executive agreement, enter into a transaction which is prohibited by 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, by indirectly repealing the same through an executive
agreement providing for the performance of the very act prohibited by said laws.
The American theory to the effect that, in the event of conflict between a treaty and 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, alsoinsist that 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
the constitutionality or validity of any treaty, 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 does not render this case academic,
Republic Act No. 2207 enjoins our Government not from entering into contracts for the purchase of rice, but
from importing rice, 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 corn directlyfrom our local planters, growers or
landowners; and (b) it prohibits importations of rice by the Government, and leaves such importations to private parties. The
pivotal issue in this case is whether the proposed importation 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 with without importing the 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, 1976

GUERRERO'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 complaint 1 with the National
Labor Relations Commission 2 docketed 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. 3 This 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 the
parties. 4
Respondent 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 Resolution 5ordering 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-incharge 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. 6 On January 22, 1974, Santiago A. Guerrero) appealed the decision to the President of the Philippines, 7 but 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. 8
In the meantime, the Provincial Director of the Labor Office in Zambales furnished, on August 2, 1974, petitioner 9a list of fortysix (46) members of respondent union BTEA-KILUSAN and former drivers of the Blaylock Transport Service, 10 who 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, 1974 11 from 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. 12 On 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. 13 In his 1st endorsement dated March 26, 1975, Secretary Zamora required the Secretary of
Labor to verify petitioner's allegations. 14 On 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." 15
On 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". 16
On July 16,1975, respondent BTEA-KILUSAN filed a Motion for Issuance of Writ of Execution with respondent Labor
Arbiter, 17 but 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. 18
On September 1, 1975, the Provincial Director of the Zambales Labor Office, pursuant to the directive of the Secretary of
Labor, 19 and the NLRC Resolution dated October 21, 1975 20 submitted 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. 21
On September 25, 1975, respondent Labor Arbiter, acting on the motion for execution filed by respondent union BTEAKILUSAN, 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, 1975.22
On 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, 23 and 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 were bona fide employees of the Blaybock Transportation Service at the time its concession
expired:
2) that the appellants shall pass final screening and approval by the appropriate authorities of the U.S. Base
concerned.
The applicants to be processed for 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. 24
On 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 the bona fide employees 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 are bona fide employees 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 show whether the applicants are such employees. Further, we feel that
such employment will likewise appear in the records of the U. S. Naval Base at Olongapo City since persons
connected with the Base like the applicants, have to undergo processing by naval authority.

WHEREFORE, in view of the foregoing considerations, copies of this Order together with Annex "A" hereof
are hereby transmitted to the Base Commander, U. S. Naval Base , Olongapo City with the request for the
immediate screening and approval of said applicants, in accordance with applicable rules of that
command. 25
Pursuant to Section 6 of Article I of the Philippine-U S. Labor Agreement of May 27, 1968, the United States Armed Forces
undertook, consistent with military requirements, "to provide security for employment, and, in the event certain services are
contracted out, the United States Armed Forces shall require the contractor or concessioner to give priority consideration to
affected employees for employment. (Emphasis supplied.)
A treaty has two (2) aspects as an international agreement between states, and as municipal law for the people of each
state to observe. As part of the municipal law, the aforesaid provision of the treaty enters into and forms part of the contract
between petitioner and the U.S. Naval Base authorities. In view of said stipulation, the new contractor is, therefore, bound to
give "priority" to the employment of the qualified employees of the previous contractor. It is obviously in recognition of such
obligation that petitioner entered into the afore-mentioned Compromise Agreement.
As above indicated, under the Compromise Agreement as embodied in the Resolution of this Court dated October 24, 1975,
the parties agreed to submit to the Secretary of Labor the determination as to who of the members of the respondent union
BTEA-KILUSAN shall be absorbed or employed by the herein petitioner Guerrero's Transport Services, Inc., and that such
determination shall be considered as final. In connection therewith, the Secretary of Labor issued an Order dated November
13, 1975, directing the National Labor Relations Commission, through Labor Arbiter Francisco de los Reyes, to implement the
absorption of the 175 members 26into the Guerrero's Transport Services, subject to the following conditions, viz.: (a) that they
were bona fide employees of the Blaylock Transport Service at the time its concession expired; and (b) that they should pass
final screening and approval by the appropriate authorities of the U.S. Naval Base concerned. According to private
respondent, however, Commander Vertplaetse of the U.S. Navy Exchange declined to implement the order of the Labor
Arbiter, as it is the petitioner who should request for the screening and approval of the applicants.
Considering that the afore-mentioned Compromise-Agreement of the parties, as approved by this Court, is more than a mere
contract and has the force and effect of any other judgment, it is, therefore, conclusive upon the [parties and their
privies. 27 For it is settled that a compromise has, upon the parties, the effect and authority of res judicata and is enforceable
by execution upon approval by the court. 28 Since the resolution of the NLRC of October 31, 1973 required the absorption of
the applicants subject to the conditions therein contained, and there being no showing that such conditions were complied
with, the Labor Arbiter exceeded his authority in awarding back wages to the 129 complainants.
ACCORDINGLY, judgment is hereby rendered ordering petitioner to employ members of respondent labor union BTEAKILUSAN referred to in the Order of the Secretary of Labor dated November 13, 1975 who satisfy the criteria enunciated viz.:
(a) those who were bona fide employees of the Blaylock Transport Services at the time its concession expired; and (b) those
who pass the final screening and approval by the appropriate authorities of the U.S. Naval Base. For this purpose, petitioner is
hereby ordered to submit to and secure from the appropriate authorities of the U.S. naval Base at Subic, Zambales the
requisite screening and approval, the names of the afore-mentioned members of respondent union.
The Order dated September 25, 1975 of respondent Labor Arbiter Francisco M. de los Reyes, awarding back wages to the
129 complainants in the total amount of P592,110.00, is hereby set aside. No pronouncement as to costs.

FIRST DIVISION
[G.R. No. 128845. June 1, 2000]

INTERNATIONAL SCHOOL ALLIANCE OF EDUCATORS (ISAE), petitioner, vs. HON. LEONARDO A. QUISUMBING in
his capacity as the Secretary of Labor and Employment; HON. CRESENCIANO B. TRAJANO in his capacity as the
Acting Secretary of Labor and Employment; DR. BRIAN MACCAULEY in his capacity as the Superintendent of
International School-Manila; and INTERNATIONAL SCHOOL, INC., respondents.
DECISION
KAPUNAN, J.:
Receiving salaries less than their counterparts hired abroad, the local-hires of private respondent School, mostly Filipinos, cry
discrimination. We agree. That the local-hires are paid more than their colleagues in other schools is, of course, beside the
point. The point is that employees should be given equal pay for work of equal value. That is a principle long honored in this
jurisdiction. That is a principle that rests on fundamental notions of justice. That is the principle we uphold today.
Private respondent International School, Inc. (the School, for short), pursuant to Presidential Decree 732, is a domestic
educational institution established primarily for dependents of foreign diplomatic personnel and other temporary residents.[1] To
enable the School to continue carrying out its educational program and improve its standard of instruction, Section 2(c) of the
same decree authorizes the School to
employ its own teaching and management personnel selected by it either locally or abroad, from Philippine
or other nationalities, such personnel being exempt from otherwise applicable laws and regulations
attending their employment, except laws that have been or will be enacted for the protection of employees.
Accordingly, the School hires both foreign and local teachers as members of its faculty, classifying the same into two: (1)
foreign-hires and (2) local-hires. The School employs four tests to determine whether a faculty member should be classified as
a foreign-hire or a local hire:
a.....What is one's domicile?
b.....Where is one's home economy?
c.....To which country does one owe economic allegiance?
d.....Was the individual hired abroad specifically to work in the School and was the School responsible for
bringing that individual to the Philippines?[2]
Should the answer to any of these queries point to the Philippines, the faculty member is classified as a local hire; otherwise,
he or she is deemed a foreign-hire.
The School grants foreign-hires certain benefits not accorded local-hires. These include housing, transportation, shipping
costs, taxes, and home leave travel allowance. Foreign-hires are also paid a salary rate twenty-five percent (25%) more than
local-hires. The School justifies the difference on two "significant economic disadvantages" foreign-hires have to endure,
namely: (a) the "dislocation factor" and (b) limited tenure. The School explains:
A foreign-hire would necessarily have to uproot himself from his home country, leave his family and friends,
and take the risk of deviating from a promising career path-all for the purpose of pursuing his profession as
an educator, but this time in a foreign land. The new foreign hire is faced with economic realities: decent
abode for oneself and/or for one's family, effective means of transportation, allowance for the education of
one's children, adequate insurance against illness and death, and of course the primary benefit of a basic
salary/retirement compensation.
Because of a limited tenure, the foreign hire is confronted again with the same economic reality after his
term: that he will eventually and inevitably return to his home country where he will have to confront the
uncertainty of obtaining suitable employment after a long period in a foreign land.
The compensation scheme is simply the School's adaptive measure to remain competitive on an
international level in terms of attracting competent professionals in the field of international education.[3]
When negotiations for a new collective bargaining agreement were held on June 1995, petitioner International School Alliance
of Educators, "a legitimate labor union and the collective bargaining representative of all faculty members"[4] of the School,
contested the difference in salary rates between foreign and local-hires. This issue, as well as the question of whether foreignhires should be included in the appropriate bargaining unit, eventually caused a deadlock between the parties.
On September 7, 1995, petitioner filed a notice of strike. The failure of the National Conciliation and Mediation Board to bring
the parties to a compromise prompted the Department of Labor and Employment (DOLE) to assume jurisdiction over the
dispute. On June 10, 1996, the DOLE Acting Secretary, Crescenciano B. Trajano, issued an Order resolving the parity and
representation issues in favor of the School. Then DOLE Secretary Leonardo A. Quisumbing subsequently denied petitioner's
motion for reconsideration in an Order dated March 19, 1997. Petitioner now seeks relief in this Court.
Petitioner claims that the point-of-hire classification employed by the School is discriminatory to Filipinos and that the grant of
higher salaries to foreign-hires constitutes racial discrimination.
The School disputes these claims and gives a breakdown of its faculty members, numbering 38 in all, with nationalities other
than Filipino, who have been hired locally and classified as local hires.[5]The Acting Secretary of Labor found that these nonFilipino local-hires received the same benefits as the Filipino local-hires:

The compensation package given to local-hires has been shown to apply to all, regardless of race. Truth to tell, there are
foreigners who have been hired locally and who are paid equally as Filipino local hires.[6]
The Acting Secretary upheld the point-of-hire classification for the distinction in salary rates:
The principle "equal pay for equal work" does not find application in the present case. The international character of the
School requires the hiring of foreign personnel to deal with different nationalities and different cultures, among the
student population.
We also take cognizance of the existence of a system of salaries and benefits accorded to foreign hired personnel which
system is universally recognized. We agree that certain amenities have to be provided to these people in order to entice
them to render their services in the Philippines and in the process remain competitive in the international market.
Furthermore, we took note of the fact that foreign hires have limited contract of employment unlike the local hires who
enjoy security of tenure. To apply parity therefore, in wages and other benefits would also require parity in other terms
and conditions of employment which include the employment contract.
A perusal of the parties' 1992-1995 CBA points us to the conditions and provisions for salary and professional
compensation wherein the parties agree as follows:
All members of the bargaining unit shall be compensated only in accordance with Appendix C hereof provided that the
Superintendent of the School has the discretion to recruit and hire expatriate teachers from abroad, under terms and
conditions that are consistent with accepted international practice.
Appendix C of said CBA further provides:
The new salary schedule is deemed at equity with the Overseas Recruited Staff (OSRS) salary schedule. The 25%
differential is reflective of the agreed value of system displacement and contracted status of the OSRS as differentiated
from the tenured status of Locally Recruited Staff (LRS).
To our mind, these provisions demonstrate the parties' recognition of the difference in the status of two types of
employees, hence, the difference in their salaries.
The Union cannot also invoke the equal protection clause to justify its claim of parity. It is an established principle of
constitutional law that the guarantee of equal protection of the laws is not violated by legislation or private covenants
based on reasonable classification. A classification is reasonable if it is based on substantial distinctions and apply to all
members of the same class. Verily, there is a substantial distinction between foreign hires and local hires, the former
enjoying only a limited tenure, having no amenities of their own in the Philippines and have to be given a good
compensation package in order to attract them to join the teaching faculty of the School.[7]
We cannot agree.
That public policy abhors inequality and discrimination is beyond contention. Our Constitution and laws reflect the policy
against these evils. The Constitution[8] in the Article on Social Justice and Human Rights exhorts Congress to "give highest
priority to the enactment of measures that protect and enhance the right of all people to human dignity, reduce social,
economic, and political inequalities." The very broad Article 19 of the Civil Code requires every person, "in the exercise of his
rights and in the performance of his duties, [to] act with justice, give everyone his due, and observe honesty and good faith."
International law, which springs from general principles of law,[9] likewise proscribes discrimination. General principles of law
include principles of equity,[10] i.e., the general principles of fairness and justice, based on the test of what is reasonable.[11] The
Universal Declaration of Human Rights,[12] the International Covenant on Economic, Social, and Cultural Rights,[13] the
International Convention on the Elimination of All Forms of Racial Discrimination,[14] the Convention against Discrimination in
Education,[15] the Convention (No. 111) Concerning Discrimination in Respect of Employment and Occupation[16] - all embody
the general principle against discrimination, the very antithesis of fairness and justice. The Philippines, through its Constitution,
has incorporated this principle as part of its national laws.
In the workplace, where the relations between capital and labor are often skewed in favor of capital, inequality and
discrimination by the employer are all the more reprehensible.
The Constitution[17] specifically provides that labor is entitled to "humane conditions of work." These conditions are not
restricted to the physical workplace - the factory, the office or the field - but include as well the manner by which employers
treat their employees.
The Constitution[18] also directs the State to promote "equality of employment opportunities for all." Similarly, the Labor
Code[19] provides that the State shall "ensure equal work opportunities regardless of sex, race or creed." It would be an affront
to both the spirit and letter of these provisions if the State, in spite of its primordial obligation to promote and ensure equal
employment opportunities, closes its eyes to unequal and discriminatory terms and conditions of employment.[20]
Discrimination, particularly in terms of wages, is frowned upon by the Labor Code. Article 135, for example, prohibits and
penalizes[21] the payment of lesser compensation to a female employee as against a male employee for work of equal value.
Article 248 declares it an unfair labor practice for an employer to discriminate in regard to wages in order to encourage or
discourage membership in any labor organization.
Notably, the International Covenant on Economic, Social, and Cultural Rights, supra, in Article 7 thereof, provides:

The States Parties to the present Covenant recognize the right of everyone to the enjoyment of just and favourable
conditions of work, which ensure, in particular:
a.....Remuneration which provides all workers, as a minimum, with:
i.....Fair wages and equal remuneration for work of equal value without distinction of any kind, in particular women being
guaranteed conditions of work not inferior to those enjoyed by men, with equal pay for equal work;
x x x.
The foregoing provisions impregnably institutionalize in this jurisdiction the long honored legal truism of "equal pay for equal
work." Persons who work with substantially equal qualifications, skill, effort and responsibility, under similar conditions, should
be paid similar salaries.[22] This rule applies to the School, its "international character" notwithstanding.
The School contends that petitioner has not adduced evidence that local-hires perform work equal to that of foreign-hires.
[23]
The Court finds this argument a little cavalier. If an employer accords employees the same position and rank, the
presumption is that these employees perform equal work. This presumption is borne by logic and human experience. If the
employer pays one employee less than the rest, it is not for that employee to explain why he receives less or why the others
receive more. That would be adding insult to injury. The employer has discriminated against that employee; it is for the
employer to explain why the employee is treated unfairly.
The employer in this case has failed to discharge this burden. There is no evidence here that foreign-hires perform 25% more
efficiently or effectively than the local-hires. Both groups have similar functions and responsibilities, which they perform under
similar working conditions.
The School cannot invoke the need to entice foreign-hires to leave their domicile to rationalize the distinction in salary rates
without violating the principle of equal work for equal pay.
"Salary" is defined in Black's Law Dictionary (5th ed.) as "a reward or recompense for services performed." Similarly, the
Philippine Legal Encyclopedia states that "salary" is the "[c]onsideration paid at regular intervals for the rendering of
services." In Songco v. National Labor Relations Commission,[24] we said that:
"salary" means a recompense or consideration made to a person for his pains or industry in another man's
business. Whether it be derived from "salarium," or more fancifully from "sal," the pay of the Roman soldier,
it carries with it the fundamental idea of compensation for services rendered. (Emphasis supplied.)
While we recognize the need of the School to attract foreign-hires, salaries should not be used as an enticement to the
prejudice of local-hires. The local-hires perform the same services as foreign-hires and they ought to be paid the same
salaries as the latter. For the same reason, the "dislocation factor" and the foreign-hires' limited tenure also cannot serve as
valid bases for the distinction in salary rates. The dislocation factor and limited tenure affecting foreign-hires are adequately
compensated by certain benefits accorded them which are not enjoyed by local-hires, such as housing, transportation,
shipping costs, taxes and home leave travel allowances.
The Constitution enjoins the State to "protect the rights of workers and promote their welfare,"[25] "to afford labor full
protection."[26] The State, therefore, has the right and duty to regulate the relations between labor and capital.[27] These
relations are not merely contractual but are so impressed with public interest that labor contracts, collective bargaining
agreements included, must yield to the common good.[28] Should such contracts contain stipulations that are contrary to public
policy, courts will not hesitate to strike down these stipulations.
In this case, we find the point-of-hire classification employed by respondent School to justify the distinction in the salary rates
of foreign-hires and local hires to be an invalid classification. There is no reasonable distinction between the services rendered
by foreign-hires and local-hires. The practice of the School of according higher salaries to foreign-hires contravenes public
policy and, certainly, does not deserve the sympathy of this Court.
We agree, however, that foreign-hires do not belong to the same bargaining unit as the local-hires.
A bargaining unit is "a group of employees of a given employer, comprised of all or less than all of the entire body of
employees, consistent with equity to the employer indicate to be the best suited to serve the reciprocal rights and duties of the
parties under the collective bargaining provisions of the law."[29] The factors in determining the appropriate collective bargaining
unit are (1) the will of the employees (Globe Doctrine); (2) affinity and unity of the employees' interest, such as substantial
similarity of work and duties, or similarity of compensation and working conditions (Substantial Mutual Interests Rule); (3) prior
collective bargaining history; and (4) similarity of employment status.[30] The basic test of an asserted bargaining unit's
acceptability is whether or not it is fundamentally the combination which will best assure to all employees the exercise of their
collective bargaining rights.[31]
It does not appear that foreign-hires have indicated their intention to be grouped together with local-hires for purposes of
collective bargaining. The collective bargaining history in the School also shows that these groups were always treated
separately. Foreign-hires have limited tenure; local-hires enjoy security of tenure. Although foreign-hires perform similar
functions under the same working conditions as the local-hires, foreign-hires are accorded certain benefits not granted to localhires. These benefits, such as housing, transportation, shipping costs, taxes, and home leave travel allowance, are reasonably
related to their status as foreign-hires, and justify the exclusion of the former from the latter. To include foreign-hires in a
bargaining unit with local-hires would not assure either group the exercise of their respective collective bargaining rights.
WHEREFORE, the petition is GIVEN DUE COURSE. The petition is hereby GRANTED IN PART. The Orders of the Secretary
of Labor and Employment dated June 10, 1996 and March 19, 1997, are hereby REVERSED and SET ASIDE insofar as they
uphold the practice of respondent School of according foreign-hires higher salaries than local-hires.
SO ORDERED.
G.R. No. 100150 January 5, 1994

BRIGIDO R. SIMON, JR., CARLOS QUIMPO, CARLITO ABELARDO, AND GENEROSO OCAMPO, petitioners,
vs.
COMMISSION ON HUMAN RIGHTS, ROQUE FERMO, AND OTHERS AS JOHN DOES, respondents.
VITUG, J.:
The extent of the authority and power of the Commission on Human Rights ("CHR") is again placed into focus in this petition
for prohibition, with prayer for a restraining order and preliminary injunction. The petitioners ask us to prohibit public
respondent CHR from further hearing and investigating CHR Case No. 90-1580, entitled "Fermo, et al. vs. Quimpo, et al."
The case all started when a "Demolition Notice," dated 9 July 1990, signed by Carlos Quimpo (one of the petitioners) in his
capacity as an Executive Officer of the Quezon City Integrated Hawkers Management Council under the Office of the City
Mayor, was sent to, and received by, the private respondents (being the officers and members of the North EDSA Vendors
Association, Incorporated). In said notice, the respondents were given a grace-period of three (3) days (up to 12 July 1990)
within which to vacate the questioned premises of North EDSA. 1 Prior to their receipt of the demolition notice, the private
respondents were informed by petitioner Quimpo that their stalls should be removed to give way to the "People's Park". 2 On
12 July 1990, the group, led by their President Roque Fermo, filed a letter-complaint (Pinag-samang Sinumpaang Salaysay)
with the CHR against the petitioners, asking the late CHR Chairman Mary Concepcion Bautista for a letter to be addressed to
then Mayor Brigido Simon, Jr., of Quezon City to stop the demolition of the private respondents' stalls, sari-sari stores,
and carinderia along North EDSA. The complaint was docketed as CHR Case No. 90-1580. 3 On 23 July 1990, the CHR
issued an Order, directing the petitioners "to desist from demolishing the stalls and shanties at North EDSA pending resolution
of the vendors/squatters' complaint before the Commission" and ordering said petitioners to appear before the CHR. 4
On the basis of the sworn statements submitted by the private respondents on 31 July 1990, as well as CHR's own ocular
inspection, and convinced that on 28 July 1990 the petitioners carried out the demolition of private respondents' stalls, sarisari stores and carinderia, 5 the CHR, in its resolution of 1 August 1990, ordered the disbursement of financial assistance of not
more than P200,000.00 in favor of the private respondents to purchase light housing materials and food under the
Commission's supervision and again directed the petitioners to "desist from further demolition, with the warning that violation
of said order would lead to a citation for contempt and arrest." 6
A motion to dismiss, 7 dated 10 September 1990, questioned CHR's jurisdiction. The motion also averred, among other things,
that:
1. this case came about due to the alleged violation by the (petitioners) of the Inter-Agency Memorandum of
Agreement whereby Metro-Manila Mayors agreed on a moratorium in the demolition of the dwellings of poor
dwellers in Metro-Manila;
xxx xxx xxx
3. . . . , a perusal of the said Agreement (revealed) that the moratorium referred to therein refers to
moratorium in the demolition of the structures of poor dwellers;
4. that the complainants in this case (were) not poor dwellers but independent business entrepreneurs even
this Honorable Office admitted in its resolution of 1 August 1990 that the complainants are indeed, vendors;
5. that the complainants (were) occupying government land, particularly the sidewalk of EDSA corner North
Avenue, Quezon City; . . . and
6. that the City Mayor of Quezon City (had) the sole and exclusive discretion and authority whether or not a
certain business establishment (should) be allowed to operate within the jurisdiction of Quezon City, to
revoke or cancel a permit, if already issued, upon grounds clearly specified by law and ordinance. 8
During the 12 September 1990 hearing, the petitioners moved for postponement, arguing that the motion to dismiss set for 21
September 1990 had yet to be resolved. The petitioners likewise manifested that they would bring the case to the courts.
On 18 September 1990 a supplemental motion to dismiss was filed by the petitioners, stating that the Commission's authority
should be understood as being confined only to the investigation of violations of civil and political rights, and that "the rights
allegedly violated in this case (were) not civil and political rights, (but) their privilege to engage in business." 9
On 21 September 1990, the motion to dismiss was heard and submitted for resolution, along with the contempt charge that
had meantime been filed by the private respondents, albeit vigorously objected to by petitioners (on the ground that the motion
to dismiss was still then unresolved). 10
In an Order, 11 dated 25 September 1990, the CHR cited the petitioners in contempt for carrying out the demolition of the
stalls, sari-sari stores and carinderia despite the "order to desist", and it imposed a fine of P500.00 on each of them.
On 1 March 1991, 12 the CHR issued an Order, denying petitioners' motion to dismiss and supplemental motion to dismiss, in
this wise:
Clearly, the Commission on Human Rights under its constitutional mandate had jurisdiction over the
complaint filed by the squatters-vendors who complained of the gross violations of their human and
constitutional rights. The motion to dismiss should be and is hereby DENIED for lack of merit. 13
The CHR opined that "it was not the intention of the (Constitutional) Commission to create only a paper tiger limited only to
investigating civil and political rights, but it (should) be (considered) a quasi-judicial body with the power to provide appropriate
legal measures for the protection of human rights of all persons within the Philippines . . . ." It added:

The right to earn a living is a right essential to one's right to development, to life and to dignity. All these
brazenly and violently ignored and trampled upon by respondents with little regard at the same time for the
basic rights of women and children, and their health, safety and welfare. Their actions have psychologically
scarred and traumatized the children, who were witness and exposed to such a violent demonstration of
Man's inhumanity to man.
In an Order, 14 dated 25 April 1991, petitioners' motion for reconsideration was denied.
Hence, this recourse.
The petition was initially dismissed in our resolution 15 of 25 June 1991; it was subsequently reinstated, however, in our
resolution 16 of 18 June 1991, in which we also issued a temporary restraining order, directing the CHR to "CEASE and
DESIST from further hearing CHR No. 90-1580." 17
The petitioners pose the following:
Whether or not the public respondent has jurisdiction:
a) to investigate the alleged violations of the "business rights" of the private respondents whose stalls were demolished by the
petitioners at the instance and authority given by the Mayor of Quezon City;
b) to impose the fine of P500.00 each on the petitioners; and
c) to disburse the amount of P200,000.00 as financial aid to the vendors affected by the demolition.
In the Court's resolution of 10 October 1991, the Solicitor-General was excused from filing his comment for public respondent
CHR. The latter thus filed its own comment, 18 through Hon. Samuel Soriano, one of its Commissioners. The Court also
resolved to dispense with the comment of private respondent Roque Fermo, who had since failed to comply with the
resolution, dated 18 July 1991, requiring such comment.
The petition has merit.
The Commission on Human Rights was created by the 1987
Constitution. 19 It was formally constituted by then President Corazon Aquino via Executive Order No. 163, 20 issued on 5 May
1987, in the exercise of her legislative power at the time. It succeeded, but so superseded as well, the Presidential Committee
on Human Rights. 21
The powers and functions 22 of the Commission are defined by the 1987 Constitution, thus: to
(1) Investigate, on its own or on complaint by any party, all forms of human rights violations involving civil and political
rights;
(2) Adopt its operational guidelines and rules of procedure, and cite for contempt for violations thereof in accordance with
the Rules of Court;
(3) Provide appropriate legal measures for the protection of human rights of all persons within the Philippines, as well as
Filipinos residing abroad, and provide for preventive measures and legal aid services to the underprivileged whose human
rights have been violated or need protection;
(4) Exercise visitorial powers over jails, prisons, or detention facilities;
(5) Establish a continuing program of research, education, and information to enhance respect for the primacy of human
rights;
(6) Recommend to the Congress effective measures to promote human rights and to provide for compensation to victims
of violations of human rights, or their families;
(7) Monitor the Philippine Government's compliance with international treaty obligations on human rights;
(8) Grant immunity from prosecution to any person whose testimony or whose possession of documents or other evidence
is necessary or convenient to determine the truth in any investigation conducted by it or under its authority;
(9) Request the assistance of any department, bureau, office, or agency in the performance of its functions;
(10) Appoint its officers and employees in accordance with law; and
(11) Perform such other duties and functions as may be provided by law.
In its Order of 1 March 1991, denying petitioners' motion to dismiss, the CHR theorizes that the intention of the members of
the Constitutional Commission is to make CHR a quasi-judicial body. 23 This view, however, has not heretofore been shared by
this Court. In Cario v. Commission on Human Rights, 24 the Court, through then Associate Justice, now Chief Justice Andres
Narvasa, has observed that it is "only the first of the enumerated powers and functions that bears any resemblance to
adjudication or adjudgment," but that resemblance can in no way be synonymous to the adjudicatory power itself. The Court
explained:

. . . (T)he Commission on Human Rights . . . was not meant by the fundamental law to be another court or
quasi-judicial agency in this country, or duplicate much less take over the functions of the latter.
The most that may be conceded to the Commission in the way of adjudicative power is that it may
investigate, i.e., receive evidence and make findings of fact as regards claimed human rights violations
involving civil and political rights. But fact finding is not adjudication, and cannot be likened to the judicial
function of a court of justice, or even a quasi-judicial agency or official. The function of receiving evidence
and ascertaining therefrom the facts of a controversy is not a judicial function, properly speaking. To be
considered such, the faculty of receiving evidence and making factual conclusions in a controversy must be
accompanied by the authority of applying the law to those factual conclusions to the end that the controversy
may be decided or determined authoritatively, finally and definitively, subject to such appeals or modes of
review as may be provided by law. This function, to repeat, the Commission does not have.
After thus laying down at the outset the above rule, we now proceed to the other kernel of this controversy and, its is, to
determine the extent of CHR's investigative power.
It can hardly be disputed that the phrase "human rights" is so generic a term that any attempt to define it, albeit not a few have
tried, could at best be described as inconclusive. Let us observe. In a symposium on human rights in the Philippines,
sponsored by the University of the Philippines in 1977, one of the questions that has been propounded is "(w)hat do you
understand by "human rights?" The participants, representing different sectors of the society, have given the following varied
answers:
Human rights are the basic rights which inhere in man by virtue of his humanity. They are the same in all parts of the
world, whether the Philippines or England, Kenya or the Soviet Union, the United States or Japan, Kenya or
Indonesia . . . .
Human rights include civil rights, such as the right to life, liberty, and property; freedom of speech, of the press, of
religion, academic freedom, and the rights of the accused to due process of law; political rights, such as the right to
elect public officials, to be elected to public office, and to form political associations and engage in politics; and social
rights, such as the right to an education, employment, and social services. 25
Human rights are the entitlement that inhere in the individual person from the sheer fact of his humanity. . . . Because
they are inherent, human rights are not granted by the State but can only be recognized and protected by it. 26
(Human rights include all) the civil, political, economic, social, and cultural rights defined in the Universal Declaration of
Human Rights. 27
Human rights are rights that pertain to man simply because he is human. They are part of his natural birth, right, innate
and inalienable. 28
The Universal Declaration of Human Rights, as well as, or more specifically, the International Covenant on Economic, Social
and Cultural Rights and International Covenant on Civil and Political Rights, suggests that the scope of human rights can be
understood to include those that relate to an individual's social, economic, cultural, political and civil relations. It thus seems to
closely identify the term to the universally accepted traits and attributes of an individual, along with what is generally
considered to be his inherent and inalienable rights, encompassing almost all aspects of life.
Have these broad concepts been equally contemplated by the framers of our 1986 Constitutional Commission in adopting the
specific provisions on human rights and in creating an independent commission to safeguard these rights? It may of value to
look back at the country's experience under the martial law regime which may have, in fact, impelled the inclusions of those
provisions in our fundamental law. Many voices have been heard. Among those voices, aptly represented perhaps of the
sentiments expressed by others, comes from Mr. Justice J.B.L. Reyes, a respected jurist and an advocate of civil liberties,
who, in his paper, entitled "Present State of Human Rights in the Philippines," 29 observes:
But while the Constitution of 1935 and that of 1973 enshrined in their Bill of Rights most of the human rights expressed in
the International Covenant, these rights became unavailable upon the proclamation of Martial Law on 21 September 1972.
Arbitrary action then became the rule. Individuals by the thousands became subject to arrest upon suspicion, and were
detained and held for indefinite periods, sometimes for years, without charges, until ordered released by the Commanderin-Chief or this representative. The right to petition for the redress of grievances became useless, since group actions were
forbidden. So were strikes. Press and other mass media were subjected to censorship and short term licensing. Martial law
brought with it the suspension of the writ of habeas corpus, and judges lost independence and security of tenure, except
members of the Supreme Court. They were required to submit letters of resignation and were dismissed upon the
acceptance thereof. Torture to extort confessions were practiced as declared by international bodies like Amnesty
International and the International Commission of Jurists.
Converging our attention to the records of the Constitutional Commission, we can see the following discussions during its 26
August 1986 deliberations:
MR. GARCIA . . . , the primacy of its (CHR) task must be made clear in view of the importance of human rights and also because civil and
political rights have been determined by many international covenants and human rights legislations in the Philippines, as well as the
Constitution, specifically the Bill of Rights and subsequent legislation. Otherwise, if we cover such a wide territory in area, we might diffuse
its impact and the precise nature of its task, hence, its effectivity would also be curtailed.
So, it is important to delienate the parameters of its tasks so that the commission can be most effective.
MR. BENGZON. That is precisely my difficulty because civil and political rights are very broad. The Article on the Bill of Rights covers civil
and political rights. Every single right of an individual involves his civil right or his political right. So, where do we draw the line?

MR. GARCIA. Actually, these civil and political rights have been made clear in the language of human rights advocates, as well as in the
Universal Declaration of Human Rights which addresses a number of articles on the right to life, the right against torture, the right to fair
and public hearing, and so on. These are very specific rights that are considered enshrined in many international documents and legal
instruments as constituting civil and political rights, and these are precisely what we want to defend here.
MR. BENGZON. So, would the commissioner say civil and political rights as defined in the Universal Declaration of Human Rights?
MR. GARCIA. Yes, and as I have mentioned, the International Covenant of Civil and Political Rights distinguished this right against torture.
MR. BENGZON. So as to distinguish this from the other rights that we have?
MR. GARCIA. Yes, because the other rights will encompass social and economic rights, and there are other violations of rights of citizens
which can be addressed to the proper courts and authorities.
xxx xxx xxx
MR. BENGZON. So, we will authorize the commission to define its functions, and, therefore, in doing that the commission will be
authorized to take under its wings cases which perhaps heretofore or at this moment are under the jurisdiction of the ordinary investigative
and prosecutorial agencies of the government. Am I correct?
MR. GARCIA. No. We have already mentioned earlier that we would like to define the specific parameters which cover civil and political
rights as covered by the international standards governing the behavior of governments regarding the particular political and civil rights of
citizens, especially of political detainees or prisoners. This particular aspect we have experienced during martial law which we would now
like to safeguard.
MR. BENGZON. Then, I go back to that question that I had. Therefore, what we are really trying to say is, perhaps, at the proper time we
could specify all those rights stated in the Universal Declaration of Human Rights and defined as human rights. Those are the rights that
we envision here?
MR. GARCIA. Yes. In fact, they are also enshrined in the Bill of Rights of our Constitution. They are integral parts of that.
MR. BENGZON. Therefore, is the Gentleman saying that all the rights under the Bill of Rights covered by human rights?
MR. GARCIA. No, only those that pertain to civil and political rights.
xxx xxx xxx
MR. RAMA. In connection with the discussion on the scope of human rights, I would like to state that in the past regime, everytime we
invoke the violation of human rights, the Marcos regime came out with the defense that, as a matter of fact, they had defended the rights
of people to decent living, food, decent housing and a life consistent with human dignity.
So, I think we should really limit the definition of human rights to political rights. Is that the sense of the committee, so as not to confuse
the issue?
MR. SARMIENTO. Yes, Madam President.
MR. GARCIA. I would like to continue and respond also to repeated points raised by the previous speaker.
There are actually six areas where this Commission on Human Rights could act effectively: 1) protection of rights of political detainees; 2)
treatment of prisoners and the prevention of tortures; 3) fair and public trials; 4) cases of disappearances; 5) salvagings and hamletting;
and 6) other crimes committed against the religious.
xxx xxx xxx
The PRESIDENT. Commissioner Guingona is recognized.
MR. GUINGONA. Thank You Madam President.
I would like to start by saying that I agree with Commissioner Garcia that we should, in order to make the proposed Commission more
effective, delimit as much as possible, without prejudice to future expansion. The coverage of the concept and jurisdictional area of the
term "human rights". I was actually disturbed this morning when the reference was made without qualification to the rights embodied in the
universal Declaration of Human Rights, although later on, this was qualified to refer to civil and political rights contained therein.
If I remember correctly, Madam President, Commissioner Garcia, after mentioning the Universal Declaration of Human Rights of 1948,
mentioned or linked the concept of human right with other human rights specified in other convention which I do not remember. Am I
correct?
MR. GARCIA. Is Commissioner Guingona referring to the Declaration of Torture of 1985?
MR. GUINGONA. I do not know, but the commissioner mentioned another.
MR. GARCIA. Madam President, the other one is the International Convention on Civil and Political Rights of which we are signatory.
MR. GUINGONA. I see. The only problem is that, although I have a copy of the Universal Declaration of Human Rights here, I do not have
a copy of the other covenant mentioned. It is quite possible that there are rights specified in that other convention which may not be
specified here. I was wondering whether it would be wise to link our concept of human rights to general terms like "convention," rather than
specify the rights contained in the convention.

As far as the Universal Declaration of Human Rights is concerned, the Committee, before the period of amendments, could specify to us
which of these articles in the Declaration will fall within the concept of civil and political rights, not for the purpose of including these in the
proposed constitutional article, but to give the sense of the Commission as to what human rights would be included, without prejudice to
expansion later on, if the need arises. For example, there was no definite reply to the question of Commissioner Regalado as to whether
the right to marry would be considered a civil or a social right. It is not a civil right?
MR. GARCIA. Madam President, I have to repeat the various specific civil and political rights that we felt must be envisioned initially by
this provision freedom from political detention and arrest prevention of torture, right to fair and public trials, as well as crimes involving
disappearance, salvagings, hamlettings and collective violations. So, it is limited to politically related crimes precisely to protect the civil
and political rights of a specific group of individuals, and therefore, we are not opening it up to all of the definite areas.
MR. GUINGONA. Correct. Therefore, just for the record, the Gentlemen is no longer linking his concept or the concept of the Committee
on Human Rights with the so-called civil or political rights as contained in the Universal Declaration of Human Rights.
MR. GARCIA. When I mentioned earlier the Universal Declaration of Human Rights, I was referring to an international instrument.
MR. GUINGONA. I know.
MR. GARCIA. But it does not mean that we will refer to each and every specific article therein, but only to those that pertain to the civil and
politically related, as we understand it in this Commission on Human Rights.
MR. GUINGONA. Madam President, I am not even clear as to the distinction between civil and social rights.
MR. GARCIA. There are two international covenants: the International Covenant and Civil and Political Rights and the International
Covenant on Economic, Social and Cultural Rights. The second covenant contains all the different rights-the rights of labor to organize, the
right to education, housing, shelter, et cetera.
MR. GUINGONA. So we are just limiting at the moment the sense of the committee to those that the Gentlemen has specified.
MR. GARCIA. Yes, to civil and political rights.
MR. GUINGONA. Thank you.
xxx xxx xxx
SR. TAN. Madam President, from the standpoint of the victims of human rights, I cannot stress more on how much we need a Commission
on Human Rights. . . .
. . . human rights victims are usually penniless. They cannot pay and very few lawyers will accept clients who do not pay. And so, they are
the ones more abused and oppressed. Another reason is, the cases involved are very delicate torture, salvaging, picking up without
any warrant of arrest, massacre and the persons who are allegedly guilty are people in power like politicians, men in the military and big
shots. Therefore, this Human Rights Commission must be independent.

I would like very much to emphasize how much we need this commission, especially for the little Filipino, the
little individual who needs this kind of help and cannot get it. And I think we should concentrate only on civil
and political violations because if we open this to land, housing and health, we will have no place to go
again and we will not receive any response. . . . 30 (emphasis supplied)
The final outcome, now written as Section 18, Article XIII, of the 1987 Constitution, is a provision empowering the Commission
on Human Rights to "investigate, on its own or on complaint by any party, all forms of human rights violations involving civil
and political rights" (Sec. 1).
The term "civil rights," 31 has been defined as referring
(t)o those (rights) that belong to every citizen of the state or country, or, in wider sense, to all its inhabitants,
and are not connected with the organization or administration of the government. They include the rights of
property, marriage, equal protection of the laws, freedom of contract, etc. Or, as otherwise defined civil rights
are rights appertaining to a person by virtue of his citizenship in a state or community. Such term may also
refer, in its general sense, to rights capable of being enforced or redressed in a civil action.
Also quite often mentioned are the guarantees against involuntary servitude, religious persecution, unreasonable searches
and seizures, and imprisonment for debt. 32
Political rights, 33 on the other hand, are said to refer to the right to participate, directly or indirectly, in the establishment or
administration of government, the right of suffrage, the right to hold public office, the right of petition and, in general, the rights
appurtenant to citizenship vis-a-vis the management of government. 34
Recalling the deliberations of the Constitutional Commission, aforequoted, it is readily apparent that the delegates envisioned
a Commission on Human Rights that would focus its attention to the more severe cases of human rights violations. Delegate
Garcia, for instance, mentioned such areas as the "(1) protection of rights of political detainees, (2) treatment of prisoners and
the prevention of tortures, (3) fair and public trials, (4) cases of disappearances, (5) salvagings and hamletting, and (6) other
crimes committed against the religious." While the enumeration has not likely been meant to have any preclusive effect, more
than just expressing a statement of priority, it is, nonetheless, significant for the tone it has set. In any event, the delegates did
not apparently take comfort in peremptorily making a conclusive delineation of the CHR's scope of investigatorial jurisdiction.
They have thus seen it fit to resolve, instead, that "Congress may provide for other cases of violations of human rights that
should fall within the authority of the Commission, taking into account its recommendation." 35
In the particular case at hand, there is no cavil that what are sought to be demolished are the stalls, sari-saristores
and carinderia, as well as temporary shanties, erected by private respondents on a land which is planned to be developed into

a "People's Park". More than that, the land adjoins the North EDSA of Quezon City which, this Court can take judicial notice of,
is a busy national highway. The consequent danger to life and limb is not thus to be likewise simply ignored. It is indeed
paradoxical that a right which is claimed to have been violated is one that cannot, in the first place, even be invoked, if it is, in
fact, extant. Be that as it may, looking at the standards hereinabove discoursed vis-a-vis the circumstances obtaining in this
instance, we are not prepared to conclude that the order for the demolition of the stalls, sari-sari stores and carinderia of the
private respondents can fall within the compartment of "human rights violations involving civil and political rights" intended by
the Constitution.
On its contempt powers, the CHR is constitutionally authorized to "adopt its operational guidelines and rules of procedure, and
cite for contempt for violations thereof in accordance with the Rules of Court." Accordingly, the CHR acted within its authority in
providing in its revised rules, its power "to cite or hold any person in direct or indirect contempt, and to impose the appropriate
penalties in accordance with the procedure and sanctions provided for in the Rules of Court." That power to cite for contempt,
however, should be understood to apply only to violations of its adopted operational guidelines and rules of procedure
essential to carry out its investigatorial powers. To exemplify, the power to cite for contempt could be exercised against
persons who refuse to cooperate with the said body, or who unduly withhold relevant information, or who decline to honor
summons, and the like, in pursuing its investigative work. The "order to desist" (a semantic interplay for a restraining order) in
the instance before us, however, is not investigatorial in character but prescinds from an adjudicative power that it does not
possess. In Export Processing Zone Authority vs. Commission on Human Rights, 36 the Court, speaking through Madame
Justice Carolina Grio-Aquino, explained:
The constitutional provision directing the CHR to "provide for preventive measures and legal aid services to
the underprivileged whose human rights have been violated or need protection" may not be construed to
confer jurisdiction on the Commission to issue a restraining order or writ of injunction for, it that were the
intention, the Constitution would have expressly said so. "Jurisdiction is conferred only by the Constitution or
by law". It is never derived by implication.
Evidently, the "preventive measures and legal aid services" mentioned in the Constitution refer to
extrajudicial and judicial remedies (including a writ of preliminary injunction) which the CHR may seek from
proper courts on behalf of the victims of human rights violations. Not being a court of justice, the CHR itself
has no jurisdiction to issue the writ, for a writ of preliminary injunction may only be issued "by the judge of
any court in which the action is pending [within his district], or by a Justice of the Court of Appeals, or of the
Supreme Court. . . . A writ of preliminary injunction is an ancillary remedy. It is available only in a pending
principal action, for the preservation or protection of the rights and interests of a party thereto, and for no
other purpose." (footnotes omitted).
The Commission does have legal standing to indorse, for appropriate action, its findings and recommendations to any
appropriate agency of government. 37
The challenge on the CHR's disbursement of the amount of P200,000.00 by way of financial aid to the vendors affected by the
demolition is not an appropriate issue in the instant petition. Not only is there lack of locus standion the part of the petitioners
to question the disbursement but, more importantly, the matter lies with the appropriate administrative agencies concerned to
initially consider.
The public respondent explains that this petition for prohibition filed by the petitioners has become moot and academic since
the case before it (CHR Case No. 90-1580) has already been fully heard, and that the matter is merely awaiting final
resolution. It is true that prohibition is a preventive remedy to restrain the doing of an act about to be done, and not intended to
provide a remedy for an act already accomplished. 38 Here, however, said Commission admittedly has yet to promulgate its
resolution in CHR Case No. 90-1580. The instant petition has been intended, among other things, to also prevent CHR from
precisely doing that. 39
WHEREFORE, the writ prayed for in this petition is GRANTED. The Commission on Human Rights is hereby prohibited from
further proceeding with CHR Case No. 90-1580 and from implementing the P500.00 fine for contempt. The temporary
restraining order heretofore issued by this Court is made permanent. No costs.
SO ORDERED.