Republic of the Philippines endured physical injuries, pain and disability, and mental and emotional

SUPREME COURT suffering.2

Manila
Petitioners claim that since 1998, they have approached the Executive
EN BANC
Department through the DOJ, DFA, and OSG, requesting assistance in
filing a claim against the Japanese officials and military officers who
G.R. No. 162230               April 28, 2010
ordered the establishment of the "comfort women" stations in the
Philippines. However, officials of the Executive Department declined to
ISABELITA C. VINUYA, VICTORIA C. DELA PEÑA, HERMINIHILDA
assist the petitioners, and took the position that the individual claims of
MANIMBO, LEONOR H. SUMAWANG, CANDELARIA L. SOLIMAN,
the comfort women for compensation had already been fully satisfied by
MARIA L. QUILANTANG, MARIA L. MAGISA, NATALIA M. ALONZO,
Japan’s compliance with the Peace Treaty between the Philippines and
LOURDES M. NAVARO, FRANCISCA M. ATENCIO, ERLINDA
Japan.
MANALASTAS, TARCILA M. SAMPANG, ESTER M. PALACIO, MAXIMA
R. DELA CRUZ, BELEN A. SAGUM, FELICIDAD TURLA, FLORENCIA M.
DELA PEÑA, EUGENIA M. LALU, JULIANA G. MAGAT, CECILIA Issues
SANGUYO, ANA ALONZO, RUFINA P. MALLARI, ROSARIO M. ALARCON,
RUFINA C. GULAPA, ZOILA B. MANALUS, CORAZON C. CALMA, MARTA
Hence, this petition where petitioners pray for this court to (a) declare
A. GULAPA, TEODORA M. HERNANDEZ, FERMIN B. DELA PEÑA,
that respondents committed grave abuse of discretion amounting to lack
MARIA DELA PAZ B. CULALA, ESPERANZA MANAPOL, JUANITA M.
or excess of discretion in refusing to espouse their claims for the crimes
BRIONES, VERGINIA M. GUEVARRA, MAXIMA ANGULO, EMILIA
against humanity and war crimes committed against them; and (b)
SANGIL, TEOFILA R. PUNZALAN, JANUARIA G. GARCIA, PERLA B.
compel the respondents to espouse their claims for official apology and
BALINGIT, BELEN A. CULALA, PILAR Q. GALANG, ROSARIO C. BUCO,
other forms of reparations against Japan before the International Court of
GAUDENCIA C. DELA PEÑA, RUFINA Q. CATACUTAN, FRANCIA A.
Justice (ICJ) and other international tribunals.
BUCO, PASTORA C. GUEVARRA, VICTORIA M. DELA CRUZ, PETRONILA
O. DELA CRUZ, ZENAIDA P. DELA CRUZ, CORAZON M. SUBA,
EMERINCIANA A. VINUYA, LYDIA A. SANCHEZ, ROSALINA M. BUCO, Petitioners’ arguments
PATRICIA A. BERNARDO, LUCILA H. PAYAWAL, MAGDALENA LIWAG,
ESTER C. BALINGIT, JOVITA A. DAVID, EMILIA C. MANGILIT,
Petitioners argue that the general waiver of claims made by the
VERGINIA M. BANGIT, GUILLERMA S. BALINGIT, TERECITA
Philippine government in the Treaty of Peace with Japan is void. They
PANGILINAN, MAMERTA C. PUNO, CRISENCIANA C. GULAPA,
claim that the comfort women system established by Japan, and the brutal
SEFERINA S. TURLA, MAXIMA B. TURLA, LEONICIA G. GUEVARRA,
rape and enslavement of petitioners constituted a crime against
ROSALINA M. CULALA, CATALINA Y. MANIO, MAMERTA T. SAGUM,
humanity,3 sexual slavery,4 and torture.5 They allege that the prohibition
CARIDAD L. TURLA, et al. In their capacity and as members of the
against these international crimes is jus cogens norms from which no
"Malaya Lolas Organization", Petitioners, 
derogation is possible; as such, in waiving the claims of Filipina comfort
vs.
women and failing to espouse their complaints against Japan, the
THE HONORABLE EXECUTIVE SECRETARY ALBERTO G. ROMULO,
Philippine government is in breach of its legal obligation not to afford
THE HONORABLE SECRETARY OF FOREIGN AFFAIRS DELIA
impunity for crimes against humanity. Finally, petitioners assert that the
DOMINGO-ALBERT, THE HONORABLE SECRETARY OF JUSTICE
Philippine government’s acceptance of the "apologies" made by Japan as
MERCEDITAS N. GUTIERREZ, and THE HONORABLE SOLICITOR
well as funds from the Asian Women’s Fund (AWF) were contrary to
GENERAL ALFREDO L. BENIPAYO, Respondents.
international law.

DECISION
Respondents’ Arguments

DEL CASTILLO, J.:
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
The Treaty of Peace with Japan, insofar as it barred future claims such as 1951 and the bilateral Reparations Agreement of 1956. 6
those asserted by plaintiffs in these actions, exchanged full compensation
of plaintiffs for a future peace. History has vindicated the wisdom of that
Article 14 of the Treaty of Peace7 provides:
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 Article 14. Claims and Property
themselves and their posterity in a free society and in a more peaceful
world services the debt.1 a) It is recognized that Japan should pay reparations to the
Allied Powers for the damage and suffering caused by it during
There is a broad range of vitally important areas that must be regularly the war. Nevertheless it is also recognized that the resources of
decided by the Executive Department without either challenge or Japan are not presently sufficient, if it is to maintain a viable
interference by the Judiciary. One such area involves the delicate arena of economy, to make complete reparation for all such damage and
foreign relations. It would be strange indeed if the courts and the suffering and at the present time meet its other obligations.
executive spoke with different voices in the realm of foreign policy.
Precisely because of the nature of the questions presented, and the lapse b) Except as otherwise provided in the present Treaty, the
of more than 60 years since the conduct complained of, we make no Allied Powers waive all reparations claims of the Allied
attempt to lay down general guidelines covering other situations not Powers, other claims of the Allied Powers and their nationals
involved here, and confine the opinion only to the very questions arising out of any actions taken by Japan and its nationals in
necessary to reach a decision on this matter. the course of the prosecution of the war, and claims of the
Allied Powers for direct military costs of occupation.
Factual Antecedents
In addition, respondents argue that the apologies made by Japan 8 have
This is an original Petition for Certiorari under Rule 65 of the Rules of been satisfactory, and that Japan had addressed the individual claims of
Court with an application for the issuance of a writ of preliminary the women through the atonement money paid by the Asian Women’s
mandatory injunction against the Office of the Executive Secretary, the Fund.1avvphi1
Secretary of the Department of Foreign Affairs (DFA), the Secretary of the
Department of Justice (DOJ), and the Office of the Solicitor General (OSG). Historical Background

Petitioners are all members of the MALAYA LOLAS, a non-stock, non- The comfort women system was the tragic legacy of the Rape of Nanking.
profit organization registered with the Securities and Exchange In December 1937, Japanese military forces captured the city of Nanking
Commission, established for the purpose of providing aid to the victims of in China and began a "barbaric campaign of terror" known as the Rape of
rape by Japanese military forces in the Philippines during the Second Nanking, which included the rapes and murders of an estimated 20,000 to
World War.ten.lihpwal 80,000 Chinese women, including young girls, pregnant mothers, and
elderly women.9 Document1zzF24331552898
Petitioners narrate that during the Second World War, the Japanese army
attacked villages and systematically raped the women as part of the In reaction to international outcry over the incident, the Japanese
destruction of the village. Their communities were bombed, houses were government sought ways to end international condemnation 10 by
looted and burned, and civilians were publicly tortured, mutilated, and establishing the "comfort women" system. Under this system, the military
slaughtered. Japanese soldiers forcibly seized the women and held them could simultaneously appease soldiers' sexual appetites and contain
in houses or cells, where they were repeatedly raped, beaten, and abused soldiers' activities within a regulated environment. 11 Comfort stations
by Japanese soldiers. As a result of the actions of their Japanese would also prevent the spread of venereal disease among soldiers and
tormentors, the petitioners have spent their lives in misery, having discourage soldiers from raping inhabitants of occupied territories. 12
Daily life as a comfort woman was "unmitigated misery." 13 The military Discrimination and Protection of Minorities on the right to
forced victims into barracks-style stations divided into tiny cubicles restitution, compensation and rehabilitation for victims of
where they were forced to live, sleep, and have sex with as many 30 grave violations of human rights and fundamental freedoms. A
soldiers per day.14The 30 minutes allotted for sexual relations with each special administrative tribunal for this purpose should be set
soldier were 30-minute increments of unimaginable horror for the up with a limited time-frame since many of the victims are of a
women.15 Disease was rampant.16 Military doctors regularly examined the very advanced age;
women, but these checks were carried out to prevent the spread of
venereal diseases; little notice was taken of the frequent cigarette burns,
(c) Make a full disclosure of documents and materials in its
bruises, bayonet stabs and even broken bones inflicted on the women by
possession with regard to comfort stations and other related
soldiers. Document1zzF48331552898
activities of the Japanese Imperial Army during the Second
World War;
Fewer than 30% of the women survived the war. 17 Their agony continued
in having to suffer with the residual physical, psychological, and
(d) Make a public apology in writing to individual women who
emotional scars from their former lives. Some returned home and were
have come forward and can be substantiated as women victims
ostracized by their families. Some committed suicide. Others, out of
of Japanese military sexual slavery;
shame, never returned home.18

(e) Raise awareness of these issues by amending educational

Efforts to Secure Reparation
curricula to reflect historical realities;

The most prominent attempts to compel the Japanese government to

(f) Identify and punish, as far as possible, perpetrators
accept legal responsibility and pay compensatory damages for the
involved in the recruitment and institutionalization of comfort
comfort women system were through a series of lawsuits, discussion at
stations during the Second World War.
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 Gay J. McDougal, the Special Rapporteur for the UN Sub-Commission on
AWF.19 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
Lawsuits
Practices During Armed Conflict. The report included an appendix
entitled An Analysis of the Legal Liability of the Government of Japan for
In December 1991, Kim Hak-Sun and two other survivors filed the first 'Comfort Women Stations' established during the Second World
lawsuit in Japan by former comfort women against the Japanese War,30 which contained the following findings:
government. The Tokyo District Court however dismissed their
case.20 Other suits followed,21but the Japanese government has, thus far,
68. The present report concludes that the Japanese Government remains
successfully caused the dismissal of every case.22
liable for grave violations of human rights and humanitarian law,
violations that amount in their totality to crimes against humanity. The
Undoubtedly frustrated by the failure of litigation before Japanese courts, Japanese Government’s arguments to the contrary, including arguments
victims of the comfort women system brought their claims before the that seek to attack the underlying humanitarian law prohibition of
United States (US). On September 18, 2000, 15 comfort women filed a enslavement and rape, remain as unpersuasive today as they were when
class action lawsuit in the US District Court for the District of they were first raised before the Nuremberg war crimes tribunal more
Columbia23 "seeking money damages for [allegedly] having been than 50 years ago. In addition, the Japanese Government’s argument that
subjected to sexual slavery and torture before and during World War II," Japan has already settled all claims from the Second World War through
in violation of "both positive and customary international law." The case peace treaties and reparations agreements following the war remains
was filed pursuant to the Alien Tort Claims Act ("ATCA"), 24 which allowed equally unpersuasive. This is due, in large part, to the failure until very
the plaintiffs to sue the Japanese government in a US federal district recently of the Japanese Government to admit the extent of the Japanese
court.25 On October 4, 2001, the district court dismissed the lawsuit due military’s direct involvement in the establishment and maintenance of
to lack of jurisdiction over Japan, stating that "[t]here is no question that these rape centres. The Japanese Government’s silence on this point
this court is not the appropriate forum in which plaintiffs may seek to during the period in which peace and reparations agreements between
reopen x x x discussions nearly half a century later x x x [E]ven if Japan Japan and other Asian Governments were being negotiated following the
did not enjoy sovereign immunity, plaintiffs' claims are non-justiciable end of the war must, as a matter of law and justice, preclude Japan from
and must be dismissed." relying today on these peace treaties to extinguish liability in these cases.

The District of Columbia Court of Appeals affirmed the lower court's 69. The failure to settle these claims more than half a century after the
dismissal of the case.26 On appeal, the US Supreme Court granted the cessation of hostilities is a testament to the degree to which the lives of
women’s petition for writ of certiorari, vacated the judgment of the women continue to be undervalued. Sadly, this failure to address crimes
District of Columbia Court of Appeals, and remanded the case. 27 On of a sexual nature committed on a massive scale during the Second World
remand, the Court of Appeals affirmed its prior decision, noting that War has added to the level of impunity with which similar crimes are
"much as we may feel for the plight of the appellants, the courts of the US committed today. The Government of Japan has taken some steps to
simply are not authorized to hear their case." 28 The women again brought apologize and atone for the rape and enslavement of over 200,000
their case to the US Supreme Court which denied their petition for writ of women and girls who were brutalized in "comfort stations" during the
certiorari on February 21, 2006. 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
Efforts at the United Nations
now fall to the Government of Japan to take the necessary final steps to
provide adequate redress.
In 1992, the Korean Council for the Women Drafted for Military Sexual
Slavery by Japan (KCWS), submitted a petition to the UN Human Rights
The UN, since then, has not taken any official action directing Japan to
Commission (UNHRC), asking for assistance in investigating crimes
provide the reparations sought.
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 Women's International War Crimes
1996, Coomaraswamy issued a Report reaffirming Japan's responsibility
in forcing Korean women to act as sex slaves for the imperial army, and
Tribunal
made the following recommendations:

The Women's International War Crimes Tribunal (WIWCT) was a

A. At the national level
"people's tribunal" established by a number of Asian women and human
rights organizations, supported by an international coalition of non-
137. The Government of Japan should: 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
(a) Acknowledge that the system of comfort stations set up by
responsible for it to justice, and to end the ongoing cycle of impunity for
the Japanese Imperial Army during the Second World War was
wartime sexual violence against women."
a violation of its obligations under international law and accept
legal responsibility for that violation;
After examining the evidence for more than a year, the "tribunal" issued
its verdict on December 4, 2001, finding the former Emperor Hirohito and
(b) Pay compensation to individual victims of Japanese military
the State of Japan guilty of crimes against humanity for the rape and
sexual slavery according to principles outlined by the Special
sexual slavery of women.32 It bears stressing, however, that although the
Rapporteur of the Sub-Commission on Prevention of
tribunal included prosecutors, witnesses, and judges, its judgment was
not legally binding since the tribunal itself was organized by private Undeniably, this was an act, with the involvement of the military
citizens. 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,
Action by Individual Governments
irrespective of place of origin, who suffered immeasurable pain and
incurable physical and psychological wounds as comfort women.
On January 31, 2007, US Representative Michael Honda of California,
along with six co-sponsor representatives, introduced House Resolution
It is incumbent upon us, the Government of Japan, to continue to consider
121 which called for Japanese action in light of the ongoing struggle for
seriously, while listening to the views of learned circles, how best we can
closure by former comfort women. The Resolution was formally passed
express this sentiment.
on July 30, 2007,33 and made four distinct demands:

We shall face squarely the historical facts as described above instead of

[I]t is the sense of the House of Representatives that the Government of
evading them, and take them to heart as lessons of history. We hereby
Japan (1) should formally acknowledge, apologize, and accept historical
reiterated our firm determination never to repeat the same mistake by
responsibility in a clear and unequivocal manner for its Imperial Armed
forever engraving such issues in our memories through the study and
Forces' coercion of young women into sexual slavery, known to the world
teaching of history.
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 As actions have been brought to court in Japan and interests have been
status of prior statements if the Prime Minister of Japan were to make shown in this issue outside Japan, the Government of Japan shall continue
such an apology as a public statement in his official capacity; (3) should to pay full attention to this matter, including private researched related
clearly and publicly refute any claims that the sexual enslavement and thereto.
trafficking of the "comfort women" for the Japanese Imperial Army never
occurred; and (4) should educate current and future generations about
b) Prime Minister Tomiichi Murayama’s Statement in 1994
this horrible crime while following the recommendations of the
international community with respect to the "comfort women." 34
On the issue of wartime "comfort women", which seriously stained the
honor and dignity of many women, I would like to take this opportunity
In December 2007, the European Parliament, the governing body of the
once again to express my profound and sincere remorse and apologies"
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 c) Letters from the Prime Minister of Japan to Individual Comfort Women
government; (2) a removal of the legal obstacles preventing
compensation; and (3) unabridged education of the past. The resolution
The issue of comfort women, with the involvement of the Japanese
also stressed the urgency with which Japan should act on these issues,
military authorities at that time, was a grave affront to the honor and
stating: "the right of individuals to claim reparations against the
dignity of a large number of women.
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 As Prime Minister of Japan, I thus extend anew my most sincere apologies
survivors." and remorse to all the women who endured immeasurable and painful
experiences and suffered incurable physical and psychological wounds as
comfort women.
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 I believe that our country, painfully aware of its moral responsibilities,
coerced or forced hundreds of thousands of women into sexual slavery, with feelings of apology and remorse, should face up squarely to its past
and to restore references in Japanese textbooks to its war crimes. 36 The history and accurately convey it to future generations.
Dutch parliament's resolution calls for the Japanese government to
uphold the 1993 declaration of remorse made by Chief Cabinet Secretary
d) The Diet (Japanese Parliament) passed resolutions in 1995 and 2005
Yohei Kono.

Solemnly reflecting upon the many instances of colonial rule and acts of
The Foreign Affairs Committee of the United Kingdom’s Parliament also
aggression that occurred in modern world history, and recognizing that
produced a report in November, 2008 entitled, "Global Security: Japan
Japan carried out such acts in the past and inflicted suffering on the
and Korea" which concluded that Japan should acknowledge the pain
people of other countries, especially in Asia, the Members of this House
caused by the issue of comfort women in order to ensure cooperation
hereby express deep remorse. (Resolution of the House of
between Japan and Korea.
Representatives adopted on June 9, 1995)

Statements of Remorse made by representatives of the Japanese

e) Various Public Statements by Japanese Prime Minister Shinzo Abe
government

I have talked about this matter in the Diet sessions last year, and recently
Various officials of the Government of Japan have issued the following
as well, and to the press. I have been consistent. I will stand by the Kono
public statements concerning the comfort system:
Statement. This is our consistent position. Further, we have been
apologizing sincerely to those who suffered immeasurable pain and
a) Statement by the Chief Cabinet Secretary Yohei Kono in 1993: 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
The Government of Japan has been conducting a study on the issue of
same feeling. This has not changed even slightly. (Excerpt from Remarks
wartime "comfort women" since December 1991. I wish to announce the
by Prime Minister Abe at an Interview by NHK, March 11, 2007).
findings as a result of that study.

I am apologizing here and now. I am apologizing as the Prime Minister

As a result of the study which indicates that comfort stations were
and it is as stated in the statement by the Chief Cabinet Secretary Kono.
operated in extensive areas for long periods, it is apparent that there
(Excerpt from Remarks by Prime Minister Abe at the Budget Committee,
existed a great number of comfort women. Comfort stations were
the House of Councilors, the Diet of Japan, March 26, 2007).
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 I am deeply sympathetic to the former comfort women who suffered
of comfort women. The recruitment of the comfort women was conducted hardships, and I have expressed my apologies for the extremely agonizing
mainly by private recruiters who acted in response to the request of the circumstances into which they were placed. (Excerpt from Telephone
military. The Government study has revealed that in many cases they Conference by Prime Minister Abe to President George W. Bush, April 3,
were recruited against their own will, through coaxing coercion, etc., and 2007).
that, at times, administrative/military personnel directly took part in the
recruitments. They lived in misery at comfort stations under a coercive
I have to express sympathy from the bottom of my heart to those people
atmosphere.
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
As to the origin of those comfort women who were transferred to the war to apologize to them. My administration has been saying all along that we
areas, excluding those from Japan, those from the Korean Peninsula continue to stand by the Kono Statement. We feel responsible for having
accounted for a large part. The Korean Peninsula was under Japanese rule forced these women to go through that hardship and pain as comfort
in those days, and their recruitment, transfer, control, etc., were women under the circumstances at the time. (Excerpt from an interview
conducted generally against their will, through coaxing, coercion, etc. 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 kind for which the Judiciary has neither aptitude, facilities nor
sympathy to all those who suffered extreme hardships as comfort responsibility.43
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
To be sure, not all cases implicating foreign relations present political
many parts of the world during the 20th Century; therefore we must
questions, and courts certainly possess the authority to construe or
work to make the 21st Century a wonderful century in which no human
invalidate treaties and executive agreements. 44 However, the question
rights are violated. And the Government of Japan and I wish to make
whether the Philippine government should espouse claims of its nationals
significant contributions to that end. (Excerpt from Prime Minister Abe's
against a foreign government is a foreign relations matter, the authority
remarks at the Joint Press Availability after the summit meeting at Camp
for which is demonstrably committed by our Constitution not to the
David between Prime Minister Abe and President Bush, April 27, 2007).
courts but to the political branches. In this case, the Executive
Department has already decided that it is to the best interest of the
The Asian Women's Fund 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
Established by the Japanese government in 1995, the AWF represented
determination by the Executive Department via the instant petition
the government's concrete attempt to address its moral responsibility by
for certiorari.
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 In the seminal case of US v. Curtiss-Wright Export Corp., 45 the US Supreme
wartime comfort women, to restore their honor, and to demonstrate Court held that "[t]he President is the sole organ of the nation in its
Japan’s strong respect for women.38 external relations, and its sole representative with foreign relations."

The AWF announced three programs for former comfort women who It is quite apparent that if, in the maintenance of our international
applied for assistance: (1) an atonement fund paying ¥2 million relations, embarrassment -- perhaps serious embarrassment -- is to be
(approximately $20,000) to each woman; (2) medical and welfare avoided and success for our aims achieved, congressional legislation
support programs, paying ¥2.5-3 million ($25,000-$30,000) for each which is to be made effective through negotiation and inquiry within the
woman; and (3) a letter of apology from the Japanese Prime Minister to international field must often accord to the President a degree of
each woman. Funding for the program came from the Japanese discretion and freedom from statutory restriction which would not be
government and private donations from the Japanese people. As of March admissible where domestic affairs alone involved. Moreover, he, not
2006, the AWF provided ¥700 million (approximately $7 million) for Congress, has the better opportunity of knowing the conditions which
these programs in South Korea, Taiwan, and the Philippines; ¥380 million prevail in foreign countries, and especially is this true in time of war. He
(approximately $3.8 million) in Indonesia; and ¥242 million has his confidential sources of information. He has his agents in the form
(approximately $2.4 million) in the Netherlands. of diplomatic, consular and other officials. x x x

On January 15, 1997, the AWF and the Philippine government signed a This ruling has been incorporated in our jurisprudence through Bayan v.
Memorandum of Understanding for medical and welfare support Executive Secretary46 and Pimentel v. Executive Secretary;47 its
programs for former comfort women. Over the next five years, these were overreaching principle was, perhaps, best articulated in (now Chief)
implemented by the Department of Social Welfare and Development. Justice Puno’s dissent in Secretary of Justice v. Lantion: 48

Our Ruling 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
Stripped down to its essentials, the issue in this case is whether the
government which can act on the basis of the best available information
Executive Department committed grave abuse of discretion in not
and can decide with decisiveness. x x x It is also the President who
espousing petitioners’ claims for official apology and other forms of
possesses the most comprehensive and the most confidential information
reparations against Japan.
about foreign countries for our diplomatic and consular officials regularly
brief him on meaningful events all over the world. He has also unlimited
The petition lacks merit. 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.
From a Domestic Law Perspective, the Executive Department has the
The regularity, nay, validity of his actions are adjudged under less
exclusive prerogative to determine whether to espouse petitioners’
stringent standards, lest their judicial repudiation lead to breach of an
claims against Japan.
international obligation, rupture of state relations, forfeiture of
confidence, national embarrassment and a plethora of other problems
Baker v. Carr39 remains the starting point for analysis under the political with equally undesirable consequences.
question doctrine. There the US Supreme Court explained that:
The Executive Department has determined that taking up petitioners’
x x x Prominent on the surface of any case held to involve a political cause would be inimical to our country’s foreign policy interests, and
question is found a textually demonstrable constitutional commitment of could disrupt our relations with Japan, thereby creating serious
the issue to a coordinate political department or a lack of judicially implications for stability in this region. For us to overturn the Executive
discoverable and manageable standards for resolving it, or the Department’s determination would mean an assessment of the foreign
impossibility of deciding without an initial policy determination of a kind policy judgments by a coordinate political branch to which authority to
clearly for non-judicial discretion; or the impossibility of a court's make that judgment has been constitutionally committed.
undertaking independent resolution without expressing lack of the
respect due coordinate branches of government; or an unusual need for
In any event, it cannot reasonably be maintained that the Philippine
unquestioning adherence to a political decision already made; or the
government was without authority to negotiate the Treaty of Peace with
potentiality of embarrassment from multifarious pronouncements by
Japan. And it is equally true that, since time immemorial, when
various departments on question.
negotiating peace accords and settling international claims:

In Tañ ada v. Cuenco,40 we held that political questions refer "to those
x x x [g]overnments have dealt with x x x private claims as their own,
questions which, under the Constitution, are to be decided by the people
treating them as national assets, and as counters, `chips', in international
in their sovereign capacity, or in regard to which full discretionary
bargaining. Settlement agreements have lumped, or linked, claims
authority has been delegated to the legislative or executive branch of the
deriving from private debts with others that were intergovernmental in
government. It is concerned with issues dependent upon the wisdom, not
origin, and concessions in regard to one category of claims might be set
legality of a particular measure."
off against concessions in the other, or against larger political
considerations unrelated to debts. 49
Certain types of cases often have been found to present political
questions.41 One such category involves questions of foreign relations. It
Indeed, except as an agreement might otherwise provide, international
is well-established that "[t]he conduct of the foreign relations of our
settlements generally wipe out the underlying private claims, thereby
government is committed by the Constitution to the executive and
terminating any recourse under domestic law. In Ware v. Hylton,50 a case
legislative--'the political'--departments of the government, and the
brought by a British subject to recover a debt confiscated by the
propriety of what may be done in the exercise of this political power is
Commonwealth of Virginia during the war, Justice Chase wrote:
not subject to judicial inquiry or decision." 42 The US Supreme Court has
further cautioned that decisions relating to foreign policy
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
are delicate, complex, and involve large elements of prophecy. They are
conduct of either party, during the war, can ever be revived, or brought
and should be undertaken only by those directly responsible to the
into contest again. All violences, injuries, or damages sustained by the
people whose welfare they advance or imperil. They are decisions of a
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 That this policy was embodied in the treaty is clear not only from the
not necessary to be expressed. Hence it follows, that the restitution of, or negotiations history but also from the Senate Foreign Relations
compensation for, British property confiscated, or extinguished, during Committee report recommending approval of the treaty by the Senate.
the war, by any of the United States, could only be provided for by the The committee noted, for example:
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
Obviously insistence upon the payment of reparations in any proportion
British government, much less by her subjects in courts of justice.
commensurate with the claims of the injured countries and their
(Emphasis supplied).
nationals would wreck Japan's economy, dissipate any credit that it may
possess at present, destroy the initiative of its people, and create misery
This practice of settling claims by means of a peace treaty is certainly and chaos in which the seeds of discontent and communism would
nothing new. For instance, in Dames & Moore v. Regan,51 the US Supreme flourish. In short, [it] would be contrary to the basic purposes and policy
Court held: of x x x the United States x x x.

Not infrequently in affairs between nations, outstanding claims by We thus hold that, from a municipal law perspective, that certiorari will
nationals of one country against the government of another country are not lie. As a general principle – and particularly here, where such an
"sources of friction" between the two sovereigns. United States v. Pink, extraordinary length of time has lapsed between the treaty’s conclusion
315 U.S. 203, 225, 62 S.Ct. 552, 563, 86 L.Ed. 796 (1942). To resolve these and our consideration – the Executive must be given ample discretion to
difficulties, nations have often entered into agreements settling the claims assess the foreign policy considerations of espousing a claim against
of their respective nationals. As one treatise writer puts it, international Japan, from the standpoint of both the interests of the petitioners and
agreements settling claims by nationals of one state against the those of the Republic, and decide on that basis if apologies are sufficient,
government of another "are established international practice reflecting and whether further steps are appropriate or necessary.
traditional international theory." L. Henkin, Foreign Affairs and the
Constitution 262 (1972). Consistent with that principle, the United States
The Philippines is not under any international obligation to espouse
has repeatedly exercised its sovereign authority to settle the claims of its
petitioners’ claims.
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 In the international sphere, traditionally, the only means available for
or the establishment of arbitration procedures. To be sure, many of these individuals to bring a claim within the international legal system has been
settlements were encouraged by the United States claimants themselves, when the individual is able to persuade a government to bring a claim on
since a claimant's only hope of obtaining any payment at all might lie in the individual’s behalf.55 Even then, it is not the individual’s rights that are
having his Government negotiate a diplomatic settlement on his behalf. being asserted, but rather, the state’s own rights. Nowhere is this position
But it is also undisputed that the "United States has sometimes disposed more clearly reflected than in the dictum of the Permanent Court of
of the claims of its citizens without their consent, or even without International Justice (PCIJ) in the 1924 Mavrommatis Palestine
consultation with them, usually without exclusive regard for their Concessions Case:
interests, as distinguished from those of the nation as a whole."
Henkin, supra, at 262-263. Accord, Restatement (Second) of Foreign
By taking up the case of one of its subjects and by resorting to diplomatic
Relations Law of the United States § 213 (1965) (President "may waive or
action or international judicial proceedings on his behalf, a State is in
settle a claim against a foreign state x x x [even] without the consent of
reality asserting its own right to ensure, in the person of its subjects,
the [injured] national"). It is clear that the practice of settling claims
respect for the rules of international law. The question, therefore,
continues today.
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
Respondents explain that the Allied Powers concluded the Peace Treaty irrelevant from this standpoint. Once a State has taken up a case on behalf
with Japan not necessarily for the complete atonement of the suffering of one of its subjects before an international tribunal, in the eyes of the
caused by Japanese aggression during the war, not for the payment of latter the State is sole claimant.56
adequate reparations, but for security purposes. The treaty sought to
prevent the spread of communism in Japan, which occupied a strategic
Since the exercise of diplomatic protection is the right of the State,
position in the Far East. Thus, the Peace Treaty compromised individual
reliance on the right is within the absolute discretion of states, and the
claims in the collective interest of the free world.
decision whether to exercise the discretion may invariably be influenced
by political considerations other than the legal merits of the particular
This was also the finding in a similar case involving American victims of claim.57 As clearly stated by the ICJ in
Japanese slave labor during the war. 52 In a consolidated case in the
Northern District of California, 53 the court dismissed the lawsuits filed,
Barcelona Traction:
relying on the 1951 peace treaty with Japan,54 because of the following
policy considerations:
The Court would here observe that, within the limits prescribed by
international law, a State may exercise diplomatic protection by whatever
The official record of treaty negotiations establishes that a fundamental
means and to whatever extent it thinks fit, for it is its own right that the
goal of the agreement was to settle the reparations issue once and for all.
State is asserting. Should the natural or legal person on whose behalf it is
As the statement of the chief United States negotiator, John Foster Dulles,
acting consider that their rights are not adequately protected, they have
makes clear, it was well understood that leaving open the possibility of
no remedy in international law. All they can do is resort to national law, if
future claims would be an unacceptable impediment to a lasting peace:
means are available, with a view to furthering their cause or obtaining
redress. The municipal legislator may lay upon the State an obligation to
Reparation is usually the most controversial aspect of peacemaking. The protect its citizens abroad, and may also confer upon the national a right
present peace is no exception. to demand the performance of that obligation, and clothe the right with
corresponding sanctions.1awwphi1 However, all these questions remain
within the province of municipal law and do not affect the position
On the one hand, there are claims both vast and just. Japan's aggression
internationally.58 (Emphasis supplied)
caused tremendous cost, losses and suffering.

The State, therefore, is the sole judge to decide whether its protection will
On the other hand, to meet these claims, there stands a Japan presently
be granted, to what extent it is granted, and when will it cease. It retains,
reduced to four home islands which are unable to produce the food its
in this respect, a discretionary power the exercise of which may be
people need to live, or the raw materials they need to work. x x x
determined by considerations of a political or other nature, unrelated to
the particular case.
The policy of the United States that Japanese liability for reparations
should be sharply limited was informed by the experience of six years of
The International Law Commission’s (ILC’s) Draft Articles on Diplomatic
United States-led occupation of Japan. During the occupation the Supreme
Protection fully support this traditional view. They (i) state that "the right
Commander of the Allied Powers (SCAP) for the region, General Douglas
of diplomatic protection belongs to or vests in the State," 59 (ii) affirm its
MacArthur, confiscated Japanese assets in conjunction with the task of
discretionary nature by clarifying that diplomatic protection is a
managing the economic affairs of the vanquished nation and with a view
"sovereign prerogative" of the State;60 and (iii) stress that the state "has
to reparations payments. It soon became clear that Japan's financial
the right to exercise diplomatic protection
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, on behalf of a national. It is under no duty or obligation to do so." 61
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
It has been argued, as petitioners argue now, that the State has a duty to
combated with all possible means" and "recommended that the
protect its nationals and act on his/her behalf when rights are
reparations issue be settled finally and without delay."
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 practice and in the jurisprudence of international tribunals." 76 Thus, while
is a duty internationally, it is only a moral and not a legal duty, and there the existence of jus cogens in international law is undisputed, no
is no means of enforcing its fulfillment.641avvphi1 consensus exists on its substance,77 beyond a tiny core of principles and
rules.78
We fully agree that rape, sexual slavery, torture, and sexual violence are
morally reprehensible as well as legally prohibited under contemporary Of course, we greatly sympathize with the cause of petitioners, and we
international law.65 However, petitioners take quite a theoretical leap in cannot begin to comprehend the unimaginable horror they underwent at
claiming that these proscriptions automatically imply that that the the hands of the Japanese soldiers. We are also deeply concerned that, in
Philippines is under a non-derogable obligation to prosecute apparent contravention of fundamental principles of law, the petitioners
international crimes, particularly since petitioners do not demand the appear to be without a remedy to challenge those that have offended
imputation of individual criminal liability, but seek to recover monetary them before appropriate fora. Needless to say, our government should
reparations from the state of Japan. Absent the consent of states, an take the lead in protecting its citizens against violation of their
applicable treaty regime, or a directive by the Security Council, there is no fundamental human rights. Regrettably, it is not within our power to
non-derogable duty to institute proceedings against Japan. Indeed, order the Executive Department to take up the petitioners’ cause. Ours is
precisely because of states’ reluctance to directly prosecute claims only the power to urge and exhort the Executive Department to take up
against another state, recent developments support the modern trend to petitioners’ cause.
empower individuals to directly participate in suits against perpetrators
of international crimes. 66 Nonetheless, notwithstanding an array of
WHEREFORE, the Petition is hereby DISMISSED.
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 SO ORDERED.
obligation to prosecute international crimes. 67 Of course a customary duty
of prosecution is ideal, but we cannot find enough evidence to reasonably
MARIANO C. DEL CASTILLO
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 Associate Justice
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-à -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.http://www.search.com/reference/Erga_omnes - _note-0#_note-0

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