Kuroda vs Jalandoni 83 Phil 171 Facts Shinegori Kuroda, a former Lieutenant-General of the Japanese Imperial Army and Commanding

General of the Japanese Imperial Forces in the Philippines was charged before the Philippine Military Commission for war crimes. As he was the commanding general during such period of war, he was tried for failure to discharge his duties and permitting the brutal atrocities and other high crimes committed by his men against noncombatant civilians and prisoners of the Japanese forces, in violation of of the laws and customs of war. Kuroda, in his petition, argues that the Military Commission is not a valid court because the law that created it, Executive Order No. 68, is unconstitutional. He further contends that using as basis the Hague Conventions Rules and Regulations covering Land Warfare for the war crime committed cannot stand ground as the Philippines was not a signatory of such rules in such convention. Furthermore, he alleges that the United States is not a party of interest in the case and that the two US prosecutors cannot practice law in the Philippines. Issue 1.Whether or not Executive Order No. 68 is constitutional 2.Whether or not the US is a party of interest to this case

signatory to these conventions by the mere incorporation of such principles in the constitution. The United States is a party of interest because the country and its people have been equally, if not more greatly, aggrieved by the crimes with which the petitioner is charged for. By virtue of Executive Order No. 68, the Military Commission is a special military tribunal and that the rules as to parties and representation are not governed by the rules of court but by the very provisions of this special law

Ruling The Supreme Court ruled that Executive Order No. 68, creating the National War Crimes Office and prescribing rules on the trial of accused war criminals, is constitutional as it is aligned with Sec 3,Article 2 of the Constitution which states that The Philippines renounces war as an instrument of national policy and adopts the generally accepted principles of international law as part of the law of the nation. The generally accepted principles of international law includes those formed during the Hague Convention, the Geneva Convention and other international jurisprudence established by United Nations. These include the principle that all persons, military or civilian, who have been guilty of planning, preparing or waging a war of aggression and of the commission of crimes and offenses in violation of laws and customs of war, are to be held accountable. In the doctrine of incorporation, the Philippines abides by these principles and therefore has a right to try persons that commit such crimes and most especially when it is committed againsts its citizens. It abides with it even if it was not a

Co Kim Chan v Valdez Tan Keh Facts of the case: Co Kim Chan had a pending civil case, initiated during the Japanese occupation, with the Court of First Instance of Manila. After the Liberation of the Manila and the American occupation, Judge Arsenio Dizon refused to continue hearings on the case, saying that a proclamation issued by General Douglas MacArthur had invalidated and nullified all judicial proceedings and judgments of the courts of the Philippines and, without an enabling law, lower courts have no jurisdiction to take cognizance of and continue judicial proceedings pending in the courts of the defunct Republic of the Philippines (the Philippine government under the Japanese). The court resolved three issues: 1. Whether or not judicial proceedings and decisions made during the Japanese occupation were valid and remained valid even after the American occupation; 2. Whether or not the October 23, 1944 proclamation MacArthur issued in which he declared that all laws, regulations and processes of any other government in the Philippines than that of the said Commonwealth are null and void and without legal effect in areas of the Philippines free of enemy occupation and control invalidated all judgments and judicial acts and proceedings of the courts; 3. And whether or not if they were not invalidated by MacArthurs proclamation, those courts could continue hearing the cases pending before them. Ratio: Political and international law recognizes that all acts and proceedings of a de facto government are good and valid. The Philippine Executive Commission and the Republic of the Philippines under the Japanese occupation may be considered de facto governments, supported by the military force and deriving their authority from the laws of war. Municipal laws and private laws, however, usually remain in force unless suspended or changed by the conqueror. Civil obedience is expected even during war, for the existence of a state of insurrection and war did not loosen the bonds of society, or do away with civil government or the regular administration of the laws. And if they were not valid, then it would not have been necessary for MacArthur to come out with a proclamation abrogating them. The second question, the court said, hinges on the interpretation of the phrase processes of any other government and whether or not he intended it to annul all other judgments and judicial proceedings of courts during the Japanese military occupation. IF, according to international law, non-political judgments and judicial proceedings of de facto governments are valid and remain valid even after the occupied territory has been liberated, then it could not have been MacArthurs intention to refer to judicial

processes, which would be in violation of international law. A wellknown rule of statutory construction is: A statute ought never to be construed to violate the law of nations if any other possible construction remains. Another is that where great inconvenience will result from a particular construction, or great mischief done, such construction is to be avoided, or the court ought to presume that such construction was not intended by the makers of the law, unless required by clear and unequivocal words. Annulling judgments of courts made during the Japanese occupation would clog the dockets and violate international law, therefore what MacArthur said should not be construed to mean that judicial proceedings are included in the phrase processes of any other governments. In the case of US vs Reiter, the court said that if such laws and institutions are continued in use by the occupant, they become his and derive their force from him. The laws and courts of the Philippines did not become, by being continued as required by the law of nations, laws and courts of Japan. It is a legal maxim that, excepting of a political nature, law once established continues until changed by some competent legislative power. IT IS NOT CHANGED MERELY BY CHANGE OF SOVEREIGNTY. Until, of course, the new sovereign by legislative act creates a change. Therefore, even assuming that Japan legally acquired sovereignty over the Philippines, and the laws and courts of the Philippines had become courts of Japan, as the said courts and laws creating and conferring jurisdiction upon them have continued in force until now, it follows that the same courts may continue exercising the same jurisdiction over cases pending therein before the restoration of the Commonwealth Government, until abolished or the laws creating and conferring jurisdiction upon them are repealed by the said government. DECISION: Writ of mandamus issued to the judge of the Court of First Instance of Manila, ordering him to take cognizance of and continue to final judgment the proceedings in civil case no. 3012. Summary of ratio: 1. International law says the acts of a de facto government are valid and civil laws continue even during occupation unless repealed. 2. MacArthur annulled proceedings of other governments, but this cannot be applied on judicial proceedings because such a construction would violate the law of nations. 3. Since the laws remain valid, the court must continue hearing the case pending before it. ***3 kinds of de facto government: one established through rebellion (govt gets possession and control through force or the voice of the majority and maintains itself against the will of the rightful government) through occupation (established and maintained by military forces who invade and occupy a territory of the enemy in the course of war; denoted as a government of paramount force) through

insurrection (established as an independent government by the inhabitants of a country who rise in insurrection against the parent state)

Rights in proclaiming that life and liberty and all other fundamental rights shall be applied to all human beings. The contention that he remains a threat of to the security of the country is unfounded as Japan and the US or the Phils are no longer at war.

Mejoff vs Director of Prisons 90 Phil 70 BAER vs. TIZON G.R. No. L-24294 May 3, 1974 FACTS: Respondent Edgardo Gener, as plaintiff, filed a complaint for injunction with the Court of First Instance of Bataan against petitioner, Donald Baer, Commander of the United States Naval Base in Olongapo. He alleged that he was engaged in the business of logging and that the American Naval Base authorities stopped his logging operations. He prayed for a writ of preliminary injunction restraining petitioner from interfering with his logging operations. A restraining order was issued by respondent Judge Counsel for petitioner, upon instructions of the American Ambassador to the Philippines, entered their appearance for the purpose of contesting the jurisdiction of respondent Judge on the ground that the suit was one against a foreign sovereign without its consent.

Facts Boris Mejoff, a Russian, was captured as a Japanese spy by the US Army Counter Intelligence Corps on March 18, 1948. He was turned over to the Phil Commonwealth Government for appropriate disposition. His case was decided on by the Board of Commissioners of Immigration who declared him as an illegal alien. The Board ordered his immediate deportation. In the meantime, we was placed in prison awaiting the ship that will take him back home to Russia. Two Russian boats have been requested to bring him back to Russia but the masters refused as they had no authority to do so. Two years passed and Mejoff is still under detention awaiting the ship that will take him home. This case is a petition for habeas corpus. However, the respondent held that the Mejoff should stay in temporary detention as it is a necessary step in the process of exclusion or expulsion of undesirable aliens. It further states that is has the right to do so for a reasonable length of time.

Issue Whether or not Mejoff should be released from prison awaiting his deportation.

Ruling The Supreme Court decided that Mejoff be released from custody but be placed under reasonable surveillance of the immigration authorities to insure that he keep peace and be available when the Government is ready to deport him. In the doctrine of incorporation, the Philippines in its constitution adops the generally accepted principles of international law as part of the law of Nations. Also, the Philippines has joined the United Nations in its Resolution entitled Universal Declaration of Human

ISSUE: Whether the contention of the petitioner that the respondent judge acquires no jurisdiction on the ground that the suit was one against a foreign sovereign without its consent. HELD: YES. The contention of the petitioner is tenable.

The writ of certiorari prayed for is granted, nullifying and setting aside the writ of preliminary injunction. The invocation of the doctrine of immunity from suit of a foreign state without its consent is appropriate. In the case of Coleman v. Tennessee, it was explicitly declared: "It is well settled that a foreign army, permitted to march through a friendly country or to be stationed in it, by permission of its government or sovereign, is exempt from the civil and criminal jurisdiction of the place." In the case of Raquiza v. Bradford, it was held that Accuracy demands the clarification that after the conclusion of the Philippine-American Military Bases Agreement, the treaty provisions should control on such matter, the assumption being that there was a manifestation of the submission to jurisdiction on the part of the foreign power whenever appropriate. This is not only a case of a citizen filing a suit against his own Government without the latter's consent but it is of a citizen filing an action against a foreign government without said government's consent, which renders more obvious the lack of jurisdiction of the courts of his country. In the case of Parreno v. McGranery, the court ruled that: "It is a widely accepted principle of international law, which is made a part of the law of the land (Article II, Section 3 of the Constitution), that a foreign state may not be brought to suit before the courts of another state or its own courts without its consent." The doctrine of state immunity is not limited to cases which would result in a pecuniary charge against the sovereign or would require the doing of an affirmative act by it. Prevention of a sovereign from doing an affirmative act pertaining directly and immediately to the

most important public function of any government - the defense of the state - is equally as untenable as requiring it to do an affirmative act." That such an appraisal is not opposed to the interpretation of the relevant treaty provision by our government is made clear in the aforesaid manifestation and memorandum as amicus curiae, wherein it joined petitioner for the grant of the remedy prayed for. There should be no misinterpretation of the scope of the decision reached by this Court. Petitioner, as the Commander of the United States Naval Base in Olongapo, does not possess diplomatic immunity. He may therefore be proceeded against in his personal capacity, or when the action taken by him cannot be imputed to the government which he represents. Thereafter, in the cited cases of Syquia, Marquez Lim, and Johnson, the parties proceeded against were American army commanding officers stationed in the Philippines. The insuperable obstacle to the jurisdiction of respondent Judge is that a foreign sovereign without its consent is haled into court in connection with acts performed by it pursuant to treaty provisions and thus impressed with a governmental character.

TAADA VS. ANGARA 272 SCRA 18 Facts: On April 15, 1994, respondent Navarro, Secretary of Department of Trade and Industry and a representative of the Philippine government, signed in the Final Act Embodying the Results of the Uruguay Round of Multilateral Negotiations. Bys signing the Final Act, the Philippines agreed to submit the agreement establishing the World Trade Organization that require the Philippines, among others, to place nationals and products of member-countries on the same footing as Filipinos and local products. To that effect, the President ratified and submitted the same to the Senate for its concurrence pursuant to Section21, Article VII of the Constitution. Hence the petitioner assailed the WTO Agreement for violating the mandate of the 1987 Constitution to develop a self-reliant and independent national economy effectively controlled by Filipinos . . . (to) give preference to qualified Filipinos (and to) promote the preferential use of Filipino labor, domestic materials and locally produced goods. Issue: Whether the provisions of the Agreement Establishing the World Trade Organization contravene the provisions of Sec. 19, Art. II, and Secs. 10 and 12, Art. XII, all of the 1987 Philippines Constitution. Held: The court ruled the petition in favor of the respondents. Article II of the Constitution is a "declaration of principles and state policies." These principles in Article II are not intended to be selfexecuting principles ready for enforcement through the courts. They are used by the judiciary as aids or as guides in the exercise of its power of judicial review, and by the legislature in its enactment of laws. The provisions of Sec. 10 and 12, Article XII of the Constitution, general principles relating to the national economy and patrimony, is enforceable only in regard to the grants or rights, privileges and concessions covering national economy and patrimony and not to every aspect of trade and commerce. While the Constitution mandates a bias in favor of Filipino goods, services, labor and enterprises, at the same time, it recognizes the need for business exchange with the rest of the world on the bases of equality and reciprocity and limits protection of Filipino

enterprises only against foreign competition and trade practices that are unfair. In other words, the Constitution did not intend to pursue an isolationist policy. On the other hand, there is no basis on the contention that under WTO, local industries will all be wiped out and that Filipino will be deprived of control of the economy, in fact, WTO recognizes need to protect weak economies like the Philippines.

LIM vs. EXECUTIVE SECRETARY Facts: Beginning January of year 2002, personnel from the armed forces of the United States of America started arriving in Mindanao to take part, in conjunction with the Philippine military, in Balikatan 02-1. 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. 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 MDTs objectives. It is this treaty to which the VFA adverts and the obligations thereunder which it seeks to reaffirm. On February 1, 2002, petitioners Arthur D. Lim and Paulino P. Ersando filed this petition for certiorari and prohibition, attacking the constitutionality of the joint exercise. Issue: Whether Balikatan 02-1 activities covered by the Visiting Forces Agreement? Ruling: To resolve this, it is necessary to refer to the VFA itself. The VFA permits United States personnel to engage, on an impermanent basis, in activities, the exact meaning of which was left undefined. 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. The Vienna Convention on the Law of Treaties, Articles 31 and 32 contains provisos governing interpretations of international agreements. It clearly provides 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. It appeared farfetched that the ambiguity surrounding the meaning of the word .activities arose from accident. 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 nations 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.

THE HOLY SEE vs. THE HON. ERIBERTO U. ROSARIO, JR., as Presiding Judge of the Regional Trial Court of Makati, Branch 61 and STARBRIGHT SALES ENTERPRISES, INC. G.R. No. 101949 December 1, 1994 FACTS: Petitioner is the Holy See who exercises sovereignty over the Vatican City in Rome, Italy, and is represented in the Philippines by the Papal Nuncio; Private respondent, Starbright Sales Enterprises, Inc., is a domestic corporation engaged in the real estate business. This petition arose from a controversy over a parcel of land consisting of 6,000 square meters located in the Municipality of Paranaque registered in the name of petitioner. Said lot was contiguous with two other lots registered in the name of the Philippine Realty Corporation (PRC). The three lots were sold to Ramon Licup, through Msgr. Domingo A. Cirilos, Jr., acting as agent to the sellers. Later, Licup assigned his rights to the sale to private respondent. In view of the refusal of the squatters to vacate the lots sold to private respondent, a dispute arose as to who of the parties has the responsibility of evicting and clearing the land of squatters. Complicating the relations of the parties was the sale by petitioner of Lot 5-A to Tropicana Properties and Development Corporation (Tropicana). private respondent filed a complaint with the Regional Trial Court, Branch 61, Makati, Metro Manila for annulment of the sale of the three parcels of land, and specific performance and damages against petitioner, represented by the Papal Nuncio, and three other defendants: namely, Msgr. Domingo A. Cirilos, Jr., the PRC and Tropicana petitioner and Msgr. Cirilos separately moved to dismiss the complaint petitioner for lack of jurisdiction based on sovereign immunity from suit, and Msgr. Cirilos for being an improper party. An opposition to the motion was filed by private respondent. the trial court issued an order denying, among others, petitioners motion to dismiss after finding that petitioner shed off [its] sovereign immunity by entering into the business contract in question Petitioner forthwith elevated the matter to us. In its petition, petitioner invokes the privilege of sovereign immunity only on its own behalf and on behalf of its official representative, the Papal Nuncio. ISSUE: Whether the Holy See is immune from suit insofar as its business relations regarding selling a lot to a private entity RULING: The Republic of the Philippines has accorded the Holy See the status of a foreign sovereign. The Holy See, through its Ambassador, the Papal Nuncio, has had diplomatic representations with the Philippine government since 1957 (Rollo, p. 87). This appears to be the universal practice in international relations. There are two conflicting concepts of sovereign immunity, each widely held and firmly

established. According to the classical or absolute theory, a sovereign cannot, without its consent, be made a respondent in the courts of another sovereign. According to the newer or restrictive theory, the immunity of the sovereign is recognized only with regard to public acts or acts jure imperii of a state, but not with regard to private acts or acts jure gestionis If the act is in pursuit of a sovereign activity, or an incident thereof, then it is an act jure imperii, especially when it is not undertaken for gain or profit. In the case at bench, if petitioner has bought and sold lands in the ordinary course of a real estate business, surely the said transaction can be categorized as an act jure gestionis. However, petitioner has denied that the acquisition and subsequent disposal of Lot 5-A were made for profit but claimed that it acquired said property for the site of its mission or the Apostolic Nunciature in the Philippines. Private respondent failed to dispute said claim. Lot 5-A was acquired by petitioner as a donation from the Archdiocese of Manila. The donation was made not for commercial purpose, but for the use of petitioner to construct thereon the official place of residence of the Papal Nuncio. The right of a foreign sovereign to acquire property, real or personal, in a receiving state, necessary for the creation and maintenance of its diplomatic mission, is recognized in the 1961 Vienna Convention on Diplomatic Relations (Arts. 20-22). This treaty was concurred in by the Philippine Senate and entered into force in the Philippines on November 15, 1965. The decision to transfer the property and the subsequent disposal thereof are likewise clothed with a governmental character. Petitioner did not sell Lot 5-A for profit or gain. It merely wanted to dispose off the same because the squatters living thereon made it almost impossible for petitioner to use it for the purpose of the donation. The fact that squatters have occupied and are still occupying the lot, and that they stubbornly refuse to leave the premises, has been admitted by private respondent in its complaint Private respondent is not left without any legal remedy for the redress of its grievances. Under both Public International Law and Transnational Law, a person who feels aggrieved by the acts of a foreign sovereign can ask his own government to espouse his cause through diplomatic channels. Private respondent can ask the Philippine government, through the Foreign Office, to espouse its claims against the Holy See. Its first task is to persuade the Philippine government to take up with the Holy See the validity of its claims. Of course, the Foreign Office shall first make a determination of the impact of its espousal on the relations between the Philippine government and the Holy See (Young, Remedies of Private Claimants Against Foreign States, Selected Readings on Protection by Law of Private Foreign Investments 905, 919 [1964]). Once the Philippine

government decides to espouse the claim, the latter ceases to be a private caus LAWYERS LEAGUE FOR A BETTER PHILIPPINES vs. AQUINO (G.R. No. 73748 - May 22, 1986) FACTS: 1 . On Fe b r u a r y 2 5 , 1 9 8 6 , P re s i d e n t C o r a zo n A q u i n o i s s u e d P ro c l a m a t i o n N o . 1 a n n o u n c i n g that she and Vice President Laurel were taking power. 2 . On M a rc h 2 5 , 1 9 8 6 , p ro c l a m a t i o n No . 3 wa s i s s u e d p ro vi d i n g t h e b a s i s o f t h e A q u i n o government assumption of power by stating that the "new government was installed through a direct exercise of the power of the Filipino people assisted by units of the New Armed Forces of the Philippines." ISSUE: Whether or not the government of Corazon Aquino is legitimate. HELD: Yes. The legitimacy of the Aquino government is not a justiciable matter but belongs to the realm of politics where only the people are the judge. The Court further held that: 1 . T h e p e o p l e h a v e a c c e p t e d t h e A q u i n o g o ve r n me n t wh i c h i s i n e f f e c t i ve c o n t r o l o f t h e e n t i r e country; 2. It is not merely a de facto government but in fact and law a de jure government; and 3. The community of nations has recognized the legitimacy of the new government

People v. Perfecto

FACTS: This is a case relating to the loss of some documents which constituted the records of testimony given by witnesses in the Senate investigation of oil companies. The newspaper La Nacion, edited by Mr. Gregorio Perfecto, published an article about it to the effect that "the author or authors of the robbery of the records from the iron safe of the Senate have, perhaps, but followed the example of certain Senators who secured their election through fraud and robbery." Consequently, the Attorney-General, through a resolution adopted by the Philippine Senate, filed an information alleging that the editorial constituted a violation of article 256 of the Penal Code. The defendant Gregorio Perfecto was found guilty in the municipal court and again in the Court of First Instance of Manila. ISSUEs: Whether or not article 256 of the Spanish Penal Code was abrogated with the change from Spanish to American sovereignty Whether or not Perfecto is guilty of libel HELD: It is a general principle of the public law that on acquisition of territory the previous political relations of the ceded region are totally abrogated - "political" being used to denominate the laws regulating the relations sustained by the inhabitants to the sovereign. On American occupation of the Philippines, by instructions of the President to the Military Commander, and by proclamation of the latter, the municipal laws of the conquered territory affecting private rights of person and property and providing for the punishment of crime (e.g. the Spanish Penal Code) were nominally continued in force in so far as they were compatible with the new order of things.

Article 256 was enacted by the Government of Spain to protect Spanish officials who were the representatives of the King. But with the change of sovereignty, a new government, and a new theory of government, was set up in the Philippines. No longer is there a Minister of the Crown or a person in authority of such exalted position that the citizen must speak of him only with bated breath. Said article is contrary to the genius and fundamental principles of the American character and system of government. It was crowded out by implication as soon as the United States established its authority in the Philippine Islands. "From an entirely different point of view, it must be noted that this article punishes contempts against executive officials, although its terms are broad enough to cover the entire official class. Punishment for contempt of non-judicial officers has no place in a government based upon American principles. Our official class is not, as in monarchies, an agent of some authority greater than the people but it is an agent and servant of the people themselves. These officials are only entitled to respect and obedience when they are acting within the scope of their authority and jurisdiction. The American system of government is calculated to enforce respect and obedience where such respect and obedience is due, but never does it place around the individual who happens to occupy an official position by mandate of the people any official halo, which calls for drastic punishment for contemptuous remarks." DECISION: To summarize, the result is, that all the members of the court are of the opinion, although for different reasons, that the judgment should be reversed and the defendant and appellant acquitted, with costs de officio. So ordered.

Great Britain v Costa Rica, (1923) 1 RIAA 369 Facts: Government of Costa Rica was overthrown and the new government passed a law invalidating all Ks and made a new Constitution. When this government fell Great Britain sued Costa Rica for debts. Costa Rica's new government claims no responsibility for what the old government did. Great Britain says that Tinoco (the head of the old government) was the government de facto and de jur Cost Rica says Tinoco wasnt a government in international law. Tinoco contracted a lot of foreign debt while running Costa Rica, including with Great Britain. Ratio: Even an illegal government may bind a state to international obligations. International law looks to the State, not the gov entity w/in the state. Caveat: when government in power contrary to international law, not just domestic law, then doctrine of state continuity will not generally apply Analysis: Tinoco was a sovereign government. Even though some sates did not recognize it that cannot outweigh the evidence disclosed that de facto it was a government. The question is not if the government abides by a constitution but is: Has it established itself in such a way that all w/in the its influence recognize its control, and that there is no opposing force assuming to be a gov in its place As long a it is the effective government of the state it is the government of the state. Debts owed are not owed by the government of the day but between the state the only legal entity that is relevant is the state. Holding: Great Britain was able to sustain a claim against Costa Rica because the Ks were made with Costa Rica not Tinoco

Avena and Other Mexican Nationals (Mexico v. United States of America) The Court finds that the United States of America has breached its obligations to Mr. Avena and 50 other Mexican nationals and to Mexico under the Vienna Convention on Consular Relations THE HAGUE, 31 March 2004. Today the International Court of Justice, the principal judicial organ of the United Nations, delivered its Judgment in the case concerning Avena and Other Mexican Nationals (Mexico v. United States of America). In its Judgment, which is final, without appeal and binding on the Parties, the Court, with regard to the merits of the dispute, - finds by fourteen votes to one that, by not informing, without delay upon their detention, the 51 Mexican nationals referred to in paragraph 106 (1) above of their rights under Article 36, paragraph 1 (b), of the Vienna Convention on Consular Relations of 24 April 1963, the United States of America breached the obligations incumbent upon it under that subparagraph; - finds by fourteen votes to one that, by not notifying the appropriate Mexican consular post without delay of the detention of the 49 Mexican nationals referred to in paragraph 106 (2) above and thereby depriving the United Mexican States of the right, in a timely fashion, to render the assistance provided for by the Vienna Convention to the individuals concerned, the United States of America breached the obligations incumbent upon it under Article 36, paragraph 1 (b); - finds by fourteen votes to one that, in relation to the 49 Mexican nationals referred to in paragraph 106 (3) above, the United States of America deprived the United Mexican States of the right, in a timely fashion, to communicate with and have access to those nationals and to visit them in detention, and thereby breached the obligations incumbent upon it under Article 36, paragraph 1 (a) and (c), of the Convention; - finds by fourteen votes to one that, in relation to the 34 Mexican nationals referred to in paragraph 106 (4) above, the United States of America deprived the United Mexican States of the right, in a timely fashion, to arrange for legal representation of those nationals, and thereby breached the obligations incumbent upon it under Article 36, paragraph 1 (c), of the Convention; - finds by fourteen votes to one that, by not permitting the review and reconsideration, in the light of the rights set forth in the Convention, of the conviction and sentences of Mr. Csar Roberto Fierro Reyna, Mr. Roberto Moreno Ramos and Mr. Osvaldo Torres Aguilera, after the

violations referred to in subparagraph (4) above had been established in respect of those individuals, the United States of America breached the obligations incumbent upon it under Article 36, paragraph 2, of the Convention; - finds by fourteen votes to one that the appropriate reparation in this case consists in the obligation of the United States of America to provide, by means of its own choosing, review and reconsideration of the convictions and sentences of the Mexican nationals referred to in subparagraphs (4), (5), (6) and (7) above, by taking account both of the violation of the rights set forth in Article 36 of the Convention and of paragraphs 138 to 141 of this Judgment; - unanimously takes note of the commitment undertaken by the United States of America to ensure implementation of the specific measures adopted in performance of its obligations under Article 36, paragraph 1 (b), of the Vienna Convention; and finds that this commitment must be regarded as meeting the request by the United Mexican States for guarantees and assurances of non-repetition; - unanimously finds that, should Mexican nationals nonetheless be sentenced to severe penalties, without their rights under Article 36, paragraph 1 (b), of the Convention having been respected, the United States of America 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, taking account of paragraphs 138 to 141 of this Judgment. Reasoning of the Court In its Judgment the Court begins by outlining the history of the case. It recalls that on 9 January 2003 Mexico instituted proceedings against the United States of America in a dispute concerning alleged breaches of Articles 5 and 36 of the Vienna Convention on Consular Relations of 24 April 1963 in relation to the treatment of a number of Mexican nationals who had been tried, convicted and sentenced to death in criminal proceedings in the United States. The original claim related to 54 such persons, but as a result of subsequent adjustments by Mexico, only 52 individual cases are involved. On 9 January 2003 Mexico also asked the Court to indicate provisional measures, and in particular to order the United States to take all measures necessary to ensure that no Mexican national was executed pending a final decision of the Court. On 5 February 2003 the Court unanimously adopted an Order indicating such measures, stating inter alia that the United States of America shall take all measures necessary to ensure that Mr. Csar Roberto Fierro Reyna, Mr. Roberto Moreno Ramos and Mr. Osvaldo Torres Aguilera . . . are not executed pending final

judgment in these proceedings. The Court then examines four objections of the United States to the Courts jurisdiction and five to the admissibility of the claims of Mexico. It rejects those objections after first having rejected the objection of Mexico to the admissibility of the United States objections. Ruling on the merits of the case, the Court first addresses the question of whether the 52 individuals concerned had Mexican nationality only, or whether some of them were also United States nationals, as claimed by that State. Concluding that the United States has not proved that claim, the Court finds that the United States did have obligations (to provide consular information) under Article 36, paragraph 1 (b), of the Vienna Convention towards the 52 Mexican nationals. The Court then examines the meaning of the expression without delay used in paragraph 1 (b) of Article 36. It finds that the duty to provide consular information exists once it is realized that the person is a foreign national, or once there are grounds to think so, but considers that, in the light inter alia of the Conventions travaux prparatoires the term without delay is not necessarily to be interpreted as meaning immediately upon arrest. The Court then concludes that, on the basis of this interpretation, the United States has nonetheless violated its obligation to provide consular notification in all of the cases save one. The Court then takes note of the interrelated nature of the three subparagraphs (a), (b) and (c) of paragraph 1 of Article 36 of the Vienna Convention and finds, in 49 of the cases, that the United States has also violated its obligation under subparagraph (a) to enable Mexican consular officers to communicate with, have access to and visit their nationals; while, in 34 cases, it finds that the United States has also, in addition, violated its obligation under subparagraph (c) to enable Mexican consular officers to arrange for legal representation of their nationals. The Court then turns to Mexicos submission in relation to paragraph 2 of Article 36, whereby it claims that the United States violated its obligations under that paragraph by failing to provide meaningful and effective review and reconsideration of convictions and sentences impaired by a violation of Article 36 (1), inter alia as a result of the operation of the procedural default rule. The Court begins by observing that the procedural default rule has not been revised since it drew attention in its Judgment in the LaGrand case to the problems which its application could cause for defendants who sought to rely on violations of the Vienna Convention in appeal proceedings. The Court finds that in three cases paragraph 2 of Article 36 has been violated by

the United States, but that the possibility of judicial re-examination is still open in 49 of the cases. Turning to the legal consequences of the above found breaches and to what legal remedies should be considered, the Court notes that Mexico seeks reparation in the form of restitutio in integrum, that is to say partial or total annulment of conviction and sentence, as the necessary and sole remedy. The Court, citing the decision of its predecessor, the Permanent Court of International Justice, in the Chorzw Factory case, points out that what is required to make good the breach of an obligation under international law is reparation in an adequate form. Following its Judgment in the LaGrand case the Court finds that in the present case adequate reparation for violations of Article 36 should be provided by review and reconsideration of the convictions and sentences of the Mexican nationals by United States courts. The Court considers that the choice of means for review and reconsideration should be left to the United States, but that it is to be carried out by taking account of the violation of rights under the Vienna Convention. The Court then addresses the function of executive clemency. Having found that it is the judicial process that is suited for the task of review and reconsideration, the Court finds that the clemency process, as currently practised within the United States criminal justice system, is not sufficient in itself to serve that purpose, although appropriate clemency procedures can supplement judicial review and reconsideration. Finally, with regard to Mexicos request for the cessation of wrongful acts by the United States, the Court finds no evidence of a regular and continuing pattern of breaches by the United States of Article 36 of the Vienna Convention. And as to its request for guarantees and assurances of non repetition the Court recognizes the United States efforts to encourage implementation of its obligations under the Vienna Convention and considers that that commitment by the United States meets Mexicos request. At the end of its reasoning, the Court emphasizes that, in the present case, it has been addressing issues of principle from the viewpoint of the general application of the Vienna Convention. It observes that, while the present case concerns only Mexicans, its Judgment cannot be taken to imply that the Courts conclusions do not apply to other foreign nationals finding themselves in similar situations in the United States.

The Court finally points out that its Order of 5 February 2003 indicating provisional measures mentioned above, according to its terms and to Article 41 of the Statute, was effective pending final judgment, and that the obligations of the United States in that respect are, with effect from the date of the Judgment, replaced by those declared in this Judgment. The Court observes that it has found in relation to the three persons concerned in the Order (among others), that the United States has committed breaches of its obligations under Article 36, paragraph 1, of the Vienna Convention; and that moreover, in respect of those three persons alone, the United States has also committed breaches of Article 36, paragraph 2. The review and reconsideration of conviction and sentence required by Article 36, paragraph 2, which is the appropriate remedy for breaches of Article 36, paragraph 1, has not been carried out. The Court considers that in these three cases it is for the United States to find an appropriate remedy having the nature of review and reconsideration according to the criteria indicated in the Judgment.