Vinuya vs.

Sec Romulo
G.R. No. 162230, April 28, 2010

D E C I S I O N
DEL CASTILLO, J.:

The Treaty of Peace with Japan, insofar as it barred future claims such as those asserted by
plaintiffs in these actions, exchanged full compensation of plaintiffs for a future peace. History
has vindicated the wisdom of that bargain. And while full compensation for plaintiffs' hardships,
in the purely economic sense, has been denied these former prisoners and countless other
survivors of the war, the immeasurable bounty of life for themselves and their posterity in a free
society and in a more peaceful world services the debt.[1]

There is a broad range of vitally important areas that must be regularly decided by the Executive
Department without either challenge or interference by the Judiciary. One such area involves
the delicate arena of foreign relations. It would be strange indeed if the courts and the executive
spoke with different voices in the realm of foreign policy. Precisely because of the nature of the
questions presented, and the lapse of more than 60 years since the conduct complained of, we
make no attempt to lay down general guidelines covering other situations not involved here, and
confine the opinion only to the very questions necessary to reach a decision on this matter.

Factual Antecedents

This is an original Petition for Certiorari under Rule 65 of the Rules of Court with an application
for the issuance of a writ of preliminary mandatory injunction against the Office of the Executive
Secretary, the Secretary of the Department of Foreign Affairs (DFA), the Secretary of the
Department of Justice (DOJ), and the Office of the Solicitor General (OSG).

Petitioners are all members of the MALAYA LOLAS, a non-stock, non-profit organization
registered with the Securities and Exchange Commission, established for the purpose of
providing aid to the victims of rape by Japanese military forces in the Philippines during the
Second World War.

Petitioners narrate that during the Second World War, the Japanese army attacked villages and
systematically raped the women as part of the destruction of the village. Their communities
were bombed, houses were looted and burned, and civilians were publicly tortured, mutilated,
and slaughtered. Japanese soldiers forcibly seized the women and held them in houses or cells,
where they were repeatedly raped, beaten, and abused by Japanese soldiers. As a result of the
actions of their Japanese tormentors, the petitioners have spent their lives in misery, having
endured physical injuries, pain and disability, and mental and emotional suffering.[2]

Petitioners claim that since 1998, they have approached the Executive Department through the
DOJ, DFA, and OSG, requesting assistance in filing a claim against the Japanese officials and
military officers who ordered the establishment of the "comfort women" stations in the
Philippines. However, officials of the Executive Department declined to assist the petitioners,
and took the position that the individual claims of the comfort women for compensation had
already been fully satisfied by Japan's compliance with the Peace Treaty between the
Philippines and Japan.

Issues

Hence, this petition where petitioners pray for this court to (a) declare that respondents
committed grave abuse of discretion amounting to lack or excess of discretion in refusing to
espouse their claims for the crimes against humanity and war crimes committed against them;
and (b) compel the respondents to espouse their claims for official apology and other forms of
reparations against Japan before the International Court of Justice (ICJ) and other international
tribunals.

Petitioners' arguments

Petitioners argue that the general waiver of claims made by the Philippine government in the
Treaty of Peace with Japan is void. They claim that the comfort women system established by
Japan, and the brutal rape and enslavement of petitioners constituted a crime against humanity,
[3] sexual slavery,[4] and torture.[5] They allege that the prohibition against these international
crimes is jus cogens norms from which no derogation is possible; as such, in waiving the claims
of Filipina comfort women and failing to espouse their complaints against Japan, the Philippine
government is in breach of its legal obligation not to afford impunity for crimes against humanity.
Finally, petitioners assert that the Philippine government's acceptance of the "apologies" made
by Japan as well as funds from the Asian Women's Fund (AWF) were contrary to international
law.

Respondents' Arguments

Respondents maintain that all claims of the Philippines and its nationals relative to the war were
dealt with in the San Francisco Peace Treaty of 1951 and the bilateral Reparations Agreement
of 1956.[6]

Article 14 of the Treaty of Peace[7] provides:

Article 14. Claims and Property

a) It is recognized that Japan should pay reparations to the Allied Powers for the damage and
suffering caused by it during the war. Nevertheless it is also recognized that the resources of
Japan are not presently sufficient, if it is to maintain a viable economy, to make complete
reparation for all such damage and suffering and at the present time meet its other obligations.
b) Except as otherwise provided in the present Treaty, the Allied Powers waive all reparations
claims of the Allied Powers, other claims of the Allied Powers and their nationals arising out of
any actions taken by Japan and its nationals in the course of the prosecution of the war, and
claims of the Allied Powers for direct military costs of occupation.

In addition, respondents argue that the apologies made by Japan[8] have been satisfactory, and
that Japan had addressed the individual claims of the women through the atonement money
paid by the Asian Women's Fund.

Historical Background

The comfort women system was the tragic legacy of the Rape of Nanking. In December 1937,
Japanese military forces captured the city of Nanking in China and began a "barbaric campaign
of terror" known as the Rape of Nanking, which included the rapes and murders of an estimated
20,000 to 80,000 Chinese women, including young girls, pregnant mothers, and elderly women.
[9]

In reaction to international outcry over the incident, the Japanese government sought ways to
end international condemnation[10] by establishing the "comfort women" system. Under this
system, the military could simultaneously appease soldiers' sexual appetites and contain
soldiers' activities within a regulated environment.[11] Comfort stations would also prevent the
spread of venereal disease among soldiers and discourage soldiers from raping inhabitants of
occupied territories.[12]

Daily life as a comfort woman was "unmitigated misery."[13] The military forced victims into
barracks-style stations divided into tiny cubicles where they were forced to live, sleep, and have
sex with as many 30 soldiers per day.[14] The 30 minutes allotted for sexual relations with each
soldier were 30-minute increments of unimaginable horror for the women.[15] Disease was
rampant.[16] Military doctors regularly examined the women, but these checks were carried out
to prevent the spread of venereal diseases; little notice was taken of the frequent cigarette
burns, bruises, bayonet stabs and even broken bones inflicted on the women by soldiers.

Fewer than 30% of the women survived the war.[17] Their agony continued in having to suffer
with the residual physical, psychological, and emotional scars from their former lives. Some
returned home and were ostracized by their families. Some committed suicide. Others, out of
shame, never returned home.[18]

Efforts to Secure Reparation

The most prominent attempts to compel the Japanese government to accept legal responsibility
and pay compensatory damages for the comfort women system were through a series of
lawsuits, discussion at the United Nations (UN), resolutions by various nations, and the
Women's International Criminal Tribunal. The Japanese government, in turn, responded through
a series of public apologies and the creation of the AWF.[19]

Lawsuits
In December 1991, Kim Hak-Sun and two other survivors filed the first lawsuit in Japan by
former comfort women against the Japanese government. The Tokyo District Court however
dismissed their case.[20] Other suits followed,[21] but the Japanese government has, thus far,
successfully caused the dismissal of every case.[22]

Undoubtedly frustrated by the failure of litigation before Japanese courts, victims of the comfort
women system brought their claims before the United States (US). On September 18, 2000, 15
comfort women filed a class action lawsuit in the US District Court for the District of
Columbia[23] "seeking money damages for [allegedly] having been subjected to sexual slavery
and torture before and during World War II," in violation of "both positive and customary
international law." The case was filed pursuant to the Alien Tort Claims Act ("ATCA"),[24] which
allowed the plaintiffs to sue the Japanese government in a US federal district court.[25] On
October 4, 2001, the district court dismissed the lawsuit due to lack of jurisdiction over Japan,
stating that "[t]here is no question that this court is not the appropriate forum in which plaintiffs
may seek to reopen x x x discussions nearly half a century later x x x [E]ven if Japan did not
enjoy sovereign immunity, plaintiffs' claims are non-justiciable and must be dismissed."

The District of Columbia Court of Appeals affirmed the lower court's dismissal of the case.[26]
On appeal, the US Supreme Court granted the women's petition for writ of certiorari, vacated
the judgment of the District of Columbia Court of Appeals, and remanded the case.[27] On
remand, the Court of Appeals affirmed its prior decision, noting that "much as we may feel for
the plight of the appellants, the courts of the US simply are not authorized to hear their
case."[28] The women again brought their case to the US Supreme Court which denied their
petition for writ of certiorari on February 21, 2006.

Efforts at the United Nations

In 1992, the Korean Council for the Women Drafted for Military Sexual Slavery by Japan
(KCWS), submitted a petition to the UN Human Rights Commission (UNHRC), asking for
assistance in investigating crimes committed by Japan against Korean women and seeking
reparations for former comfort women.[29] The UNHRC placed the issue on its agenda and
appointed Radhika Coomaraswamy as the issue's special investigator. In 1996,
Coomaraswamy issued a Report reaffirming Japan's responsibility in forcing Korean women to
act as sex slaves for the imperial army, and made the following recommendations:

A. At the national level

137. The Government of Japan should:

(a) Acknowledge that the system of comfort stations set up by the Japanese Imperial Army
during the Second World War was a violation of its obligations under international law and
accept legal responsibility for that violation;
(b) Pay compensation to individual victims of Japanese military sexual slavery according to
principles outlined by the Special Rapporteur of the Sub-Commission on Prevention of
Discrimination and Protection of Minorities on the right to restitution, compensation and
rehabilitation for victims of grave violations of human rights and fundamental freedoms. A
special administrative tribunal for this purpose should be set up with a limited time-frame since
many of the victims are of a very advanced age;
(c) Make a full disclosure of documents and materials in its possession with regard to comfort
stations and other related activities of the Japanese Imperial Army during the Second World
War;
(d) Make a public apology in writing to individual women who have come forward and can be
substantiated as women victims of Japanese military sexual slavery;
(e) Raise awareness of these issues by amending educational curricula to reflect historical
realities;
(f) Identify and punish, as far as possible, perpetrators involved in the recruitment and
institutionalization of comfort stations during the Second World War.

Gay J. McDougal, the Special Rapporteur for the UN Sub-Commission on Prevention of

Discrimination and Protection of Minorities, also presented a report to the Sub-Committee on
June 22, 1998 entitled Contemporary Forms of Slavery: Systematic Rape, Sexual Slavery and
Slavery-like Practices During Armed Conflict. The report included an appendix entitled An
Analysis of the Legal Liability of the Government of Japan for 'Comfort Women Stations'
established during the Second World War,[30] which contained the following findings:
68. The present report concludes that the Japanese Government remains liable for grave
violations of human rights and humanitarian law, violations that amount in their totality to crimes
against humanity. The Japanese Government's arguments to the contrary, including arguments
that seek to attack the underlying humanitarian law prohibition of enslavement and rape, remain
as unpersuasive today as they were when they were first raised before the Nuremberg war
crimes tribunal more than 50 years ago. In addition, the Japanese Government's argument that
Japan has already settled all claims from the Second World War through peace treaties and
reparations agreements following the war remains equally unpersuasive. This is due, in large
part, to the failure until very recently of the Japanese Government to admit the extent of the
Japanese military's direct involvement in the establishment and maintenance of these rape
centres. The Japanese Government's silence on this point during the period in which peace and
reparations agreements between Japan and other Asian Governments were being negotiated
following the end of the war must, as a matter of law and justice, preclude Japan from relying
today on these peace treaties to extinguish liability in these cases.
69. The failure to settle these claims more than half a century after the cessation of hostilities is
a testament to the degree to which the lives of women continue to be undervalued. Sadly, this
failure to address crimes of a sexual nature committed on a massive scale during the Second
World War has added to the level of impunity with which similar crimes are committed today.
The Government of Japan has taken some steps to apologize and atone for the rape and
enslavement of over 200,000 women and girls who were brutalized in "comfort stations" during
the Second World War. However, anything less than full and unqualified acceptance by the
Government of Japan of legal liability and the consequences that flow from such liability is
wholly inadequate. It must now fall to the Government of Japan to take the necessary final steps
to provide adequate redress.
The UN, since then, has not taken any official action directing Japan to provide the reparations
sought.
Women's International War Crimes
Tribunal
The Women's International War Crimes Tribunal (WIWCT) was a "people's tribunal" established
by a number of Asian women and human rights organizations, supported by an international
coalition of non-governmental organizations.[31] First proposed in 1998, the WIWCT convened
in Tokyo in 2000 in order to "adjudicate Japan's military sexual violence, in particular the
enslavement of comfort women, to bring those responsible for it to justice, and to end the
ongoing cycle of impunity for wartime sexual violence against women."
After examining the evidence for more than a year, the "tribunal" issued its verdict on December
4, 2001, finding the former Emperor Hirohito and the State of Japan guilty of crimes against
humanity for the rape and sexual slavery of women.[32] It bears stressing, however, that
although the tribunal included prosecutors, witnesses, and judges, its judgment was not legally
binding since the tribunal itself was organized by private citizens.
Action by Individual Governments
On January 31, 2007, US Representative Michael Honda of California, along with six co-
sponsor representatives, introduced House Resolution 121 which called for Japanese action in
light of the ongoing struggle for closure by former comfort women. The Resolution was formally
passed on July 30, 2007,[33] and made four distinct demands:
[I]t is the sense of the House of Representatives that the Government of Japan (1) should
formally acknowledge, apologize, and accept historical responsibility in a clear and unequivocal
manner for its Imperial Armed Forces' coercion of young women into sexual slavery, known to
the world as "comfort women", during its colonial and wartime occupation of Asia and the Pacific
Islands from the 1930s through the duration of World War II; (2) would help to resolve recurring
questions about the sincerity and status of prior statements if the Prime Minister of Japan were
to make such an apology as a public statement in his official capacity; (3) should clearly and
publicly refute any claims that the sexual enslavement and trafficking of the "comfort women" for
the Japanese Imperial Army never occurred; and (4) should educate current and future
generations about this horrible crime while following the recommendations of the international
community with respect to the "comfort women."[34]

In December 2007, the European Parliament, the governing body of the European Union,
drafted a resolution similar to House Resolution 121.[35] Entitled, "Justice for Comfort Women,"
the resolution demanded: (1) a formal acknowledgment of responsibility by the Japanese
government; (2) a removal of the legal obstacles preventing compensation; and (3) unabridged
education of the past. The resolution also stressed the urgency with which Japan should act on
these issues, stating: "the right of individuals to claim reparations against the government
should be expressly recognized in national law, and cases for reparations for the survivors of
sexual slavery, as a crime under international law, should be prioritized, taking into account the
age of the survivors."

The Canadian and Dutch parliaments have each followed suit in drafting resolutions against
Japan. Canada's resolution demands the Japanese government to issue a formal apology, to
admit that its Imperial Military coerced or forced hundreds of thousands of women into sexual
slavery, and to restore references in Japanese textbooks to its war crimes.[36] The Dutch
parliament's resolution calls for the Japanese government to uphold the 1993 declaration of
remorse made by Chief Cabinet Secretary Yohei Kono.

The Foreign Affairs Committee of the United Kingdom's Parliament also produced a report in
November, 2008 entitled, "Global Security: Japan and Korea" which concluded that Japan
should acknowledge the pain caused by the issue of comfort women in order to ensure
cooperation between Japan and Korea.

Statements of Remorse made by representatives of the Japanese government

Various officials of the Government of Japan have issued the following public statements
concerning the comfort system:
a) Statement by the Chief Cabinet Secretary Yohei Kono in 1993:

The Government of Japan has been conducting a study on the issue of wartime "comfort
women" since December 1991. I wish to announce the findings as a result of that study.

As a result of the study which indicates that comfort stations were operated in extensive areas
for long periods, it is apparent that there existed a great number of comfort women. Comfort
stations were operated in response to the request of the military authorities of the day. The then
Japanese military was, directly or indirectly, involved in the establishment and management of
the comfort stations and the transfer of comfort women. The recruitment of the comfort women
was conducted mainly by private recruiters who acted in response to the request of the military.
The Government study has revealed that in many cases they were recruited against their own
will, through coaxing coercion, etc., and that, at times, administrative/military personnel directly
took part in the recruitments. They lived in misery at comfort stations under a coercive
atmosphere.

As to the origin of those comfort women who were transferred to the war areas, excluding those
from Japan, those from the Korean Peninsula accounted for a large part. The Korean Peninsula
was under Japanese rule in those days, and their recruitment, transfer, control, etc., were
conducted generally against their will, through coaxing, coercion, etc.

Undeniably, this was an act, with the involvement of the military authorities of the day, that
severely injured the honor and dignity of many women. The Government of Japan would like to
take this opportunity once again to extend its sincere apologies and remorse to all those,
irrespective of place of origin, who suffered immeasurable pain and incurable physical and
psychological wounds as comfort women.

It is incumbent upon us, the Government of Japan, to continue to consider seriously, while
listening to the views of learned circles, how best we can express this sentiment.
We shall face squarely the historical facts as described above instead of evading them, and
take them to heart as lessons of history. We hereby reiterated our firm determination never to
repeat the same mistake by forever engraving such issues in our memories through the study
and teaching of history.

As actions have been brought to court in Japan and interests have been shown in this issue
outside Japan, the Government of Japan shall continue to pay full attention to this matter,
including private researched related thereto.

b) Prime Minister Tomiichi Murayama's Statement in 1994

On the issue of wartime "comfort women", which seriously stained the honor and dignity of
many women, I would like to take this opportunity once again to express my profound and
sincere remorse and apologies"
c) Letters from the Prime Minister of Japan to Individual Comfort Women

The issue of comfort women, with the involvement of the Japanese military authorities at that
time, was a grave affront to the honor and dignity of a large number of women.

As Prime Minister of Japan, I thus extend anew my most sincere apologies and remorse to all
the women who endured immeasurable and painful experiences and suffered incurable physical
and psychological wounds as comfort women.

I believe that our country, painfully aware of its moral responsibilities, with feelings of apology
and remorse, should face up squarely to its past history and accurately convey it to future
generations.

d) The Diet (Japanese Parliament) passed resolutions in 1995 and 2005

Solemnly reflecting upon the many instances of colonial rule and acts of aggression that
occurred in modern world history, and recognizing that Japan carried out such acts in the past
and inflicted suffering on the people of other countries, especially in Asia, the Members of this
House hereby express deep remorse. (Resolution of the House of Representatives adopted on
June 9, 1995)

e) Various Public Statements by Japanese Prime Minister Shinzo Abe

I have talked about this matter in the Diet sessions last year, and recently as well, and to the
press. I have been consistent. I will stand by the Kono Statement. This is our consistent
position. Further, we have been apologizing sincerely to those who suffered immeasurable pain
and incurable psychological wounds as comfort women. Former Prime Ministers, including
Prime Ministers Koizumi and Hashimoto, have issued letters to the comfort women. I would like
to be clear that I carry the same feeling. This has not changed even slightly. (Excerpt from
Remarks by Prime Minister Abe at an Interview by NHK, March 11, 2007).
I am apologizing here and now. I am apologizing as the Prime Minister and it is as stated in the
statement by the Chief Cabinet Secretary Kono. (Excerpt from Remarks by Prime Minister Abe
at the Budget Committee, the House of Councilors, the Diet of Japan, March 26, 2007).

I am deeply sympathetic to the former comfort women who suffered hardships, and I have
expressed my apologies for the extremely agonizing circumstances into which they were
placed. (Excerpt from Telephone Conference by Prime Minister Abe to President George W.
Bush, April 3, 2007).

I have to express sympathy from the bottom of my heart to those people who were taken as
wartime comfort women. As a human being, I would like to express my sympathies, and also as
prime minister of Japan I need to apologize to them. My administration has been saying all
along that we continue to stand by the Kono Statement. We feel responsible for having forced
these women to go through that hardship and pain as comfort women under the circumstances
at the time. (Excerpt from an interview article "A Conversation with Shinzo Abe" by the
Washington Post, April 22, 2007).

x x x both personally and as Prime Minister of Japan, my heart goes out in sympathy to all those
who suffered extreme hardships as comfort women; and I expressed my apologies for the fact
that they were forced to endure such extreme and harsh conditions. Human rights are violated
in many parts of the world during the 20th Century; therefore we must work to make the 21st
Century a wonderful century in which no human rights are violated. And the Government of
Japan and I wish to make significant contributions to that end. (Excerpt from Prime Minister
Abe's remarks at the Joint Press Availability after the summit meeting at Camp David between
Prime Minister Abe and President Bush, April 27, 2007).

The Asian Women's Fund

Established by the Japanese government in 1995, the AWF represented the government's
concrete attempt to address its moral responsibility by offering monetary compensation to
victims of the comfort women system.[37] The purpose of the AWF was to show atonement of
the Japanese people through expressions of apology and remorse to the former wartime
comfort women, to restore their honor, and to demonstrate Japan's strong respect for women.
[38]

The AWF announced three programs for former comfort women who applied for assistance: (1)
an atonement fund paying 2 million (approximately $20,000) to each woman; (2) medical and
welfare support programs, paying 2.5-3 million ($25,000-$30,000) for each woman; and (3) a
letter of apology from the Japanese Prime Minister to each woman. Funding for the program
came from the Japanese government and private donations from the Japanese people. As of
March 2006, the AWF provided 700 million (approximately $7 million) for these programs in
South Korea, Taiwan, and the Philippines; 380 million (approximately $3.8 million) in
Indonesia; and 242 million (approximately $2.4 million) in the Netherlands.
On January 15, 1997, the AWF and the Philippine government signed a Memorandum of
Understanding for medical and welfare support programs for former comfort women. Over the
next five years, these were implemented by the Department of Social Welfare and
Development.

Our Ruling

Stripped down to its essentials, the issue in this case is whether the Executive Department
committed grave abuse of discretion in not espousing petitioners' claims for official apology and
other forms of reparations against Japan.

The petition lacks merit.

From a Domestic Law Perspective, the
Executive Department has the exclusive
prerogative to determine whether to espouse
petitioners' claims against Japan.

Baker v. Carr[39] remains the starting point for analysis under the political question doctrine.
There the US Supreme Court explained that:
x x x Prominent on the surface of any case held to involve a political question is found a
textually demonstrable constitutional commitment of the issue to a coordinate political
department or a lack of judicially discoverable and manageable standards for resolving it, or the
impossibility of deciding without an initial policy determination of a kind clearly for non-judicial
discretion; or the impossibility of a court's undertaking independent resolution without
expressing lack of the respect due coordinate branches of government; or an unusual need for
unquestioning adherence to a political decision already made; or the potentiality of
embarrassment from multifarious pronouncements by various departments on question.

In Taada v. Cuenco,[40] we held that political questions refer "to those questions which, under
the Constitution, are to be decided by the people in their sovereign capacity, or in regard to
which full discretionary authority has been delegated to the legislative or executive branch of the
government. It is concerned with issues dependent upon the wisdom, not legality of a particular
measure."

Certain types of cases often have been found to present political questions.[41] One such
category involves questions of foreign relations. It is well-established that "[t]he conduct of the
foreign relations of our government is committed by the Constitution to the executive and
legislative--'the political'--departments of the government, and the propriety of what may be
done in the exercise of this political power is not subject to judicial inquiry or decision."[42] The
US Supreme Court has further cautioned that decisions relating to foreign policy are delicate,
complex, and involve large elements of prophecy. They are and should be undertaken only by
those directly responsible to the people whose welfare they advance or imperil. They are
decisions of a kind for which the Judiciary has neither aptitude, facilities nor responsibility.[43]
To be sure, not all cases implicating foreign relations present political questions, and courts
certainly possess the authority to construe or invalidate treaties and executive agreements.[44]
However, the question whether the Philippine government should espouse claims of its
nationals against a foreign government is a foreign relations matter, the authority for which is
demonstrably committed by our Constitution not to the courts but to the political branches. In
this case, the Executive Department has already decided that it is to the best interest of the
country to waive all claims of its nationals for reparations against Japan in the Treaty of Peace
of 1951. The wisdom of such decision is not for the courts to question. Neither could petitioners
herein assail the said determination by the Executive Department via the instant petition for
certiorari.

In the seminal case of US v. Curtiss-Wright Export Corp.,[45] the US Supreme Court held that
"[t]he President is the sole organ of the nation in its external relations, and its sole
representative with foreign relations."

It is quite apparent that if, in the maintenance of our international relations, embarrassment --
perhaps serious embarrassment -- is to be avoided and success for our aims achieved,
congressional legislation which is to be made effective through negotiation and inquiry within the
international field must often accord to the President a degree of discretion and freedom from
statutory restriction which would not be admissible where domestic affairs alone involved.
Moreover, he, not Congress, has the better opportunity of knowing the conditions which prevail
in foreign countries, and especially is this true in time of war. He has his confidential sources of
information. He has his agents in the form of diplomatic, consular and other officials. x x x

This ruling has been incorporated in our jurisprudence through Bayan v.

Executive Secretary[46] and Pimentel v. Executive Secretary;[47] its overreaching principle was,
perhaps, best articulated in (now Chief) Justice Puno's dissent in Secretary of Justice v. Lantion:
[48]

x x x The conduct of foreign relations is full of complexities and consequences, sometimes with
life and death significance to the nation especially in times of war. It can only be entrusted to
that department of government which can act on the basis of the best available information and
can decide with decisiveness. x x x It is also the President who possesses the most
comprehensive and the most confidential information about foreign countries for our diplomatic
and consular officials regularly brief him on meaningful events all over the world. He has also
unlimited access to ultra-sensitive military intelligence data. In fine, the presidential role in
foreign affairs is dominant and the President is traditionally accorded a wider degree of
discretion in the conduct of foreign affairs. The regularity, nay, validity of his actions are
adjudged under less stringent standards, lest their judicial repudiation lead to breach of an
international obligation, rupture of state relations, forfeiture of confidence, national
embarrassment and a plethora of other problems with equally undesirable consequences.

The Executive Department has determined that taking up petitioners' cause would be inimical to
our country's foreign policy interests, and could disrupt our relations with Japan, thereby
creating serious implications for stability in this region. For us to overturn the Executive
Department's determination would mean an assessment of the foreign policy judgments by a
coordinate political branch to which authority to make that judgment has been constitutionally
committed.

In any event, it cannot reasonably be maintained that the Philippine government was without
authority to negotiate the Treaty of Peace with Japan. And it is equally true that, since time
immemorial, when negotiating peace accords and settling international claims:

x x x [g]overnments have dealt with x x x private claims as their own, treating them as national
assets, and as counters, `chips', in international bargaining. Settlement agreements have
lumped, or linked, claims deriving from private debts with others that were intergovernmental in
origin, and concessions in regard to one category of claims might be set off against concessions
in the other, or against larger political considerations unrelated to debts.[49]

Indeed, except as an agreement might otherwise provide, international settlements generally

wipe out the underlying private claims, thereby terminating any recourse under domestic law. In
Ware v. Hylton,[50] a case brought by a British subject to recover a debt confiscated by the
Commonwealth of Virginia during the war, Justice Chase wrote:

I apprehend that the treaty of peace abolishes the subject of the war, and that after peace is
concluded, neither the matter in dispute, nor the conduct of either party, during the war, can ever
be revived, or brought into contest again. All violences, injuries, or damages sustained by the
government, or people of either, during the war, are buried in oblivion; and all those things are
implied by the very treaty of peace; and therefore not necessary to be expressed. Hence it
follows, that the restitution of, or compensation for, British property confiscated, or extinguished,
during the war, by any of the United States, could only be provided for by the treaty of peace;
and if there had been no provision, respecting these subjects, in the treaty, they could not be
agitated after the treaty, by the British government, much less by her subjects in courts of
justice. (Emphasis supplied).

This practice of settling claims by means of a peace treaty is certainly nothing new. For
instance, in Dames & Moore v. Regan,[51] the US Supreme Court held:

Not infrequently in affairs between nations, outstanding claims by nationals of one country
against the government of another country are "sources of friction" between the two sovereigns.
United States v. Pink, 315 U.S. 203, 225, 62 S.Ct. 552, 563, 86 L.Ed. 796 (1942). To resolve
these difficulties, nations have often entered into agreements settling the claims of their
respective nationals. As one treatise writer puts it, international agreements settling claims by
nationals of one state against the government of another "are established international practice
reflecting traditional international theory." L. Henkin, Foreign Affairs and the Constitution 262
(1972). Consistent with that principle, the United States has repeatedly exercised its sovereign
authority to settle the claims of its nationals against foreign countries. x x x Under such
agreements, the President has agreed to renounce or extinguish claims of United States
nationals against foreign governments in return for lump-sum payments or the establishment of
arbitration procedures. To be sure, many of these settlements were encouraged by the United
States claimants themselves, since a claimant's only hope of obtaining any payment at all might
lie in having his Government negotiate a diplomatic settlement on his behalf. But it is also
undisputed that the "United States has sometimes disposed of the claims of its citizens without
their consent, or even without consultation with them, usually without exclusive regard for their
interests, as distinguished from those of the nation as a whole." Henkin, supra, at 262-263.
Accord, Restatement (Second) of Foreign Relations Law of the United States 213 (1965)
(President "may waive or settle a claim against a foreign state x x x [even] without the consent
of the [injured] national"). It is clear that the practice of settling claims continues today.

Respondents explain that the Allied Powers concluded the Peace Treaty with Japan not
necessarily for the complete atonement of the suffering caused by Japanese aggression during
the war, not for the payment of adequate reparations, but for security purposes. The treaty
sought to prevent the spread of communism in Japan, which occupied a strategic position in the
Far East. Thus, the Peace Treaty compromised individual claims in the collective interest of the
free world.

This was also the finding in a similar case involving American victims of Japanese slave labor
during the war.[52] In a consolidated case in the Northern District of California,[53] the court
dismissed the lawsuits filed, relying on the 1951 peace treaty with Japan,[54] because of the
following policy considerations:

The official record of treaty negotiations establishes that a fundamental goal of the agreement
was to settle the reparations issue once and for all. As the statement of the chief United States
negotiator, John Foster Dulles, makes clear, it was well understood that leaving open the
possibility of future claims would be an unacceptable impediment to a lasting peace:
Reparation is usually the most controversial aspect of peacemaking. The present peace is no
exception.

On the one hand, there are claims both vast and just. Japan's aggression caused tremendous
cost, losses and suffering.

On the other hand, to meet these claims, there stands a Japan presently reduced to four home
islands which are unable to produce the food its people need to live, or the raw materials they
need to work. x x x

The policy of the United States that Japanese liability for reparations should be sharply limited
was informed by the experience of six years of United States-led occupation of Japan. During
the occupation the Supreme Commander of the Allied Powers (SCAP) for the region, General
Douglas MacArthur, confiscated Japanese assets in conjunction with the task of managing the
economic affairs of the vanquished nation and with a view to reparations payments. It soon
became clear that Japan's financial condition would render any aggressive reparations plan an
exercise in futility. Meanwhile, the importance of a stable, democratic Japan as a bulwark to
communism in the region increased. At the end of 1948, MacArthur expressed the view that
"[t]he use of reparations as a weapon to retard the reconstruction of a viable economy in Japan
should be combated with all possible means" and "recommended that the reparations issue be
settled finally and without delay."

That this policy was embodied in the treaty is clear not only from the negotiations history but
also from the Senate Foreign Relations Committee report recommending approval of the treaty
by the Senate. The committee noted, for example:

Obviously insistence upon the payment of reparations in any proportion commensurate with the
claims of the injured countries and their nationals would wreck Japan's economy, dissipate any
credit that it may possess at present, destroy the initiative of its people, and create misery and
chaos in which the seeds of discontent and communism would flourish. In short, [it] would be
contrary to the basic purposes and policy of x x x the United States x x x.

We thus hold that, from a municipal law perspective, that certiorari will not lie. As a general
principle - and particularly here, where such an extraordinary length of time has lapsed between
the treaty's conclusion and our consideration - the Executive must be given ample discretion to
assess the foreign policy considerations of espousing a claim against Japan, from the
standpoint of both the interests of the petitioners and those of the Republic, and decide on that
basis if apologies are sufficient, and whether further steps are appropriate or necessary.

The Philippines is not under any

international obligation to espouse
petitioners' claims.

In the international sphere, traditionally, the only means available for individuals to bring a claim
within the international legal system has been when the individual is able to persuade a
government to bring a claim on the individual's behalf.[55] Even then, it is not the individual's
rights that are being asserted, but rather, the state's own rights. Nowhere is this position more
clearly reflected than in the dictum of the Permanent Court of International Justice (PCIJ) in the
1924 Mavrommatis Palestine Concessions Case:

By taking up the case of one of its subjects and by resorting to diplomatic action or international
judicial proceedings on his behalf, a State is in reality asserting its own right to ensure, in the
person of its subjects, respect for the rules of international law. The question, therefore, whether
the present dispute originates in an injury to a private interest, which in point of fact is the case
in many international disputes, is irrelevant from this standpoint. Once a State has taken up a
case on behalf of one of its subjects before an international tribunal, in the eyes of the latter the
State is sole claimant.[56]

Since the exercise of diplomatic protection is the right of the State, reliance on the right is within
the absolute discretion of states, and the decision whether to exercise the discretion may
invariably be influenced by political considerations other than the legal merits of the particular
claim.[57] As clearly stated by the ICJ in

Barcelona Traction:

The Court would here observe that, within the limits prescribed by international law, a State may
exercise diplomatic protection by whatever means and to whatever extent it thinks fit, for it is its
own right that the State is asserting. Should the natural or legal person on whose behalf it is
acting consider that their rights are not adequately protected, they have no remedy in
international law. All they can do is resort to national law, if means are available, with a view to
furthering their cause or obtaining redress. The municipal legislator may lay upon the State an
obligation to protect its citizens abroad, and may also confer upon the national a right to
demand the performance of that obligation, and clothe the right with corresponding sanctions.
However, all these questions remain within the province of municipal law and do not affect the
position internationally.[58] (Emphasis supplied)

The State, therefore, is the sole judge to decide whether its protection will be granted, to what
extent it is granted, and when will it cease. It retains, in this respect, a discretionary power the
exercise of which may be determined by considerations of a political or other nature, unrelated
to the particular case.

The International Law Commission's (ILC's) Draft Articles on Diplomatic Protection fully support
this traditional view. They (i) state that "the right of diplomatic protection belongs to or vests in
the State,"[59] (ii) affirm its discretionary nature by clarifying that diplomatic protection is a
"sovereign prerogative" of the State;[60] and (iii) stress that the state "has the right to exercise
diplomatic protection on behalf of a national. It is under no duty or obligation to do so."[61]

It has been argued, as petitioners argue now, that the State has a duty to protect its nationals
and act on his/her behalf when rights are injured.[62] However, at present, there is no sufficient
evidence to establish a general international obligation for States to exercise diplomatic
protection of their own nationals abroad.[63] Though, perhaps desirable, neither state practice
nor opinio juris has evolved in such a direction. If it is a duty internationally, it is only a moral and
not a legal duty, and there is no means of enforcing its fulfillment.[64]

We fully agree that rape, sexual slavery, torture, and sexual violence are morally reprehensible
as well as legally prohibited under contemporary international law.[65] However, petitioners take
quite a theoretical leap in claiming that these proscriptions automatically imply that that the
Philippines is under a non-derogable obligation to prosecute international crimes, particularly
since petitioners do not demand the imputation of individual criminal liability, but seek to recover
monetary reparations from the state of Japan. Absent the consent of states, an applicable treaty
regime, or a directive by the Security Council, there is no non-derogable duty to institute
proceedings against Japan. Indeed, precisely because of states' reluctance to directly prosecute
claims against another state, recent developments support the modern trend to empower
individuals to directly participate in suits against perpetrators of international crimes.[66]
Nonetheless, notwithstanding an array of General Assembly resolutions calling for the
prosecution of crimes against humanity and the strong policy arguments warranting such a rule,
the practice of states does not yet support the present existence of an obligation to prosecute
international crimes.[67] Of course a customary duty of prosecution is ideal, but we cannot find
enough evidence to reasonably assert its existence. To the extent that any state practice in this
area is widespread, it is in the practice of granting amnesties, immunity, selective prosecution,
or de facto impunity to those who commit crimes against humanity."[68]

Even the invocation of jus cogens norms and erga omnes obligations will not alter this analysis.
Even if we sidestep the question of whether jus cogens norms existed in 1951, petitioners have
not deigned to show that the crimes committed by the Japanese army violated jus cogens
prohibitions at the time the Treaty of Peace was signed, or that the duty to prosecute
perpetrators of international crimes is an erga omnes obligation or has attained the status of jus
cogens.

The term erga omnes (Latin: in relation to everyone) in international law has been used as a
legal term describing obligations owed by States towards the community of states as a whole.
The concept was recognized by the ICJ in Barcelona Traction:
x x x an essential distinction should be drawn between the obligations of a State towards the
international community as a whole, and those arising vis--vis another State in the field of
diplomatic protection. By their very nature, the former are the concern of all States. In view of
the importance of the rights involved, all States can be held to have a legal interest in their
protection; they are obligations erga omnes.

Such obligations derive, for example, in contemporary international law, from the outlawing of
acts of aggression, and of genocide, as also from the principles and rules concerning the basic
rights of the human person, including protection from slavery and racial discrimination. Some of
the corresponding rights of protection have entered into the body of general international law ...
others are conferred by international instruments of a universal or quasi-universal character.

The Latin phrase, `erga omnes,' has since become one of the rallying cries of those sharing a
belief in the emergence of a value-based international public order. However, as is so often the
case, the reality is neither so clear nor so bright. Whatever the relevance of obligations erga
omnes as a legal concept, its full potential remains to be realized in practice.[69]

The term is closely connected with the international law concept of jus cogens. In international
law, the term "jus cogens" (literally, "compelling law") refers to norms that command peremptory
authority, superseding conflicting treaties and custom. Jus cogens norms are considered
peremptory in the sense that they are mandatory, do not admit derogation, and can be modified
only by general international norms of equivalent authority.[70]

Early strains of the jus cogens doctrine have existed since the 1700s,[71] but peremptory norms
began to attract greater scholarly attention with the publication of Alfred von Verdross's
influential 1937 article, Forbidden Treaties in International Law.[72] The recognition of jus
cogens gained even more force in the 1950s and 1960s with the ILC's preparation of the Vienna
Convention on the Law of Treaties (VCLT).[73] Though there was a consensus that certain
international norms had attained the status of jus cogens,[74] the ILC was unable to reach a
consensus on the proper criteria for identifying peremptory norms.

After an extended debate over these and other theories of jus cogens, the ILC concluded
ruefully in 1963 that "there is not as yet any generally accepted criterion by which to identify a
general rule of international law as having the character of jus cogens."[75] In a commentary
accompanying the draft convention, the ILC indicated that "the prudent course seems to be to x
x x leave the full content of this rule to be worked out in State practice and in the jurisprudence
of international tribunals."[76] Thus, while the existence of jus cogens in international law is
undisputed, no consensus exists on its substance,[77] beyond a tiny core of principles and
rules.[78]

Of course, we greatly sympathize with the cause of petitioners, and we cannot begin to
comprehend the unimaginable horror they underwent at the hands of the Japanese soldiers. We
are also deeply concerned that, in apparent contravention of fundamental principles of law, the
petitioners appear to be without a remedy to challenge those that have offended them before
appropriate fora. Needless to say, our government should take the lead in protecting its citizens
against violation of their fundamental human rights. Regrettably, it is not within our power to
order the Executive Department to take up the petitioners' cause. Ours is only the power to urge
and exhort the Executive Department to take up petitioners' cause.

WHEREFORE, the Petition is hereby DISMISSED.

SO ORDERED.