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

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

. !he law is not only meant to resolve disputes, but also to secure certain values

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

$. In terms of the social purpose of international law, it is almost the same asdomestic law,but in terms of operationali%ation, it is different in that domestic lawis applied vertically (i.e., from the authority to the sub&ects) while international lawis applied hori%ontally (i.e., imposed between states having e'ual status andsovereignty as regards one another)

. !H *A!+ - I*!*A!I-*A/ /A0. Higgins provides a framewor" for

analy%ing international law as a process2 and not as a body of rules. Here is howHiggins e3plains the nature of international law4

a. I! I5 !H 6CI5I-*#7A8I*9 :-C55 I!5/. It is a continuingprocess of authoritative decisions. !his view re&ects the notion of lawmerely as the impartial application of rules. International law is the entiredecision#ma"ing process, and not &ust the reference to the trend of pastdecisions which are termed rules2.$!his bias of Higgins toward the law#as#process2 argument runs counter to the teachings of legal theory;slegal positivism school.Austin, for e3ample, argues that if something islaw, then it must emanate from a sovereign who sets it upon persons in astate of sub&ection to the former;s authority. 8elsen, see"ing to givemeaning to positivism in a hori%ontal, decentrali%ed international legalorder, where command and sovereign are notably lac"ing, proposed the

e3istence of a grundnormwhich is the highest fundamental norm from

1!he most important feature about a norm is that it is established through social conventionrather than positive legislation, i.e., it derives its validity from the fact that seeminglyeveryone for seemingly the longest time has held it to be true and desirable, and not fromthe fact that a law#ma"ing authority has e3pressly given it the status of a rule.2e.g., 6omestic law is to road traffic as international law is to international aviation3 Higgins puts a premium on the conte3tuali%ation2 of rules rather than mechanicallyapplying them. or Higgins, if international law is merely finding the rule and applying it, thenit would be highly ineffective because differing conte3ts cannot be ade'uately addressed byuniform rules. 5aid Higgins4 the determination of what is the relevant rule is part of thedecision#ma"er;s function< and because the accumulated trend of past decisions shouldnever be applied oblivious of conte3t2.40arning4 ghosts of /egal !heory will be coming bac" to life in the following sentences.5ison alert=

which all others derived their binding force. Higgins also cites theincreasing prominence of the critical legal studies school which, li"e thepolicy science approach (the approach which ta"es into considerationthe policy implications of every decision), believes that law is deeply#rooted in social theory and re&ects law as rules and e3ceptions. However,the critical legal studies scholar will see law as contradictions or asessentially indeterminate at its core rather than as complementary orcompeting norms between which choices have to be made in particular

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

b. I! I5 A/5- A>-+! :-0. Critics say that international law, if it ismore than &ust the application of rules, would be confused with power orcontrol and not &ust authority (which they say the law is all about).Higgins counters that4 to see" to contrast law with power isfundamentally flawed. It assumes that law is concerned only with theconcept of authority and not with power, or control. International law isindeed concerned with authority?but not authority alone. It is also nottrue that power stands somehow counterpoised to authority, and isnothing to do with law, and is indeed inimical to it. !he authority which

characteri%es law e3ists not in a vacuum, but e3actly where it intersectswith power. Authority cannot e3ist in the total absence of control.2

c. I! I5 A/5- A>-+! :-/IC@. Critics also counter that if internationallaw is to allow a leeway for the choosing of the best rule to apply insteadof &ust applying the rule that there is, it would be an instrument for politicsand would be applied based on the biases of the decision#ma"ers.it%maurice;s dissent illustrates this critical view. Higgins said that thiscriti'ue rests on two propositions4 that the correct legal view is to bearrived at by applying rules, and that the correct legal view has nothing todo with applying past decisions to current conte3ts by reference toob&ectives or values that the law is designed to promote. Higginsanswers4 :olicy considerations, although they differ from rules2, are anintegral part of that decision#ma"ing process which we call international

law< the assessment of so#called e3tra#legal considerations is part of thelegal process, &ust as the reference to the accumulation of past decisionsand current norms. A refusal to ac"nowledge political and social factorscannot "eep law neutral, for even such refusal is not without political andsocial conse'uence. !here is no avoiding the essential relationshipbetween law and politics2. 5o how does one prevent being biased andpartial when given the chance to ta"e political factors into considerationBHiggins proposes two safeguards4 systematic consideration (ma"e sure

5 In the 1D 5outh 0est Africa Cases, it%maurice and 5pender in a &oint dissentingopinion stated4 0e are not unmindful of, nor are we insensible to, the variousconsiderations of a non#&udicial character, social, humanitarian, and other?but these arematters for the political rather than the legal arena. !hey cannot be allowed to deflect usfrom our duty of reaching a conclusion strictly on the basis of what we believe to be the

correct legal view.2

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that A// factors are properly considered and not only those which thedecision#ma"er selects consciously or otherwise) and openE accountableconsideration (ma"e the process open to public scrutiny and discussion).

d. I! A/5- HA5 5-/I6 A*CH-5. Higgins does not believe that thepolicy#science approach (the approach which ta"es into considerationthe policy implications of every decision) re'uires one to find everymeans possible if the end is desirable, i.e., the process of international

law does not have to be as fluid and fle3ible as the decision#ma"er;sinterests would allow. irst, trends of past decisions still have animportant role to play in the choices to be made, notwithstanding theimportance of both conte3t and desired outcome. 0here there isambiguity or uncertainty, the policy#directed choice can properly bemade. 5econd, no matter what, we will each "now which legal claimsand decisions are intellectually supportable and which are notD. It istherefore a far#fetched idea that international law, in the hands ofdecision#ma"ers, can be an irrational and incoherent hodgepodge of self#serving rules. /astly, in international law, there are still certain norms thathave received such universal acceptance and validity as to en&oy thestatus of absolute rules because of the common interest involved inthem, li"e the prohibition on the use of certain weapons.

e. I! I5 A C-77+*A/ *!:I5. 7a"ing choices in the process ofinternational law is not underta"en without some guiding principles< andthese guiding principles are the product of collective consensus.:roposing such principles predicate that certain views or assumptions asto what is desirable should prevail over others. or Higgins, it is thenecessary stuff of our very e3istence in community with others. veryoneis entitled to participate in the identification and articulation as to whatthey perceive the values to be promoted. 7any factors, including theresponsive chords struc" in those to whom the arguments is made, willdetermine whether particular suggestions prevail.

f. I! AI55 -7 I!H C-*5*! - *-*#-::-5I!I-*.Higgins says that we have in international law a system in which norms

emerge either through e3press consent, or because there is noopposition F or because it is thought that, sovereignty notwithstanding,opposition would not succeed F to obligations being imposed in theabsence of such specific consent.

g. I! HA5 >A5I5 I* CI:-CI!@, C-*5*!, A*6 C-*5*5+5.eciprocity is a central element in the basis of obligation of internationallaw. As notions of natural &ustice are replaced by consent, so consenthas gradually been replaced by consensus. Consensus comes aboutbecause states perceive a reciprocal advantage in cautioning self#

6 Higgins also presents a counter#argument to critics by saying that it is a chimera tosuppose that, if only international law is perceived as the application of neutral rules, it willthen be invo"ed only in an unbiased manner2. or Higgins, even the act of invo"ing

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

restraint. It is rarely in the national interest to violate international law,even though there might be short#term advantages in doing so. or lawas a process of decision#ma"ing, this is enough.

. Higgins ac"nowledges that there are some inherent contradictions in the legalsystem that ma"e the process of international law more comple3. 8os"enniemi,however, argues that it is totally impossible to ma"e a rational choice for thecommon good amongst these contradictions. or 8os"enniemi, issues of

conte3tual &ustice re'uire venturing into fields such as politics, social andeconomic casuistry which were formally delimited beyond the point at which legalargument is supposed to stop in order to remain legal. Higgins counters that lawcannot alone achieve &ustice. !he ma"ing of legal choices will not even contributeto &ustice if it purports to totally ignore everything that is not rules. !o remain legalis to ensure that decisions are made by those authori%ed to do so, with importantguiding reliance on past decisions, and with available choices being made on thebasis of community interests and for the promotion of common values.

D. /aw#as#process encourages interpretation and choice that is more compatiblewith values we see" to promote and ob&ectives we see" to achieve. According toHiggins, if one adopts this view of the law and moves away from the law#as#rulesparadigm, the distinction between le3 lata (the law as it is) and le3 ferenda (the

law as it might be) becomes less important. !he law#as#process approach alsohas the advantage of being able to ably deal with lacunaeG.!he rule#based lawyercan say only that international law has nothing to say on the matter. >ut to theperson who views international law as process, there are still the tools forauthoritative decision#ma"ing on the problem (by the use of analogy, by referenceto conte3t, by analysis of the alternative conse'uences) notwithstanding theabsence of a precise rule which must be applied.

G. Higgins also too" note of the views from socialist scholars regarding the natureof international law. or pre#perestroi"a 7ar3ists, international law was part of thesuperstructure of law. It was an attribute of the foreign policy of states, ane3pression of the will of the ruling class. 0here the will of the ruling classes of thesocialist and capitalist systems coincided, international law can e3ist. It e3istedside by side with socialist international law which is said to e3ist between the

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

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

7/iterally, an isolated area (derivative of the 5panish word laguna2, meaning la"e, which is

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

where there are no established legal solutions.

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International law has been widely accepted by the !hird 0orld as universal inapplication.

. A::/ICA>I/I!@ - I*!*A!I-*A/ /A0. Higgins e3plains that internationallaw applies to states, international organi%ations, individuals (their responsibility inthe conduct of war, fundamental freedoms) and in some cases applies indirectly(when they are re'uired to comply with +* trade sanctions against a particularcountry).

1. >A5I5 - ->/I9A!I-* - I*!*A!I-*A/ /A0. Certainly not sanctionas Austin would have it, because it would be difficult to enforce international lawthrough sanctions in the conte3t of e'ually sovereign states. 5ome would say thatthe basis is natural law, because it is in the natural order of things that certainmatters should be regulated in a compulsory manner. 8os"enniemi believes thatthe natural obligations of &ustice are essentially what is necessary for subsistenceand self#preservation. -thers propose that the basis is consent, or thatinternational law is binding because the states agreed that it should be.8ose"enniemi critici%es the consent theory by pointing out that international law iswhatever states choose to regard as law, so that law cannot be an effectivee3ternal constraint on their behavior. If states consent, then it is not law at all, but&ust an agreement by them that their behavior will be regarded as normative.

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

!his chapter will deal with the following 'uestions4

a. 0here do we find the substance of international law (I/)Bb. 0hat constitutes international lawBc. 0hat is the difference between a political proposal and a binding

ruleB0hat we are concerned with in this chapter is the Jidentification2 ofinternational law. !his latter topic is commonly termed sources ofinternational lawK. It is really all about the provenance of norms.

It is strange that we spend so much time tal"ing about the provenance ofthe norms that bind the participants in the international legal system. Indomestic legal systems the sources of legal obligation are treated in amuch more matter#of#fact way4 legislation primary or secondary, and, inthe common law, &udicial decisions, are the sources. >ut we havebecome so preoccupied with &urisprudential debate about the sources ofinternational law that we have lost sight of the fact that it is an admissionof an uncertainty at the heart of the international legal system,uncertainty as to how we identify norms. !he 'uestion of sources is thusof critical importance.

5tarting point for the discussion of sources4 Article $ (i) of the 5tatute of

the International Court of Lustice4

!he Court, whose function is to decide in accordance withinternational law such disputes as are submitted to it, shall apply4

(a) international conventions, whether general or particular,establishing rules e3pressly recogni%ed by the contesting statesut even for them, there are somedifficult 'uestions. 0hat e3actly causes a norm to lose its 'uality aslawB Conceptually, this 'uestion is the same as that to be putregarding the formation of custom. !o as" what is evidence of

practice re'uired for the loss of obligatory 'uality of a norm is themirror of the evidence of practice re'uired for the formation of thenorm in the first place.

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

ignored, over a significant period of time, does this not lead to arelativist view of the substantive content of international Iaw, withdisturbing implicationsB Consider the following possibilities4

(a) In the South West Africa Cases, 5outh Africa argued thatthere was not in reality any norm of non#discrimination, asMregardless of the way states voted on resolutions on this issueMthe great ma&ority of states routinely discriminated againstpersons of colour. !his argument really arose in the conte3t ofwhether a norm of non#discrimination had ever developed and

come into e3istence.(b) -n genocide4 all states agree that I/ prohibits genocide (andthat this total prohibition is today rooted in customaryinternational law and not &ust in treaty obligations). 5o what ifsome states from time to time engage in genocideB Here wemay safely answer that genocide, while it sometimes occursand while its very nature ma"e all norm compliance shoc"ing, iscertainly not the ma&ority practice. !he customary law thatprohibits genocide remains intact, notwithstanding appallinge3amples of non#compliance.(c) -n torture4 *o one doubts that there e3ists a normprohibiting torture. *o state denies the e3istence of such anorm. >ut it is e'ually clear from, for e3ample, the reports of

Amnesty International, that the great majority of states

systematically engage in torture. If one ta"es the view that non#compliance is relevant to the retention of normative 'uality, arewe to conclude that there is not really any prohibition of tortureunder customary international lawB ICL said in Nicaragua v.United States, when determining the law on intervention andpermitted use of force4

If state acts in a way prima facie incompatible with a

recogni%ed rule, but defends its conduct by appealingto e3ceptions or &ustifications contained within the ruleitself, then whether or not the 5tateKs conduct is in fact&ustifiable on that basis, the significance of thatattribute is to confirm rather than to wea"en the rule.

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

between Klegal rulesK and Kpower politicsK, this last type of e3amplepresents very real difficulties. !ne answer seems to have beenfound by some in embracing, if not a hierarchical normativity, then aweighted normativity. -scar 5chachter says, !he rules againstaggression and on self#defence are not &ust another set ofinternational rules. !hey have a Jhigher normativityJ, a recognised

claim to compliance that is different from the body of internationallaw rules.2 ssentially, the argument seems to be that, if these arenot treated as Krules of higher normativityK than ordinary rules, thenthey cannot be treated differently from ordinary rules so far as theevidence of practice is concerned< and, if they cannot be treateddifferently, then disaster will ensue. !o assert an immutable core ornorms which remain constant regardless of the attitudes of states isat once to insist upon oneKs own personal values (rather thaninternationally shared values) and to rely essentially on natural lawin doing so. !his is a perfectly possible position. 5chachter furthersays that this is why states and tribunals do not 'uestion thecontinued force of those rules because of Kinconsistent or insufficientpracticeK. He refers to cases of#M genocide and to the "illing ofprisoners by their captors as not leading to the conclusion that the

proscriptions no longer e3ist.

o Higgins; approach4 !o say that the prescriptions against aggression

and on self#defence are Knecessary rules of coe3istenceK andKprinciples of minimum world orderK is not to render these (rulesagainst genocide, discrimination, torture, prisoners of war) as aspecies of grundnorm in respect of which the normal re'uirementsof practice do not apply. *or is the matter disposed of by noting thatthe prescriptions relating to aggression, use of force, protection ofprisoners of war, and genocide are widely regarded as &us cogens. Anorm that is &us cogens cannot be limited or derogated from byagreement between states in their relations with each other. Ibelieve that to be e3actly because the community as a whole

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states cannot Kcontract outK of them. >ut that is not to say that theseprescriptions would somehow retain their normative 'uality if theworld community as a whole did not regard them as such. !hestatus of norms that we hold dear is to be protected by our efforts toinvo"e and apply them, in turn ensuring that they do not totally losethe support of the great ma&ority of states. >ut they cannot beartificially protected through classifying them as rules with a KhighernormativityK which will continue to e3ist even if we fail to ma"e states

see the value of giving such prescriptions a normative 'uality.

o !he answer lies elsewhere. irst, we must not lose sight of the fact

that it is the practice of the vast ma&ority of states that is critical, bothin the formation of new norms and in their development and changeand possible death. *o special attribution of a Khigher normativestatusK is needed.

o 7ore difficult is the 'uestion of torture, because we are told, by

reputable bodies in a position to "now, that the ma&ority of states inthe world do engage in this repugnant practice. It is at this point thata further factor comes into play. *ew norms re'uire both practiceand opinio &uris (the belief that a norm is accepted as law) before

they can be said to represent customary international law. And so itis with the gradual death of e3isting norms and their replacement byothers. !he reason that the prohibition on torture continues to be are'uirement of customary I/, even though widely abused, is notbecause it has a higher normative status that allows us to ignore theabuse, but because opinio &uris as to its normative status continuesto e3ist. *o state, not even a state that tortures, believes that theinternational law prohibition is undesirable and that it is not bound bythe prohibition. A new norm cannot emerge without both practiceand opinio &uris< and an e3isting norm does not die without the greatma&ority of states engaging in both a contrary practice andwithdrawing their opinio &uris

Resolutions of nternational !rgani"ations

o In 1D$, Higgins wrote4 !he +nited *ations is a very appropriate

body to loo" to for indications of developments in international law,for international custom is to be deduced from the practice of 5tates,which includes their international dealings as manifested by theirdiplomatic actions and public pronouncements. 0ith thedevelopment of international organi%ations, the votes and views of5tates have come to have legal significance as evidence ofcustomary law . . . Collective acts of 5tates, repeated by andac'uiesced in by sufficient numbers with sufficient fre'uency,eventually attain the status of law. !he e3istence of the +nited*ationsMand especially its accelerated trend towards universality ofmembership since 1Mnow provides a very clear, very

concentrated focal point for state practice. Here, then, is the reason

for loo"ing to +nited *ations practice in a search for the direction ofthe development of international law.

o !wo points, after $ years4

(a) first is how modest and indeed cautious those views are today,though in 1D$ they were regarded as somewhat radical. !here isnothing in this approach that suggests a belief in Kinstant customK, orthat the distinction between decisions and recommendations is to be

ignored. !he same was said by Ludge !ana"a in his dissentingopinion in the 5outh 0est Africa Cases (1DD), that there'uirements of customMpractice, repetition, opinio &urisMmayoccur at an accelerated pace in the world of an internationalorgani%ation. >ut he did not suggest that the mere e3istence of aresolution obviated the need for these re'uirements4

A 5tate, instead of pronouncing its view to a few 5tates directlyconcerned, has the opportunity, through the medium of theorgani%ation, to declare its position to all members of theorgani%ation and to "now immediately their reaction on thesame matter. In former days, practice, repetition and opinio &urissive necessilatis, which arc the ingredients of customaryinternational law might be combined together in a very long and

slow process e3tending over centuries. In the contemporary ageof highly developed techni'ues of communication andinformation, the formation of a custom through the medium ofinternational organi%ations is greatly facilitated andaccelerated . . .

In his dissent in the Continental Shelf Cases, he said that the speedof present communications had Kminimised the importance of thetime factor and has made possible the acceleration of the formationof customary international law?;.(b) the views I e3pressed in 1D$ were directed to the place of +*practice in the development of I/. !here was in the theoreticalanalysis virtually no reference to resolutions as such. esolutionsare but one manifestation of state practice. >ut in recent years therehas been an obsessive interest with resolutions as an isolated

phenomenon. !he political bodies of international organi%ationsengage in debate, etc< in preparing drafts intended for treaties, etcailey in 1DG4 K!o say that a resolution isrecommendation only is undoubtedly to assert that

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6oes this relegate 9eneral Assembly resolutions wholly to thesphere of moral or legal precepts, with no relevance to lawB;

>ut the passing of binding decisions is not the only way in whichlaw development occurs. /egal conse'uence can also flow fromacts which are not, in the formal sense, KbindingK. And, further,law is developed by a variety of non#legislative acts which donot see" to secure, in any direct sense, KcomplianceK from

Assembly members< we refer here to the Klaw#declaringKactivities of the Assembly.

Illustrative of the distinction is the Namibia Advisory !%inion4!he Court was faced with both 9eneral Assembly and 5ecurityCouncil resolutions that purported to terminate 5outh AfricaKsmandate over 5outh#0est Africa. It found the 5ecurity Councilresolution binding, even though it could not be clearly identifiedas a traditional KChapter GK resolution< and it found that the9eneral Assembly resolutions, while manifestly not binding,were not without legal effect, given the e3istence of a right toterminate and the AssemblyKs constitutional role in monitoringthe mandate. ICL said4 NIt would not be correct to assume that,

because the 9eneral Assembly is in principle vested withrecommendatory powers, it is debarred from adopting, inspecific cases within the framewor" of its competence,resolutions which ma"e determinations or have operativedesign.;

In some international organi%ations even the termKrecommendationK in its conte3t sometimes signals more thanone would e3pect from a literal reliance on that word. !husKrecommendationK may still in conte3t entail a duty ofcompliance or an obligation to act.

urther, other recommendations (e.g. those to establishsubsidiary bodies) entail financial conse'uences which arelegally incumbent upon all members, whether they voted forthem or not. (Illustrative is the ICL Advisory -pinion on the&'%enses Case).

-n the internal and e3ternal competence of a +* organ4 !hetravau' have always made clear that in the course of theoperations from day to day of the various organs of theorganisation it is inevitable that each organ will interpret suchparts of the Charter as are applicable to its particular function2.!he repeated practice of the organ, in interpreting the treaty,may establish a practice that, if the treaty deals with ma"ers ofgeneral international law, can ultimately harden into custom.Although organ practice may not be good evidence of theintention of the original state parties, it is of probative value as

customary law.

o (eclaratory Resolutions

0e turn to those activities where the international organi%ationis concerned with general international law rather than its ownprocedural powers or even the direct interpretation of its ownconstituent instrument. :rominent among such activities is the%assing of resolutions that purport to be declaratory of

contemporary international law. Can we re&ect their legalrelevance sim%ly on the ground that they are recommendatory,or incapable of directly binding the membership at largeB 0hatstatus is therefore to be accorded to themB

-pinions4(a) those who are deeply sceptical, in the generali%ed fashion,

about the relevance of 9eneral Assembly resolutions(Ludge 5ir 9erald it%maurice, Ludge 5tephen 5chwebel,and 5ir rancis Oallat, :rofessors 6avid Lohnson and9aetano Arangio#ui%). !he nglishmen in this group allarrive at their position primarily by an emphasis in theirwritings, or &udicial decisions, on the recommendatory

nature of Assembly resolutions and their inability to bind.5chwebel and Arangio#ui% arrive at their position througha different route. !hey fully accept that resolutions cancontribute to the formation of customary international law,but e3press deep scepticism as to whether this reallyhappens. Arangio#ui% says that 9eneral Assemblyresolutions do not in fact contribute to the evolution ofcustom because states KdonKt mean itK. N!hat is to say,states often donKt meaningfully support what a resolutionsays and they almost always do not mean that theresolution is law.K 5chwebel then adds a piercinglyimportant point, agreeing that states KdonKt mean itK, hesays4 K!his may be as true or truer in the case of theunanimously adopted resolutions as in the case of ma&ority#

adopted resolutions. It may be truer still of resolutionsadopted by JconsensusJ.!hus the si%e of the ma&ority hasnothing to do with the intentions of the states voting for it.

(b) !hose who downplay the significance of Assembly resolu#tions as non#binding, but accept that it would be whollye3ceptional for any single resolution to have normativeresults. !hey argue rather that the decentrali%ed method ofinternational law#ma"ing can cause the metamorphosis ofK9eneral Assembly recommendations from non#bindingresolutions to inchoate normative principlesK.

(c) !he radical end, those who invest Assembly resolutionswithEconsiderably greater legal significance (ichard al",who wrote of 'uasi#legislative competence2 in the 9eneral

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its repeated efforts to declare principles of I/, the 9eneralAssembly has secured powers beyond therecommendatory powers listed in the +* Charter).

Issue4 0hen we loo" at resolutions as a first step in theformation of custom, or as part of the evidence of the e3istenceof general practice, is it enough that we loo" at the resolutionsaloneB 5chwebel has insisted that, because opinio &uris remains

a critical element, one must loo" to see if states KmeanK whatthey have voted forM and loo"ing at their practice outside the+nited *ations is one way we can ascertain this. (Illustration4the arbitral award of :rofessor 6upuy in the !e3aco Case.6upuy was engaged in trying to ascertain whether a resolutione3pressed a consensus on what wasEthe e3isting customaryrule.). >ut one must ta"e care not to use 9eneral Assemblyresolutions as a shortcut to ascertaining international practice inits entirety on a matterMpractice in the larger world arena is stillthe relevant canvas, although +* resolutions are a part of thepicture. esolutions cannot be a substitute for ascertainingcustom< this tas" will continue to re'uire that other evidences ofstate practice be e3amined alongside those collective acts

evidenced in 9eneral Assembly resolutions. -n 5ecurity Council esolutions4 :rofessor !un"in indicated

that decisions of the +* 5ecurity Council are not strictlyspea"ing sources of international law. !hey have an ad hoceffect and may create binding obligations, but they are notsometimes of general applicability. Higgins largely agree withthis view, though sometimes the substance of the 5ecurityCouncil wor", and the fact that it is legal wor" repeated year inand year out, ma"es it engage in the processes of customarydevelopment as well as the mere imposing of obligation.

o Conclusion4 !o answer the 'uestion 0hat is the role of resolutions

of international organi%ations in the process of creat&8ig norms in theinternational systemB2, loo" at the following4

(a) sub&ect#matter of the resolutions in 'uestion(b) whether they are binding or recommendatory(c) at the ma&orities supporting their adoption(d) at repeated practice in relation to them(e) at evidence of o%inio juris.

)he !verla% between )reaty and Custom

o :rovisions formulated in a treaty can in certain circumstances be

binding even on states which are not parties to the treaty. !his canoccur if the provisions articulate what is already customaryinternational law (e.g. Oienna Convention). >ut some elements ofthe Oienna Convention represent new law, and those elements are

underta"en only by the parties to the Convention. And if a treaty hascertain procedural or dispute settlement provisions built into it, anon#party will not be bound by those provisions, even if it is boundby certain substantive norms contained in the treaty, because theyare already customary law. !hus, while not being bound by all theparticular provisions of the 9enocide Convention, no non#ratifyingstate could claim to be free to commit genocide because was not aparty to that legal instrument.

o A much more difficult possibility may occurMnamely, that provisions

in a treaty are new at the time they are formulated< but thatcustomary international law then develops in such a way as itself toembrace those new norms. (Illustration4 *orth 5ea Continental 5helfCases)

o Case bac"ground4 !he *etherlands and 6enmar" claimed that the

e'uidistance rule of Article D of the 1 Continental 5helfConvention was binding upon the ederal epublic of 9ermany (anon#party) as a matter of customary law. !he argument was that thee'uidistance rule of delimitation is, or must now be regarded asinvolving, a rule that is part of the corpus of general international

law< and, li"e other rules of general or customary international law,binding on the ederal epublic automatically and independently ofany specific assent, direct or indirect, given by the latter. :art of theproposition was based on an argument that the e'uidistanceprinciple had a K&uristic inevitabilityK in continental#shelf delimitation.>ut the other part of the 6utch and 6anish claim was that the wor"of international legal bodies, state practice and indeed the influenceof the 9eneva Convention itself had Kcumulatively evidenced or beencreative of the o%inio juris sive necessiatisre'uisite to the formationof new rules of customary international lawK. Court concluded thatArticle D Kdid not embody or crystalli%e any pre#e3isting or emergingrule of customary international lawK, but then moved to see if such arule had since come into being, Kpartly because of its own impactpartly on the basis of subse'uent state practiceMand that this rule,

being now a rule of customary international law PisQ binding on allstates . . .K !he Court noted that this would involve treating Article Das a norm#creating provision which has constituted the foundation ofor has generated a rule which, while only conventional or contractualin its origin, has since passed into the general cor%us of internationallaw, and is now accepted as such by the o%inio juris,so as to havebecome binding even for countries which have never, and do not,become parties to the Convention. !he Court characteri%ed theprocess as one that is Kperfectly possibleK, but the result was Knotlightly to be regarded . . as having been attainedK.

o 0hat would be needed for the result to be attained4

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

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(b) even without the passage of any considerable period of timeK, avery widespread participation in the Convention might suffice,Kprovidred it included that of states, whose interests werespecially affectedK. (Ksubstantial participation by those whoseinterest are affectedK, echoed by 6upuy in )e'aco vs. *ibya)

(c) where non#parties applied the e'uidistance principle, said theCourt, Kthe basis of their action can only be problematical andmust remain entirely speculativeK. !he Court found there was

Knot a Jshred of evidenceJ that they believed themselves to beapplying a mandatory rule of international lawK. !his leads usright bac" to the problem of evidence for the establishment ofcustom, and in particular evidence as to opinio &uris. And thereis a related 'uestion4 is the evidence of opinio &uris the samewhen the norm tells one what to do (e.g. draw an e'uidistantline) as when it proscribes certain actions (e.g. do not commitgenocide)B

o 0e can only say that the sources of international law are not

compartmentali%ed, but do indeed overlap, And it will always beharder to show an emerging mandatory re'uirement that isobligatory for states than to show an emerging rela3ation of amandatory re'uirement, upon which states are entitled to rely.

Sources of *aw and *egal !bligations

o Article $ of the 5tatute spea"s of general or special conventions as

R#source of law. !hus bilateral or multilateral conventions each havea place in the sources of I/.

o It has been suggested by it%maurice that treaties are not a source

of law stricto sensu, but only a source of obligation between theparties. Ludge 5ir obert Lennings has spo"en of this as an insightwhose truth, upon reflection, is apparent. it%mauriceKs point isgeneral, because he suggested that a treaty either containedalready accepted norms, which themselves were thus the source ofthe law, or contained new provisions, which were an e3change ofobligations between the treaty parties. >ut his observation isparticularly stri"ing in relation to bilateral treaties where therehearsal of e3isting norms is often relatively muted, and thee3change of new bilateral obligations of behaviour is oftenparticularly mar"ed.

o If e3isting norms are repeated in a treaty, an obligation would e3ist

in respect of those norms, even were they not contained in thattreaty. >ut of course multilateral treaties rarely simply repeat e3istingnorms. 5ometimes broad norms are filled out as to detailutthat does not mean to say that this is therefore not a source of lawBIt can only mean that it%maurice viewed law as something inrespect of which an KobligationK e3istedMthat is, that KlawK andKobligationK were two different phenomena. If 5tate A and 5tate >

agree upon cultural e3changes, there would be an obligatione3isting between them, but no law ofcultural e3change. 0hat itseems to boil down to is that if obligations are binding only uponparties who agree to them, and no others (because they are new,albeit contained in a treaty), they are not law.

o /aw defined as norms of universal application4 :rofessor !un"in

wrote that decisions of the +* 5ecurity Council are not strictlyspea"ing sources of international law. !hey have an ad hoceffectand may create binding obligations but are not of general applicationbeyond the moment and effect to which they are directed.

o /aw defined as the con&oining of authority and law in a particular

target4 In this view, law embracesobligation, and a 5ecurity Council

resolution or a treaty commitment is still law for the addressee orratifying part, and no less so because it is not obligatory on the worldat large.

o /oo"ed at from this starting#point, custom is obligation involuntarily

underta"enMthat is, not based on the consent of any given state, nostate has a veto over the emergence of a customary norm, whichattains its status as such through repeated practice accomplished byo%inio juris.

o *on#opposability4 treaty is non#opposable to third parties, unless

they accept its terms or unless it is a treaty whose terms a thirdparty inherits by virtue of the law of state succession of treaties.5tates can also contribute to the formation of customaryinternational law by unilateral practice. e.g. !ruman :roclamation)

o !he role of protest is to slow the formation of the new legal rule, or

to prevent a unilateral act from being opposable. >ut, if a rule ofgeneral application does emerge (perhaps because thephenomenon is a more general one, widely practised), then aninitially protesting state will not remain e3empt from the applicationof the new customary rule.

o !o summari%e4 9eneral I/ creates and contains norms which are

always obligatory. !reaties, in so far as they repeat the e3istingnorms, create neither the norms nor the obligation. /aw#ma"ingtreaties that see" to develop new norms are both the source of the

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creation of the norm (though of course one can say the treaty is thevehicle for the consent that created the norm) and the mechanismfor ma"ing it obligatory upon the ratifying parties. If treaties areconcerned with norm#creation or elaboration and obligation, thenthere are other ways by which obligations sim%liciter siteunderta"en. !hus treaties can be made opposable to a third party,by specific acceptance of their contents or, in certain categories oftreaties, by state succession to such a treaty when it has been

concluded by a state to which another state succeeds. +nilateralacts will be binding on the state ma"ing them only if they evidencean intention to be bound. !hat is the 'uestion of appreciation, onthe basis of all the facts and the conte3t. !he distinction that hasbeen drawn is between an intention to create a binding obligation,and the e3pression of a mere political intention. !he law can signalthe criteria, but the difficult problem of application of the criteriaremains and cannot be short#circuited. 5ometimes it is suggestedthat there has been a unilateral assumption of obligations not bystatements made, but by virtue of a stateKs conductM that is to say,an implicit assumption of obligation. !he International Court ofLustice has made clear, in the *orth 5ea Continental 5helf Caseand elsewhere that the unilateral assumption of obligations byconduct is not Klightly to be presumedK and a Kvery consistent courseof conductK is necessary. *or is it to be lightly presumed thatunilateral acts amount to a waiver of prior claimed rights. !o bebinding, a unilateral act will re'uire to be a representation of fact orpromised conduct, notified to the other party (or at least "nown byit). A failure to direct the obligation to a specific party will ma"e theassumption of an obligation less li"ely (>ur"ina aso v. 7ali Case).!he unilateral act may be in oral or written form.

o 6etrimental reliance upon the representation or promise by the

addressee of the unilateral representation or promise is fre'uentlyreferred to in the writings on unilateral acts. >ut, properly analysed,detrimental reliance seems more relevant to estoppel than to thebinding nature of the unilateral act. A unilateral act is either binding

or not, depending upon all the circumstances and whether it wasintended to create a legal obligation between the parties. It wouldseem that estoppel through detrimental reliance can operate toprevent such denial even when the unilateral act would not of itselfhave been regarded as binding. !he case law seems tolerably clearthat detrimental reliance is distinct from the assumption of legalobligation (e.g. astern 9reenland case and *uclear !est case)./ess clear is whether detrimental reliance really is re'uired forestoppels to operate, Although the literature generallv assumes thisto be a re'uirement, the case law is more ambiguous.

Conclusion4 !hirlway ta"es the view that at the end of the day I/ is what

the International Court of Lustice would declare it to be. He cautions

against a loose approach to the 'uestion of sources. >ut the reality is

that the Court itself often seems to approach the 'uestion of sources witha certain looseness. 0here the status of a treaty or a resolution at theheart of the very issue under consideration by the Court is invo"ed, arather rigorous analysis of its status will ensue. >ut where resolutions ortreaties are invo"ed somewhat incidentally as evidence of law, a muchlooser approach will suffice. If I/ is what the ICL is li"ely to say it will be,thenMall the intellectual arguments notwithstandingMthe Court, as muchas the rest of us, is caught in the psychological moment4 resolutions and

treaties apparently do matter.

KURO! vs" #!L!NONI $%!R&' ()* +,-,.

P/TITION/R:5HI9*-I 8+-6AR/SPON/NTS:7a&or 9eneral AA/ LA/A*6-*I, >rigadier 9eneralCA/IS!- 6+T+, Colonel 7A9AI!- !-A/>A, Colonel I*->+*C-*5L-, Colonel :6- !A>+*A, 7a&or 6IC- AA*A5 ,7/OI// 5. H+55@ and ->! :-!PON/NT/:7-A*, C.L.

8uroda, formerly a /ieutenant#9eneral of the Lapanese Imperial Army andCommanding 9eneral of the Lapanese Imperial orces in the :hilippines during1$ and 1, who is now charged before a 7ilitary Commission convened bythe Chief of 5taff of the A:, with having unlawfully disregarded and failed todischarge his duties as such commander to control the operations of members ofhis command, permitting them to commit brutal atrocities and other high crimesagainst noncombatant civilians and prisoners of the Imperial Lapanese orces, inviolation of the laws and customs of war2Mcomes before this Court see"ing toestablish the illegality of 3ecutive -rder *o. D of the :resident of the :< toen&oin and prohibit respondents Hussey and :ort f rom participating in theprosecution of petitioner;s case before the 7ilitary Commission< and topermanently prohibit respondents from proceeding with the case of petitioner.In support of his case, petitioner tenders the following principal arguments4

irst.M!hat - *o. D, establishing the *ational 0ar Crimes -ffice is illegal on

the ground that it violates not only the provisions of our constitutional law but alsoour local laws, to say nothing of the fact (that) the :hilippines is not a signatorynor an adherent to the Hague Convention on ules and egulations covering/and 0arfare and, therefore, petitioner is charged of Ncrimes; not based on law,national and international.2 Hence, petitioner argues#!hat in view of the fact thatthis commission has been organi%ed by virtue of an unconstitutional law and anillegal order, this commission is without &urisdiction to try the case of thepetitioner.2

5econd.#!hat the participation in the prosecution of the case against petitionerbefore the Commission in behalf of the +nited 5tates of America, of attorneysHussey and :ort, who are not attorneys authori%ed by the 5upreme Court topractice law in the :hilippines, is a diminution of our personality as anindependent state, and their appointments as prosecutors are a violation of our

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Constitution for the reason that they are not 'ualified to practice law in the:hilippines.

!hird.#!hat Attorneys Hussey and :ort have no personality as prosecutors, the+nited 5tates not being a party in interest in the case.

ISSU/ +: 0ON /O )1 is &ONSTITUTION!L"'/L: 2/S" IT IS 3!LI 4 &ONSTITUTION!L

RP &ONSTI !OPTS T'/ 5/N/R!LL2 !&&/PT/ PRIN&IPL/S OF INT6LL!0 !S P!RT OF T'/ L!0 OF T'/ N!TION"-D and prescribing rules andregulations governing the trial of accused war criminals, was issued by the:resident of the :hilippines on the thday of Luly, 1G. !his Court holds thatthis order is valid and constitutional. Art. of our Constitution provides in itssection $, that !he :hilippines renounces war as an instrument of national policy,and adopts the generally accepted principles of international law as part of the lawof the nation.2

RP PR/SI/NT !&T/ IN !&&OR!N&/ 0IT' PRIN&IPL/S OF INT6L L!0"In accordance with the generally accepted principles of int;l law of the presentday, including the Hague Convention, the 9eneva Convention and significantprecedents of international &urisprudence established by the +nited *ations, all

those persons, military or civilian, who have been guilty of planning, preparing orwaging a war of aggression and of the commission of crimes and offensesconse'uential and incidental thereto, in violation of the laws and customs of war,of humanity and civili%ation, are held accountable therefor. Conse'uently, in thepromulgation and enforcement of 3ecutive -rder *o. D, the :resident of the:hilippines has acted in conformity with the generally accepted principles andpolicies of international law which are part of our Constitution.

/7/R&IS/ OF &O%%!N/R8IN8&'I/F PO0/RS"!he promulgation of said -is an e3ercise by the :resident of his powers as Commander in Chief of all ourarmed forces, as upheld by this Court in the case of @amashita when we said0ar is not ended simply because hostilities have ceased. After cessation ofarmed hostilities, incidents of war may remain pending which should be disposedof as in time of war. NAn important incident to a conduct of war is the adoption of

measures by the military command not only to repel and defeat the enemies butto sei%e and sub&ect to disciplinary measures those enemies who in their attemptto thwart or impede our military effort have violated the law of war.; Indeed, thepower to create a military commission for the tr ial and punishment of war criminalsis an aspect of waging war. And, in the language of a writer, a military commissionNhas &urisdiction so long as a technical state of war continues. !his includes theperiod of an armistice, or military occupation, up to the effective date of a treaty ofpeace, and may e3tend beyond, by treaty agreement.; (Cowles, !rial of 0arCriminals by 7ilitary !ribunals, American >ar Association Lournal, Lune, 1.)2Conse'uently, the :resident as Commander in Chief is fully empowered toconsummate this unfinished aspect of war, namely, the trial and punishment ofwar criminals, through the issuance and enforcement of 3ecutive -rder *o. D.

ISSU/ (: 0ON T'/ %ILIT!R2 &O%%ISSION '!S #URISI&TION TO TR2KURO! FOR !&T &O%%ITT/ IN 3IOL!TION OF T'/ '!5U/ 4 5/N/3!&ON3/NTION /3/N IF !T T'/ TI%/ T'/ !LL/5/ !&TS 0/R/&O%%ITT/ RP 0!S NOT 2/T ! SI5N!TOR2"'/L: 2/S" T'/2 '!3/ #URISI&TION"

T'/ RUL/S 4 R/5UL!TIONS OF T'/ '!5U/ !N 5/N/3!&ON3/NTIONS FOR% P!RT OF !N !R/ 0'OLL2 9!S/ ON T'/

5/N/R!LL2 !&&/PT/ PRIN&IPL/S OF INT6L L!0"ven if : is not asignatory to the Hague Conv. and signed the 9eneva Conv. only in 1G, it can;tbe denied that the rules and regulations of the Hague and 9eneva conv. form partof and are wholly based on the generally accepted principles of international law.In fact, these rules and principles were accepted by the belligerent nations, +5and Lapan, who were signatories to the Conventions. 5uch rules and principles,therefore, form part of the law of our nation even if : was not a signatory to theconventions embodying them, for our Consti has been deliberately general ande3tensive in its scope and is not confined to the recognition of rules and principlesof international law as contained in treaties to which our government may havebeen or shall be a signatory.

/U!LL2 9OUN TO5/T'/R 0IT' T'/ US !N 0IT' #!P!N.urthermore, when the crimes charged against petitioner were allegedlycommitted, the :hilippines was under the sovereignty of the +5, and thus wewere e'ually bound together with the +5 and with Lapan, to the rights andobligations contained in the treaties between the belligerent countries. !heserights and obligations were not erased by our assumption of full sovereignty. If atall, our emergence as a free state entitles us to enforce the right, on our own, oftrying and punishing those who committed crimes against our people. In thisconnection, it is well to remember what we have said in the case of /aurel vs.7isa (GD :hil., $G)4 ?)he change of our form of government fromCommonwealth to Re%ublic does not affect the %rosecution of those charged withthe crime of treason committed during the Commonwealth, because it is anoffense against the same government and the same sovereign %eo%le...+>y thesame to"en, war crimes committed against our people and our government whilewe were a Commonwealth, are triable and punishable by our present epublic.

ISSU/ ;: 0ON T'/ ( !%/RI&!N L!02/RS %!2 P!RTI&IP!T/ IN T'/PROS/&UTION"'/L: 2/S"

%ILIT!R2 &O%%ISSION IS ! SP/&I!L %ILIT!R2 TRI9UN!L 5O3/RN/92 ! SP/&I!L L!0 !N NOT 92 T'/ RUL/S OF &OURT" !he participationof two American attorneys, Hussey and :ort, in the prosecution the case was'uestioned on the ground that said attorneys are not 'ualified to practice law inthe : in accordance with our ules of Court and the appointment of saidattorneys as prosecutors is violative of our national sovereignty. !he Court did notagree since the 7ilitary Commission is a special military tribunal governed by aspecial law and not by the ules of Court which govern ordinary civil courts. It has

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military commissions is a valid and constitutional law. !here is nothing in saide3ecutive order which re'uires that counsel appearing before said commissionsmust be attorneys 'ualified to practice law in the :hilippines in accordance withthe ules of Court. In fact, it is common in military tribunals that counsel for theparties are usually military personnel who are neither attorneys nor evenpossessed of legal training.

!PPLI&!TION OF PRIN&IPL/ OF &O%IT2"!he appointment of the two

American attorneys is not violative of our national sovereignty. It is only fair andproper that the +5, which has submitted the vindication of crimes against hergovernment and her people to a tribunal of our nation, should be allowedrepresentation in the trial of those very crimes. If there has been anyrelin'uishment of sovereignty, it has not been by our government but by the +59overnment which has yielded to us the trial and punishment of her enemies. !heleast that we could do in the spirit of comity is to allow them representation in saidtrials.

U"S" IS ! P!RT28IN8INT/R/ST"Alleging that the +5 is not a party in interest inthe case, petitioner challenges the personality of attorneys Hussey and :ort asprosecutors. It is of common "nowledge that the +nited 5tates and its peoplehave been e'ually, if not more greatly, aggrieved by the crimes with whichpetitioner stands charged before the 7ilitary Commission. It can be considered aprivilege for our epublic that a leader nation should submit the vindication of thehonor of its citi%ens and its government to a military tribunal of our country.

ISPOSITION: !he 7ilitary Commission having been convened by virtue of avalid law, with &urisdiction over the crimes charged which fall under the provisionsof 3ecutive -rder *o. D, and having &urisdiction over the person of the petitionerby having said petitioner in its custody, this Court will not interfere with the dueprocesses of such 7ilitary Commission.

Paras* Feria* Pablo* 9enor* and Re>es* ##"*concur"

P/RF/&TO" #"* issentin of /"O" No" )1*

refer to the ori


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Commonwealth Act *o. D, as amended by Commonwealth Act *o. D, andCommonwealth Act *o. DG1 Pempowering the :resident to declare a 5tate ofmergency during a period of war and authori%ing him to promulgate rulesQ (referto original for copy of said laws.) !he Acts cannot validly be invo"ed, becausethey ceased to have any effect much before 3ecutive -rder *o. D was issuedon Luly , 1G. 5aid Acts had elapsed upon the liberation of the :hilippinesfrom the Lapanese forces or, at the latest, when the surrender of Lapan wassigned in !o"yo on 5eptember , 1. 5said measures were enacted by the

5econd *ational Assembly for the purpose of facing the emergency of animpending war and of the :acific 0ar that finally bro"e out with the attac" of :earlHarbor on 6ecember G, 11. 0e approved said e3traordinary measures, bywhich, under the e3ceptional circumstances then prevailing, legislative powerswere delegated to the :resident of the :hilippines, by virtue of the followingprovisions of the Constitution4

In times of war or other national emergency, the Congress may by law authori%ethe :resident, for a limited period and sub&ect to such restrictions as it mayprescribe, to promulgate rules and regulations to carry out a declared nationalpolicy.2 (Article OI, section D.)

It has never been the purpose of the *ational Assembly to e3tend the delegationbeyond the emergency created Nby the war, as to e3tend it farther would beviolative of the e3press provisions of the Constitution. 0e are of the opinion thatthere is no doubt on this 'uestion< but if there could still be any, the same shouldbe resolved in favor of the presumption that the *ational Assembly did not intendto violate the fundamental law. -nly a few months after liberation and even beforethe surrender of Lapan, or since the middle of 1, the Congress started tofunction normally. !he :resident still e3ercising legislative power in the form ofe3ecutive orders, under the so#called emergency powers would lead to a situationpregnant with dangers to peace and order, to the rights and liberties of the people,and to :hilippine democracy.

3IOL!TI3/ OF U/ PRO&/SS 4 /U!L PROT/&TION"- *o. D is e'uallyoffensive to the Constitution because it violates the fundamental guarantees of thedue process and e'ual protection of the law. It is especially so, because it permits

the admission of many "inds of evidence by which no innocent person can affordto get ac'uittal, and by which it is impossible to determine whether an accused isguilty or not beyond all reasonable doubt. !he rules of evidence adopted in3ecutive -rder *o. D are a reproduction of the regulations governing the trial oftwelve criminals, issued by 9eneral 6ouglas 7acArthur, Commander in Chief ofthe +nited 5tates Armed orces in 0estern :acific, for the purpose of trying,among others, 9enerals @amashita and Homma. 0hat we said in our concurringand dissenting opinion to the decision promulgated in the @amashita case, and inour concurring and dissenting opinion to the resolution disposing the Hommacase, are perfectly applicable to the offensive rules of evidence embodied in -D. 5aid rules of evidence are repugnant to conscience as under them no &usticecan be e3pected.

or all the foregoing, conformably with our position in the @amasita and Hommacases, we vote to declare 3ecutive -rder *o. D null and void and to grant thepetition. :etition denied.

2!%!S'IT! vs" ST2/R $ec" +,* +,-B.:etitioner4 !omoyu"i @amashitaespondent4 0ilhelm 6. 5tyer, Commanding 9eneral, +nited 5tates Army

orces, 0estern :acific*ature4 -riginal action in the 5upreme Court. Habeas corpus and prohibition.:onente4 7oran, C.L.

P/TITION FOR '!9/!S &ORPUS* PRO'I9ITION" !omoyu"i @amashita wasformer commanding general of the 1th army group of the Lapanese ImperialArmy in the :hilippines, and now charged before an American 7ilitaryCommission (7C) with the most monstrous crimes ever committed against theAmericans and ilipinos. !his is his petition for habeas corpus and prohibitionagainst /t. 9en. 0ilhelm 6. 5tyer. @amashita became a prisoner of war (:-0) ofthe +5 when he surrendered, but his status was later changed when he wasconfined as an accused war criminal charged before an 7C constituted by 5tyerradford, J?anattempt of our civil courts to e3ercise &urisdiction over the +5 Army before suchperiod (state of war) e3pires, would be considered as a violation of this countryKsfaith?J especially as here the person confined is an enemy charged with the mostheinous atrocities committed against Americans and ilipinos.

!here is some doubt as to whether war has already ended. 0ar is not endedsimply because hostilities have ceased. After cessation of armed hostilities,incidents of war may remain pending which should be disposed of as in time ofwar. As held in 3 parte Tuirin (note a US case-,Jan important incident to aconduct of war is the adoption of measures by the military command not only torepel and defeat the enemies but to sei%e and sub&ect to disciplinary measuresthose enemies who in their attempt to thwart or impede our military effort haveviolated the law of war.J Indeed, the power to create a 7C for the trial andpunishment of war criminals is an aspect of waging war. And a 7C Jhas&urisdiction so long as a technical state of war continues. !his includes the periodof an armistice, or military occupation, up to the effective date of a treaty of peace,and may e3tend beyond, by treaty agreement.J (Cowles, !rial of 0ar Criminals by7ilitary !ribunals.)

ISSU/: 0-* the 7C has &urisdiction.'/L: @5.

T'/ P!2O%O O&TRIN/As held in :ayomo vs. loyd, and this is applicable intime of war as well as in time of peace, this Court has no power to review uponhabeas corpus the proceedings of a military or naval tribunal, and that, in suchcase, Jthe single in'uiry, the test, is &urisdiction. !hat being established, thehabeas corpus must be denied and the petitioner remanded.J (In re 9rimley Falso a US case). ollowing this rule, we find that the 7C has been validlyconstituted and it has &urisdiction both over the person of the petitioner and overthe offenses with which he is charged.

%ILIT!R2 &O%%!N/RS 0IT' PO0/R O3/R %ILIT!R2 &O%%ISSIONS"!he Commission has been validly constituted by 5tyler by order duly issued by9en. 6ouglas 7acArthur, Commander in Chief, +5 Army orces, :acific, inaccordance with authority vested in him. +nder paragraph $D of the ules of/and 0arfare, a 7C for the trial and punishment of war criminals must bedesignated by the belligerent. And the belligerentKs representative here is noneother than 9en. 7acArthur. Articles of 0ar *os. 1 and 1 recogni%e the 7Cappointed by military command as an appropriate tribunal for the trial andpunishment of offenses against the law of war not ordinarily tried by court martial.+nder the laws of war, a military commander has an implied power to appoint andconvene a 7C. !his is upon the theory that since the power to create a 7C is anaspect of waging war, 7ilitary Commanders have that power unless e3presslywithdrawn from them.

#URISI&TION OF T'/ %&" !he 7C thus duly constituted has &urisdiction bothover the person of @amashita and over the offenses with which he is charged. Ithas &urisdiction over his person by reason of his having fallen into the hands of the+5 Army orces. +nder paragraph $G of the ules of /and 0arfare, Jthecommanders ordering the commission of such acts, or under whose authority theyare committed by their troops, may be punished by the belligerent into whosehands they may fall.J

As to the &urisdiction of the 7C over war crimes, the +5 5C said in 3 :arteTuirin4 Jrom the very beginning of its history this Court has recogni%ed andapplied the law of war as including that part of the law of nations which prescribes,for the conduct of war, the status, rights and duties of enemy nations as well as ofenemy individuals. >y the Articles of 0ar, and especially Article 1, Congress hase3plicitly provided, so far as it may constitutionally do so, that military tribunalsshall have &urisdiction to try offenders or offenses against the law of war inappropriate cases. Congress, in addition to ma"ing rules for the government ofour Armed orces, has thus e3ercised its authority to define and punish offensesagainst the law of nations by sanctioning, within constitutional limitations, the&urisdiction of 7Cs to try persons and offenses which, according to the rules andprecepts of the law of nations, and more particularly the law of war, arecogni%able by such tribunals.J

@amashita is charged before the 7C sitting at 7anila with having permittedmembers of his command Jto commit brutal atrocities and other high crimesagainst the people of the +5 and of its allies and dependencies, particularly the:hilippines,J (i.e. cruel and brutal massacre of civilians, devastation anddestruction of properties). !hese are offenses against the laws of war asdescribed in paragraph $G of the ules of /and 0arfare.

ISSU/: 0-* the :hilippines is an occupied territory of the +5.'/L: @5.

!N O&&UPI/ T/RRITOR2"According to the egulations 9overning the !rial of0ar Criminals in the :acific, Jthe 7C shall have &urisdiction over all of Lapan andother areas occupied by the armed forces?.2 !he +5 orces have occupied the

:hilippines for the purpose of liberating the ilipino people from the shac"les ofLapanese tyranny, and the creation of a 7C for the trial and punishment ofLapanese war criminals is an incident of such war of liberation.

ISSU/: 0-* notice to 5pain is re'uired.'/L: *-.

NOTI&/ NOT ! PR/R/UISIT/" !he 9eneva Convention does not state thatnotice is a prere'uisite to the &urisdiction of 7Cs appointed by the victoriousbelligerent. However, the unconditional surrender of Lapan and her acceptance ofthe terms of the :otsdam +ltimatum are a clear waiver of such a notice. Also5pain has severed her diplomatic relations with Lapan because of atrocitiescommitted by the Lapanese troops against 5paniards in the :hilippines.Apparently, therefore, 5pain has ceased to be the protecting power of Lapan.

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ISSU/: 0-* @amashita was denied a fair trial.'/L: !his issue cannot be reviewed in a petition for habeas corpus.

PRO&/UR/* NOT PROP/R" !he supposed irregularities committed by the 7Cin the admission of allegedly immaterial or hearsay evidence cannot divest thecommission of its &urisdiction and cannot be reviewed in a petition for habeascorpus.

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

aranilla, /eria, (e oya, 0ablo, 1ilado, #eng"on,and #riones, .., concur.

P!R!S* #" I concur in the result.

OC!/T!* #"* concurrin< and dissentin


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Convention and of paragraph 1$$ of the ules of /and 0arfare, +5 0ar6epartment.

@amashita maintains that his confinement and trial as a war criminal are illegaland in violation of articles 1 and $ of the Constitution of the +5 and its ifthAmendment, and article $ of the Constitution of the :hilippines, and of certainprovisions of the 9eneva Convention.

ISSU/: 0-* @amashita;s rights are violated by his prosecution (he is deprived ofhis rights in this proceeding).'/L: *-.

PO0S SU9#/&T TO L!0S IN FOR&/ IN /T!ININ5 !R%2" !he ules of/and 0arfare provide that Jat the opening of a &udicial proceeding directed againsta :-0 the detaining power shall advise the representative of the protectingpower thereof as soon as possible, and always before the date set for the openingof the trial.2 Article OIII of the Convention respecting the laws and customs of waron land provides4 J:-0s shall be sub&ect to the laws, regulations, and orders inforce in the army of the 5tate into whose hands they have fallen.J 5ection of9eneral -rders *o. 1, containing instructions for the government of +5 armiesin the field provides4 JA :-0 remains answerable for his crimes committedagainst the captorKs army or people, committed before he was captured, and forwhich he has not been punished by his own authorities.J

'U%!N/ TR/!T%/NT OF PRISON/RS FRO% !N&I/NT 5R//&/* RO%/"7any of the basic ideas which prevail today in the customs and usages of nationsand became part of the international law emerged from the human mind centuriesbefore the Christian ra. 5uch is the idea that prisoners of war are entitled tohumane treatment, that treasons of war should be discountenanced, and thatbelligerents must abstain from causing harm to non#combatants.

5ome e3amples4 In G >.C., when Alcibiades "illed most of his captives includingthose who haven;t been in open hostilities against him, the 5amian e3ilesremonstrated him. 0hen the 7ytileneans revolted from Athens, while anassembly initially ordered the 7ytilenean males be "illed, this was later revo"ed.

9ree"s did much to humani%e warfare and to remove it from the atrocities whichprevailed amongst the most of the nations of anti'uity. !he oman policy wasless rigorous than the 9ree"s. As stated by Oirgilius, Jthe oman policy from thefirst was, on the one hand, debellare su%er boo, to subdue the proud and arrogantpeoples and, on the other,%arcellare subiectes, to spare those who havesubmitted.J A rule e3isted in ome which prohibited the "illing or enslaving of mencaptured in con'uered cities, and the devastation of the territories. :oets,philosophers, artists, and men of intellectual distinction in general, thoughregarded as enemies, were honored and respected. !emples, priest, andembassies were considered inviolable. !he right of sanctuary was universallyrecogni%ed. 7ercy was shown to suppliant and helpless captives. 5afe#conductswere granted and respected. >urial of dead was permitted, and graves wereunmolested. It was considered wrong to cut off or poison the enemyKs watersupply, or to ma"e use of poisonous weapons.

/NTITL/ TO !LL 5U!R!NT//S !&&OR/ TO PRISON/RS" Impelled byirrepressible endeavors aimed towards the ideal, by the uncon'uerable naturalurge for improvement, by the un'uenchable thirstiness of perfection in all ordersof life, humanity has been struggling during the last two do%en centuries todevelop an international law which could answer more and more faithfully thedemands of right and &ustice as e3pressed in principles which, wea"ly enunciatedat first in the rudimentary &uristic sense of peoples of anti'uity, by the inherent

power of their universal appeal to human conscience, at last were accepted,recogni%ed, and consecrated by all the civili%ed nations of the world. +nder theseprinciples, @amashita is entitled to be accorded all the guarantees, protections,and defenses that all prisoners should have, according to the customs andusages, conventions and treaties, &udicial decisions and e3ecutivepronouncements, and generally accepted opinions of thin"ers, legal philosophersand other e3pounders of &ust rules and principles of international law. !heseriousness or unfathomable gravity of the charges against him must not be ta"eninto consideration in order that true &ustice may be administered in this case.

TR/!T%/NT OF 0!R &RI%IN!LS" J!here is very little limitation on what avictorious nation can do with a van'uished 5tate at the close of a war. -neshudders to thin" what 9ermany and Lapan would do if they were the victors= >utthe common law of nations probably re'uires a fair trial of offenders against warlaw as a prere'uisite to punishment for alleged offenses< and the 9enevaConvention so prescribed in the case of :-0s. >ut in the f inal analysis a decentrespect for the opinion of man"ind and the &udgment of history is, in effect, avictorious belligerentKs main limitation on its treatment of the surrendered at theclose of a war< and this is self#imposed.2 (5heldon 9luec", 0ar Criminals).Jormali%ed vengeance can bring only ephemeral satisfaction, with everyprobability of ultimate regret< but vindication of law through legal process maycontribute substantially to the re#establishment of order and decency ininternational relations.J (eport of the 5ubcommittee on the !rial and :unishmentof 0ar Crimes). Centuries of civili%ation stretched between the summary slayingof the defeated in a war, and the employment of familiar process and protectionsof &ustice according to law to air the e3tent and nature of individual guilt ? and inthe civili%ed administration of &ustice, even the most loathsome criminal caught

redhanded must be given his day in court and an opportunity to interpose suchdefenses as he may have.J (5heldon 9luec")

TRI!L TO 9/ '/L 0'/R/ T'/ !TRO&ITI/S 0/R/ ON/" !he vastma&ority of offenders will be tried in the domestic criminal or military tribunals ofthe in&ured nations. :resident oosevelt, in condemning the crimes committedagainst the civil population in occupied lands, announced that Jthe time will comewhen the criminals will have to stand in courts of law in the very countries whichthey are now oppressing, and to answer for their acts.J

INT/RN!TION!L TRI9UN!L"At the end of 0orld 0ar I, some Americanmembers of the commission on responsibilities opposed the creation of aninternational high tribunal on the grounds that it was unprecedented and that theree3isted no international statute or convention ma"ing violations of the laws and

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customs of warfare international crimes, defining such offenses more specificallythan the definitions to be found in the prohibitions of the unwritten or written law ofnations, affi3ing a specific punishment to each crime, and giving &urisdiction to aworld court. >ut 6r. 9luec" believes that4

:rovided the international tribunal affords as ade'uate a trial as the accusedwould have had in the court of any in&ured belligerent, he has no valid ground forcomplaint? all courts were at one time unprecedented. !he problems presented

by our epoch are unprecedented? Can history show a better age than our own toinitiate a series of much#needed precedentsB ew symbols of this new era whichheralds the neighborly cooperation of civili%ed peoples in the vindication of thelaws of civili%ed nations would be more impressive than an international criminalcourt, in which the plaintiff would be the world community? !he internationalcriminal court would be a more vivid symbol of the reign of &ustice of aninternational plane than even the permanent court at !he Hague has been. Indomestic polity, the administration of criminal &ustice is the strongest pillar ofgovernment. !he doing of &ustice on an international plane and under internationalauspices is even more important. It is indispensable to the survival, in theintercourse of nations, of the very t raditions of law and &ustice? !he peerless andefficient administration of &ustice in the case of A3is war criminals is todayindispensable as a to"en to the peoples of the world, a sign that crimes committedby one countryKs sub&ect against the people of another member of the family of

nations will be relentlessly punished even though they run into huge numbers,were committed by men in uniform, and are instigated by a uehrer endowed byhimself and his into3icated followers with the attributes of a demigod.J

JAde'uate law for use by an international court now e3ists< and its enforcementby such a tribunal would violate no fundamental tenets of civili%ed nations. !helaw for an international tribunal can be drawn from the rich reservoirs of commonand conventional law of nations and the principles, doctrines, and standards ofcriminal law that constitute the common denominator of all civili%ed penal codes?!he punishment ? to be imposed by the international tribunal could be basedeither upon the punishments permitted by the law of nations in the case of piracyand violations of the laws and customs of warfare or upon those provided forcrimes of similar nature and gravity by the law of the accusing 5tate, ta"ing into

account, also, where necessary in individual instances, the law of the defendantKs5tates.J

ISSU/: 0-* @amashita is charged with offenses against the laws of war.'/L: @5.

NO SURPRIS/" @amashita cannot allege ignorance of the fact that the criminalacts alleged in the specified charges against him are punishable by law, even inLapan. 5ince 1 the Lapanese 9overnment had been enforcing a CriminalCode based on the Code of *apoleon of 111, which punishes arson, rape, andmurderEhomicide. !hese offenses and many others, punished by our :enal Code,are "nown to the Lapanese as crimes.

0'!T !R/ 0!R &RI%/S" rom the /auterpacht edition of -ppenheimKsInternational /aw4

J5C. 1. ? war crimes are such hostile or other acts of soldiers or otherindividuals as may be punished by the enemy on capture of the offenders. !heyinclude acts contrary to International /aw perpetrated in violation of the law of thecriminalKs own 5tate? as well as criminal acts contrary to the laws of warcommitted by order and on behalf of the enemy 5tate. !o that e3tent the notion of

war crimes is based on the view that 5tates and their organs are sub&ect tocriminal responsibility under International /aw.

J5C. $. !he fact that a rule of warfare has been violated in pursuance of anorder of the belligerent 9overnment or of an individual belligerent commanderdoes not deprive the act in 'uestion of its character as a war crime< neither doesit, in principle, confer upon the perpetrator immunity from punishment by thein&ured belligerent? +ndoubtedly, a Court confronted with the plea of superiororders adduced in &ustification of a war crime is bound to ta"e into considerationthe fact that obedience to military orders, not obviously unlawful, is the duty ofevery member of the armed forces and that the latter cannot, in conditions of wardiscipline, be e3pected to weigh scrupulously the legal merits of the orderreceived< that rules of warfare are often controversial< and that an act otherwiseamounting to a war crime may have been e3ecuted in obedience to orders

conceived as a measure of reprisals. 5uch circumstances are probably inthemselves sufficient to divest the act of the stigma of a war crime?However,sub&ect to these 'ualifications, the 'uestion is governed by the ma&or principle thatmembers of the armed forces are bound to obey lawful orders only and that theycannot therefore escape liability if, in obedience to a command, they commit actswhich both violate unchallenged rules of warfare and outrage the generalsentiment of humanity. !o limit liability to the person responsible for the order mayfre'uently amount, in practice, to concentrating responsibility on the head of the5tate whose accountability, from the point of view of both international andconstitutional law, is controversial.

J5C. G. All war crimes may be punished with death, but belligerents may, ofcourse, inflict a more lenient punishment, or commute a sentence of death into a

more lenient penalty. If this be done and imprisonment ta"e the place of capitalpunishment, the 'uestion arises whether persons so imprisoned must be releasedat the end of the war, although their term of imprisonment has not yet e3pired.5ome answer this 'uestion in the affirmative, maintaining that it could never belawful to inflict a penalty e3tending beyond the duration of the war. >ut it isbelieved that the 'uestion has to be answered in the negative. If a belligerent hasa right to pronounce a sentence of a capital punishment, it is obvious that he mayselect a more lenient penalty and carry it out even beyond the duration of the war.It would in no wise be in the interest of humanity to deny this right, for otherwisebelligerents would be tempted always to pronounce and carry out a sentence ofcapital punishment in the interest of self#preservation.

J5C. Ga. !he right of the belligerent to punish, during the war, such warcriminals as fall into his hands is a well#recogni%ed principle of International /aw.

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It is a right of which he may effectively avail himself after he has occupied all orpart of enemy territory, and is thus in the position to sei%e war criminals whohappen to be there. He may, as a condition of the armistice, impose upon theauthorities of the defeated 5tate the duty to hand over persons charged withhaving committed war crimes, regardless of whether such persons are present inthe territory actually occupied by him or in the territory which, at the successfulend of hostilities, he is in the position to occupy. or in both cases the accusedare, in effect, in his power. And although normally the !reaty of :eace brings to

an end the right to prosecute war criminals, no rule of International /aw preventsthe victorious belligerent from imposing upon the defeated 5tate the duty, as oneof the provisions of the armistice or of the :eace !reaty, to surrender for trialpersons accused of war crimes. In this, as in other matters, the will of the victor isthe law of the !reaty. It is not to be e3pected that he will concede to the defeated5tate the corresponding right to punish any war criminals of the victoriousbelligerent. !he resulting ine'uality is the unavoidable concomitant of the e3istingimperfections of international organi%ation and of the institution of war itself. >utthe victorious belligerent may achieve a substantial appro3imation to &ustice byma"ing full provision for a fair trial of the surrendered enemy nationals, and byoffering to try before his tribunals such members of his own armed forces as areaccused of war crimes. 5uch conduct may go a long way towards reducingsubstantially the ine'uality of treatment as between the victor and thevan'uished.J

L!0 OF N!TIONS NOT 2/T ! &O'/R/NT* FI7/ S2ST/%" !he permissibleacts of warfare are strictly limited. !he treaties entered into between members ofthe family of nations are but specific definitions and reinforcements of the generalcommon law of nations, the JunwrittenJ rules of warfare, which for centuries havelimited the method and manner of conducting wars. !he common law of nations,by which all states are and must be bound, dictates that warfare shall be carriedon only in accordance with basic considerations of humanity and chivalry.

As 6r. 9luec" stated, the law of nations has a long way to go before it can claimto be a coherent and fi3ed system. Its relevant tenets were developed under thepresupposition that members of the community of nations are governed by self#imposed restraints in accordance with international law< but the emergence of

states with a national policy of deliberate lawlessness and with their invasion ofKtotal war in the service of a program of world enslavement, compels a realisticmodification of inade'uate doctrines and principles of law.2 After the first 0orld0ar, the recommendation that a high tribunal (which would apply the principles ofthe law of nations, which is the result of established usages among civili%edpeoples) which would sentence convicted war criminals to such punishment ascould be imposed for the offense by any country represented in the tribunal or bythe country of the convicted person. !his was re&ected as (American andLapanese) representatives as"ed whether international law recogni%ed a penallaw which was applicable to those found guilty. >ut in the !reaty of Oersaillesthere were inserted the punitive articles recogni%ing the right of the allies4 to bringthose accused of violating laws and customs of war before military tribunals< tosentence the guilty to Jpunishments laid down by lawut it also authori%es the enactment of laws sharing the power to inferiorcourts, which include all other courts and tribunals of all description, whetherordinary or e3traordinary, whether civil or criminal, whether industrial or military,

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whether designated as JcourtsJ or simply as Jcommissions.J !he Constitution (Art.OIII, 5ec. ) provides that the Congress is powerless to abolish, to review, revise,reverse, modify, or affirm any and all actuations of &udicial nature of 5tyer and the7C before whom @amashita is tried for his life. In fact, this CourtKs &urisdictione3tends, not only to courts and &udicial institutions, but to all persons and agencieswhich form part of the whole machinery of the administration of &ustice, in so far asis necessary to the administration of &ustice.

#URISI&TION O3/R T'/ P!RTI/S" 0e have &urisdiction over the person5tyer, not as to the discharge of his military functions and duties, but regarding hisofficial acts in connection with the administration of &ustice in the criminal caseagainst @amashita, and that &urisdiction became effective despite his refusal tosign receipt for the summons and his subordinate officers; refusal to accept saidsummons. *o one 'uestions our &urisdiction over the person of @amashita, hehaving voluntarily submitted himself to it by his petition. 0ith respect to the 7C, itis a proper party respondent and @amashita should have included it as among theparty respondents. >ut this omission is &ust a technical error of no vitalconse'uence, because under the &udicial rules, we can order the inclusion and thesummoning of said military commission.

egarding the fear raised by the amicus curiae that this Court;s orders might bedisregarded by the concerned military officers (i.e. 5tyer;s refusal to receive

summons), the answer is simple. Tuoting a'ui%a4 ?*o one and nothing in thewhole world? shall be powerful enough to ma"e us flinch from complying with ourplain duty as Lustices of the 5upreme Court. 0e must do our duty as ourconscience dictates, without fear nor favor. It is our duty to ma"e reason and rightsupreme, regardless of conse'uences. /aw and &ustice might suffer setbac"s,endure eclipses, but at the end they shall reign with all the splendors of realma&esty.J 0e recogni%e no one to be above the law. 7ere military might cannotchange and nullify the course of &ustice. In the long run, everybody must have tobow and prostrate himself before the supreme ma&esty of the law.

ISSU/: 0-* the petition for habeas corpus is proper.'/L: *-.

NOT ! PROP/R U/STION" In praying for a writ of habeas corpus, he wants usto order that he be returned from the status of an accused war criminal to that of a:-0. He is not see"ing release from confinement, thus the petition must bedenied. !he purpose of the writ is to restore liberty to a person who is beingdeprived of it without due process of law. 5uch is not the case here. He does notcomplain of any illegal detention or deprivation of personal freedom. He isdeprived of his liberty because he is, according to his own allegation, a :-0.0hether or not he should be accused as a war criminal is not a proper 'uestion tobe raised in habeas corpus proceeding. !he fact that he is an accused warcriminal does not change his status as a war prisoner. He remains to be so,whether he is prosecuted as a war criminal or not. *ot having lost his status as awar prisoner because he was placed and regarded as a war criminal, there is noreason for ordering his reversion to a status which he did not cease to retain sincehis surrender or capture.

ISSU/: 0-* the 7ilitary Commission has &urisdiction.'/L: @5.

%!&!RT'UR 0IT' !UT'ORIT2" !he 7C conducting the trial has &urisdiction totry him for the crimes alleged in the 1$ items in t

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