VINUYA et al. v EXECUTIVE SECRETARY ROMULO et al.

G.R. No. 162230| April 28, 2010 | EN BANC | DEL CASTILLO| Rule 65 |International Criminal Law | fgdlj
DOCTRINE: 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. 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. [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. 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.
CASE SUMMARY: Allied Powers signed a Treaty of Peace with Japan wherein the claims of the victims of Japanese atrocities during
WW2 has been waived by the State Parties thereto. Japanese Government recognized the atrocities such as the rape, murder, etc
committed during WW2. UN made findings that Japanese Government should make reparations to the victims, in particular, those women
who were the subject of the Comfort Women System during WW2 in order to appease Japanese soldiers’ sexual appetite and limit their
activities. Vinuya et al who were members of MALAYA LOLAS, an organization which purpose is to provide aid to victims of rape by
Japanese soldiers in the Philippines, filed a Rule 65 Petition seeking to compel the PH government to assist them in filing their claims
against the Japanese officials responsible for the atrocities. SC denied petition as it ruled that pursuant to the Peace Treaty, the claims of the
PH against Japan during WW2 have been waived.
FACTS: THE PETITION (RULE 65)
o Vinuya et al are all members of the MALAYA LOLAS, a non-stock, non-profit organization registered with SEC
established for the purpose of providing aid to the victims of rape by Japanese military forces in the Philippines during
WW2.
o They narrated that during WW2, Japanese army attacked villages and systematically raped the women as part of
the destruction of the village.
o Their communities were bombed, houses were looted and burned, and civilians were publicly tortured, mutilated,
and slaughtered.
o Japanese soldiers forcibly seized the women and held them in houses or cells, where they were repeatedly raped,
beaten, and abused by Japanese soldiers.
o They 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.
o However, officials of the Executive Department declined to assist them, and took the position that the individual
claims of the comfort women for compensation had already been fully satisfied by Japans compliance with the
Peace Treaty between the Philippines and Japan.
VINUYA ET AL ARGUMENTS EXECUTIVE DEPARTMENT ARGUMENTS
The general waiver of claims made by the Philippine All the claims of the Philippines and its nationals relative to
government in the Treaty of Peace with Japan is void. the war were dealt with in the San Francisco Peace Treaty of
1951 and the bilateral Reparations Agreement of 1956.
The comfort women system established by Japan, and the
brutal rape and enslavement of Vinuya et al constituted a The apologies made by Japan have been satisfactory, and
crime against humanity, sexual slavery, and torture. that Japan had addressed the individual claims of the women
through the atonement money paid by the Asian Women’s
The prohibition against these international crimes is jus Fund.
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.

The Philippine governments acceptance of the apologies

made by Japan as well as funds from the Asian Women’s
Fund (AWF) were contrary to international law.
HISTORICAL BACKGROUND
o The comfort women system was the tragic legacy of the Rape of Nanking where in 1937, Japanese military forces captured
the city of Nanking and began a barbaric campaign of terror which included the rapes and murders of an estimated 20,000
to 80,000 Chinese women, including young girls, pregnant mothers, and elderly women.
o Japanese government sought ways to end international condemnation by establishing the comfort women system.
 o The military could simultaneously appease soldiers' sexual appetites and contain soldiers' activities within a
regulated environment.
o 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.
o The 30 minutes allotted for sexual relations with each soldier were 30-minute increments of unimaginable horror
for the women.
o 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.
o Fewer than 30% of the women survived the war. 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.
EFFORTS TO SECURE REPARATION
o 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 Womens International Criminal Tribunal.
o Japanese government, in turn, responded through a series of public apologies and the creation of the AWF.
LAWSUITS
o Kim Hak-Sun and two other survivors filed the first lawsuit in Japan by former comfort women against the Japanese
government but the court dismissed it. All other cases were dismissed.
o Victims of the comfort women system brought their claims before the US wherein in 2000, 15 comfort women filed a
class action lawsuit in the US District Court for the District of Columbia "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."
o The case was filed pursuant to the Alien Tort Claims Act (ATCA), which allowed the plaintiffs to sue the
Japanese government in a US federal district court.
o District Court dismissed the lawsuit due to lack of jurisdiction over Japan. CA affirmed this. SC affirmed.
EFFORTS AT UN
o 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.
o UNHRC placed the issue on its agenda and appointed Radhika Coomaraswamy as the issue's special investigator.
o 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:
o Government of Japan should acknowledge that the comfort women system was a violation of its obligations
under international law and accept legal responsibility for that violation
o Pay compensation to individual victims.
o Make a full disclosure of documents and materials in its possession with regard to comfort stations and other
related activities.
o Make a public apology in writing to individual women victim who have come forward.
o Raise awareness of these issues by amending educational curricula to reflect historical realities.
o Identify and punish, as far as possible, perpetrators involved in the recruitment and institutionalization of comfort
stations during WW2.
o UN, since then, has not taken any official action directing Japan to provide the reparations sought.
WOMEN’s INTERNATIONAL WAR CRIMES TRIBUNAL
o 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.
o 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.
o WIWCT issued a verdict finding the former Emperor Hirohito and the State of Japan guilty of crimes against
humanity for the rape and sexual slavery of women.
o 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
o 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.
o European Parliament, the governing body of the European Union, drafted a resolution similar to House Resolution 121.
o Canadian and Dutch parliaments have each followed suit in drafting resolutions against Japan.
o Foreign Affairs Committee of the United Kingdoms 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.
STATEMENT OF REMORSE MADE BY REPRESENTATIVES OF JAPANESE GOVERNMENT
a) Statement by the Chief Cabinet Secretary Yohei Kono in 1993:
o x x x 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 x x x
o x x x 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.
b) Prime Minister Tomiichi Murayamas Statement in 1994
o 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
o 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.
d) The Diet (Japanese Parliament) passed resolutions in 1995 and 2005
o Members of this House hereby express deep remorse.
e) Various Public Statements by Japanese Prime Minister Shinzo Abe
o 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.
ASIA WOMEN’S FUND
o AWF represented the government's concrete attempt to address its moral responsibility by offering monetary
compensation to victims of the comfort women system.
o 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 Japans strong respect for women.
o 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;
(3) a letter of apology from the Japanese Prime Minister to each woman.
o Funding for the program came from the Japanese government and private donations from the Japanese people.
o 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.
o 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 DSWD.

ISSUE & RULING: W/N the Executive Department committed GAD in refusing to espouse their claims for the crimes
against humanity and war crimes committed against them? NO!
W/N the Executive Department can be compelled 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. NO!
From a Domestic Law Perspective, the Executive Department has the exclusive prerogative to determine whether to
espouse petitioners claims against Japan
o Tanada v Cuenco, 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."
o One category of cases often have been found to present political questions involves questions of foreign relations.
o "[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."
o 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.
o 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.
o 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.
o 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.
o In US v Curtiss-Wright Export Corp., [t]he President is the sole organ of the nation in its external relations, and its sole
representative with foreign relations.
o President, 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.
o This ruling has been adopted in Bayan v Executive Secretary and Pimentel v Executive Secretary.
o Executive Department has determined that taking up petitioners cause would be inimical to our countrys foreign policy
interests, and could disrupt our relations with Japan, thereby creating serious implications for stability in this region.
REMEDY
o In any event, it cannot reasonably be maintained that the Philippine government was without authority to negotiate the
Treaty of Peace with Japan.
o And it is equally true that, since time immemorial, when negotiating peace accords and settling international claims:
[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.
o International settlements generally wipe out the underlying private claims, thereby terminating any recourse under
domestic law.
o 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.
o 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.
o Outstanding claims by nationals of one country against the government of another country are sources of friction between
the two sovereigns.
o To resolve these difficulties, nations have often entered into agreements settling the claims of their respective
nationals.
o International agreements settling claims by nationals of one state against the government of another are
established international practice reflecting traditional international theory.
o 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.
o 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.
o President may waive or settle a claim against a foreign state x x x [even] without the consent of the [injured]
national
o 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.
o 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.
o In the Northern District of California cases, 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.
 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.
The Philippines is not under any international obligation to espouse petitioners claims.
o 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.
 o Even then, it is not the individual’s rights that are being asserted, but rather, the state’s own rights.
o 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 (Permanent Court of International Justice (PCIJ) in the 1924 Mavrommatis
Palestine Concessions Case.)
o 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.
o 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.
o 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.
o The International Law Commissions (ILCs) 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, (ii) affirm its discretionary nature by
clarifying that diplomatic protection is a "sovereign prerogative" of the State; 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."

W/N the State has a duty to protect its nationals and act on his/her behalf when rights are injured
o 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.
o Though, perhaps desirable, neither state practice nor opinio juris has evolved in such a direction.
o 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.

CONCLUSION
o SC fully agrees that rape, sexual slavery, torture, and sexual violence are morally reprehensible as well as legally prohibited
under contemporary international law.
o However, this does not automatically imply that that the Philippines is under a non-derogable obligation to prosecute
international crimes, particularly since Vinuya et al do not demand the imputation of individual criminal liability, but seek
to recover monetary reparations from the state of Japan.
o 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.
o 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.
o Even if we sidestep the question of whether jus cogens norms existed in 1951, Vinuya et al 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.
o 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.
o 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.
o 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.
o 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.
o Whatever the relevance of obligations erga omnes as a legal concept, its full potential remains to be realized in
practice.
o The term is closely connected with the international law concept of jus cogens.
o In international law, the term jus cogens (literally, compelling law) refers to norms that command peremptory
authority, superseding conflicting treaties and custom.
o 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.
o Thus, while the existence of jus cogens in international law is undisputed, no consensus exists on its substance,
beyond a tiny core of principles and rules.