I. Vienna Convention on the Law of Treaties Brownlie, Chapter 26 Abaya v. Sec .

Ebdane Petition challenging the award of a road project to a Japanese firm. Loan Agreement + Exchange Of Notes = Executive Agreement. The procurement process for the implementation of the CP I project is governed by EO 40 and its IRR, not RA 9184. EO 40 expressly recognizes as an exception to its scope and application those government commitments WRT bidding and award of contracts financed partly or wholly with funds from international financing institutions as well as from bilateral and other similar foreign sources. Loan Agreement No. PH-P204 taken in conjunction with the Exchange of Notes dated Dec. 27, 1999 between the Japanese Government and the RP Government is an executive agreement. The Exchange of Notes expressed that the two governments have reached an understanding concerning Japanese loans to be extended to the Philippines and that these loans were aimed at promoting our countrys economic stabilization and development efforts. An "exchange of notes" is a record of a routine agreement that has many similarities with the private law contract. The agreement consists of the exchange of two documents, each of the parties being in the possession of the one signed by the representative of the other. Under the usual procedure, the accepting State repeats the text of the offering State to record its assent. The signatories of the letters may be government Ministers, diplomats or departmental heads. The technique of exchange of notes is frequently resorted to, either because of its speedy procedure, or, sometimes, to avoid the process of legislative approval. It is stated that "treaties, agreements, conventions, charters, protocols, declarations, memoranda of understanding, modus vivendi and exchange of notes" all refer to "international instruments binding at international law." Both the 1969 Vienna Convention and the 1986 Vienna Convention do not distinguish between the different designations of these instruments. Instead, their rules apply to all of those instruments as long as they meet the common requirements. Agreements concluded by the President which fall short of treaties are commonly referred to as executive agreements and are no less common in our scheme of government than are the more formal instruments: treaties and conventions. They sometimes take the form of exchange of notes and at other times that of more formal documents denominated "agreements" or "protocols". The point where ordinary correspondence between this and other governments ends and agreements, whether denominated executive agreements or exchange of notes or otherwise, begin, may sometimes be difficult of ready ascertainment. *Sir: Test in IL: whether the act is sovereign or proprietary in character DBM v. KOLONWEL TRADING; VIBAL v. KOLONWEL; DEPED v. KOLONWEL (8 June 2007) [3 consolidated cases] Petitioners: Dept. of Budget and Management Procurement Service (DBM-PS) and the Inter-Agency Bids and Awards Committee (IABAC) Petitioners: Vibal Publishing House, Inc., LG & M Corp., and SD Publications, Inc. Petitioner: Department of Education Respondent: Kolonwel Trading Nature: Petitions for review with a prayer for a temporary restraining order Ponente: Garcia, J. SUBJECT OF THE CONTROVERSY: the bidding and eventual contract awards for the supply and delivery of some 17.5 million copies of Makabayan (social studies) textbooks and teachers manuals, a DepEd project which was to be jointly funded by the World Bank (WB) 1 and the Asian Development Bank (ADB)2. In the middle of 2005, the DepEd requested the DBM-PS to undertake this project. According to the Exec. Director of the Government Procurement Policy Board (GPPB), the procurement(s) for MAKABAYAN textbooks were funds therefore (sic) are sourced from WB Loan shall be governed by the applicable procurement guidelines for the foreign lending institution. The 2005 Call for Submission of Textbooks and Teachers Manuals shall be viewed vis--vis relevant WB guidelines. CALL FOR BIDS. On Oct. 27, 2005, the DBM-PS IABAC called for a bidding for the supply of the Makabayan textbooks and manuals, divided into 3 lots3. 11 bidders submitted proposals for the different lots: Watana Phanit Printing & Publishing Co., Ltd., (Thailand); Vibal Publishing House, Inc.; Daewoo International Corporation (South Korea); and Kolonwel. IABASS RES. NO. 001-20064 recommended to the WB and ADB the failure of bids for all the lots due to disqualifications, non-compliance, and DepEds reservations. The reasons stated: conflict of interest with respect to Watana and Vibal; failure in cover stock testing for Kolonwel; and DepEds reservation. WB5 LETTER TO THE DEPED, DBM-PS, & IABAC: (1) disagreed with the finding of conflict of interest (Vibal and Watana); (2) upheld the other disqualifications; and (3) asked the IABAC to review its
1 2 3 4

Through the Second Social Expenditure Management Program (SEMP2) of the Philippines International Bank for Reconstruction and Development (IBRD) Loan Agreement No. 7118-PH (Loan No. 7118-PH) dated Sept. 12, 2002. Through the SEDIP Loan No. 1654-PHI. Lot 1, for Sibika Grades 1-3. Lot 2, for HeKaSi Grades 4-6. Lot 3, for Araling Panlipunan Years I-IV. Submitted to the WB on March 15, 2006.

evaluation and to provide the WB with the revised Bid Evaluation Report, taking into account the Dec. 31, 2006 RP-IBRD Loan closing date. MAY 11, 2006, KOLONWEL WAS INFORMED OF ITS BIDS FAILURE TO QUALIFY. KOLONWEL ASKED THAT ITS DISQUALIFICATION BE RECONSIDERED AND SET ASIDE VIA LETTERS6. This, and a second request for reconsideration,were denied. IABACS RES. NO. 001-2006-A was issued, recommending to the WV the contract award to Vibal7, Watana8, and Daewoo9. The notices of award were issued and the Purchaser-Supplier contracts were executed on Sept. 12, 2006. KOLONWEL FILED WITH THE RTC OF MANILA A SPECIAL CIVIL ACTION FOR CERTIORARI AND PROHIBITION, with a prayer for a temporary restraining order and/or a writ of preliminary injunction, on Oct. 12, 2006, in order to nullify the 2 IABAC resolutions and to set aside the contract awards in favor of Vibal and Watana. To support the TRO application, Kolonwel alleged that the supply-awardees were rushing with the implementation of the void contracts to beat the loan closing-date deadline. A 20-day TRO was granted. MOTIONS TO DISMISS FILED BY VIBAL, DEPED: want of jurisdiction and lack of cause of action for failure to comply with the protest procedure prescribed by RA 9184, the Government Procurement Reform Act. RTC FOUND FOR KOLONWEL: the court grants the petition for certiorari and prohibition. The IABAC Res. No. 001-2006-A is annulled and set aside. IABAC Res. No. 001-2006 is declared validly and regularly issued All subsequent actions of the respondents resulting from the issuance of IABAC Res. 001-2006-A are consequently nullified and set aside. This court grants a final injunction. FOR THE PETITIONERS: RTC erred in assuming jurisdiction despite the failure to observe the protest mechanism under Sec. 5510 in relation to Secs. 5711 and 5812 of RA 9184. FOR KOLONWEL: (1) the judicial window was already opened under the exhaustion of available administrative remedies principle, considering that its request for reconsideration was denied twice; and (2) it was prevented from filing a protest as the government hadnt yet issued the IRR of RA 9184, to render its protest mechanism operative for foreign-funded projects. ISSUE: WON the RTC lacked jurisdiction due to the failure to comply with the protest mechanism. HELD: YES. 3 PROTEST REQUIREMENTS UNDER SEC. 55: 1) the protest must be in writing, in the form of a verified position paper; 2) the protest must be submitted to the head of the procuring entity; and 3) the payment of a non-refundable protest fee. Under Sec. 58, courts would have jurisdiction only if the protest procedure has already been completed. KOLONWELS LETTERS FOR RECONSIDERATION FAILED TO COMPLY WITH SEC. 55: (1) letters werent addressed to the head of the procuring entity (the DepEd Sec. or the DBM-PS head), as required by law; (2) these were unverified; and (3) no payment of protest fee. Thus it cannot really be said that Kolonwel availed of the protest procedure prescribed under Sec. 55 before going to the RTC, and its filing of a case was precipitate and shouldve been dismissed for lack of jurisdiction. The protest mechanism is a built-in administrative remedy embodied in the law itself. It was not prescribed by an administrative agency tasked with implementing a statute through the medium of interpretative circulars or bulletins. Ignoring this administrative remedy would be to defy the law itself. LACK OF IRR, MAKING THE PROTEST MECHANISM OPERATIVE FOR FOREIGN-FUNDED PROJECTS, WOULDNT EXCUSE KOLONWEL. As provided by Sec. 55 itself, the IRR (for the protest for foreign-funded projects) was limited to the fixing of the amount of the protest fee and the periods during which the protest may be filed and resolved. The absence of provisions on protest fee and
5 6 7 8 9

Through its Regional Senior Economist, Ms. Rekha Menon. Dated May 18 and June 28. Of Sibika 1 & 3. Sibika 2 and HeKaSi 4 & 5. Sibika 3.

10

Sec. 55. Protest on Decision of the BAC.- Decisions of the BAC [Bids and Awards Committee] in all stages of procurement may be protested to the head of the procuring entity. Decisions of the BAC may be protested by filing a verified position paper and paying a non-refundable protest fee. The amount of the protest fee and the periods during which the protest may be filed and resolved shall be specific in the IRR.
11

Sec. 57. Non-interruption of the Bidding Process. In no case shall any process taken from any decision treated in this Article stay or delay the bidding process. Protests must first be resolved before any award is made.
12

Sec. 58. Report to Regular Courts; Certiorari.- Court action may be resorted to only after the protests contemplated in this Article shall have been completed. Cases that are filed in violation of the process specified in this article shall be dismissed for lack of jurisdiction. The [RTC] shall have jurisdiction over final decisions of the head of the procuring entity. (Emphasis and words in bracket added.)

reglementary period wouldnt lead to the deferment of the implementation of the protest mechanism as a condition sine qua non to resort to judicial relief. There was no need to wait for the prescription of the specific filing period as protest, as a matter of necessity, has to be lodged before court action. With respect to the protest fee, Kolonwel couldve proceeded with its protest without paying the fee, remitting the proper amount once the proper amount was fixed by the IRR. IRR-A AND ABAYA v. EBDANE. At any rate, there is in fact a set of implementing rules and regulations, the IRR-A13, Sec. 55.1 of which provides that prior to a resort to protest, the aggrieved party must first file a motion for reconsideration of the decision of the BAC. It is only after the BAC itself denies reconsideration that the protest, accompanied by a fixed protest fee, shall be filed within the period defined in the IRR. While this applies to all fully domestically-funded procurement activities, and that foreign-funded procurement activities shall be the subject of a subsequent issuance, ABAYA14 should be considered: Admittedly, IRR-Aexpressly stated that IRR-B for foreign-funded procurement activities shall be subject of a subsequent issuance. Nonetheless, there is no reason why the policy behind Sec. 77cannot be applied to foreign-funded procurement projectsthe policy on the prospective or non-retroactive application of RA 9184 with respect to domestically-funded procurement projects cannot be any different with respect to foreign-funded procurement projectsIt would be incongruous, even absurd, to provide for the prospective application of RA 9184 with respect to domestically-funded procurement projects andapply RA 9184 retroactively with respect to foreign-funded procurement projects. To be sure, the lawmakers could not have intended such an absurdity. There is no reason why the policy behind Section 55.l on the procedure for protest cannot be applied to foreign-funded procurement projects and RA 9184 doesnt show that Congress intended such a variance in the protest procedure. NO SUBSTANTIAL COMPLIANCE OF PROTEST REQUIREMENTS as it wasnt even clear that Kolonwel was aware of these. What is beyond dispute is that courts are precluded by express legislative command from entertaining protests from decisions of the BAC. What Congress intended was that not only would there be a distinct administrative grievance mechanism to be observed in assailing these decisions, but that courts would be without jurisdiction over actions impugning these unless the protest procedure mandated under Sec. 55 is brought to its logical completion. It is Congress by law, not the courts by discretion, which defines the courts jurisdiction not otherwise conferred by the Constitution. Sec. 55 could not be any clearer when it mandates the manner of protest. Similarly, it is clear under Sec. 58 that courts do not have jurisdiction over decisions of the BACs unless the appropriate protest has been made and completed. Despite the lack of an IRR, RA 9184 still requires a protest to be filed. Thus the RTC lacked jurisdiction over Kolonwels petition. ANOTHER RTC ERROR: NO JURISDICTION OVER WATANA which wasnt served with summons. Watana is an indispensable party15 to Kolonwels petition, which assailed and sought to nullify the contract-award made in Watanas and Vibals favor. WRT THE SUPERIORITY OF WB GUIDELINES ON PROCUREMENT UNDER IBRD LOANS OVER LOCAL LAWS: recall that all interested bidders were notified that the DepEds procurement project was financed by the proceeds of the RP-IBRD Loan No. 7118-PH, Sec. 1, Schedule 416. The bidding was conducted by IABAC based on the WB Guidelines, particularly the provisions on International Competitive Bidding (ICB). Sec. 417 of RA 9184 expressly recognized this process. The question as to whether or not foreign loan agreements with international financial institutions (Loan No. 7118-PH) partake of an executive or international agreement within the purview of the Sec. 4 has been answered in the affirmative in Abaya, which declared that the RP-JBIC loan agreement was to be of governing application over the project and that the JBIC Procurement Guidelines, as stipulated in the loan agreement, shall primarily govern the procurement of goods necessary to implement the main project. Under the fundamental international law principle of pacta sunt servanda, embodied in Sec. 4 of R.A. No. 9184, the Philippines, as borrower, bound itself to perform in good faith its duties and obligation under Loan No. 7118- PH. Thus the IABAC was legally obliged to comply with, or accord primacy to, the WB Guidelines on the conduct and implementation of the bidding/procurement process in question. Lim v. Exec. Sec Lim vs. Executive Secretary

13 14 15

Issued on July 11, 2003 by the GPPB and the Joint Congressional Oversight Committee.

Which involved Loan Agreement No. PH-P204 between the Phil. and the Japan Bank for International Cooperation for the implementation of DPWH Contract Package No. 1. Indispensable parties are those with such an interest in the controversy that a final decree would necessarily affect their rights so that courts cant proceed without their presence. All of them must be included in a suit for an action to prosper or for a final determination to be had.
16 17

This stipulates that Goods shall be procured in accordance with the provisions of Sec. 1 of the Guidelines for Procurement under IBRD Loans. Sec. 4. Scope and application. This Act shall apply to the Procurement of Goods and Consulting Services, regardless of source of funds, whether local or foreign by all branches and instrumentalities of government Any treaty or international or executive agreement affecting the subject matter of this Act to which the Philippine government is a signatory shall be observed. (Emphasis added.)

DE LEON, JR., J.: This case involves a petition for certiorari and prohibition as well as a petition-in-intervention, praying that respondents be restrained from proceeding with the so-called "Balikatan 02-1" and that after due notice and hearing, that judgment be rendered issuing a permanent writ of injunction and/or prohibition against the deployment of U.S. troops in Basilan and Mindanao for being illegal and in violation of the Constitution. BASIC FACTS GI JOE ARRIVES TO KILL TERRORISTS 2002: personnel from the armed forces of the USA started arriving in Mindanao to take part, in conjunction with the Philippine military, in "Balikatan 02-1; said exercises are the largest combined training operations involving Filipino and American troops. In theory, they are a simulation of joint military maneuvers pursuant to the Mutual Defense Treaty (a bilateral defense agreement entered into by the Philippines and the United States in 1951). The last "Balikatan" was held in 1995. This was due to the paucity of any formal agreement relative to the treatment of United States personnel visiting the Philippines. In the meantime, the respective governments of the two countries agreed to hold joint exercises on a reduced scale. The lack of consensus was eventually cured when the two nations concluded the Visiting Forces Agreement (VFA) in 1999. The entry of American troops into Philippine soil is proximately rooted in the international antiterrorism campaign declared by President George W. Bush in reaction to the tragic events that occurred on September 11, 2001. PETITION FOR CERTIORATI AND PROHIBITION February 1: petitioners Arthur D. Lim and Paulino P. Ersando filed a petition for certiorari and prohibition, attacking the constitutionality of the joint exercise. They were joined subsequently by SANLAKAS and PARTIDO NG MANGGAGAWA. Lim and Ersando filed suit in their capacities as citizens, lawyers and taxpayers. SANLAKAS and PARTIDO, on the other hand, aver that certain members of their organization are residents of Zamboanga and Sulu, and hence will be directly affected by the operations being conducted in Mindanao. They likewise pray for a relaxation on the rules relative to locus standi citing the unprecedented importance of the issue involved. SENATE Terms of Reference (TOR) The Senate conducted a hearing on the "Balikatan" exercise wherein Vice-President Teofisto T. Guingona, Jr., who is concurrently Secretary of Foreign. Affairs, released the following TOR: I. POLICY LEVEL 1. The Exercise shall be consistent with the Philippine Constitution and all its activities shall be in consonance with the laws of the land and the provisions of the RP-US Visiting Forces Agreement (VFA). 2. The conduct of this training Exercise is in accordance with pertinent United Nations resolutions against global terrorism as understood by the respective parties. 3. No permanent US basing and support facilities shall be established. Temporary structures such as those for troop billeting, classroom instruction and messing may be set up for use by RP and US Forces during the Exercise. 4. The Exercise shall be implemented jointly by RP and US Exercise Co-Directors under the authority of the Chief of Staff, AFP. In no instance will US Forces operate independently during field training exercises (FTX). AFP and US Unit Commanders will retain command over their respective forces under the overall authority of the Exercise Co-Directors. RP and US participants shall comply with operational instructions of the AFP during the FTX. 5. The exercise shall be conducted and completed within a period of not more than six months, with the projected participation of 660 US personnel and 3,800 RP Forces. The Chief of Staff, AFP shall direct the Exercise Co-Directors to wind up and terminate the Exercise and other activities within the six month Exercise period. 6. The Exercise is a mutual counter-terrorism advising, assisting and training Exercise relative to Philippine efforts against the ASG, and will be conducted on the Island of Basilan. Further advising, assisting and training exercises shall be conducted in Malagutay and the Zamboanga area. Related activities in Cebu will be for support of the Exercise. 7. Only 160 US Forces organized in 12-man Special Forces Teams shall be deployed with AFP field, commanders. The US teams shall remain at the Battalion Headquarters and, when approved, Company Tactical headquarters where they can observe and assess the performance of the AFP Forces. 8. US exercise participants shall not engage in combat, without prejudice to their right of self-defense. 9. These terms of Reference are for purposes of this Exercise only and do not create additional legal obligations between the US Government and the Republic of the Philippines. II. EXERCISE LEVEL 1. TRAINING

a. The Exercise shall involve the conduct of mutual military assisting, advising and training of RP and US Forces with the primary objective of enhancing the operational capabilities of both forces to combat terrorism. b. At no time shall US Forces operate independently within RP territory. c. Flight plans of all aircraft involved in the exercise will comply with the local air traffic regulations. 2. ADMINISTRATION & LOGISTICS a. RP and US participants shall be given a country and area briefing at the start of the Exercise. This briefing shall acquaint US Forces on the culture and sensitivities of the Filipinos and the provisions of the VF A. The briefing shall also promote the full cooperation on the part of the RP and US participants for the successful conduct of the Exercise. b. RP and US participating forces may share, in accordance with their respective laws and regulations, in the use of their resources, equipment and other assets. They will use their respective logistics channels. c. Medical evaluation shall be jointly planned and executed utilizing RP and US assets and resources. d. Legal liaison officers from each respective party shall be appointed by the Exercise Directors. 3. PUBLIC AFFAIRS a. Combined RP-US Information Bureaus shall be established at the Exercise Directorate in Zamboanga City and at GHQ, AFP in Camp Aguinaldo, Quezon City. b. Local media relations will be the concern of the AFP and all public affairs guidelines shall be jointly developed by RP and US Forces. c. Socio-Economic Assistance Projects shall be planned and executed jointly by RP and US Forces in accordance with their respective laws and regulations, and in consultation with community and local government officials. Contemporaneously, Assistant Secretary for American Affairs Minerva Jean A. Falcon and United States Charge d' Affaires Robert Fitts signed the Agreed Minutes of the discussion between the Vice-President and Assistant Secretary Kelly.4 ARGUMENTS OF PETITIONERS 1) The Phil and US signed the Mutual Defense Treaty in 1951 to provide mutual military assistance in accordance with the constitutional processes of each country ONLY IN THE CASE OF AN ARMED ATTACK BY AN EXTERNAL AGGRESSOR. The Abu Sayyaf bandits ARE NOT an external armed force to warrant the US military assistance. 2) The VFA does NOT authorize American soldiers to engage in combat operations in Philippine territory (cannot even fire back if fired upon). SOLGEN DEFENDS BALIKATAN 1) SOLGEN questions petitioners standing, prematurity of the action as well as the impropriety of availing of certiorari to ascertain a question of fact. LOCUS STANDI:First, they may not file suit in their capacities as, taxpayers inasmuch as it has not been shown that "Balikatan 02-1 " involves the exercise of Congress' taxing or spending powers. Second, their being lawyers does not invest them with sufficient personality to initiate the case, citing the ruling in Integrated Bar of the Philippines v. Zamora. Third, Lim and Ersando have failed to demonstrate the requisite showing of direct personal injury. NOTE: THE COURT AGREED WITH THE SOLGEN ON THIS PROCEDURAL MATTER. (But still allowed petition on the merits). PREMATURITY: SOLGEN is of the view that since the Terms of Reference are clear as to the extent and duration of "Balikatan 02-1," the issues raised by petitioners are premature, as they are based only on a fear of future violation of the Terms of Reference. Even petitioners' resort to a special civil action for certiorari is assailed on the ground that the writ may only issue on the basis of established facts. MAIN DEFENSE SOLGEN claims that there is actually no question of constitutionality involved. The true object of the instant suit, it is said, is to obtain an interpretation of the V FA. The Solicitor General asks that the SC accord due deference to the executive determination that "Balikatan 02-1" is covered by the VFA, considering the President's monopoly in the field of foreign relations and her role as commander-inchief of the Philippine armed forces. PROCEDURAL PART COURT: USED TRANSCENDENTAL IMPORTANCE DOCTRINE AND GRANTED STANDING TO PETITIONERS In view of the paramount importance and the constitutional significance of the issues raised in the petitions, this Court, in the exercise of its sound discretion, brushes aside the procedural barrier and takes cognizance of the petitions, as we have done in the early Emergency Powers Cases (where the SC brushed away rules on technicality and had occasion to rule: 'x x x ordinary citizens and taxpayers were allowed to question the constitutionality of several executive orders issued by President Quirino although they were involving only an indirect and general interest shared in common with the public. The Court dismissed the objection that they were not proper parties and ruled that 'transcendental importance to the public of these cases demands that they be settled promptly and definitely, brushing aside, if we must, technicalities of procedure.' We have since then applied the exception in many other cases. [citation omitted]

Again, in the more recent case of Kilosbayan vs. Guingona, Jr., this Court ruled that in cases of transcendental importance, the Court may relax the standing requirements and allow a suit to prosper even where there is no direct injury to the party claiming the right of judicial review. Hence, we treat with similar dispatch the general objection to the supposed prematurity of the action. At any rate, petitioners' concerns on the lack of any specific regulation on the latitude of activity US personnel may undertake and the duration of their stay has been addressed in the Terms of Reference. COURT: BALIKATAN MUST BE VIEWED IN THE FRAMEWORK OF THE TREATY THAT PERMITTED SUCH TO OCCUR 1. MUTUAL DEFENSE TREATY The holding of "Balikatan 02-1" must be studied in the framework of the treaty antecedents to which the Philippines bound itself. The first of these is the Mutual Defense Treaty (MDT, for brevity). The MDT has been described as the "core" of the defense relationship between the Philippines and its traditional ally, the United States. Its aim is to enhance the strategic and technological capabilities of our armed forces through joint training with its American counterparts; the "Balikatan" is the largest such training exercise directly supporting the MDT's objectives. It is this treaty to which the V FA adverts and the obligations thereunder which it seeks to reaffirm. 2. VISITING FORCES AGREEMENT The lapse of the US-Philippine Bases Agreement in 1992 and the decision not to renew it created a vacuum in US-Philippine defense relations; until it was replaced by the Visiting Forces Agreement. I note that October 10, 2000, by a vote of eleven to three, the SC upheld the validity of the VFA. The VFA provides the "regulatory mechanism" by which "United States military and civilian personnel [may visit] temporarily in the Philippines in connection with activities approved by the Philippine Government." It contains provisions relative to entry and departure of American personnel, driving and vehicle registration, criminal jurisdiction, claims, importation and exportation, movement of vessels and aircraft, as well as the duration of the agreement and its termination. It is the VFA which gives continued relevance to the MDT despite the passage of years. Its primary goal is to facilitate the promotion of optimal cooperation between American and Philippine military forces in the event of an attack by a common foe. MAIN PART OF THE DECISION ISSUE NUMBER 1: WON Balikatan is covered by the VFA -Why yes it is. COURT: Dont look at the VFA since the terminology itself is the problem. Look at Vienna Convention on the Law of Treaties in order to know HOW TO INTERPRET THE DAMN VFA. To resolve this, it is necessary to refer to the V FA itself: Not much help can be had therefrom, unfortunately, since the terminology employed is itself the source of the problem. The VFA permits United States personnel to engage, on an impermanent basis, in "activities," the exact meaning of which was left undefined. The expression is ambiguous, permitting a wide scope of undertakings subject only to the approval of the Philippine government. The sole encumbrance placed on its definition is couched in the negative, in that United States personnel must "abstain from any activity inconsistent with the spirit of this agreement, and in particular, from any political activity." All other activities, in other words, are fair game. The Vienna Convention on the Law of Treaties, which contains provisos governing interpretations of international agreements, state: SECTION 3. INTERPRETATION OF TREATIES Article 31 General rule of interpretation 1. A treaty shall be interpreted in good faith ill accordance with the ordinary meaning to be given to the tenus of the treaty in their context and in the light of its object and purpose. 2. The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes: (a) any agreement relating to the treaty which was made between all the parties in connexion with the conclusion of the treaty; (b) any instrument which was made by one or more parties in connexion with the conclusion of the treaty and accepted by the other parties as an instrument related to the party . 3. There shall be taken into account, together with the context: (a) any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions;

(b) any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation; (c) any relevant rules of international law applicable in the relations between the parties. 4. A special meaning shall be given to a term if it is established that the parties so intended. Article 32 Supplementary means of interpretation Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31 : (a) leaves the meaning ambiguous or obscure; or (b) leads to a result which is manifestly absurd unreasonable. It is clear from the foregoing that the cardinal rule of interpretation must involve an examination of the text, which is presumed to verbalize the parties' intentions. The Convention likewise dictates what may be used as aids to deduce the meaning of terms, which it refers to as the context of the treaty, as well as other elements may be taken into account alongside the aforesaid context. As explained by a writer on the Convention , [t]he Commission's proposals (which were adopted virtually without change by the conference and are now reflected in Articles 31 and 32 of the Convention) were clearly based on the view that the text of a treaty must be presumed to be the authentic expression of the intentions of the parties; the Commission accordingly came down firmly in favour of the view that 'the starting point of interpretation is the elucidation of the meaning of the text, not an investigation ab initio into the intentions of the parties'. This is not to say that the travauxpreparatoires of a treaty , or the circumstances of its conclusion, are relegated to a subordinate, and wholly ineffective, role. As Professor Briggs points out, no rigid temporal prohibition on resort to travaux preparatoires of a treaty was intended by the use of the phrase 'supplementary means of interpretation' in what is now Article 32 of the Vienna Convention. The distinction between the general rule of interpretation and the supplementary means of interpretation is intended rather to ensure that the supplementary means do not constitute an alternative, autonomous method of interpretation divorced from the general rule. COURT: THE TERMS OF REFERENCE RIGHTLY FALL WITHIN THE CONTEXT OF THE VFA; DELIBERATE AMBIGUITY After studied reflection, it appeared farfetched that the ambiguity surrounding the meaning of the word 'activities" arose from accident. SC has the view that it was deliberately made that way to give both parties a certain leeway in negotiation. In this manner, visiting US forces may sojourn in Philippine territory for purposes other than military. As conceived, the joint exercises may include training on new techniques of patrol and surveillance to protect the nation's marine resources, sea search-and-rescue operations to assist vessels in distress, disaster relief operations, civic action projects such as the building of school houses, medical and humanitarian missions, and the like. Under these auspices, the VFA gives legitimacy to the current Balikatan exercises. It is only logical to assume that .'Balikatan 02-1," a "mutual anti- terrorism advising, assisting and training exercise," falls under the umbrella of sanctioned or allowable activities in the context of the agreement. Both the history and intent of the Mutual Defense Treaty and the V FA support the conclusion that combatrelated activities -as opposed to combat itself -such as the one subject of the instant petition are indeed authorized. ISSUE NUMBER 2: MAY US TROOPS ENGAGE IN COMBAT? -Nah. (remember: ligaw tingin kantot hangin lang sila.) Unless the bandits draw first blood (remember rules of engagement?) COURT: DIFFICULT TO IMPLEMENT SELF-DEFENSE RULE The Terms of Reference are explicit enough. Paragraph 8 of section I stipulates that US exercise participants may not engage in combat "except in self-defense." SC notes that this sentiment is admirable in the abstract but difficult in implementation. The target of "Balikatan 02-1 I" the Abu Sayyaf, cannot reasonably be expected to sit idly while the battle is brought to their very doorstep. They cannot be expected to pick and choose their targets for they will not have the luxury of doing so. SC points out that the parties straddle a fine line, observing the honored legal maxim "Nemo potest facere per alium quod non potest facere per directum." The indirect violation is actually petitioners' worry, that in reality, "Balikatan 02-1 " is actually a war principally conducted by the United States government, and that the provision on self-defense serves only as camouflage to conceal the true nature of the exercise. A clear pronouncement on this matter thereby becomes crucial. COURT: MDT/VFA DO NOT ALLOW FOREIGN TROOPS TO ENGAGE IN AN OFFENSIVE WAR ON PHILIPPINE TERRITORY (cf UN Charter) Article 2 The Organization and its Members, in pursuit of the Purposes stated in Article 1, shall act in accordance with the following Principles.

xxx

xxx

xxx

xxx

4. All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations. xxx xxx xxx xxx

COURT: READ BOTH TREATIES IN THE CONTEXT OF THE 1987 CONSITUTION Both the Mutual Defense Treaty and the Visiting Forces Agreement, as in all other treaties and international agreements to which the Philippines is a party, must be read in the context of the 1987 Constitution. In particular, the Mutual Defense Treaty was concluded way before the present Charter, though it nevertheless remains in effect as a valid source of international obligation. The present Constitution contains key provisions useful in determining the extent to which foreign military troops are allowed in Philippine territory. Thus, in the Declaration of Principles and State Policies, it is provided that: xxx xxx xxx xxx

SEC. 2. The Philippines renounces war as an instrument of national policy, adopts the generally accepted principles of international law as part of the law of the land and adheres to the policy of peace, equality, justice, freedom, cooperation, and amity with all nations. xxx xxx xxx xxx

SEC. 7. The State shall pursue an independent foreign policy. In its relations with other states the paramount consideration shall be national sovereignty, territorial integrity, national interest, and the right to self- determination. SEC. 8. The Philippines, consistent with the national interest, adopts and pursues a policy of freedom from nuclear weapons in the country. xxx xxx xxx xxx

The Constitution also regulates the foreign relations powers of the Chief Executive when it provides that "[n]o treaty or international agreement shall be valid and effective unless concurred in by at least two-thirds of all the members of the Senate."12 Even more pointedly, the Transitory Provisions state: Sec. 25. After the expiration in 1991 of the Agreement between the Republic of the Philippines and the United States of America concerning Military Bases, foreign military bases, troops or facilities shall not be allowed in the Philippines except under a treaty duly concurred in by the Senate and, when the Congress so requires, ratified by a majority of the votes cast by the people in a national referendum held for that purpose, and recognized as a treaty by the other contracting state. The aforequoted provisions betray a marked antipathy towards foreign military presence in the country, or of foreign influence in general. Hence, foreign troops are allowed entry into the Philippines only by way of direct exception. Conflict arises then between the fundamental law and our obligations arising from international agreements. COURT: NO PRIMACY OF LAW BETWEEL PIL AND MUNICIPAL LAW In Philip Morris, Inc. v. Court of Appeals it was stated that the fact that international law has been made part of the law of the land does not by any means imply the primacy of international law over national law in the municipal sphere. Under the doctrine of incorporation as applied in most countries, rules of international law are given a standing equal, not superior, to national legislation. [This is not exactly helpful in solving the problem at hand since in trying to find a middle ground, it favors neither one law nor the other, which only leaves the hapless seeker with an unsolved dilemma. Other more traditional approaches may offer valuable insights.] COURT: CONSTI VS PIL Perspective of public international law: a treaty is favored over municipal law pursuant to the principle of pacta sunt servanda. Hence, "[e]very treaty in force is binding upon the parties to it and must be performed by them in good faith." Further, a party to a treaty is not allowed to "invoke the provisions of its internal law as justification for its failure to perform a treaty." Phil Constitution (stated in section 5 of Article VIII) The Supreme Court shall have the following powers: xxx xxx xxx xxx

(2) Review, revise, reverse, modify, or affirm on appeal or certiorari, as the law or the Rules of Court may provide, final judgments and order of lower courts in:

(A) All cases in which the constitutionality or validity of any treaty, international or executive agreement, law, presidential decree, proclamation, order, instruction, ordinance, or regulation is in question. xxx xxx xxx xxx

In Ichong v. Hernandez, SC ruled that the provisions of a treaty are always subject to qualification or amendment by a subsequent law, or that it is subject to the police power of the State. The foregoing premises leave no doubt that US forces are prohibited / from engaging in an offensive war on Philippine territory. ISSUE NUMBER 3: Are American troops actively engaged in combat alongside Filipino soldiers under the guise of an alleged training and assistance exercise? COURT: CANNOT TAKE JUDICIAL NOTICE OF THE EVENTS IN THE SOUTH SC cannot take judicial notice of the events transpiring down south, as reported from the saturation coverage of the media. As a rule, SC does not take cognizance of newspaper or electronic reports per se, not because of any issue as to their truth, accuracy, or impartiality, but for the simple reason that facts must be established in accordance with the rules of evidence. SC cannot accept, in the absence of concrete proof, petitioners' allegation that the Arroyo government is engaged in "doublespeak" in trying to pass off as a mere training exercise an offensive effort by foreign troops on native soil. The petitions invites the SC to speculate on what is really happening in Mindanao, to issue I make factual findings on matters well beyond the SCs immediate perception, and this they are understandably loath to do. COURT: THE PROBLEM IS AN ISSUE OF FACT (SC is not a trier of facts); Certiorary is to correct errors of jurisdiction/grave abuse of discretion. It is all too apparent that the determination thereof involves basically a question of fact. On this point, SC must concur with the Solicitor General that the present subject matter is not a fit topic for a special civil action for certiorari. Jurisprudence has show in too many instances that questions of fact are not entertained in such a remedy. The sole object of the writ is to correct errors of jurisdiction or grave abuse of discretion: The phrase "grave abuse of discretion" has a precise meaning in law, denoting abuse of discretion "too patent and gross as to amount to an evasion of a positive duty, or a virtual refusal to perform the duty enjoined or act in contemplation of law, or where the power is exercised in an arbitrary and despotic manner by reason of passion and personal hostility." In this connection, it will not be amiss to add that the Supreme Court is not a trier of facts. Under the expanded concept of judicial power under the Constitution, courts are charged with the duty "to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the government."21 From the facts obtaining, the court finds that the holding of "Balikatan 02-1" joint military exercise has not intruded into that penumbra of error that would otherwise call for correction on the SCs part. In other words, respondents in the case at bar have not committed grave abuse of discretion amounting to lack or excess of jurisdiction. WHEREFORE, the petition and the petition-in-intervention are hereby DISMISSED without prejudice to the filing of a new petition sufficient in form and substance in the proper Regional Trial Court. BAYAN v. ZAMORA (October 10, 2000) Buena, J. FACTS. In 1947, the Military Bases Agreement (MBA)was forged, and in 1951, the Mutual Defense Treaty was entered into providing that the Philippines and the US shall respond to any external armed attack on their territory, armed forces, public vessels, and aircraft. In 1991, the MBA expired so the military exercises were held in abeyance. The US and Philippines represented by the US Defense Deputy Assistant Secretary for Asia Pacific and Philippines Foreign Affairs Undersecretary discussed the Visiting Forces Agreement (VFA). A draft text was consolidated and thereafter approved by President Ramos. In 1998, Erap ratified the VFA. The Instrument of Ratification, the letter of the President and the VFA were transmitted to the Senate for concurrence pursuant to Section 21, Article VII of the 1987 Constitution (not Section 25, Article XVII). HELD: Court dismissed the petitions because there was no grave abuse of discretion. THE VISITNG FORCES AGREEMENT. The VFA provides for the mechanism for regulating the circumstances and conditions under which US Armed Forces and defense personnel my be present in the Philippines. It is an agreement which defines the treatment of US troops and personnel visiting the Philippines. It provides for the guidelines to govern such visits of military personnel, and further defines the rights of the US and the Philippine government in the matter of criminal jurisdiction, movement of vessel and aircraft, importation and exportation of equipment, materials and supplies.

1ST ISSUE: LOCUS STANDI. Petitioners had no legal standing. First, they failed to show that they have sustained, or are in danger of sustaining any direct injury as a result of the enforcement of the VFA. Second, no public funds raised by taxation are involved in this case. Third, Representatives Wigberto Taada, Agapito Aquino and Joker Arroyo, in the absence of a clear showing of any direct injury to their person or to the institution to which they belong, have no standing. Fourth, the allegations of impairment of legislative power are more apparent than real. NONETHELESS, THE COURT TAKES COGNIZANCE OF THE CASE. This is in view of the paramount importance and the constitutional significance of the issues raised. 2ND ISSUE: WHICH CONSTITUTIONAL PROVISION APPLIES. Both provisions shall apply because far from contradicting each other, actually share some common ground. In any case, the concurrence of the Senate is mandatory to comply with the strict constitutional requirements. The 1987 Philippine Constitution contains 2 provisions requiring the concurrence of the Senate on treaties or international agreements. Section 21, Article VII reads: No treaty or international agreement shall be valid and effective unless concurred in by at least two-thirds of all the Members of the Senate." Section 25, Article XVIII reads: "After the expiration in 1991 of the Agreement between the Republic of the Philippines and the United States of America concerning Military Bases, foreign military bases, troops, or facilities shall not be allowed in the Philippines except under a treaty duly concurred in by the Senate and, when the Congress so requires, ratified by a majority of the votes cast by the people in a national referendum held for that purpose, and recognized as a treaty by the other contracting State." REQUIREMENTS UNDER SECTION 25. This section disallows foreign military bases, troops, or facilities in the country, unless the following conditions are met: [1] must be under a treaty [2] duly concurred in by the Senate [3] recognized as a treaty by the other contracting state. 3RD ISSUE: WON THE US RECOGNIZED VFA AS A TREATY. Practically, yes. First of all, the phrase "recognized as a treaty" means that the other contracting party accepts or acknowledges the agreement as a treaty. US need not submit the VFA to the US Senate for concurrence pursuant to its Constitution, because this is to accord too strict a meaning to the phrase. Secondly, it is inconsequential whether the US treats the VFA merely as an executive agreement (EO) because, under international law, an executive agreement is as binding as a treaty. In international law, there is no difference between treaties and EOs in their binding effect upon states, as long as the negotiating functionaries have remained within their powers. Third, in any case, the records reveal that the US Government, through Ambassador Hubbard, has stated that the US government has fully committed to living up to the terms of the VFA. For as long as the US acknowledges the VFA as a treaty, and binds itself further to comply with its obligations under the treaty, there is a compliance with the mandate of the Constitution. TREATY; DEFINED. Article 2 of the Vienna Convention on the Law of Treaties, states that it is "an international instrument concluded between States in written form and governed by international law, whether embodied in a single instrument or in 2 or more related instruments, and whatever its particular designation." 4TH ISSUE: WON AN EO IS BINDING. Yes, it is binding. Commissioner of Customs vs. Eastern Sea Trading states that EOs are binding even without concurrence of the Senate or Congress because the right of the Executive to enter into binding agreements without the necessity of subsequent Congressional approval has been confirmed by long usageThe validity of these has never been seriously questioned by our courts. 5TH ISSUE; WON PHILIPPINES IS BOUND BY THE TREATY. Yes. Firstly, and addition to meeting all the constitutional requirements, the Philippines is bound by the treaty because ratification, by the President and the concurrence of the Senate should be taken as a clear and unequivocal expression of our nation's consent to be bound Second, Section 2, Article II of the Constitution declares that the Philippines adopts the generally accepted principles of international law as part of the law of the land. Therefore, Filipinos are responsible to assure that its government, Constitution and laws will carry out the countrys international obligation. The Philippines cannot plead the Constitution as a convenient excuse for noncompliance with its obligations, duties and responsibilities under international law. Third, Article 13 of the Declaration of Rights and Duties of States adopted by the International Law Commission in 1949 provides: "Every State has the duty to carry out in good faith its obligations

arising from treaties and other sources of international law, and it may not invoke provisions in its constitution or its laws as an excuse for failure to perform this duty." Fourth, the principle of pacta sunt servanda preserves the sanctity of treaties. Article 26 of the Convention provides that "Every treaty in force is binding upon the parties to it and must be performed by them in good faith." RATIFICATION; DEFINED. It is an executive act, undertaken by the head of the state or of the government, as the case may be, through which the formal acceptance of the treaty is proclaimed. It is equivalent to final acceptance. THE CONSENT TO BE BOUND IS EXPRESSED BY RATIFICATION WHEN: [1] the treaty provides for such ratification, [2] it is otherwise established that the negotiating States agreed that ratification should be required [3] the representative of the State has signed the treaty subject to ratification, or [4] the intention of the State to sign the treaty subject to ratification appears from the full powers of its representative, or was expressed during the negotiation. PRESIDENT IS THE ONE WHO CONSENTS. The power to ratify is vested in the President and not in the legislature. The role of the Senate is limited only to giving or withholding its consent, or concurrence, to the ratification. SENATE IS THE ONE THAT CONCURS. The role of the Senate in relation to treaties is essentially legislative in character. The Constitution animates, through this treaty-concurring power of the Senate, a healthy system of checks and balances indispensable toward the nation's pursuit of political maturity and growth 6TH ISSUE: WON THERE WAS GRAVE ABUSE OF DISCRETION. No. Grave abuse of discretion implies such capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction, or, when the power is exercised in an arbitrary or despotic manner by reason of passion or personal hostility, and it must be so patent and gross as to amount to an evasion of positive duty enjoined or to act at all in contemplation of law. The President, as head of State, is the sole organ and authority in the external affairs of the country. The Constitution vests the power to enter into treaties or international agreements with the President. Hence, the negotiation of the VFA is an exclusive act which pertain solely to the President. The Senate and Congress cannot intrude into the field of negotiation. The President acted within the confines and limits of the powers vested in him by the Constitution. Even if he erred in submitting the VFA to the Senate for concurrence under Section 21, instead of Section 25, still, the President may not be faulted or scarred, much less be adjudged guilty of committing an abuse of discretion in some patent, gross, and capricious manner. Matters pertaining to the wisdom of a legislative act are beyond the ambit and province of the courts to inquire. SENATOR AQUILINO PIMENTEL, JR., REP. ETTA ROSALES, PHILIPPINE COALITION FOR THE ESTABLISHMENT OF THE INTERNATIONAL CRIMINAL COURT, TASK FORCE DETAINEES OF THE PHILIPPINES, FAMILIES OF VICTIMS OF INVOLUNTARY DISAPPEARANCES, BIANCA HACINTHA R. ROQUE, HARRISON JACOB R. ROQUE, AHMED PAGLINAWAN, RON P. SALO, LEAVIDES G. DOMINGO, EDGARDO CARLO VISTAN, NOEL VILLAROMAN, CELESTE CEMBRANO, LIZA ABIERA, JAIME ARROYO, MARWIL LLASOS, CRISTINA ATENDIDO, ISRAFEL FAGELA, and ROMEL BAGARES, Petitioners, - versus OFFICE OF THE EXECUTIVE SECRETARY, represented by HON. ALBERTO ROMULO, and the DEPARTMENT OF FOREIGN AFFAIRS, represented by HON. BLAS OPLE, Respondents *case concerns a petition for mandamus to compel the respondents to transmit to the Senate the signed copy of the Rome Statute of the Intl Criminal Court (being held by the executive branch Dept. of Foreign Affairs) for ratification. Petitioners allege that the executive has a duty to transmit the signed copy upon the theory that Senate has the power to ratify. Furthermore they insist that the Philippines has a ministerial duty to ratify the treaty since we signed it already. Court disagrees on both levels. PUNO J.: 1. Purpose of the Rome Statute

The Rome Statute established the International Criminal Court which shall have the power to exercise its jurisdiction over persons for the most serious crimes of international concern xxx and shall be complementary to the national criminal jurisdictions.[1] Its jurisdiction covers the crime of genocide, crimes against humanity, war crimes and the crime of aggression as defined in the Statute. [2] The Statute was opened for signature by all states in Rome on July 17, 1998 and had remained open for signature until December 31, 2000 at the United Nations Headquarters in New York. 2. The Philippines signed the Statute on December 28, 2000 through Charge d Affairs Enrique A. Manalo of the Philippine Mission to the United Nations.[ that it be subject to ratification, acceptance or approval of the signatory states. 3. Petitioners filed the instant petition to compel the respondents the Office of the Executive Secretary and the Department of Foreign Affairs to transmit the signed text of the treaty to the Senate of the Philippines for ratification. 4. Petitioners 2 Theories: Senate has the power to ratify & a pre-emptive notion of pacta sunt servanda A. Ratification of a treaty, under both domestic law and international law, is a function of the Senate. Hence, it is the duty of the executive department to transmit the signed copy of the Rome Statute to the Senate. B. The Philippines has a ministerial duty to ratify the Rome Statute under treaty law and customary international law such as the Vienna Convention on the Law of Treaties enjoining the states to refrain from acts which would defeat the object and purpose of a treaty when they have signed the treaty prior to ratification unless they have made their intention clear not to become parties to the treaty 5. Standing Issue - only those aggrieved by the inaction of the executive has standing - Legal standing means a personal and substantial interest in the case such that the party has sustained or will sustain direct injury as a result of the government act that is being challenged. - Interest is material interest, an interest in issue and to be affected by the decree, as distinguished from mere interest in the question involved, or a mere incidental interest 6. Parties and their basis for Standing Senator Aquilino Pimentel, Jr. member of the Senate

Congresswoman Loretta Ann member of the House of Rosales Representatives and Chairperson of its Committee on Human Rights The Philippine Coalition for the composed of individuals and Establishment of the International corporate entities dedicated to the Criminal Court Philippine ratification of the Rome Statute the Task Force Detainees of the juridical entity with the avowed a Philippines purpose of promoting the cause of human rights and human rights victims in the country the Families of Victims Involuntary Disappearances of a juridical entity duly organized , and existing pursuant to Philippine Laws with the avowed purpose of promoting the cause of families and victims of human rights violations in the country Bianca Hacintha Roque and suing under the doctrine of interHarrison Jacob Roque aged two (2) generational rights enunciated in and one (1), (THESE ARE ROQUES case of Oposa vs. Factoran, Jr the KIDS!!!) group of fifth year working law Taxpayers (mga sipsip) students from the University of the Philippines College of Law 7. Only Senator Pimentel has standing !!! to the extent the powers of Congress are impaired, so is the power of each member thereof, since his office confers a right to participate in the exercise of the powers of that institution. 8. Other petitioners contention Rome Statute protects their right Their contention that they will be deprived of their remedies for the protection and enforcement of their rights does not persuade. The Rome Statute is intended to complement national criminal laws and courts. Sufficient remedies are available under our national laws to protect our citizens against human rights violations and petitioners can always seek redress for any abuse in our domestic courts. 9. SUBSTANTIVE ISSUE

whether the Executive Secretary and the Department of Foreign Affairs have a ministerial duty to transmit to the Senate the copy of the Rome Statute signed by a member of the Philippine Mission to the United Nations even without the signature of the President. 10. COURT HOLDS no duty on the executive. Petition for mandamus dismissed 11. Role of the President with regard to foreign affairs - the sole organ and authority in external relations and is the countrys sole representative with foreign nations. - the chief architect of foreign policy, the President acts as the countrys mouthpiece with respect to international affairs. - the President is vested with the authority to deal with foreign states and governments, extend or withhold recognition, maintain diplomatic relations, enter into treaties, and otherwise transact the business of foreign relations. - In the realm of treaty-making, the President has the sole authority to negotiate with other states. 12. What about the Concurrence of Senate requirement? Only serve as a check! Section 21, Article VII of the 1987 Constitution no treaty or international agreement shall be valid and effective unless concurred in by at least twothirds of all the Members of the Senate. The participation of the legislative branch in the treaty-making process was deemed essential to provide a check on the executive in the field of foreign relations. By requiring the concurrence of the legislature in the treaties entered into by the President, the Constitution ensures a healthy system of checks and balance necessary in the nations pursuit of political maturity and growth.[ 13. The power to ratify does not belong to the Senate!!! 14. Justice Isagani Cruz, in his book on International Law describes the treaty-making process in this wise: Negotiation may be undertaken directly by the head of state but he now usually assigns this task to his authorized representatives. These representatives are provided with credentials known as full powers, which they exhibit to the other negotiators at the start of the formal discussions. It is standard practice for one of the parties to submit a draft of the proposed treaty which, together with the counter-proposals, becomes the basis of the subsequent negotiations. Signing is the step primarily intended as a means of authenticating the instrument and for the purpose of symbolizing the good faith of the parties; but, significantly, it does not indicate the final consent of the state in cases where ratification of the treaty is required. The document is ordinarily signed in accordance with the alternat, that is, each of the several negotiators is allowed to sign first on the copy which he will bring home to his own state. Ratification which is the next step, is the formal act by which a state confirms and accepts the provisions of a treaty concluded by its representatives. The purpose of ratification is to enable the contracting states to examine the treaty more closely and to give them an opportunity to refuse to be bound by it should they find it inimical to their interests Exchange of the instruments of ratification, which usually also signifies the effectivity of the treaty unless a different date has been agreed upon by the parties. Where ratification is dispensed with and no effectivity clause is embodied in the treaty, the instrument is deemed effective upon its signature. 15. Error of petitioner DFA signing is not equal to ratification Thus, Executive Order No. 459 issued by President Fidel V. Ramos on November 25, 1997 provides the guidelines in the negotiation of international agreements and its ratification. It mandates that after the treaty has been signed by the Philippine representative, the same shall be transmitted to the Department of Foreign Affairs. The Department of Foreign Affairs shall then prepare the ratification papers and forward the signed copy of the treaty to the President for ratification. After the President has ratified the treaty, the Department of Foreign Affairs shall submit the same to the Senate for concurrence. 16. Executive Order No. 459 reads: Sec. 7. Domestic Requirements for the Entry into Force of a Treaty or an Executive Agreement. The domestic requirements for the entry into force of a treaty or an executive agreement, or any amendment thereto, shall be as follows: A. Executive Agreements. (same as treaties) B. Treaties. i. All treaties, regardless of their designation, shall comply with the requirements provided in sub-paragraph[s] 1 and 2, item A (Executive Agreements) of this Section. In addition, the Department of Foreign Affairs shall submit the treaties to the Senate of the Philippines for concurrence in the ratification by the President. A certified true copy of the treaties, in such numbers as may be required by the Senate, together with a certified true copy of the ratification instrument, shall accompany the submission of the treaties to the Senate.

ii. Upon receipt of the concurrence by the Senate, the Department of Foreign Affairs shall comply with the provision of the treaties in effecting their entry into force. 17. Ministerial duty to ratify a treaty after signing has no basis - The signature does not signify the final consent of the state to the treaty. It is the ratification that binds the state to the provisions thereof. In fact, the Rome Statute itself requires that the signature of the representatives of the states be subject to ratification, acceptance or approval of the signatory states. Ratification is the act by which the provisions of a treaty are formally confirmed and approved by a State. By ratifying a treaty signed in its behalf, a state expresses its willingness to be bound by the provisions of such treatyThus, the President has the discretion even after the signing of the treaty by the Philippine representative whether or not to ratify the same. The Vienna Convention on the Law of Treaties does not contemplate to defeat or even restrain this power of the head of states. If that were so, the requirement of ratification of treaties would be pointless and futile. It has been held that a state has no legal or even moral duty to ratify a treaty which has been signed by its plenipotentiaries.[18] There is no legal obligation to ratify a treaty, but it goes without saying that the refusal must be based on substantial grounds and not on superficial or whimsical reasons. 18. Power to ratify is vested in the President alone!!! He can refuse to ratify! It should be emphasized that under our Constitution, the power to ratify is vested in the President, subject to the concurrence of the Senate. The role of the Senate, however, is limited only to giving or withholding its consent, or concurrence, to the ratification. Although the refusal of a state to ratify a treaty which has been signed in its behalf is a serious step that should not be taken lightly, such decision is within the competence of the President alone, which cannot be encroached by this Court via a writ of mandamus. This Court has no jurisdiction over actions seeking to enjoin the President in the performance of his official duties. IN VIEW WHEREOF, the petition is DISMISSED. Salonga Petition Petitioners: Jovito R. Salonga, Wigberto E. Tanada, Jose de la Rama, Emilio C. Capulong, H. Harry L. Roque, Jr., Florin Hilbay and Benjamin Pozon Respondents: Daniel Smith, Sec. Raul Gonzalez, Presidential Legal Counsel Sergio Apostol. Secretary Ronaldo Puno, Secretary Alberto Romulo, Justice Apolinario Bruselas, Jr., Former Special 16th Division of the CA and all persons acting in their behalf, Amended Petition; Petition for Certiorari under Rule 65 January 22, 2007 Prefatory Statement VFA preamble (par. 3 and 4) Reaffirming their obligations under the Mutual Defense Treaty of August 30, 1951; Noting that from time to time elements of the United States armed forces may visit the Republic of the Philippines; Two questions from these paragraphs: (1) WON the Mutual Defense Treaty (MDT) applies to the VFA; (2) whether the word visit means what it says, as applied in light of the understanding and the assurances made during the ratification by the Senate of the VFA and, more importantly, in the context of current practices of the US armed forces. As to 1st question: Petitioners maintain that MDT does not apply: Par. 3 of the MDT preamble speaks of an external armed attack, so that no potential aggressor could be under the illusion that either of them stands alone in the Pacific Area. Art. I provides that the parties undertake (as set forth in UN Charter) to settle any international dispute by peaceful means and to refrain in their international relations from the threat or use of force in any manner inconsistent with the purposes of the UN. (Judicial notice that the US, under President George W. Bush, has openly denied and ignored the UN in its actions against Iraqto the dismay and consternation of then UN Secretary General Kofi Annan and many other notable personalities in the US, Europe, Africa and Asia.) Art. II speaks of developing their individual and collective capacity to resist armed attack. Art. III provides for mutual consultation through their Foreign Ministers or their deputies whenever in the opinion of either of them the territorial integrity, political independence or security of either of the parties is threatened by external attack in the Pacific. Art. IV (unlike in the NATO which provides that an armed attack on one is considered automatically an armed attack on the others who are parties) declares that either of the Parties would act to meet common dangers in accordance with its constitutional processes. (The US used this escape clause when the Philippines asked the former to come to its aid in case of imminent attack by mainland China on Kalayaan Island in the Spratlys.) Art. V says that for the purpose of Art. IV, an armed attack on either of the parties is deemed to include an attack on the metropolitan territory of either of the parties, or on the island territories under its jurisdiction in the Pacific. (Again, the US made use of this provision to justify its refusal to come to the aid of the Philippines in the Kalayaan Island in the Spratlys, despite the imminent attack of China on the armed forces and public vessels of the Philippines.)

Art. VI provides that this Treaty does not affect and shall not be interpreted as affecting in any way the rights and obligations of the Parties under the UN Charter or responsibility of the UN for the maintenance of international peace and security. Clearly, there is no room for application of the MDT in the VFA as there is no external armed attack on the Philippines to speak of.

As to 2nd question: US armed forces stay, not temporary visits: In the context of the current practices of the US armed forces in the Philippines, it is incumbent upon this Court to inquire as to the actual length of time US military personnel stay in the Philippines, especially those in Mindanao, under the guise of a visit pursuant to the VFA. It appears that US military personnel are in the Philippines the whole year round, without any geographical and time limitations. Such presence could not, by any stretch of imagination, be considered as temporary visits. Antecedent Proceedings 1. October 2000. Bayan et. al. v. Executive Secretary, et. al.declaring unconstitutional. Puno dissented in favor of granting the petition. the VFA as not

2. June 2006. Petition for certiorari filed with the SC by Suzette S. Nicolas (Nicole) against Judge Benjamin Pozon and Daniel Smith, et. al. (hrough Attys. Evalyn Ursua, Teofisto Guingona, Jr., Rene AV Saguisag, and former UP Law Dean Magallona) 3. December 2006. Makati RTC found private respondent guilty beyond reasonable doubt of the crime of rape and sentenced him to 40 years imprisonment. Trial court temporarily committed private respondent to the Makati City jail pending further negotiations between the governments of the Philippines and the US regarding custody. 4. December 5, 2006. Private respondent filed an Urgent Motion for Reconsideration with Prayer for Issuance of Stay Order. 5. December 8, 2006. Public prosecutor filed a Manifestation submitting therewith an agreement signed by US Ambassador Kristie Kenney and Chief State Prosecutor (CSP) Jovencito Zuo. The agreement stated that: the Philippine Government and the US Government agree that, in accordance with the VFA Smith, should be returned to US military custody at the US Embassy. 6. Trial Court received letter from DOJ Secretary with the agreement attached. 7. December 12, 2006.Trial court denied Smiths motion for reconsideration. The decision stated that Smith shall continue to be committed in Makati City Jail until the appropriate Philippine and US authorities shall have come to a binding agreement as to the proper facilities where said shall carry out his confinement or detention during his appeal. 8. December 14, 2006. Smith filed a Petition for Certiorari before the CA praying for the annulment of the order denying his Urgent Motion for Reconsideration. 9. December 18, 2006. Special 16th Division of CA issued resolution denying private respondents prayer for TRO. 10. Petitioners Jovito R. Salonga, Wigberto Taada, et. al. filed a special appearance petition with the CAto transmit the case to the SC in view of the June 2006 (#2) case pending in the latter. At that time, no agreement had yet been reached between US Ambassador and Secretary Romulo and no resolution had yet been promulgated by Justice Bruselas, Jr. of the CA. 11. December 20, 2006, the DFA, through the Sol. Gen., filed a Very Urgent Manifestation and Motion, submitting an Agreement entered into by U.S. Ambassador and respondent Secretary Romulo.

12.

December 22, 2006, the DFA, through the Sol. Gen., filed a Very Urgent Supplemental Manifestation and Motion submitting an Agreement dated 22 December 2006 between U.S. Ambassador and respondent Secretary Romulo which stated that the DFA of the Philippines and the US Embassy agree that, in accordance with the VFA signed upon transfer of Smith from the Makati City Jail to US military authorities at the US Embassy in Manila, he will be detained at the 1 st Floor, Rowe (JUSMAG) Building, U.S. Embassy Compound in a room of approximately 10 x 12 square feet. He will be guarded round-the-clock by US military personnel. The Philippine police and jail authorities, under direct supervision of the DILG, will have access to the place of detention to ensure the US is in compliance with the terms of the VFA. 13. December 27, 2006. Respondent Apostol, despite his knowledge of the pendency of Smiths Petition for Certiorari before the CA, publicly expressed the view that we (the executive) are the jailers of Smith, we can decide where to detain a convicted criminal. If the President ordered the transfer, then the courts would not be able to do anything except to cite the executive department for contempt. 14. December 29, 2006 11 pm. Smith was released from the Makati City Jail by Philippine officials and turned over to US authorities.

15. The next day, respondent Puno admitted that it was he and his Department that transferred custody of respondent Smith to US authorities, explaining that the transfer was effected in the late evening to avoid traffic. 16. Respondent Gonzalez publicly admitted that he gave a written legal opinion to the DILG on the legality of the release of Smith from the Makati City Jail to the custody of US officials even without a court order and that this opinion became the basis of the transfer of Smith. 17. January 1, 2007. Respondent Ermita admitted that he and the President supported the transfer of Smith. 18. January 2, 2007. Suzette Nicolas, Zenaida Quezon Avancena, Atty. Wigberto Tanada, Dr. Quintin Doromal, Atty. Emilio capulong, Jr., Atty. Jovito Salonga, and Prof. Harry L. Roque, Jr. filed a Petition for Contempt with Motion to Consolidate with CA against Daniel Smith, Secretary Puno, Presidential Legal Counsel Sergio Apostol, executive Secretary Ermita, Secretary Gonzalez and the Makati City Jail Warden. 19. January2, 2007. President issued a statement asking the Filipino people to understand and support the difficult decision that she and her officials made regarding the transfer of respondent Smith to the U.S. Embassy.

20.

January 3, 2007. CA released its Decision upholding the interpretation of Judge Pozon in his 12 December 2006 Order (#7) that judicial proceedings under the VFA refer only to the proceedings at the court a quo and that custody of respondent Smith must be with the Philippine authorities. However, it dismissed the Petition of respondent Smith for having become moot because of the agreement between the US Ambassador and Secretary Romulo. Part of the decision reads: All the foregoing discussions notwithstanding, we are confronted with the latest agreement executed between Secretary of Foreign Affairs Alberto G. Romulo and Ambassador Kristie Kenney who are the authorized signatories to bind state parties to an agreement. Conformably with the wise observation wrongly attributed to Justice Holmes by Justice Bruselas -- that the other branches of government are equally the ultimate guardians of the liberties and welfare of the people, we resolve to consider the matter treated in the petition MOOT. 21. Petitioner Salonga immediately pointed out, as published by the Philippine Daily Inquirer that the basis for the appellate courts January 3 decision declaring moot Smiths appeal to be returned to US custody had been falsified and altered. Petitioner Salonga pointed out that a portion of the quote attributed to the eminent magistrate read: [The] other branches of the government are ultimate guardians of the liberties and welfare of the people in quite as great a degree as the courts. Petitioner Salonga said that the correct quote is: Great constitutional provisions must be administered with caution. Some play must be allowed for the joints of the machine and it must be remembered that legislatures are the ultimate guardians of the liberties and welfare of the people in quite as great a degree as the courts. It must be noted that, in declaring the Smith petition moot, Justice Bruselas relied on the abovecited premise which is a misquotation of the original text. Hence, it is evident that there is no legal or factual basis for declaring Smiths petition as moot.

22.

In view of the question of unconstitutionality of CERTAIN PROVISIONS THE VFA, its international law implications and the question of jurisdiction and custody as applied to the specific case of rape adjudged to have been committed by Smith against Suzette Nicolas, IT IS APPROPRIATE AND NECESSARY THAT ALL THESE MATTERS BE RESOLVED BY THE SUPREME COURT. Standing of Petitioners Petitioners have personal standing to file the instant Petition, considering the direct injury to their fundamental rights caused by the enforcement of the patently unconstitutional VFA and patently unconstitutional and illegal agreements entered into by Secretary Romulo, Secretary Gonzalez and CSP Zuo and the US Government. It has been held that legal standing means a personal and substantial interest in the case such that the party has sustained or will sustain direct injury as a result of the act being challenged. 18 For a party to have personal standing, he need only prove, first, injury to his right or interest 19, and second, a "fairly traceable" causal connection between the claimed injury and the challenged conduct.20 As to the first requisite, which requires injury in fact,21 there is no rigid rule as to what may constitute such injury. As for the second requisite, it is complied with when the Petitioners show that there is a substantial likelihood that the relief requested will redress the claimed injury.22 Even if the line of
18 19 Tankiko v. Cezar, G.R. No. 131277, February 2, 1999.

Tankiko v. Cezar, G.R. No. 131277, February 2, 1999; CRUZ, Id.,at 25; Duke Power Co. v. Carolina Environmental Study Group, 438 US 59 (1978), quoted in ROTUNDA, infra n.64, at 1050, and cited in NOWAK AND ROTUNDA, infra n.65 at 76 20 Duke Power Co. v. Carolina Environmental Study Group, 438 US 59 (1978). 21 Association of Data Processing Service Organizations v. Comp., 397 US 150 (1970) in RONALD ROTUNDA, MODERN CONSTITUTIONAL LAW: CASES AND NOTES 1054 (3rd ed., 1989) 22 NOWAK & ROTUNDA, supra note 11, at 76, Duke Power Co. v. Carolina Environmental Study Group, 438 US 59 (1978).

causation between the injury and the conduct is attenuated, even the existence of "an identifiable trifle" is sufficient for meeting this requisite.23 Petitioners have the right to ensure that there is an orderly dispensation of justice before the courts. It was grave abuse of discretion amounting to lack or excess of jurisdiction for Justice Bruselas, Jr. to dismiss private respondents petition for certiorari for being moot, on the premise that the agreement executed between DFA Secretary Romulo and Ambassador Kenney validly and legally bound the state parties thereto. The provisions of the VFA on detention and confinement, on which the agreements between Secretary Romulo, Secretary Gonzales, CSP Zuo, on one hand, and Ambassador Kenney, on the other, work to amend the rules on criminal procedure pertaining to the arrest of an accused, detention of a convict and the right to post bail, among others. As a consequence, this amendment constitutes a violation of Petitioners right to ample remedies for the protection of their rights, and of their other fundamental rights, especially the right to due process and equal protection of the laws. The denial of the instant Petition will redress the impending injury that will be inflicted upon Petitioners, especially Nicole, by allowing the furtherance of a process aimed at affirming their rights and entitlements as citizens. As citizens, Petitioners have standing to file the instant Petition, as it involves the enforcement of a public right and raises questions of transcendental importance to the citizenry. Moreover, it was held in Kilosbayan vs. Guingona,24 and reiterated in Tatad v. Secretary,25 that procedural technicalities may be set aside by the Court in cases of transcendental importance in view of the importance of the issues involved. The petition involves matters of public interest and transcendental importance that would justify a relaxation of procedural requirements for constitutional adjudication. Grounds 1. MDT does not apply to the VFA/ contrary to the clear intent of the VFA, US military forces do not merely visit the Philippines but stay on indefinitely. 2. Respondents committed GADALEJ in entering into patently unconstitutional agreements with US Ambassador and transferring custody over Smith the US Authorities, considering that: a. VFA derogates and infringes on the exclusive power of the SC to promulgate rules of procedure (Art. VIII Sec. 5 par. 5 1987 Constitution) b. VFA violates petitioners rights to due process and equal protection. 3. VFA is unconstitutional as it violates Sec. 25 Art. XVIII of the Constitution. It cannot be used to justify the transfer of custody of Smith. 4. CA gravely abused its discretion amount to lack or excess of jurisdiction in recognizing the agreement between US Ambassador and Sec. Romulo as binding on the Philippines and declaring the Smith petition moot. 5. Public respondents gravely absued their discretion when they transferred custody of Smith to US authorities without court authority. Discussion 1st GROUND. (in addition to what was stated in the prefatory statement) It seems that the fears expressed by those who opposed the ratification of the VFA are real, after all. In light of the above discussion, it becomes the solemn duty of this Honorable Court to look into the constitutionality of the VFA based on the grounds raised herein. 2nd GROUND (A) In re Garcia,26 :The aforementioned Treaty (Treaty on Academic Degrees and the Exercise of Professions between the Republic of the Philippines and the Spanish State), could not have been intended to modify the laws and regulations governing admission to the practice of law in the Philippines, for the reason that the Executive Department may not encroach upon the constitutional prerogative of the Supreme Court to promulgate rules for admission to the practice of law in the Philippines, the power to repeal, alter or supplement such rules being reserved only to the Congress of the Philippines. (Also cited In re Cunanan,27) That the SC has the exclusive power under the 1987 Constitution to promulgate rules and procedure in all courts is beyond dispute. Hence, no other governmental entity may usurp this exclusive power of the Supreme Court without running afoul OF the Constitution.
23 24 25 26 27 ROTUNDA, supra note 10, at 1055, citing U.S. v. SCRAP, 412 U.S. 669 (1973). 232 SCRA 110. G.R. No. 124360, November 5, 1997. 2 SCRA 984 94 Phil. 534

The issue on the custody of an accused and/or convict is a matter of procedure, which under the constitution is exclusively within the realm of judicial power. Jurisdiction in criminal law necessarily includes custody. Criminal jurisdiction means jurisdiction means jurisdiction over the place of commission of the offense, jurisdiction over the offense itself, and jurisdiction over the person who commits the offense. Xxx As criminal law concepts, custody and jurisdiction go hand-in-hand. Where there is jurisdiction, there is also custody; custody inheres in jurisdiction. However, a close perusal of Section 6, Article 5 of the VFA reveals that it in effect amends the Philippines rules on criminal procedure pertaining to arrest, bail, arraignment and plea, among others. Said provision of the VFA, in immediately vesting custody of any United States personnel over whom the Philippines is to exercise jurisdiction, to the United States military authorities, if they so request, from the commission of the offense until completion of all judicial proceedings, effectively violates and impinges on the power of Philippine courts to acquire custody (read: jurisdiction) over the United States personnel. Under Section 1, Rule 113 of the Rules of Court (ROC), arrest is defined as the taking of a person into custody in order that he may be bound to answer for the commission of the offense. Hence, in cases where Section 6, Article 5 of the VFA is invoked by the United States, Philippine courts are effectively precluded from gaining custody of US personnel in order that the latter may be bound to answer for the commission of an offense. Without acquiring physical jurisdiction over the US personnel, Philippine courts will have no jurisdiction to continue with the proceedings of the case. Needless to say, in the instant controversy, US officials once again use the same provision to thwart the ends of Philippine justice enshrined in the 1987 Charter. Having established that the VFA is in conflict with the Constitution insofar as it infringes on the exclusive power of the Supreme Court to promulgate rules and procedure in all courts, it is inevitable that the VFA must be struck down as being unconstitutional. 2nd GROUND (B) Due process requires that custody over private respondent should be turned over to Philippine courts in order that the he may be bound to answer for the commission of the offense, or that justice may be served against him. This view is supported by the Senate deliberations on the ratification of the VFA Similarly, DOJ Opinion No. 094, s. 199828 says that the Philippines, in extraordinary cases, may present its position regarding custody to US authorities, which means that the Philippines may deny the US request for custody in some cases and demand to retain custody of the US offender. The VFAs denial of such custody to Philippine courts ultimately results in the violation of Petitioners right to due process. Under the VFA, Petitioners right to the equal protection of the laws is violated when it prescribes a different procedure for the custody of US personnel of a crime properly cognizable by Philippine courts as compared to Filipino citizens similarly situated, who must undergo the procedure prescribed in the Rules of Court. Even granting for the sake of argument that Philippine courts can somehow obtain jurisdiction over concerned US personnel by their voluntary appearance in court for the purpose of arraignment, such does not detract from the fact that the said provision of the VFA creates a privileged class among the criminally on the mere basis that they are United States military personnel. Such provision in the VFA creates a privileged class among criminals under the countrys criminal justice system that smacks of unwarranted partiality or undue favoritism, not in favor of Filipinos, but of United States military personnel only. Whatever maybe the reason for creating such a privileged class, there is no denying the fact that there is no substantial distinction between Filipino and U.S. military personnel charged of a crime in the Philippines. Moreover, there is no reason to extend such privilege to U.S. military personnel only when there are military personnel from other countries aside from the United States that participate in military exercises in the Philippines. Furthermore, the classification is not germane to the purpose of the treaty which governs the conduct of military exercise between the Philippines and the United States of America. Such a privileged
28

Legal opinion penned by then Secretary of Justice Serafin Cuevas on the constitutionality and criminal jurisdiction provisions of the VFA in response to the request of Senator Rodolfo G. Biazon.

treatment of U.S. military personnel does not in anyway promote or facilitate the conduct of military exercises as much as it shields U.S. soldiers from the reach of the Philippines criminal justice system. While it is true that the equal protection of the law clause in the Constitution is not absolute, but is subject to reasonable classification, the groupings must be characterized by substantial distinctions that make real differences, so that one class may be treated and regulated differently from the other.29 In the instant case, there is clearly no substantial distinction between the US personnel and other persons of crimes, as to warrant a different treatment between the two groups. There being no substantial distinction between the two groups as to warrant a different treatment, the VFA must be struck down as unconstitutional for violating petitioners right to the equal protection of the laws. 3rd GROUND As correctly held by now Chief Justice Reynato Puno in his dissenting opinion in the above-cited consolidated VFA cases, This provision lays down three constitutional requisites that must be complied with before foreign military bases, troops, or facilities can be allowed in Philippine territory, namely: (1) their presence should be allowed by a treaty duly concurred in by the Philippine Senate; (2) when Congress so requires, such treaty should be ratified by a majority of the votes cast by the Filipino people in a national referendum held for that purpose; and (3) such treaty should be recognized as a treaty by the other contracting party.30 Chief Justice Puno further held that the above provision of the Constitution applies to the VFA inasmuch as the views on the temporary nature of visits of U.S. troops cannot stand for, clearly, the VFA does not provide for a specific and limited period of effectivity. It instead provides an open-ended term in Art. IX, viz: . . . (t)his agreement shall remain in force until the expiration of 180 days from the date on which either party gives the other party notice in writing that it desires to terminate the agreement. No magic of semantics will blur the truth that the VFA could be in force indefinitely.31 In the context of current practices of the ARMED FORCES of the United States in the Philippines, Chief Justice Puno HAS BEEN right all along. US military forces are in the Philippines all-year round, visiting without any geographical or time limitations. Having established that Section 25, Article XVIII of the Constitution applies to the VFA, it is incumbent upon this Honorable Court to determine whether or not said VFA conforms to the constitutional requirements for its validity. On this issue, Chief Justice Puno had this to say in his dissenting opinion in the above-cited VFA cases, In ascertaining the VFAs compliance with the constitutional requirement that it be recognized as a treaty by the other contracting state, it is crystal clear from the above exchanges of the Constitutional Commissioners that the yardstick should be U.S. constitutional law. It is therefore apropos to make a more in depth study of the U.S. Presidents power to enter into executive agreements under U.S. constitutional law. xxx I respectfully submit that, using these three types of executive agreements as bases for classification, the VFA would not fall under the category of an executive agreement made by the president pursuant to authority conferred in a prior treaty because although the VFA makes reference to the Mutual Defense Treaty in its Preamble, the Mutual Defense Treaty itself does not confer authority upon the U.S. President to enter into executive agreements in implementation of the Treaty. Issues have occasionally arisen about whether an executive agreement was entered into pursuant to a treaty. These issues, however, involved mere treaty interpretation. Xxx In conclusion, after a macro view of the landscape of U.S. foreign relations vis-a-vis U.S. constitutional law, with special attention on the legal status of sole executive agreements, I respectfully submit that the Court will be standing on unstable ground if it places a sole executive agreement like the VFA on the same constitutional plateau as a treaty. Questions remain and the debate continues on the constitutional basis as well as the legal effects of sole executive agreements under U.S. law. The observation of Louis Henkin, a noted international and U.S. constitutional law scholar, captures the sentiments of the framers of the Philippine Constitution and of the Filipinos in crafting Sec. 25, Art. XVIII of the 1987 Constitution -- (o)ften the treaty process will be used at the insistence of other parties to an agreement because they believe that a treaty has greater dignity than an executive agreement, because its constitutional effectiveness is beyond doubt, because a
29 Tiu v. Court of Appeals, 301 SCRA 278 (1999). 30 Bayan, et. al. vs. Executive Secretary, et. al., G.R. No. 138572, 10 October 2000 Philippine Constitution Association, Inc., et. al. vs. Executive Secretary, et. al., G.R. No. 138587, 10 October 2000Giungona, et. al. vs. Estrada, et. al., G.R. No. 138680, 10 October 2000Integrated Bar of the Philippines, et. al. vs. Estrada, et. al., G.R. No. 138698, 10 October 2000and Salonga, et. al. vs. Executive Secretary, et. al., G.R. No. 138570, 10 October 2000 31 Ibid.

treaty will commit the Senate and the people of the United States and make its subsequent abrogation or violation less likely. With the cloud of uncertainty still hanging on the exact legal force of sole executive agreements under U.S. constitutional law, this Court must strike a blow for the sovereignty of our country by drawing a bright line between the dignity and status of a treaty in contrast with a sole executive agreement. However we may wish it, the VFA, as a sole executive agreement, cannot climb to the same lofty height that the dignity of a treaty can reach. Consequently, it falls short of the requirement set by Sec. 25, Art. XVIII of the 1987 Constitution that the agreement allowing the presence of foreign military troops on Philippine soil must be recognized as a treaty by the other contracting state. It is undeniable that the VFA grants no authority to public respondents Romulo and Gonzalez to enter into the assailed agreements with Ambassador Kenney. The assailed agreements, being treaties themselves, were not sent to the Philippine Senate for deliberation and ratification, in accordance with Section 25, Article XVIII and Section 21, Article VII of the Constitution, which provides as follows: Hence, the assailed agreements are not binding and enforceable. 4th GROUND Having established that the Romulo-Kenney agreement was not ratified by the Philippine Senate, hence, invalid and ineffective, it follows that the Special 16th Division of the Court of Appeals gravely abused its discretion amounting to lack or excess of jurisdiction in recognizing said agreement as binding on the Philippines and declaring the petition moot on the basis of such agreement. Moreover, attention must be given to the fact that the assailed January 3, 2007 decision of public respondent Special 16th Division of the Court of Appeals that the basis for the appellate courts January 3 decision declaring moot Smiths appeal to be returned to US custody had been falsified and altered, as pointed out by Petitioner Salonga, through an article in the Philippine Daily Inquirer (Salonga raps CA justice over misquote, Norman Bordadora, 12 January 2007, p.1). Petitioner Salonga pointed out that a portion of the quote attributed to the eminent magistrate read: [The] other branches of the government are ultimate guardians of the liberties and welfare of the people in quite as great a degree as the courts. Further, Petitioner Salonga said that the correct quote is: Great constitutional provisions must be administered with caution. Some play must be allowed for the joints of the machine and it must be remembered that legislatures are the ultimate guardians of the liberties and welfare of the people in quite as great a degree as the courts. IT MUST BE NOTED THAT JUSTICE BRUSELAS PREMISED HIS DECISION TO DECLARE SMITHS OWN PETITION WITH THE SPECIAL 16TH DIVISION OF THE COURT OF APPEALS MOOT ON SAID MISQUOTED TEXT. LIKEWISE, SAID JUSTICE ADMITTED HIS ERROR IN MISQUOTING JUSTICE HOLMES, CLAIMING HE DID IT IN PLAIN GOOD FAITH. (Philippine Daily Inquirer, 14 January 2007, p. 9) Hence, it is evident that there is no legal or factual basis for declaring Smiths petition as moot. 5th GROUND In clear disregard of Honorable Judge Benjamin Pozons express directive in his 12 December 2006 Order that Smith shall continue to be temporarily committed at the Makati City Jail until the appropriate Philippine and United States authorities shall have come to a binding agreement as to the proper facilities where said shall carry out his confinement or detention during his appeal and until further orders from this Court, public respondents nevertheless transferred the custody over Smith to the US military authorities sans a court order. This, despite public respondents knowledge of the pendency of the petition for certiorari pending filed before the Court of Appeals questioning Judge Pozons 12 December 2006 Order. This, despite the fact that the DFA submitted several urgent manifestations before the Court of Appeals praying for the transfer of custody over Smith to US authorities by virtue of the KenneyRomulo Agreement. As a matter of due process and in deference to the judiciary, public respondents should not have transferred custody over Smith to US military authorities without a court order. Clearly, it was grave abuse of discretion amounting to lack or excess jurisdiction for public respondents to have transferred custody over Smith without the proper court authority. Prayer WHEREFORE, premises considered, it is most respectfully prayed that this Honorable Court: DECLARE THE MUTUAL DEFENSE TREATY OF 1951 AS INAPPLICABLE TO THE VFA;

DECLARE THE VFA AS UNCONSTITUTIONAL FOR VIOLATING SECTION 25, ARTICLE XVIII OF THE CONSTITUTION; DEROGATING ON THE EXCLUSIVE POWER OF THE SUPREME COURT TO PROMULGATE RULES OF PROCEDURE IN ALL COURTS; AND FOR VIOLATING PETITIONERS RIGHTS TO DUE PROCESS AND EQUAL PROTECTION OF THE LAWS; NULLIFY THE ASSAILED AGREEMENTS ENTERED INTO BY PUBLIC RESPONDENTS ROMULO AND GONZALEZ WITH AMBASSADOR KENNEY FOR BEING UNCONSTITUTIONAL; AND REVERSE AND SET ASIDE THE 3 JANUARY 2007 DECISION OF THE FORMER SPECIAL 16TH DIVISION OF THE COURT OF APPEALS INSOFAR AS IT RECOGNIZED AS VALID AND BINDING THE ASSAILED ROMULOKENNEY TREATY, WHICH IT ULTIMATELY USED AS BASIS TO DECLARE SMITHS PETITION MOOT. Other just and equitable relief under the premises are prayed for. Parties Jovito R. Salonga is a former Senator of the Republic of the Philippines and is the founder of Kilosbayan, a peoples organization established in August 1993 in accordance with the 1987 Constitution and its sister organization, Bantay Katarungan, an NGO established on Recto Day, February 8, 2000. He may be served with notices, pleadings and other processes of this Honorable Court through his counsel, Roque & Butuyan Law Offices, 1904 Antel Corporate Center, 121 Valero Street, Salcedo Village Makati City. Wigberto E. Taada is a former Senator of the Republic of the Philippines who led in the rejection by the Senate on 16 September 1991 of the Treaty of Friendship, Cooperation and Security, thus ending the more than 470 years of foreign military presence in the Philippines. He may be served with notices, pleadings and other processes of this Honorable Court through his counsel, Roque & Butuyan Law Offices, 1904 Antel Corporate Center, 121 Valero Street, Salcedo Village Makati City. Jose de la Rama is a retired Justice of the Court of Appeals. He may be served with notices, pleadings and other processes of this Honorable Court through Roque & Butuyan Law Offices, 1904 Antel Corporate Center, 121 Valero Street, Salcedo Village Makati City. Emilio C. Capulong, a law practitioner, is the Executive Director of Bantay Katarungan and one of the founders of Kilosbayan. He may be served with notices, pleadings and other processes of this Honorable Court through Roque & Butuyan Law Offices, 1904 Antel Corporate Center, 121 Valero Street, Salcedo Village Makati City. H. Harry L. Roque, Jr. is an international law professor at, and Director of the Institute of International Legal Studies (IILS) of the University of the Philippines College of Law. He may be served with notices, pleadings and other processes of this Honorable Court through his counsel, Roque & Butuyan Law Offices, 1904 Antel Corporate Center, 121 Valero Street, Salcedo Village Makati City. Florin Hilbay is a law professor at the University of the Philippines College of Law. He may be served with notices, pleadings and other processes of this Honorable Court through Roque & Butuyan Law Offices, 1904 Antel Corporate Center, 121 Valero Street, Salcedo Village Makati City. Benjamin E. Pozon is the Presiding Judge of Makati City RTC Branch 139, who convicted the accused Daniel Smith guilty beyond reasonable doubt of the crime of rape in a decision promulgated on 4 December 2006, which also temporarily committed said accused to the Makati City Jail. He may be served with notices, pleadings and other processes of this Honorable Court at the Makati City RTC, Branch 139. Public respondent JUSTICE APOLINARIO BRUSELAS, JR. OF THE FORMER Special 16th Division of the Court of Appeals rendered the assailed Decision, dated 2 January 2007. It may be served with notices, pleadings and other processes of this Honorable Court at the Court of Appeals, Manila. Private respondent Lance Corporal Daniel Smith has been convicted by the Regional Trial Court of Makati City, Branch 139, of the crime of rape. He may be served with summons, notices, pleadings and other processes of this Honorable Court c/o the DFA 2330 Roxas Boulevard, Pasay City. Respondent Secretary Raul Gonzalez is a Filipino, of legal age and may be served with summons, notices, pleadings and other processes of this Honorable Court at the Department of Justice, Manila. Respondent Presidential Legal Counsel Sergio Apostol is a Filipino, of legal age and may be served with summons, notices, pleadings and other processes of this Honorable Court at Malacaan Palace, Manila. Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide Nicaragua v. US vs. USA (27 June 1986) On Justiciability of the Dispute ISSUE: The questions of the use of force and collective self-defense are not justiciable.

HELD: The ICJ can decide on these problems. Legal dispute? The jurisdiction of the ICJ is limited to legal disputes. Whether a certain dispute is a legal dispute may itself be a matter of dispute between the concerned states, thus that dispute is to be settled by the ICJ. In this case however this point hasnt been raised by either party. There can be no doubt that the issues of the use of force and collective self-defence raised in the present proceedings are issues which are regulated both by customary international law and by treaties, in particular the UN Charter. Matters of policy? It is suggested that the plea of collective self-defence which has been advanced by the US as a justification for its actions requires the Court to determine whether the US was legally justified in adjudging itself under a necessity, because its own security was in jeopardy, to use force in response to foreign intervention in El Salvador. Such a determination, it is said, involves a pronouncement on political and military matters, not a question of a kind that a court can usefully attempt to answer. However what is in issue here is the purported exercise of the US of a right of collective self-defense in response to an armed attack on another state. The ICJ must first determine whether such an attack has occurred, and if so whether the self-defense measures were a legally appropriate reaction as a matter of collective self-defense. This doesnt necessarily involve evaluations of political or military matters. ISSUE: WON the ICJs jurisdiction was limited by the multilateral treaty reservation. HELD: YES. The ICJ must refrain from applying the multilateral treaties invoked by Nicaragua in support of its claims, without prejudice either to other treaties or to the other sources of law enumerated in Article 38 of the Statute. The reservation. What are excluded from the jurisdiction are "disputes arising under a multilateral treaty, unless (1) all parties to the treaty affected by the decision are also parties to the case before the Court, or (2) the United States of America specially agrees to jurisdiction". In order to determine the reservations effect on the ICJs jurisdiction, the ICJ must determine whether any third States, parties to multilateral treaties invoked by Nicaragua in support of its claims, would be "affected" by the Judgment, and are not parties to the proceedings leading up to it. The multilateral treaties. The 4 pertinent treaties are: the Charter of the United Nations, the Charter of the Organization of American States, the Montevideo Convention on the Rights and Duties of States, and the Havana Convention on the Rights and Duties of States in the Event of Civil Strife. However, Nicaragua has not relied on the latter two treaties and it believes that the duties and obligations established by these conventions have been subsumed in the Organization of American States Charter". Thus only the UN Charter and the Charter of the Organization of American States (OAS Charter) will be considered. Look at El Salvador. The Court examines the impact of the reservation on Nicaragua's claim that the US has used force against it in breach of the UN Charter and the OAS Charter. The States which could possibly be affected are El Salvador, Honduras and Costa Rica. Clearly, even if only one of these States is found to be "affected", the United States reservation takes full effect. El Salvador is considered, as it is primarily for its benefit, and to help it to respond to an alleged armed attack by Nicaragua, that the US claims to be exercising a right of collective self-defence, which it regards as a justification of its own conduct towards Nicaragua. Moreover, El Salvador confirmed this assertion in its Declaration of Intervention when it stated that it considered itself the victim of an armed attack by Nicaragua, and that it had asked the US to exercise for its benefit the right of collective self-defence. Both the UN Charter and the OAS Charter refer to self-defense as an exception to the principle of the prohibition of the use of force. Unlike the UN Charter, the OAS Charter does not use the expression "collective self-defence", but refers to the case of "self-defence in accordance with existing treaties or in fulfillment thereof", one such treaty being the UN Charter. Furthermore it is evident that if actions of the US complied with all requirements of the UN Charter so as to constitute the exercise of the right of collective self-defence, it could not be argued that they could nevertheless constitute a violation of the OAS Charter. It therefore follows that the situation of El Salvador with regard to the US assertion of the right of collective self-defence is the same under the OAS Charter as it is under the UN Charter. El Salvador has a right to receive aid, military or otherwise, from the US. But this refers to the direct aid provided to the Government of El Salvador on its territory in order to help it combat the insurrection with which it is faced, not to any indirect aid which might be contributed to this combat by certain US activities in and against Nicaragua. Thus, if the ICJ rejects the justification of the US of its actions (as collective self-defense), the indirect aid which the US is giving to El Salvador in the form of activities in and against Nicaragua would be declared against treaty law. Thus El Salvador would be affected by the decision decision on the lawfulness of resort by the US to collective self-defense. Art. 18, which Nicaragua claims is also violated by the US, provides: "No State or group of States has the right to intervene, directly or indirectly, for any reason whatever, in the internal or external affairs of any other State. The foregoing principle prohibits not only armed force but also any other form of interference or attempted threat against the personality of the State or against its political, economic, and cultural elements." The ICJ concludes that in the particular circumstances of this case, it is impossible to say that a ruling on the alleged breach by the United States of Article 18 of the OAS Charter would not "affect" El Salvador.

The ICJ therefore finds that El Salvador, a party to the UN Charter and to the OAS Charter, is a State which would be "affected" by the decision which the ICJ would have to take on the claims by Nicaragua that the US has violated the UN Charter Charter and the OAS Charter. Accordingly, the ICJ has to be "satisfied" that it has jurisdiction to decide each of the claims it is asked to uphold, concludes that the jurisdiction conferred upon it by the US declaration of acceptance of jurisdiction does not permit the ICJ to entertain these claims. However the effect of the reservation is confined to barring the applicability of the UN Charter Charter and the OAS Charter as multilateral treaty law, and has no further impact on the sources of international law which Article 38 of the Statute requires the Court to apply, including customary international law. Vienna Convention on Diplomatic Relations Case Concerning US Diplomatic and Consular Staff in Tehran (USA v Iran) Article 53 of the Statute - Proof of Facts - Admissibility of Proceedings -Existence of wider political dispute no bar to legal proceedings - Security Council proceedings no restriction on functioning of the Court - Fact finding commission established by Secretary -General. Jurisdiction of the Court - Optional Protocols to Vienna Conventions of1 961 and 1963 on Diplomatic and Consular Relations - 1955 Treaty of Amity, Economic Relations and Consular Rights (USA/ Iran) Provision for recourse to Court unless parties agree to "settlement by some other pacific means" Right to file unilateral Application - Whether counter-measures a bar to invoking Treaty of Amity. State responsibility for violations of Vienna Conventions of 1961 and 1963 on Diplomatic and Consular Relations - Action by persons not acting on behalf of State - Non-imputability thereof to State - Breach by State of obligation of protection -Subsequent decision to maintain situation so created on behalf of State - Use of situation as means of coercion. Question of special circumstances as possible justification of conduct of State - Remedies provided for by diplomatic law for abuses. Cumulative effect of successive breaches of international obligations - Fundamental character of international diplomatic and consular law. [(Numbers) after paragraph headings refer to paragraphs in the original. Underlined things will show up later in the decision. digester] [I. BACKGROUND A. PRELIMINARY TECHNICAL STUFF] 1. DISPUTE (1). On 29 November 1979, the Legal Adviser of the Department of State of the USA handed to the Registrar an Application instituting proceedings against the Islamic Republic of Iran in respect of a dispute concerning the seizure and holding as hostages of members of the US diplomatic and consular staff and certain other US nationals. 2. IRAN A NO-SHOW. (10) No pleadings were filed by the Government of Iran, which also was not represented at the oral proceedings, and no submissions were therefore presented on its behalf. The position of that Government was, however, defined in two communications addressed to the Court by the Minister for Foreign Affairs of Iran; the first of these was a letter dated 9 December 1979; the second was a letter dated 16 March 1980 and reading in part as follows: The Government of the Islamic Republic of Iran... respectfully draws the attention of the Court to the deep-rootedness and the essential character of the Islamic Revolution of Iran, a revolution of a whole oppressed nation against its oppressors and their masters, the examination of whose numerous repercussions is essentially and directly a matter within the national sovereignty of Iran. The Government of the Islamic Republic of Iran considers that the Court cannot and should not take cognizance of the case... For this question only represents a marginal and secondary aspect of an overall problem, one such that it cannot be studied separately, and which involves, inter alia, more than 25 years of continual interference by the United States in the internal affairs of Iran, the shameless exploitation of Our country, and numerous crimes perpetrated against the Iranian people, contrary to and in conflict with all international and humanitarian norms. The problem involved in the conflict between Iran and the United States is thus not one of the interpretation and the application of the treaties upon which the American Application is based, but results from an overall situation containing much more fundamental and more complex elements. Consequently, the Court cannot examine the American Application divorced from its proper context, namely the whole political dossier of the relations between Iran and the United States over the last 25 years. With regard to the request for provisional measures, as formulated by the United States, it in fact implies that the Court should have passed judgment on the actual substance of the case submitted to it, which the Court cannot do without breach of the norms governing its jurisdiction. Furthermore, since provisional measures are by definition intended to protect the interest of the parties, they cannot be unilateral, as they are in the request submitted by the American Government. 3. US SUBMISSIONS (8) , from both Application and Memorial: The United States requests the Court to adjudge and declare as follows: (a) that the Government of the Islamic Republic of Iran, in permitting, tolerating, encouraging, adopting, and endeavouring to exploit, as well as in failing to prevent and punish, the conduct described in the Statement of the Facts, violated its international legal obligations to the United States as provided by : Articles 22, 24, 25, 26, 27, 29, 31, 37, 44 and 47 of the Vienna Convention on Diplomatic Relations;

Articles 5, 27, 28, 31, 33, 34, 35, 36, 40 and 72 of the Vienna Convention on Consular Relations; Article II (4), XIII, XVIII and XIX of the Treaty of Amity, Economic Relations, and Consular Rights between the United States of America and Iran; and Articles 2, 4 and 7 of the Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents; (b) that, pursuant to the foregoing international legal obligations, the Government of the Islamic Republic of Iran shall immediately ensure that the premises at the United States Embassy, Chancery and Consulates are restored to the possession of the United States authorities under their exclusive control, and shall ensure their inviolability and effective protection as provided for by the treaties in force between the two States, and by general international law ; (ii) the Government of the Islamic Republic of Iran shall ensure the immediate release, without any exception, of all persons of United States nationality who are or have been held in the Embassy of the United States of America or in the Ministry of Foreign Affairs in Tehran, or who are or have been held as hostages elsewhere, and afford full protection to all such persons, in accordance with the treaties in force between the two States, and with general international law ; (iii) the Government of the Islamic Republic of Iran shall, as from that moment, afford to all the diplomatic and consular personnel of the United States the protection, privileges and immunities to which they are entitled under the treaties in force between the two States, and under general international law, including immunity from any form of criminal jurisdiction and freedom and facilities to leave the territory of Iran; (iv) the Government of the Islamic Republic of Iran shall, in affording the diplomatic and consular personnel of the United States the protection, privileges and immunities to which they are entitled, including immunity from any form of criminal jurisdiction, ensure that no such personnel shall be obliged to appear on trial or as a witness, deponent, source of information, or in any other role, at any proceedings, whether formal or informal, initiated by or with the acquiescence of the Iranian Government, whether such proceedings be denominated a 'trial', 'grand jury', 'international commission' or otherwise; (v) the Government of the Islamic Republic of Iran shall submit to its competent authorities for the purpose of prosecution, or extradite to the United States, those persons responsible for the crimes committed against the personnel and premises of the United States Embassy and Consulates in Iran ; (c) that the United States of America is entitled to the payment to it, in its own right and in the exercise of its right of diplomatic protection of its nationals held hostage, of reparation by the Islamic Republic of Iran for the violations of the above international legal obligations which it owes to the United States, in a sum to be determined by the Court at a subsequent stage of the proceedings. 4. OTHER PRELIMINARIES: ART. 53, COURTS STATUTE (11). The position taken up by the Iranian Government in regard to the present proceedings brings into operation Article 53 of the Statute, under which the Court is required inter alia to satisfy itself that the claims of the Applicant are well founded in fact, subject to certain limits: While Article 53 thus obliges the Court to consider the submissions of the Party which appears, it does not compel the Court to examine their accuracy in al1 their details ; for this might in certain unopposed cases prove impossible in practice. It is sufficient for the Court to convince itself by such methods as it considers suitable that the submissions are well founded. (Corfu Channel case) 5. USS EXCUSES AS TO LACK OF EVIDENCE (11). The US claims that, due to the events in Iran of which it complains, it has been unable since then to have access to its diplomatic and consular representatives, premises and archives in Iran ; and that in consequence it has been unable to furnish detailed factual evidence on some matters occurring after 4 November 1979. It mentioned in particular the lack of any factual evidence concerning the treatment and conditions of the persons held hostage in Tehran, although it has submitted copies of declarations sworn by six of the 13 hostages who were released after two weeks of detention. 6. ART. 53 MET (12-13). The essential facts of the present case are, for the most part, matters of public knowledge which have received extensive coverage in the world press and in radio and television broadcasts from Iran and other countries. So far as those emanating from Iran are concerned, the Court has necessarily in some cases relied on translations into English supplied by the Applicant. The information available, however, is wholly consistent and concordant as to the main facts and circumstances of the case. Annexed or appended to the [US] Memorial are numerous extracts of statements made by Iranian and US officials, either at press conferences or on radio or television, and submitted to the Court. Included also in the Memorial is a "Statement of Verification" made by a high official of the US Department of State having "overall responsibility within the Department for matters relating to the crisis in Iran, certifying that to the best of his knowledge and belief the facts there stated are true. This information, as well as the US Memorial and the records of the oral proceedings, has all been communicated by the Court to the Iranian Government without having evoked from that Government any denial or questioning of the facts alleged before the Court by the US. Accordingly, the Court is satisfied that, within the meaning of Article 53 of the Statute, the allegations of fact on which the US bases its claims in the present case are well founded. [B. THE STORY BEHIND THIS CASE] 7. A DRESS REHEARSAL, MAYBE? FEB 1979 ATTACK ON US EMBASSY (14). About 10.45 a.m. on 14 February 1979, during the unrest in Iran following the fall of the Government of Dr. Bakhtiar, the last Prime Minister appointed by the Shah, an armed group attacked and seized the US Embassy in

Tehran, taking prisoner the 70 persons they found there, including the Ambassador. Two persons associated with the Embassy staff were killed; serious damage was caused to the Embassy and there were some acts of pillaging of the Ambassador's residence. While the Iranian authorities were not able to prevent the incursion, they acted promptly in response to the urgent appeal for assistance made by the Embassy during the attack. Mr. Yazdi, then a Deputy Prime Minister, arrived at the Embassy accompanied by a member of the national police, at least one official and a contingent of Revolutionary Guards ; they quelled the disturbance and returned control of the compound to American diplomatic officials. Later on the United States Ambassador received a letter from the Prime Minister expressing regrets for the attack, stating that arrangements had been made to prevent any repetition of such incidents, and indicating readiness to make reparation for the damage. Attacks were also made during the same period on the US Consulates in Tabriz and Shiraz. 8. EX-SHAH ASKS TO ENTER THE US FOR MEDICAL TREATMENT (15). The US Government was contemplating permitting the former Shah of Iran, who was then in Mexico, to enter the US for medical treatment. Because US officials feared that, in the political climate prevailing in Iran, the admission of the former Shah might increase the tension already existing between the two States, and inter alia result in renewed violence against the US Embassy in Tehran, the US requested assurances from the Government of Iran that adequate protection would be provided. Repeated assurances were given by the Iranian Foreign Minister that the Government of Iran would fulfill its international obligation to protect the Embassy. 8 days after the ex-Shah arrived in the US, the Iran Government, which had repeatedly expressed its serious opposition to the admission of the former Shah to the US, and had asked the US to permit two Iranian physicians to verify the reality and the nature of his illness, requested the US to bring about his return to Iran. Nevertheless, on 31 October, the Security Officer of the US Embassy was told by the Commander of the Iranian National Police that the police had been instructed to provide full protection for the personnel of the Embassy. 9. UNEVENTFUL RALLY (16). While a very large demonstration was being held elsewhere in Tehran, large numbers of demonstrators marched to and fro in front of the US Embassy. The normal complement of police was stationed outside the compound and the Embassy reported to the State Department that it felt confident that it could get more protection if needed. It was announced on the radio, and by the prayer leader at the main demonstration in another location in the city, that people should not go to the Embassy. 10. 3 DAYS LATER, THE ATTACK ON THE EMBASSY AND THE HOSTAGE-TAKINGS (17). At approximately 10.30 a.m. on 4 November 1979, during the course of a demonstration of approximately 3,000 persons, the US Embassy compound in Tehran was overrun by a strong armed group of several hundred people (who subsequently described themselves as "Muslim Student Followers of the Imam's Policy", and who will hereafter be referred to as "the militants"). The Iranian security personnel reportedly simply disappeared from the scene; they made no apparent effort to deter or prevent the demonstrators from seizing the Embassy's premises. Over two hours after the beginning of the attack, and after the militants had attempted to set fire to the Chancery building and to cut through the upstairs steel doors with a torch, they gained entry to the upper floor; one hour later they gained control of the main vault. The militants also seized the other buildings, including the various residences, on the Embassy compound. In the course of the attack, all the diplomatic and consular personnel and other persons present in the premises were seized as hostages, and detained in the Embassy compound; subsequently other US personnel and one US private citizen seized elsewhere in Tehran were brought to the compound and added to the number of hostages. On 6 November they proclaimed that the Embassy, which they referred to as "the U.S. centre of plots and espionage" (as had the Ayatollah Khomeini), would remain under their occupation, and that they were watching "most closely" the members of the diplomatic staff taken hostage, whom they called "U.S. mercenaries and spies". 11. EMBASSY COULDNT GET HELP (18). During the three hours or more of the assault, repeated calls for help were made from the Embassy to the Iranian Foreign Ministry, and repeated efforts to secure help from the Iranian authorities were also made by the US Charg d'affaires with the Prime Minister and with Foreign Ministry Officials. A request was also made to the Iranian Charg d'affaires in Washington. But no Iranian security forces were sent in time. In fact when Revolutionary Guards ultimately arrived on the scene, despatched by the Government "to prevent clashes", they considered that their task was merely to "protect the safety of both the hostages and the students", according to statements subsequently made by the Iranian Government's spokesman, and by the operations commander of the Guards. No attempt was made by the Iranian Government to clear the Embassy premises, to rescue the persons held hostage, or to persuade the militants to terminate their action against the Embassy. 12. AND YOUR CONSULATES TOO (19). Only hours after the seizure of the Embassy, the US Consulates in Tabriz and Shiraz were also seized; again the Iranian Government took no protective action. The operation of these Consulates had been suspended since the attack in February 1979; thus no US personnel were seized on these premises. 13. SIMILAR PRIOR INCIDENTS (20). The US diplomatic mission and consular posts in Iran were not the only ones whose premises were subjected to demonstrations during the revolutionary period in Iran. On 5 November 1979, a group invaded the British Embassy in Tehran but was ejected after a brief occupation. On 6 November 1979 a brief occupation of the Consulate of Iraq at Kermanshah

occurred but was brought to an end on instructions of the Ayatollah Khomeini. On 1 January 1980 an attack was made on the Embassy in Tehran of the USSR by a large mob, but as a result of the protection given by the Iranian authorities to the Embassy, no serious damage was done. The Iraqi Embassy was also targeted, but again the attackers were successfully repulsed. 14. STATUS QUO: SOME HOSTAGES RELEASED, DOCUMENTS SUPPOSEDLY LEAKED (21, 24). The premises of the US Embassy in Tehran have remained in the hands of militants ; and the same appears to be the case with the Consulates at Tabiz and Shiraz. Of the total number of US citizens seized and held as hostages, 13 were released on 18-20 November 1979, but the remainder have continued to be held up to the present time. The release of the 13 hostages was effected pursuant to a decree by the Ayatollah Khomeini, dated 17 November 1979, in which he called upon the militants to "hand over the blacks and the women, if it is proven they did not spy, to the Ministry of Foreign Affairs so that they may be immediately expelled from Iran". (He also expressly declared that the premises of the Embassy and the hostages would remain as they were until the US had handed over the former Shah for trial and returned his property to Iran, and that "those people who hatched plots against our Islamic movement in [the Embassy] do not enjoy international diplomatic respect") Meanwhile, those archives and documents of the US Embassy which were not destroyed by the staff during the attack on 4 November have been ransacked by the militants. Documents purporting to come from this source have been disseminated by the militants and by the Government-controlled media. 15. MOST HOSTAGES ARE DIPLOMATIC FOLKS (22). The persons still held hostage in Iran reportedly include at least 28 persons having the status, duly recognized by the Government of Iran, of "member of the diplomatic staff" within the meaning of the Vienna Convention on Diplomatic Relations of 1961; at least 20 persons having the status, similarly recognized, of "member of the administrative and technical staff" within the meaning of that Convention ; and two other persons of US nationality not possessing either diplomatic or consular status. Of the persons with the status of member of the diplomatic staff, four are members of the Consular Section of the Mission. 16. ALLEGED INHUMANE TREATMENT (23). Allegations have been made by the US Government of inhumane treatment of hostages; the militants and Iranian authorities have asserted that the hostages have been well treated, and have allowed special visits to the hostages by religious personalities and by representatives of the International Committee of the Red Cross. The specific allegations of ill-treatment have not however been refuted. Examples of such allegations, which are mentioned in some of the sworn declarations of hostages released in November 1979, are as follows: at the outset of the occupation of the Embassy some were paraded bound and blindfolded before hostile and chanting crowds ; at least during the initial period of their captivity, hostages were kept bound, and frequently blindfolded, denied mail or any communication with their government or with each other, subjected to interrogation, threatened with weapons. 17. 3 OTHER PEOPLE HELD IN THE IRANIAN MINISTRY PREMISES (25). Conflicting statements have been given about the exact situation of the US Charg daffaires [CDA] in Tehran and the 2 other members of the diplomatic staff of the Embassy who were in the premises of the Iranian Ministry of Foreign Affairs at the time of the attack have not left said Ministry since. On 7 Nov, the Iranian Foreign Ministry said that the CDA was staying in the Ministry, the protection of foreign nationals being the duty of the Iranian Government; on 1 Dec, the Foreign Minister said that they had sought asylum in the Ministry and that as long as they remained in the ministry he was personally responsible for ensuring that nothing happened to them, but that "as soon as they leave the ministry precincts they will fall back into the hands of justice, and then I will be the first to demand that they be arrested and tried". He announced in March 1980 that the 3 Americans fate rest[ed] first with the imam of the nation [i.e., the Ayatollah Khomeini]; failing any clear decision from the latter, it would be up to the Revolution Council. In the meantime, the militants made it clear that they regarded the CDA and his two colleagues as hostages also. 18. US TRIES IN VAIN TO NEGOTIATE (26-27). From the outset of the attack upon its Embassy in Tehran, the US protested to the Government of Iran both at the attack and at the seizure and detention of the hostages. In a message from the US President US to the Ayatollah Khomeini, the US authorized a former Attorney-General of the US, Mr. Ramsey Clark, to discuss all avenues for resolution of the crisis. While the latter was en route, a radio-broadcast message from the Ayatollah Khomeini solemnly forbade members of the Revolutionary Council and all the responsible officials to meet the US representatives. "Should the US hand over to Iran the deposed shah... and give up espionage against our [sacred Islamic] movement, the way to talks would be opened on the issue of certain relations which are in the interest of the nation." During the period which has elapsed since the seizure of the Embassy a number of statements have been made by various governmental authorities in Iran which are relevant to the Court's examination of the responsibility attributed to the Government of Iran in the submissions of the US. 19. THE COURT ISSUES AN ORDER. On 15 December 1979, the Court decided unanimously that it was competent to entertain the US' request for an indication of provisional measures, and proceeded to indicate such measures. [More info later.] 20. THE UN GETS INVOLVED (28-29). On 9 November 1979, the Permanent Representative of the US to the United Nations addressed a letter to the President of the Security Council, requesting urgent consideration of what might be done to secure the release of the hostages and to restore the "sanctity

of diplomatic personnel and establishments". The same day, the President of the Security Council made a public statement urging the release of the hostages, and the President of the General Assembly announced that he was sending a personal message to the Ayatollah Khomeini appealing for their release. On 25 November 1979, the UN Sec-Gen addressed a letter to the President of the Security Council referring to the seizure of the US Embassy in Tehran and the detention of its diplomatic personnel, and requesting an urgent meeting of the Security Council "in an effort to seek a peaceful solution to the problem". The Security Council adopted resolution 457 (1979), calling on Iran to release the personnel of the Embassy immediately, to provide them with protection and to allow them to leave the country. The resolution also called on the two Governments to take steps to resolve peacefully the remaining issues between them, and requested the Sec-Gen to lend his good offices for the immediate implementation of the resolution, and to take all appropriate measures to that end. It further stated that the Council would "remain actively seized of the matter" and requested the Secretary-General to report to it urgently on any developments with regard to his efforts. On 3 1 December 1979, the Security Council met again and adopted resolution 461 (1979), in which it reiterated both its calls to the Iranian Government and its request to the Sec-Gen to lend his good offices for achieving the object of the Council's resolution. The Sec-Gen visited Tehran on 1-3 January 1980, and reported to the Security Council on 6 January. On 20 February 1980, the Secretary-General announced the setting up of a commission to undertake a "fact-finding mission" to Iran. 21. US ALSO TAKES ACTION (30). Prior to the institution of the present proceedings, the US Government also took certain unilateral action in response to the actions for which it holds the Government of Iran responsible. Steps were taken to identify all Iranian students in the US who were not in compliance with the terms of their entry visas, and to commence deportation proceedings against those who were in violation of applicable immigration laws and regulations. The US President ordered the discontinuation of all oil purchases from Iran for delivery to the United States. Believing that the Government of Iran was about to withdraw all Iranian funds from US banks and to refuse to accept payment in dollars for oil, and to repudiate obligations owed to the US and to US nationals, the President subsequently acted to block the very large official Iranian assets in the US or in US control, including deposits both in banks in the US and in foreign branches and subsidiaries of US banks. After the institution of the present proceedings, the US informed the Iranian Charg d'affaires in Washington that the number of personnel assigned to the Iranian Embassy and consular posts in the US was to be restricted. 22. Subsequently to the indication by the Court of provisional measures (Order of December 1979), and during the present proceedings, the US Government introduced a draft resolution into the UN SC calling for economic sanctions against Iran. Most voted in favor, but as a permanent member of the Council cast a negative vote, the draft resolution was not adopted. On 7 April 1980 the US Government broke off diplomatic relations with the Government of Iran. At the same time, the US Government prohibited exports from the US to Iran - one of the sanctions previously proposed by it to the Security Council. Steps were taken to prepare an inventory of the assets of the Government of Iran frozen and to make a census of outstanding claims of American nationals against the Government of Iran, with a view to "designing a program against Iran for the hostages, the hostage families and other U.S. claimants" involving the preparation of legislation "to facilitate processing and paying of these claims". All visas issued to Iranian citizens for future entry into the US were cancelled. Later the US Government announced further economic measures directed against Iran, prohibited travel there by US citizens, and made further plans for reparations to be paid to the hostages and their families out of frozen Iranian assets. 23. ABORTED RESCUE ATTEMPT (32). During the night of 24-25 April 1980 the US President set in motion, and subsequently terminated for technical reasons, an operation within Iranian territory designed to effect the rescue of the hostages by US military units. The US President stated that preparations for the rescue operations had been ordered for humanitarian reasons, to protect the national interests of the US, and to alleviate international tensions. At the same time, he emphasized that the operation had not been motivated by hostility towards Iran or the Iranian people. In a report made by the US to the UN Security Council, the US maintained that the mission had been carried out by it "in exercise of its inherent right of self-defence with the aim of extricating American nationals who have been and remain the victims of the Iranian armed attack on Our Embassy". [II. ON THE ISSUES A. IRANS OBJECTIONS TO COURTS TAKING COGNIZANCE] 24. COURTS REBUTTAL (34). [Refer to par. 2 of this digest, Iran a No-Show.] As the Court pointed out in its Order of 15 December 1979, "a dispute which concerns diplomatic and consular premises and the detention of internationally protected persons, and involves the interpretation or application of multilateral conventions codifying the international law governing diplomatic and consular relations, is one which by its very nature falls within international jurisdiction." 25. IRAN ELABORATES ON ALLEGED US INTERFERENCE (35). The Government of Iran has maintained that the Court could not and should not take cognizance of the present case because the Court cannot examine the American Application divorced from its proper context, namely the whole political dossier of the relations between Iran and the United States over the last 25 years. This dossier includes, inter alia, all the crimes perpetrated in Iran by the American Government, in particular the coup d'tat of 1953 stirred up and carried out by the CIA, the overthrow of the lawful national government of Dr. Mossadegh, the restoration of the Shah and of his rgime which was under

the control of American interests, and all the social, economic, cultural and political consequences of the direct interventions in our internal affairs, as well as grave, flagrant and continuous violations of all international norms, committed by the US in Iran." 26. COURT ANSWERS (36). (1) The seizure of the US Embassy and Consulates and the detention of internationally protected persons as hostages cannot be considered as something "secondary" or "marginal", having regard to the importance of the legal principles involved. (2) A statement of the Secretary-General of the United Nations and the Security Council resolution 457 (1979) evidences the importance attached by the international community as a whole to the observance of those principles in the present case as well as its concern at the dangerous level of tension between Iran and the US. (3) No provision of the Statute or Rules contemplates that the Court should decline to take cognizance of one aspect of a dispute merely because that dispute has other aspects, however important. (4) If the Iranian Government considered the alleged activities of the US in Iran legally to have a close connection with the subject-matter of the US Application, it was open to that Government to present its own arguments regarding those activities to the Court either by way of defence in a CounterMemorial or by way of a counter-claim. Still, the Iranian Government, notwithstanding the terms of the Court's Order, did not file any pleadings and did not appear before the Court. By its own choice, therefore, it has forgone the opportunities offered to it under the Statute and Rules of Court to submit evidence and arguments in support of its contention in regard to the "overall problem". 27. COURT LAMENTS IRANS SILENCE (37). Iran has [in particular] not made any attempt to explain, still less define, what connection, legal or factual, there may be between the "overall problem" of its general grievances against the US and the particular events that gave rise to the US's claims in the present case which, in its view, precludes the separate examination of those claims by the Court. This was the more necessary because legal disputes between sovereign States by their very nature are likely to occur in political contexts, and often form only one element in a wider and longstanding political dispute between the States concerned. Yet never has the view been put forward before that, because a legal dispute submitted to the Court is only one aspect of a political dispute, the Court should decline to resolve for the parties the legal questions at issue between them. If the Court were, contrary to its settled jurisprudence, to adopt such a view, it would impose a far-reaching and unwarranted restriction upon the role of the Court in the peaceful solution of international disputes. [B. COURTS COMPETENCE IN VIEW OF UN FACT-FINDING COMMISSION] 28. THE COMMISSION, CURRENTLY IN LIMBO (39, 43). In connection with resolution 457 (1979), the Sec-Gen announced the setting up of the Commission, its terms of reference being "to undertake a fact-finding mission to Iran to hear Iran's grievances and to allow for an early solution of the crisis between Iran and the US," the Governments of the US and Iran having "agreed to the establishment of the Commission on that basis. The Commission would not address itself to the claims submitted by the United States to the Court. But the Commission soon suspended its activities in Tehran and returned to New York, in no position to submit its report. In the meantime the Sec-Gen was to continue his efforts, as requested by the Security Council, to search for a peaceful solution of the crisis, and would remain in contact with the parties and the Commission regarding the resumption of its work. 29. WHAT IT IS NOT (43). The Commission was not set up as a tribunal empowered to decide the matters of fact or of law in dispute between Iran and the US; nor was its setting up accepted by them on any such basis. The Commission was created rather as an organ or instrument for mediation, conciliation or negotiation to provide a means of easing the situation of crisis existing between the two countries. 30. CONCURRENT JURISDICTION NOT A PROBLEM (40, 43). In the preamble to resolution 461, the Security Council expressly took into account the Court's Order of 15 December 1979 indicating provisional measures; it does not seem to have occurred to any member of the Council that there was or could be anything irregular in the simultaneous exercise of their respective functions by the Court and the Security Council. [Furthermore,] the Court can find no trace of any understanding on the part of either the US or Iran that the establishment of the Commission might involve a postponement of all proceedings before the Court until the conclusion of the work of the Commission and of the Security Council's consideration of the matter. The establishment of the Commission by the Sec-Gen with the agreement of the two States cannot, therefore, be considered in itself as in any way incompatible with the continuance of parallel proceedings before the Court. Negotiation, enquiry, mediation, conciliation, arbitration and judicial settlement are enumerated together in Article 33 of the Charter as means for the peaceful settlement of disputes. 31. (LACK OF) LEGAL BASIS FOR (IN)COMPETENCE (40, 43-44). Whereas Article 12 of the Charter expressly forbids the General Assembly to make any recommendation with regard to a dispute or situation while the Security Council is exercising its functions in respect of that dispute or situation, no such restriction is placed on the functioning of the Court by any provision of either the Charter or the Statute of the Court. The reasons are clear: It is for the Court, the principal judicial organ of the United Nations, to resolve any legal questions that may be in issue between parties to a dispute; and the resolution of such legal questions by the Court may be an important, and sometimes decisive, factor in promoting the peaceful settlement of the dispute. This is indeed recognized by Article 36 of the

Charter, paragraph 3: "In making recommendations under this Article the Security Council should also take into consideration that legal disputes should as a general rule be referred by the parties to the International Court of Justice in accordance with the provisions of the Statute of the Court." The jurisprudence of the Court provides various examples of cases in which negotiations and recourse to judicial settlement by the Court have been pursued pari passu. Aegean Sea Continental Shelf case: "[T]he fact that negotiations are being actively pursued during the present proceedings is not, legally, any obstacle to the exercise by the Court of its judicial function." It follows that neither the mandate given by the Security Council to the Sec-Gen in resolutions 457 and 461, nor the setting up of the Commission by the Sec-Gen, can be considered as constituting any obstacle to the exercise of the Court's jurisdiction in the present case. 32. JURISDICTION AT ISSUE: THE VIENNA CONVENTIONS (45). Article 53 of the Statute requires the Court, before deciding in favour of an Applicant's claim, to satisfy itself that it has jurisdiction, in accordance with Articles 36 and 37, empowering it to do so. The principal claims of the US relate essentially to alleged violations by Iran of its obligations to the US under the Vienna Conventions of 1961 on Diplomatic Relations and of 1963 on Consular Relations. With regard to these claims the US has invoked as the basis for the Court's jurisdiction Article 1 of the Optional Protocols concerning the Compulsory Settlement of Disputes which accompany these Conventions. Both the US and Iran are parties to said Conventions and said Optional Protocols without any reservations. The Vienna Conventions, which codify the law of diplomatic and consular relations, state principles and rules essential for the maintenance of peaceful relations between States and accepted throughout the world by nations of all creeds, cultures and political complexions. Moreover, the Iranian Government has not maintained that the two Vienna Conventions and Protocols are not in force as between Iran and the US. Accordingly, the Optional Protocols manifestly provide a possible basis for the Court's jurisdiction, with respect to the US' claims under the Vienna Conventions of 1961 and 1963. It only remains, therefore, to consider whether the present dispute in fact falls within the scope of their provisions. 33. PROTOCOL PROVISIONS (46). Article 1, which is the same in the two Protocols: "Disputes arising out of the interpretation or application of the Convention shall lie within the compulsory jurisdiction of the International Court of Justice and may accordingly be brought before the Court by an application made by any party to the dispute being a Party to the present Protocol." The US' claims here in question concern alleged violations by Iran of its obligations under several articles of the Vienna Conventions. In so far as its claims relate to two private individuals held hostage in the Embassy, the situation of these individuals falls under the provisions of the Vienna Convention of 1961 and of Article 5 of the 1963 Convention concerning the consular functions of assisting nationals and protecting and safeguarding their interests. 34. YES, THERE IS A DISPUTE AS CONTEMPLATED (47). The occupation of the US Embassy by militants on 4 November 1979 and the detention of its personnel as hostages was an event of a kind to provoke an immediate protest from any government, as it did from the US Government, which despatched a special emissary to Iran to deliver a formal protest. Although the special emissary, denied all contact with Iranian officials, never entered Iran, the Iranian Government was left in no doubt as to the reaction of the US. In any event, the US brought the situation in regard to its Embassy before the Security Council. The Iranian Government did not take any part in the debates on the matter in the Council, and it was still refusing to enter into any discussions on the subject when, on 29 November 1979, the US filed the present Application submitting its claims to the Court. It is clear that on that date there existed a dispute arising out of the interpretation or application of the Vienna Conventions and thus one falling within the scope of Article 1 of the Protocols. 35. ARBITRATION & CONCILIATION NOT MANDATORY OR PREREQS (48-49). Articles II and III of the Protocols, it is true, provide that within a period of 2 months after one party has notified its opinion to the other that a dispute exists, the parties may agree either : (a) "to resort not to the International Court of Justice but to an arbitral tribunal", or (b) "to adopt a conciliation procedure before resorting to the International Court of Justice". However, these are not to be understood as laying down a precondition of the applicability of the precise and categorical provision contained in Article 1 establishing the compulsory jurisdiction of the Court in respect of disputes arising out of the interpretation or application of the Vienna Convention in question. Articles II and III provide only that, as a substitute for recourse to the Court, the parties may agree upon resort either to arbitration or to conciliation. Here, neither of the parties to the dispute ever proposed recourse to either alternative. On the contrary, the Iranian authorities refused to enter into any discussion of the matter with the US, and this could only be understood by the US as ruling out, in limine, any question of arriving at an agreement to resort to arbitration or conciliation. Accordingly, when the US filed its Application, it was unquestionably free to have recourse to Article 1 of the Protocols, and to invoke it as a basis for establishing the Court's jurisdiction with respect to its claims under the Vienna Conventions. 36. OTHER US CLAIMS: US-IRAN TREATY (50). However, the US also presents claims in respect of alleged violations by Iran of Articles II, paragraph 4, XIII, XVIII and XIX of the Treaty of Amity, Economic Relations, and Consular Rights of 1955 between the US and Iran, which entered into force on 16 June 1957. With regard to these claims the US has invoked paragraph 2 of Article XXI of the Treaty as the basis for the Court's jurisdiction. The claims of the US under this Treaty overlap in considerable measure with its claims under the two Vienna Conventions. In this respect, therefore, the dispute between the US and Iran regarding those claims is at the same time a dispute arising out of the interpretation or application of the Vienna Conventions which falls within Article 1 of their Protocols.

But taking into account that Article II, paragraph 4, of the 1955 Treaty provides that "nationals of either High Contracting Party shall receive the most constant protection and security within the territories of the other High Contracting Party. . .", the Court considers that at the present stage of the proceedings that Treaty has importance in regard to the claims of the US in respect of the two private individuals said to be held hostage in Iran. Accordingly, the Court will now consider whether a basis for the exercise of its jurisdiction with respect to the alleged violations of the 1955 Treaty may be found in Article XXI, paragraph 2 thereof. 37. TREATY PROV AKIN TO PROTOCOL PROV (51-52). Said Paragraph 2 reads: "Any dispute between the High Contracting Parties as to the interpretation or application of the present Treaty, not satisfactorily adjusted by diplomacy, shall be submitted to the International Court of Justice, unless the High Contracting Parties agree to settlement by some other pacific means." As previously pointed out, when the US filed its Application on, its attempts to negotiate with Iran reached a deadlock. In consequence, there existed at that date not only a dispute but, beyond any doubt, a "dispute. . . not satisfactorily adjusted by diplomacy" within the meaning of Article XXI, paragraph 2, of the 1955 Treaty. The provision made in the 1955 Treaty for disputes as to its interpretation or application to be referred to the Court is similar to the system adopted in the Optional Protocols to the Vienna Conventions which the Court has already explained. The immediate and total refusal of the Iranian authorities to enter into any negotiations with the US excluded in limine any question of an agreement to have recourse to "some other pacific means" for the settlement of the dispute. While that Article does not provide in express terms that either party may bring a case to the Court by unilateral application, it is evident that this is what the parties intended. Provisions drawn in similar terms are very common in bilateral treaties of amity or of establishment, and the intention of the parties in accepting such clauses is clearly to provide for such a right of unilateral recourse to the Court, in the absence of agreement to employ some other pacific means of settlement. 38. US RESPONSE DOES NOT PRECLUDE JURISDICTION (53). The point has also been raised whether, having regard to certain counter-measures taken by the US vis--vis Iran, it is open to the US to rely on the Treaty of Amity, Economic Relations, and Consular Rights in the present proceedings. However, all the measures in question were taken by the US in response to what the US believed to be grave and manifest violations of international law by Iran, including violations of the 1955 Treaty itself. In any event, any alleged violation of the Treaty by either party could not have the effect of precluding that party from invoking the provisions of the Treaty concerning pacific settlement of disputes. 39. US-IRAN TREATY APPLICABLE (54). The very purpose of a treaty of amity, and indeed of a treaty of establishment, is to promote friendly relations between the two countries concerned, and between their two peoples, more especially by mutual undertakings to ensure the protection and security of their nationals in each other's territory. It is precisely when difficulties arise that the treaty assumes its greatest importance, and the whole object of Article XXI, paragraph 2, of the 1955 Treaty was to establish the means for arriving at a friendly settlement of such difficulties by the Court or by other peaceful means. It would, therefore, be incompatible with the whole purpose of the 1955 Treaty if recourse to the Court under Article XXI, paragraph 2, were now to be found not to be open to the parties precisely at the moment when such recourse was most needed. Furthermore, although the machinery for the effective operation of the 1955 Treaty has, no doubt, now been impaired because diplomatic relations between the two countries have been broken off by the US, its provisions remain part of the corpus of law applicable between the US and Iran. 40. OTHER BASIS, NO NEED TO INVOKE (55). The US has further invoked Article 13 of the Convention of 1973 on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents, as a basis for the exercise of the Court's jurisdiction with respect to its claims under that Convention. The Court does not, however, find it necessary in the present Judgment to enter into the question whether that provision provides a basis for the exercise of the Court's jurisdiction with respect to those claims. [C. ON THE ALLEGED BREACHES OF OBLIGATIONS] 41. HOW THE COURT WILL DEAL WITH THE FACTS (56). First, it must determine how far, legally, the acts in question may be regarded as imputable to the Iranian State. Secondly, it must consider their compatibility or incompatibility with the obligations of Iran under treaties in force or under any other rules of international law that may be applicable. The events which are the subject of the US' claims fall into two phases which it will be convenient to examine separately. [(1) FIRST OF TWO PHASES] 42. THE ARMED ATTACK (57, 60) on the US Embassy, 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 those occurrences. The attack and the subsequent overrunning of the whole Embassy premises was an operation which continued over some three hours without any body of police, any military unit or any Iranian official intervening to try to stop or impede it from being carried through to its completion. The result of the attack was considerable damage to the Embassy premises and property, the forcible opening and seizure of its archives, the confiscation of the archives and other documents found in the Embassy and, most grave of all, the seizure by force of its diplomatic and consular personnel as hostages, together with two US nationals. This first phase also

includes the attacks on the US Consulates at Tabriz and Shiraz. Like the attack on the Embassy, they appear to have been executed by militants not having an official character, and successful because of lack of sufficient protection. 43. NOT IMPUTABLE TO IRAN...YET (58-59). No suggestion has been made that the militants, when they executed their attack on the Embassy, had any form of official status as recognized "agents" or organs of the Iranian State. Their conduct in mounting the attack, overrunning the Embassy and seizing its inmates as hostages cannot, therefore, be regarded as imputable to that State on that basis. Their conduct might be considered as itself directly imputable to the Iranian State only if it were established that, in fact, on the occasion in question the militants acted on behalf on the State, having been charged by some competent organ of the Iranian State to carry out a specific operation; [but there is no evidence to this effect]. 44. Previously, it is true, the religious leader of the country, the Ayatollah Khomeini, had made several public declarations inveighing against the US as responsible for al1 his country's problems. Thus it would appear, the Ayatollah Khomeini was giving utterance to the general resentment felt by supporters of the revolution at the admission of the former Shah to the US. The Ayatollah Khomeini had declared that it was "up to the dear pupils, students and theological students to expand with all their might their attacks against the US and Israel so they may force the US to return the deposed and criminal Shah, and to condemn this great plot [to stir up dissension between the main streams of Islamic thought]. However, it would be going too far to interpret such general declarations of the Ayatollah Khomeini as amounting to an authorization from the State to undertake the specific operation of invading and seizing the US Embassy. To do so would, indeed, conflict with the assertions of the militants themselves who reportedly claimed credit for having devised and carried out the plan to occupy the Embassy. Congratulations after the event such as those reportedly telephoned to the militants by the Ayatollah Khomeini and other subsequent statements of official approval also do not alter the initially independent and unofficial character of the militants' attack on the Embassy. 45. IRAN STILL VIOLATED OBLIGATIONS THOUGH (61). These conclusions do not mean that Iran is, in consequence, free of any responsibility in regard to those attacks; for its own conduct was in conflict with its international obligations. By the Vienna Conventions of 1961 and 1963, Iran was placed under the most categorical obligations, as a receiving State, to take appropriate steps to ensure the protection of the US Embassy and Consulates, their staffs, their archives, their means of communication and the freedom of movement of the members of their staffs. 46. LEGAL BASES OF OBLIGATIONS (62). Thus, after solemnly proclaiming the inviolability of the premises of a diplomatic mission, Article 22 of the 1961 Convention continues in paragraph 2: "The receiving State is under a special duty to take al1 appropriate steps to protect the premises of the mission against any intrusion or damage and to prevent any disturbance of the peace of the mission or impairment of its dignity." (Emphasis added.) So, too, after proclaiming that the person of a diplomatic agent shall be inviolable, and that he shall not be liable to any form of arrest or detention, Article 29 provides: "The receiving State shall treat him with due respect and shall take all appropriate steps to prevent any attack on his person, freedom or dignity. " (Emphasis added.) The obligation of a receiving State to protect the inviolability of the archives and documents of a diplomatic mission is laid down in Article 24, which specifically provides that they are to be "inviolable at any time and wherever they may be. Under Article 25 it is required to "accord full facilities for the performance of the functions of the mission", under Article 26 to "ensure to al1 members of the mission freedom of movement and travel in its territory", and under Article 27 to "permit and protect free communication on the part of the mission for al1 official purposes". Analogous provisions are to be found in the 1963 Convention regarding the privileges and immunities of consular missions and their staffs (Art. 31, par. 3, Arts. 40, 33, 28, 34 and 35). The obligations of the Iranian Government here in question are not merely contractual obligations established by the Vienna Conventions of 1961 and 1963, but also obligations under general international law. 47. INCONSISTENT WITH PRIOR ACTS (63-65). The total inaction of the Iranian authorities in face of urgent and repeated requests for help contrasts very sharply with its conduct on several other occasions of a similar kind (see par. 7, A Dress Rehearsal, Maybe?; par. 9, Uneventful Rally; par. 13, Similar Prior Incidents). On the other hand, the Iranian authorities took no action to prevent the attack of 5 November 1979, or to restore the Consulates to the possession of the US. Despite assurances previously given by them to the US Government and despite repeated and urgent calls for help, they took no apparent steps either to prevent the militants from invading the Embassy or to persuade or to compel them to withdraw. Furthermore, the Iranian authorities made no effort to compel or even to persuade the militants to free the diplomatic and consular staff whom they had made prisoner. These facts show the failure of the Iranian Government to take such steps was due to more than mere negligence or lack of appropriate means. In contrast, when on the next day militants invaded the Iraqi Consulate in Kermanshah, prompt steps were taken by the Iranian authorities to secure their withdrawal from the Consulate. Thus in this case, the Iranian authorities and police took the necessary steps to prevent and check the attempted invasion or return the premises to their rightful owners. 48. IRANIAN BREACH OF OBLIGATIONS (67-68). This inaction of the Iranian Government by itself constituted clear and serious violation of Iran's obligations to the US under the provisions of Article 22, paragraph 2, and Articles 24,25,26, 27 and 29 of the 1961 Vienna Convention on Diplomatic Relations, and Articles 5 and 36 of the 1963 Vienna Convention on Consular Relations. Similarly, with respect to

the attacks on the Consulates at Tabriz and Shiraz, the inaction of the Iranian authorities entailed clear and serious breaches of its obligations under the provisions of several further articles of the 1963 Convention on Consular Relations. So far as concerns the two private US nationals seized as hostages by the invading militants, that inaction entailed, albeit incidentally, a breach of its obligations under Article II, paragraph 4, of the 1955 Treaty of Amity, Economic Relations, and Consular Rights which, in addition to the obligations of Iran existing under general international law, requires the parties to ensure "the most constant protection and security" to each other's nationals in their respective territories. The Iranian authorities must therefore be held to have been (a) fully aware of their obligations under the conventions in force; (b) fully aware, due to the appeals for help made by the US, of the urgent need for action on their part; (c) had the means at their disposal to perform their obligations; and (d) completely failed to comply with these obligations. [(2) SECOND OF TWO PHASES] 49. EVERYTHING AFTERWARD (69-70). The second phase of the events which are the subject of the US' claims comprises the whole series of facts which occurred following the completion of the occupation of the US Embassy by the militants, and the seizure of the Consulates at Tabriz and Shiraz. The occupation having taken place and the diplomatic and consular personnel of the US' mission having been taken hostage, the action required of the Iranian Government by the Vienna Conventions and by general international law was manifest. Its plain duty was at once to make every effort, and to take every appropriate step, to bring these flagrant infringements of the inviolability of the premises, archives and diplomatic and consular staff of the US Embassy to a speedy end, to restore the Consulates at Tabriz and Shiraz to US control, and in general to re-establish the status quo and to offer reparation for the damage. No such step was, however, taken by the Iranian authorities. 50. OKAYED BY IRANIAN AUTHORITIES (70-73). At a press conference on 5 November the Foreign Minister conceded that "according to international regulations the Iranian Government is duty-bound to safeguard the life and property of foreign nationals". But he made no mention of Iran's obligation to safeguard the inviolability of foreign embassies and diplomats; and he announced that the action of the students "enjoys the endorsement and support of the government, because America herself is responsible for this incident". The Prime Minister does not appear to have made any statement on the matter. In any event expressions of approval came immediately from numerous Iranian authorities, including religious, judicial, executive, police and broadcasting authorities. Above all, the Ayatollah Khomeini himself made crystal clear the endorsement by the State of the militants actions, e.g. at a reception in Qom the next day. The Ayatollah's refusal to order "the young people" to put an end to their occupation of the Embassy, or the militants in Tabiz and Shiraz to evacuate the US Consulates there, must have appeared the more significant when, on 6 November, he instructed "the young people" who had occupied the Iraqi Consulate in Kermanshah that they should leave it as soon as possible. The true significance of this was only reinforced when, next day, he expressly forbade members of the Revolutionary Council and all responsible officials to meet the special representatives sent by the US President to try and obtain the release of the hostages and evacuation of the Embassy. The seal of official government approval was finally set on this situation by a decree issued on 17 November 1979 by the Ayatollah Khomeini. (See par. 14, Status Quo: Some Hostages Released, Documents Supposedly Leaked.) On 6 May 1980, the Minister for Foreign Affairs reportedly said in a television interview that the occupation of the US Embassy had been "done by Our nation". 51. THEREFORE, ACTS OF IRAN (74). The policy thus announced by the Ayatollah Khomeiniof maintaining the occupation of the Embassy and the detention of its inmates as hostages for the purpose of exerting pressure on the US Governmentwas complied with by other Iranian authorities and endorsed by them repeatedly in statements made in various contexts. The result of that policy was fundamentally to transform the legal nature of the situation created by the occupation of the Embassy and the detention of its diplomatic and consular staff as hostages into acts of that State. The militants, authors of the invasion and jailers of the hostages, had now become agents of the Iranian State for whose acts the State itself was internationally responsible. Moreover, the situation of the hostages was aggravated by the fact that their detention by the militants did not even offer the normal guarantees which might have been afforded by police and security forces subject to the discipline and the control of official superiors. 52. NO CHANGE SINCE THEN (75). Since the decree of the Ayatollah Khomeini, the legal situation has undergone no material change. The Court's 1979 Order indicating provisional measures, which called for the immediate restoration of the Embassy to the US and the release of the hostages, was publicly rejected by the Minister for Foreign Affairs on the following day and has been ignored by all Iranian authorities. On two occasions, the Ayatollah Khomeini laid it down that the hostages should remain at the US Embassy under the control of the militants until the new Iranian parliament should have assembled and taken a decision as to their fate. His adherence to that policy also made it impossible to obtain his consent to the transfer of the hostages from the control of the militants to that of the Government or of the Council of the Revolution. In any event, while highly desirable from the humanitarian and safety points of view, such a transfer would not have resulted in any material change in the legal situation, for its sponsors themselves emphasized that it must not be understood as signifying the release of the hostages. 53. THUS, REPEATED/ADDITIONAL AND MULTIPLE BREACHES (76-77) of the applicable provisions of the Vienna Conventions, even more serious than those which arose from their failure to take any steps to prevent the attacks on the inviolability of these premises and staff.

(1) Paragraph 2 of Article 22 of the 1961 Vienna Convention on Diplomatic Relations requires Iran to protect the premises of the mission against any intrusion or damage and to prevent any disturbance of its peace or impairment of its dignity. (2) Paragraphs 1 and 3 of the same Article forbid agents of a receiving State to enter the premises of a mission without consent or to undertake any search, requisition, attachment or like measure on the premises. (3) Article 29 of the same Convention forbids any arrest or detention of a diplomatic agent and any attack on his person, freedom or dignity. (4) Articles 25,26 and 27 of the 1961 Vienna Convention and pertinent provisions of the 1963 Vienna Convention concern facilities for the performance of functions, freedom of movement and communications for diplomatic and consular staff. (5) Article 24 of the former Convention and Article 33 of the latter provide for the absolute inviolability of the archives and documents of diplomatic missions and consulates. This particular violation has been made manifest to the world by repeated statements by the militants occupying the Embassy, who claim to be in possession of documents from the archives, and by various government authorities purporting to specify the contents thereof. (6) The continued detention as hostages of the two private individuals entails a renewed breach of the obligations of Iran under Article II, paragraph 4, of the 1955 Treaty of Amity, Economic Relations, and Consular Rights. 54. LETS NOT FORGET THE CHARG DAFFAIRES GUY (78). The question of the compatibility of Irans conduct with the Vienna Conventions also arises in connection with the treatment of the US CDA and two members of his staff in the Ministry of Foreign Affairs on 4 November 1979 and since that date. The Iranian authorities have withheld from the 3 of them the necessary protection and facilities to permit them to leave the Ministry in safety. Accordingly the Iranian authorities have committed a continuing breach of their obligations under Articles 26 and 29 of the 1961 Vienna Convention on Diplomatic Relations. It further appears to the Court that the continuation of that situation over a long period has, in the circumstances, amounted to detention in the Ministry. 55. IN CASE IRAN SUBJECTS THEM TO JUDICIAL PROCEEDINGS (79). Iranian judicial authorities and the Minister for Foreign Affairs have frequently voiced or associated themselves with a threat, first announced by the militants, of having some of the hostages submitted to trial before a court or some other body. If the intention to submit the hostages to any form of criminal trial or investigation were to be put into effect, it would constitute a grave breach by Iran of its obligations under Article 31, paragraph 1, of the 1961 Vienna Convention: "A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State." Again, if there were an attempt to compel the hostages to bear witness, a suggestion renewed at the time of the visit to Iran of the Sec-Gen's Commission, Iran would be violate paragraph 2 of that same Article: "A diplomatic agent is not obliged to give evidence as a witness." [D. IRANS SORT-OF DEFENSE] 56. IRAN DID NOT SUBSTANTIATE (80-82). (See par. 25, Iran Elaborates on Alleged US Interference.) The matters alleged are of a kind which, if invoked in legal proceedings, must clearly be established to the satisfaction of the tribunal with al1 the requisite proof. The Court, in its Order, pointed out that if the Iranian Government considered the alleged activities of the US in Iran legally to have a close connection with the subject-matter of the Application, Iran could present its own case by way of defence to the US' claims. The Iranian Government, however, did not appear before the Court. Nor did the Iranian Government furnish the Court with any further information regarding the alleged criminal activities of the US in Iran, or explain on what legal basis he considered these allegations to constitute a relevant answer to the US' claims. And while the information submitted by the US itself to the Court does include some reference to alleged espionage and interference in Iran by the United States centred upon its Embassy in Tehran, these statements are of the same general character as the assertions of alleged criminal activities of the US contained in the Foreign Minister's letters, and are unsupported by evidence furnished by Iran before the Court. Hence they do not provide a basis on which the Court could form a judicial opinion on the truth or otherwise of the matters there alleged. 57. ASSUMING ARGUENDO, NOT JUSTIFICATION (83). Even if the alleged criminal activities of the US in Iran could be considered as having been established, the Court could not accept that they can be regarded as constituting a justification of Iran's conduct and thus a defence to the US' claims in the present case, because diplomatic law itself provides the necessary means of defence against, and sanction for, illicit activities by members of diplomatic or consular missions. 58. REMEDIES ARE PROVIDED BY VIENNA CONVENTIONS (84).. Express provisions meet the case when members of an embassy staff, under the cover of diplomatic privileges and immunities, engage in such abuses of their functions as espionage or interference in the internal affairs of the receiving State. Article 41, paragraph 1, of the Vienna Convention on Diplomatic Relations, and Article 55, paragraph 1, of the Vienna Convention on Consular Relations: "Without prejudice to their privileges and immunities, it is the duty of all persons enjoying such privileges and immunities to respect the laws and regulations of the receiving State. They also have a duty not to interfere in the internal affairs of that State." Paragraph 3 of Article 41 of the 1961 Convention: "The premises of the mission must not be used in any manner incompatible with the functions of the missions; analogous WRT consular premises is Article 55, paragraph 2, of the 1963 Convention.

59. Thus, it is for the very purpose of providing a remedy for such possible abuses of diplomatic functions that Article 9 of the 1961 Convention on Diplomatic Relations stipulates: "1. The receiving State may, at any time and without having to explain its decision, notify the sending State that the head of the mission or any member of the diplomatic staff of the mission is persona non grata or that any other member of the staff of the mission is not acceptable. In any such case, the sending State shall, as appropriate, either recall the person concerned or terminate his functions with the mission. A person may be declared non grata or not acceptable before arriving in the territory of the receiving State. 2. If the sending State refuses or fails within a reasonable period to carry out its obligations under paragraph 1 of this Article, the receiving State may refuse to recognize the person concerned as a member of the mission." The 1963 Convention contains, in Article 23 paragraphs 1 and 4, analogous provisions in respect of consular officers and consular staff. 60. Paragraph 1 of Article 9 of the 1961 Convention and paragraph 4 of Article 23 of the 1963 Convention take account of the difficulty that may be experienced in practice of proving such abuses in every case or, indeed, of determining exactly when exercise of the diplomatic function, expressly recognized in Article 3 (1) (d) of the 1961 Convention, of "ascertaining by all lawful means conditions and developments in the receiving State" may be considered as involving such acts as "espionage" or "interference in internal affairs". Thus Article 9, paragraph 1 provides expressly that the receiving State may "at any time and without having to explain its decision" notify the sending State that any particular member of its diplomatic mission is 'persona non grata" or "not acceptable" (similarly Article 23, paragraph 4 of the 1963 Convention provides that "the receiving State is not obliged to give to the sending State reasons for its decision"). Beyond that remedy for dealing with abuses of the diplomatic function by individual members of a mission, a receiving State has, at its own discretion, a more radical remedy if abuses of their functions by members of a mission reach serious proportions: the power to break off diplomatic relations with a sending State and to call for the immediate closure of the offending mission. 61. THE RULES OF DIPLOMATIC LAW (86), in short, constitute a self-contained rgime which, on the one hand, lays down the receiving State's obligations regarding the facilities, privileges and immunities to be accorded to diplomatic missions and, on the other, foresees their possible abuse by members of the mission and specifies the means at the disposa1 of the receiving State to counter any such abuse. These means are, by their nature, entirely efficacious, for unless the sending State recalls the member of the mission objected to forthwith, the prospect of the almost immediate loss of privileges and immunities, because of the withdrawal by the receiving State of his recognition as a member of the mission, will in practice compel that person, in his own interest, to depart at once. But the principle of the inviolability of the persons of diplomatic agents and the premises of diplomatic missions is one of the very foundations of this long-established rgime, to the evolution of which the traditions of Islam made a substantial contribution. The fundamental character of the principle of inviolability is, moreover, strongly underlined by the provisions of Articles 44 and 45 of the Convention of 1961 (cf. also Articles 26 and 27 of the Convention of 1963). Even in the case of armed conflict or in the case of a breach in diplomatic relations those provisions require that both the inviolability of the members of a diplomatic mission and of the premises, property and archives of the mission must be respected by the receiving State. Naturally, the observance of this principle does not mean - and the Applicant Government expressly acknowledges - that a diplomatic agent caught in the act of committing an assault or other offence may not, on occasion, be briefly arrested by the police of the receiving State in order to prevent the commission of the particular crime. But such eventualities bear no relation at all to what occurred in the present case. 62. IRAN DIDNT RESORT TO THESE LEGALLY SANCTIONED REMEDIES (87). The Iranian Government did not break off diplomatic relations with the US; and at no time before the events of 4 November 1979 had the Iranian Government declared, or indicated any intention to declare, any member of the US diplomatic or consular staff in Tehran persona non grata. The Iranian Government did not, therefore, employ the remedies placed at its disposal by diplomatic law specifically for dealing with activities of the kind of which it now complains. 63. WHATEVER THE REASONS, STILL UNLAWFUL (88). The Ayatollah alleged that the origin of the militants operation originated with the news of the arrival of the former Shah of Iran in the US. That fact may no doubt have been the ultimate catalyst of Iranian resentment against the former Shah for his alleged misdeeds, and also against the US Government which was being publicly accused of having restored him to the throne, of having supported him for many years and of planning to go on doing so. But whatever be the truth in regard to those matters, they could hardly be considered as having provided a justification for the attack on the US Embassy and its diplomatic mission. That feeling of offence could not affect the imperative character of the legal obligations incumbent upon the Iranian Government which is not altered by a state of diplomatic tension between the two countries. Still less could a mere refusal or failure on the part of the US to extradite the Shah to Iran be considered to modify the obligations of the Iranian authorities, quite apart from any legal difficulties, in internal or international law, there might be in acceding to such a request for extradition. Admittedly however, these findings do not exclude the possibility that some of the circumstances alleged, if duly established, may later be found to have some relevance in determining the consequences of the responsibility incurred by the Iranian State with respect to its conduct, although they could not be considered to alter its unlawful character. [III. CONCLUSIONS & CLOSING REMARKS]

64. REPARATIONS DUE, BUT AMOUNT YET INDETERMINABLE. 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 US and, consequently, has the obligation to make reparation for the injury thereby caused. Since however Iran's breaches of its obligations are still continuing, the form and amount of such reparation cannot be determined at the present date. 65. WE HEART DIPLOMATS (91-92). The Court finds itself obliged to stress the cumulative effect of Iran's breaches of its obligations when taken together. A marked escalation of these breaches can be seen to have occurred in the transition from the failure on the part of the Iranian authorities to oppose the armed attack by the militants, to the almost immediate endorsement by those authorities of the situation thus created, and then to their maintaining deliberately for many months the occupation of the Embassy and detention of its staff for the purpose of forcing the US to bow to certain demands. Wrongfully to deprive human beings of their freedom and to subject them to physical constraint in conditions of hardship is in itself manifestly incompatible with the principles of the Charter of the United Nations, as well as with the fundamental principles enunciated in the Universal Declaration of Human Rights. But what has above all to be emphasized is the extent and seriousness of the conflict between the conduct of the Iranian State and its obligations under the whole corpus of the international rules of which diplomatic and consular law is comprised, rules the fundamental character of which the Court must here again strongly affirm. The obligations laid on States by the two Vienna Conventions are of cardinal importance for the maintenance of good relations between States in the interdependent world of today. "There is no more fundamental prerequisite for the conduct of relations between States", the Court said in its Order of 15 December 1979, "than the inviolability of diplomatic envoys and embassies, so that throughout history nations of all creeds and cultures have observed reciprocal obligations for that purpose." The institution of diplomacy has proved to be "an instrument essential for effective co-operation in the international community, and for enabling States, irrespective of their differing constitutional and social systems, to achieve mutual understanding and to resolve their differences by peaceful means." 66. The frequency with which at the present time the principles of international law governing diplomatic and consular relations are set at naught by individuals or groups of individuals is already deplorable. But this case is unique and of very particular gravity because here it is not only private individuals or groups of individuals that have disregarded and set at naught the inviolability of a foreign embassy, but the government of the receiving State itself. The Court considers it to be its duty to draw the attention of the entire international community, of which Iran itself has been a member since time immemorial, to the irreparable harm that may be caused by events of the kind now before the Court. Such events cannot fail to undermine the edifice of law carefully constructed by mankind over a period of centuries, the maintenance of which is vital for the security and wellbeing of the complex international community of the present day, to which it is more essential than ever that the rules developed to ensure the ordered progress of relations between its members should be constantly and scrupulously respected. 67. US GETS A SLAP ON THE WRIST TOO (93-94). The Court cannot let pass without comment the aforementioned incursion into the territory of Iran made by US military units [see par. 23, Aborted Rescue Attempt]. Sure, the US Government may have been preoccupied with the well-being of its nationals held hostage, and may have felt frustrated over their protracted detention despite UN SC resolutions and the Courts 1979 Order. [Nevertheless,] the Court was in course of preparing the present judgment adjudicating upon the claims of the US against Iran when the operation of 24 April 1980 took place. An operation undertaken in those circumstances, from whatever motive, is of a kind calculated to undermine respect for the judicial process in international relations. In its Order, the Court had indicated that no action was to be taken by either party which might aggravate the tension between the two countries. However, neither the question of the legality of the operation of 24 April1980, under the Charter of the United Nations and under general international law, nor any possible question of responsibility flowing from it, is before the Court. Also, this question can have no bearing on the evaluation of the conduct of the Iranian Government as to the embassy and consulate incidents. 68. WHAT WEVE ALL BEEN WAITING FOR. For these reasons, THE COURT, 1. By thirteen votes to two, 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 still violating, obligations owed by it to the US 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 to two, Decides that the violations of these obligations engage the responsibility of the Islamic Republic of Iran towards the US 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 US 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 US Embassy in Tehran and of its Consulates in Iran; 4. Unanimously, Decides that no member of the US 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 to three, Decides that the Government of the Islamic Republic of Iran is under an obligation to make reparation to the Government of the US 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 to one, 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. Mexico v. USA Case Concerning Avena and Other Mexican Nationals (Mexico v. USA) (March 31, 2004) (Note: The paragraph numbers here are not reflective of the paragraph numbers in the original decision) 1. MEXICOS CLAIM. Mexico claims that the US has committed breaches of the Vienna Convention in relation to the treatment of a number of Mexican nationals who have been tried, convicted, and sentenced to death in criminal proceedings in the US. These criminal proceedings have been taking place in 9 different States of the US, namely California (28 cases), Texas (15 cases), Illinois (3 cases), and one case each for Arizona, Arkansas, Nevada, Ohio, Oklahoma, and Oregon between 1979 and the present. There are 52 individuals in all (see paragraph 16 of the original for all the names). 2. BASIS OF MEXICOS CLAIM. Mexico relies on te Vienna Convention and of the Optional Protocol providing for jurisdiction of the ICJ over disputes arising out of the interpretation or application of the Convention. Mexico and the US are, and were at all relevant times, parties to the Vienna Convention and to the Optional Protocol. 3. WHY MEXICO WANTS TO SUE. The US authorities arrested and interrogated these individuals had sufficient information at their disposal to be aware of the foreign nationality of those individuals. According to Mexico, in 50 of the specified cases, Mexican nationals were never informed by the competent US authorities of their rights under Art. 36 (1b) of the Vienna Convention, and in the 2 remaining cases, such information was provided without delay, as required by that provision. Mexico has indicated that in 29 of the 52 cases, its consular authorities learned of the detention of the Mexican nationals only after death sentences had been handed down. In the 23 remaining cases, Mexico contends that it learned of the cases through means other than notification to the consular post as required by the same article. 4. MEXICO INSTITUTES PROCEEDINGS. Mexico instituted proceedings against the US for violations of the Vienna Convention on Consular Relations. Mexico based the jurisdiction of the Court on Article 36 (1) of the Statute of the Court and on Article 1 of the Optional Protocol Concerning the Compulsory Settlement of Disputes, which accompanies the Vienna Convention. 5. PROVISIONAL MEASURES; GRANTED. Mexico also filed a request for the indication of provisional measures which the Court granted: (1) that the US shall take all necessary measures to ensure that Cesar Roberto Fierro Reyna, Roberto Moreno Ramos, Osvaldo Torres Aguilera are not to be executed pending final judgment; (2) that the US shall inform the ICJ of all measures taken in implementation of the provisional measures ordered. 6. MEXICO SOUGHT TO INCLUDE 2 ADDTL NATIONALS; DENIED. To ensure the procedural equality of the parties, the ICJ decided not to authorize a requested amendment by Mexico of its submissions so as to include 2 addtl Mexican nationals, while taking note that the US had made no objection to the withdrawal of Mexico of its request for relief in 2 other cases. 7. MEXICOS MEMORIAL, ORAL ARGUMENTS. The Government of Mexico respectfully requests the Court to adjudge and declare: a. That the United States of America, in arresting, detaining, trying, convicting, and sentencing the 52 Mexican nationals on death row described in Mexicos Memorial, violated its international legal obligations to Mexico, in its own right and in the exercise of its right to diplomatic protection of its nationals, by failing to inform, without delay, the 52 Mexican nationals after their arrest of their right to consular notification and access under Article 36 (1) (b) of the Vienna Convention on Consular Relations, and by depriving Mexico of its right to provide consular protection and the 52 nationals right to receive such protection as Mexico would provide under Article 36 (1) (a) and (c) of the Convention; b. That the obligation in Article 36 (1) of the Vienna Convention requires notification of consular rights and a reasonable opportunity for consular access before the competent authorities of the receiving State take any action potentially detrimental to the foreign nationals rights; c. That the United States of America violated its obligations under Article 36 (2) of the Vienna Convention by failing to provide meaningful and effective review and reconsideration of convictions and sentences impaired by a violation of Article 36 (1); by substituting for such review and reconsideration clemency proceedings; and by applying the procedural default doctrine and other municipal law doctrines that fail to attach legal significance to an Article 36 (1) violation on its own terms;

d. That pursuant to the injuries suffered by Mexico in its own right and in the exercise of diplomatic protection of its nationals, Mexico is entitled to full reparation for those injuries in the form of restitutio in integrum; e. That this restitution consists of the obligation to restore the status quo ante by annulling or otherwise depriving of full force or effect the convictions and sentences of all 52 Mexican nationals; f. That this restitution also includes the obligation to take all measures necessary to ensure that a prior violation of Article 36 shall not affect the subsequent proceedings; g. That to the extent that any of the 52 convictions or sentences are not annulled, the United States shall provide, by means of its own choosing, meaningful and effective review and reconsideration of the convictions and sentences of the 52 nationals, and that this obligation cannot be satisfied by means of clemency proceedings or if any municipal law rule or doctrine inconsistent with paragraph (3) above is applied; and h. That the United States of America shall cease its violations of Article 36 of the Vienna Convention with regard to Mexico and its 52 nationals and shall provide appropriate guarantees and assurances that it shall take measures sufficient to achieve increased compliance with Article 36 (1) and to ensure compliance with Article 36 (2). 8. US COUNTER-MEMORIAL, ORAL ARGUMENT. On the basis of the facts and arguments made by the US in its Counter-Memorial and in these proceedings, the Government of the USA requests that the Court, taking into account that the United States has conformed its conduct to this Courts Judgment in the LaGrand Case (Germany v. United States of America), not only with respect to German nationals but, consistent with the Declaration of the President of the Court in that case, to all detained foreign nationals, adjudge and declare that the claims of the United Mexican States are dismissed. 9. MEXICOS ANSWER TO US OBJECTION ON JURISDICTION (See #11). The objections of the US are inadmissible as having been raised after the expiration of the time-limit laid down by Art. 79 (1) of the Rules of Court as amended in 2000. 10. ICJ, US OBJECTIONS SHOULD NOT BE EXLUCDED. However, the Court notes that there are circumstances where the party failing to avail itself of the Article 79 procedure on preliminary objections may forfeit the right to bring a suspension of the proceedings on the merits, but can still argue the objection along merits. This is what the US has done in this case, since many of its objections are of such a nature that they would in any event probably have had to be heard along with the merits. The Court concludes that it should not exclude from consideration the objections of the US to jurisdiction and admissibility by reason of the fact that they were not presented within 3 months from the date of filing of the Memorial. 11. US OBJECTIONS TO ICJ JURISDICTION. a. Mexican Memorial is fundamentally addressed to the treatment of Mexican nationals in the US, and to the operation of the US criminal justice system as a whole, and for the ICJ to address such issues would be an abuse of its jurisdiction OBJECTION CANNOT BE UPHELD The jurisdiction of the ICJ in this case has been invoked under the Vienna Convention and Optional Protocol to determine the nature and extent of the obligations undertaken by the US and Mexico by becoming party to that Convention. The Vienna Convention included commitments as to the conduct of their municipal courts in relation to the nationals of other parties. To determine if there has been a breach of the Convention, the ICJ must be able to examine the actions of those courts in light of international law. b. Article 36 of the Vienna Convention creates no obligations constraining the rights of the US to arrest a foreign national; and that, similarly, the detaining, trying, convicting, and sentencing of Mexican nationals could not constitute breaches of Article 36, which merely lays down obligations of notification. OBJECTION CANNOT BE UPHELD It calls for interpretation which may or may not be confirmed on the merits. c. Mexico is not entitled to restitution in integrum and the US is under no obligation to restore the status quo ante because this would intrude deeply into the independence of its courts, and that for the ICJ to declare that the US is under a specific obligation to vacate convictions and sentences would be beyond its jurisdiction OBJECTION CANNOT BE UPHELD In the LaGrand case (Germany v. US), where jurisdiction exists over a dispute on a particular matter, no separate basis for jurisdiction is required by the ICJ in order to consider the remedies a party has required for the breach of the obligation. d. The ICJ lacks jurisdiction to determine WON consular notification is a human right, or to declare fundamental requirements of substantive or procedural due process OBJECTION CANNOT BE UPHELD This questions involves interpretation of the Vienna Convention, for which it has jurisdiction. 12. US OBJECTIONS TO ADMISSIBILITY. a. Mexicos submissions are inadmissible because they seek to have the ICJ function as a court of criminal appeal OBJECTION CANNOT BE UPHELD This contention is addressed solely to the question of remedies and is a matter of merits. b. Mexicos submissions are inadmissible because Mexico did not exhaust local remedies OBJECTION CANNOT BE UPHELD Mexico does not claim to be acting solely for its nationals but also asserts its own claims, basing them on the injury which it allegedly suffered, directly and through its nationals, as a result of the violation of the US of the obligations incumbent upon it under Art. 36 (1abc). The ICJ finds that, in these special circumstances, Mexico may in submitting a claim in its own name, request the ICJ to rule on the violation of rights which it claims to have suffered both directly and through the violation of individual rights conferred on Mexican nationals under Art. 36 (1b). c. Mexicos submissions are inadmissible because of the dual nationality of some of the Mexican nationals who the US alleges are also US nationals OBJECTION CANNOT BE UPHELD Mexico, in addition to seeking to exercise diplomatic protection of its nationals, is making a claim in its own right on the basis of the alleged breaches by the US of the Vienna Convention.

d. Mexicos submissions are inadmissible because Mexico was in considerable delay OBJECTION CANNOT BE UPHELD In the case of Certain Phosphate Lands in Nauru (Nauru v. Australia), the ICJ observed that delay on the part of a claimant State may render an application inadmissible, but that international law does not lay down any specific time-limit in that regard. So far as inadmissibility might be based on an implied waiver of rights, the ICJ considers that only a much more prolonged and consistent inaction of Mexico than any that the US has alleged might be interpreted as implying such a waiver. The ICJ also notes that Mexico has indicated a number of ways in which it brought to the attention of the US the breaches the latter made. e. Mexicos submissions are inadmissible because Mexico should not be allowed to invoke against the US standards that Mexico itself does not follow in its own practice OBJECTION CANNOT BE UPHELD Even if it were shown that Mexicos practice as regards the application of Art. 36 was not beyond reproach, this would not constitute a ground of objection to the admissibility of Mexicos claim. MERITS OF THE CASE First off, heres the Article in the Vienna Convention on Consular Relations that figures in this case: Article 36 Communication and contact with nationals of the sending State 1. With a view to facilitating the exercise of consular functions relating to nationals of the sending State: (a) Consular officers shall be free to communicate with nationals of the sending State and to have access to them. Nationals of the sending State shall have the same freedom with respect to communication with and access to consular officers of the sending State; (b) If he so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State if, within its consular district, a national of that State is arrested or committed to prison or to custody pending trial or is detained in any other manner. Any communication addressed to the consular post by the person arrested, in prison, custody or detention shall be forwarded by the said authorities without delay. The said authorities shall inform the person concerned without delay of his rights under this subparagraph; (c) Consular officers shall have the right to visit a national of the sending State who is in prison, custody or detention, to converse and correspond with him and to arrange for his legal representation. They shall also have the right to visit any national of the sending State who is in prison, custody or detention in their district in pursuance of a judgement. Nevertheless, consular officers shall refrain from taking action on behalf of a national who is in prison, custody or detention if he expressly opposes such action. 2. The rights referred to in paragraph 1 of this article shall be exercised in conformity with the laws and regulations of the receiving State, subject to the proviso, however, that the said laws and regulations must enable full effect to be given to the purposes for which the rights accorded under this article are intended. 1. FIRST ISSUE: AS TO NATIONALITY. The US claims that the duty under Article 36 of the Vienna Convention on Consular Relations applies only to Mexican nationals and not to those of dual Mexican/American nationality. The Court held that as regards the 52 persons affected in this case, the US had obligations under Article 36 as to all of them. This is because Mexico has proven that these 52 people are Mexican nationals by producing birth certificates and declarations of nationality while on the other hand, the US was not able to demonstrate that some of them were citizens of both the US and Mexico. The US has not met its burden of proof. 2. SECOND ISSUE: AS TO DELAY. Mexico claims that the US failed to provide the arrested persons with information as to their rights under Art. 36 (1b). The ICJ stated that Art. 36 (1b) contains three separate but interrelated elements: (1) the right of the individual concerned to be informed without delay of his rights under Article 36 (1b); (2) the right of the consular post to be notified without delay of the individuals detention, if he so requests; and (3) the obligation of the receiving State to forward without delay any communication addressed to the consular by the detained person. Both Mexico and the US have very different interpretations on the phrase without delay. Mexico: without delay = requires unqualified immediacy. In view of the object and purpose of Art. 36, which is to enable meaningful consular assistance and the safeguarding of the vulnerability of foreign nationals in custody, consular notification must occur immediately upon detention and prior to any interrogation of the foreign detainee, so that the consul may offer useful advise about the foreign legal system and provide assistance in obtaining counsel before the foreign national makes any ill-informed decisions or the State takes any action potentially prejudicial to his rights. US: without delay does not mean immediately, and before interrogation. The purpose of Art. 36 was to facilitate the exercise of consular functions by a consular officer. The significance of giving consular information to a national is thus limited. It is a procedural advise that allows the foreign national to trigger the related process of notification. It cannot possibly be fundamental to the criminal justice process.

Court: without delay is not necessarily to be interpreted as immediately upon arrest, nor can it be interpreted to signify that the provision of the notice must necessarily precede any interrogation, so that the commencement of interrogation before the notification would be a breach of Art. 36. The Court observes, however, that there is nonetheless a duty upon the arresting authorities to give the information to an arrested person as soon as it is realized that the person is a foreign national, or once there are grounds to think that the person is probably a foreign national. Applying this interpretation of without delay, the Court finds that the US was in breach of its obligations to all but one of the 52 individuals concerned. 3. INTERRELATIONSHIP BETWEEN SUBPARAGRAPHS OF ART. 36 (1). As stated above, there are 3 elements in Art. 36 (1b). If a State breaches its obligation under Art. 36 (1b) in not notifying the Consular Post of the other state of the detention of the latters nationals, it also breaches Art. 36 (1a) because it precluded the consular officers of the other State to communicate with and have access to their nationals, as well as Art. 36 (1c) because it precluded the consular officers of the other State from visiting their detained nationals and from arranging for legal representation of their nationals. 4. US VIOLATION OF ART. 36 (2). Mexico claims that US violated Art. 36 (2) by failing to provide meaningful and effective review and reconsideration of convictions and sentences. Basically, the US applied the procedural default rule which led to the default of some of the 52 Mexican nationals. This rule has previously been considered by the court in the LaGrands case and as in this case, the rule prevented counsel for the Mexicans (and for the LaGrands) to effectively challenge their convictions and sentences. The Court therefore concludes that the US is in violation of its obligations under Art. 36 (2). 5. WHAT WOULD BE ADEQUATE REPARATION FOR THE VIOLATIONS OF ARTICLE 36? The remedy to make good these violations of its obligations should consist in an requirement for the US to permit review and reconsideration of these nationals cases by the US courts, with a view to ascertaining whether in each case the violation of Art. 36 committed by the competent authorities caused actual prejudice to the defendant in the process of administration of criminal justice. Partial or total annulment of conviction or sentence, as Mexico asserts, should not be presumed as the necessary and sole remedy. In this case, it is not the convictions and sentences of the Mexican nationals which are regarded to be the violation of international law, but solely certain breaches of treaty obligations. 6. VIENNA CONVENTIONS = HUMAN RIGHTS ??????? Mexico contends that the right to consular notification and consular communication under the Vienna Convention is a human right of such a fundamental nature that its infringement will ipso facto produce the effect of vitiating the entire process of the criminal proceedings conducted in violation of this fundamental right. The ICJ observes that the question on WON the Vienna Convention rights are human rights is not a matter that it need not decide. The ICJ points out however that neither the text nor the object and purpose of the Convention, nor any indication in the travaux prparatoires support the Mexicos conclusion. Thus, Mexicos claim for restitution in integrum and the claim for the restoration of the status quo ante by annulling or otherwise depriving of full force or effect the conviction and sentences of all 52 Mexican nationals cannot be upheld. 7. EXCLUSION IN SUBSEQUENT CRIMINAL PROCEEDINGS OBTAINED PRIOR TO NOTIFICATION DENIED. Mexico claims that as an aspect of restitution in integrum, it is entitled to an order that in any subsequent criminal proceedings against the Mexican nationals, statements and confessions obtained prior to the notification to the national of his right to consular assistance be excluded. The ICJ denied this claim because it is of the view that this questions is one which has to be examined under the concrete circumstance of each case by the US courts concerned in the process of their review and reconsideration. 8. MEXICOS 7th SUBMISSION (REVIEW AND RECONSIDEARATION IF CONVICTIONS ARE NOT ANNULLED). Mexico claims that if the convictions or sentences are not annulled, the US shall provide, by means of its own choosing, meaningful and effective review and reconsideration of the convictions and sentences of the 52 nationals and that this obligation cannot be satisfied by means of clemency proceeding or if any municipal law rule or doctrine that fails to attach legal significance to an Art. 36 (1) violation is applied. The Court observes that in the current situation in US criminal procedure, the application of the procedural default rule effectively limits the Mexican nationals from seeking vindication of his rights except under the US Constitution. Also, the US uses clemency proceedings which Mexico argues is ineffective because clemency review is standardless, secretive, and immune from judicial oversight. The Court emphasizes that review and reconsideration prescribed by it originally in the LaGrand case should be effective. Thus, it should take account of the violation of the rights set forth in the Vienna Convention and guarantee that the violation and the possible prejudice caused by the violation will be fully examined and taken into account in the review and reconsideration process. Lastly, review and reconsideration should be both of the sentence and of the conviction. The ICJ agrees with Mexico that the clemency process is not sufficient to serve as an appropriate means of review and reconsideration. 9. MEXICOS LAST SUBMISSION (FOR US TO ASSURE THAT IT SHALL TAKE MEASURES SUFFICIENT TO ACHIEVE INCREASED COMPLIANCE WITH ART. 36 (1) and ENSURE COMPLIANCE WIT ART. 36 (2). Mexico states that the US has failed to prevent the continuing violation by its authorities of the consular notification and assistance rights. The ICJ notes that the US has been making considerable efforts to ensure that its law enforcement authorities provide consular information to every arrested person they know or have reason to believe is a foreign national.

JUDGMENT OF THE COURT 1.) 14 1 votes: The US breached its obligations under Art. 36 (1b) by not informing the detained Mexican nationals of their rights under 36 (1b). 2.) 14 1 votes: The US breached its obligations under Art. 36 (1b) by not notifying the appropriate Mexican consular post without delay of the detention of the Mexican nationals and thereby depriving Mexico of the right to render assistance to the individuals concerned. 3.) 14 1 votes: The US breached its obligations under Art. 36 (1a) and (1c) by precluding Mexico of the right to communicate with and have access to its nationals and to visit them in detention. 4.) 14 1 votes: The US breached its obligations under Art. 36 (1c) by precluding Mexico of the right to arrange for legal representation of its national. 5.) 14 1 votes: The US breached its obligations under Art. 36 (2) by not permitting the review and reconsideration of the conviction and sentences of Reyna, Ramos, and Aguilera. 6.) 14 1 votes: That the appropriate reparation in this case consists in the obligation of the US to provide, by means of its own choosing, review and reconsideration o the convictions and sentences of the Mexican nationals, by taking account both of the violation of the rights set forth in Art. 36 of the Vienna Convention. 7.) 15 0 votes: Takes note of the commitment undertaken by the US to ensure implementation of the specific measures adopted in performance of its obligations under Art. 36 (1b) of the Vienna Convention and finds that this commitment must be regarded as meeting the request by Mexico for guarantees and assurances of non-repetition. 8.) 15 0 votes: Finds that should Mexican nationals nonetheless be sentenced to severe penalties, without their rights under Art. 36 (1b) having been respected, the US shall provide, by means of its own choosing, review and reconsideration of the conviction and sentence, so as to allow full weight to be given to the violation of the rights set forth in the Convention.