PUBLIC INTERNATIONAL LAW the existence of a state of war between the

central government and a portion of that

Basic Principles in Public Intl Law (1991) state. Belligerency exists when a sizeable
portion of the territory of a state is under the
Select any five (5) of the following and explain effective control of an insurgent community
each, using examples: which is seeking to establish a separate
(a) Reprisal government and the insurgents are in de facto
(b) Retorsion control of a portion of the territory and
BAR Q&A (as arranged by Topics) POLITICAL population, have a political organization, are
LAW (1987-2006) able to maintain such control, and conduct
(c) Declaratory Theory of Recognition themselves according to the laws of war. For
Principle example, Great Britain recognized a state of
(d) Recognition of Belligerency belligerency in the United States during the
(e) Continental Shelf Civil War,
(f) Exequatur
(g) Principle of Double Criminality (e) CONTINENTAL SHELF of a coastal state
(h) Protective Personality comprises the sea-bed and subsoil of the
(i) Innocent Passage submarine areas that extend beyond its
(j) Jus cogens in International Law territorial sea throughout the natural
SUGGESTED ANSWER: prolongation of its land territory to the outer
edge of the continental margin, or to a
(a) REPRISAL is a coercive measure short of distance of 200 nautical miles from the
war, directed by a state against another, in "baselines from which the breadth of the
retaliation for acts of the latter and as means territorial sea is measured where the outer
of obtaining reparation or satisfaction for such edge of the continental shelf does not extend
acts. Reprisal involves retaliatory acts which by up to that distance.
themselves would be illegal. For example, for
violation of a treaty by a state, the aggrieved (f) EXEQUATUR is an authorization from the
state seizes on the high seas the ships of the receiving state admitting the head of a
offending state. consular post to the exercise of his functions.
For example, if the Philippines appoints a
(b) RETORSION is a legal but deliberately consul general for New York, he cannot start
unfriendly act directed by a state against performing his functions unless the President of
another in retaliation for an unfriendly though the United States issues an exequatur to him,
legal act to compel that state to alter its
unfriendly conduct. An example of retorsion is (g) The principle of DOUBLE CRIMINALITY is
banning exports to the offending state. the rule in extradition which states that for a
request to be honored the crime for which
(c) The DECLARATORY THEORY OF extradition is requested must be a crime in
RECOGNITION is a theory according to which both the requesting state and the state to
recognition of a state is merely an which the fugitive has fled. For example, since
acknowledgment of the fact of its existence. In murder is a crime both in the Philippines and
other words, the recognized state already in Canada, under the Treaty on Extradition
exists and can exist even without such between the Philippines and Canada, the
recognition. For example, when other Philippines can request Canada to extradite a
countries recognized Bangladesh, Bangladesh Filipino who has fled to Canada.
already existed as a state even without such
recognition. (h) PROTECTIVE PERSONALITY principle is
the principle by which the state exercise
(d) RECOGNITION OF BELLIGERENCY is the jurisdiction over the acts of an alien even if
formal acknowledgment by a third party of
committed outside its territory, if such acts are necessary to prevent infringement of its
adverse to the interest of the national state. customs, fiscal, immigration or sanitary laws
and regulations within its territory or territorial
(i) INNOCENT PASSAGE means the right of sea. (Article 33 of the Convention on the Law
continuous and expeditious navigation of a of
foreign ship through the territorial sea of a the Sea.)
state for the purpose of traversing that sea The EXCLUSIVE ECONOMIC ZONE is
without entering the internal waters or calling a zone extending up to 200 nautical miles
at a roadstead or port facility outside internal from
waters, or proceeding to or from internal the baselines of a state over which the coastal
waters or a call at such roadstead or port state has sovereign rights for the purpose of
facility. The passage is innocent so long as it is exploring and exploiting, conserving and
not prejudicial to the peace, good order or managing the natural resources, whether living
security of the coastal state. or nonliving, of the waters superjacent to the
seabed and of the seabed and subsoil, and
(j) JUS COGENS is a peremptory norm of with
general international law accepted and regard to other activities for the economic
recognized by the international community as exploitation and exploration of the zone.
a whole as a norm from which no derogation (Articles 56 and 57 of the Convention on the
is permitted and which can be modified only Law of the Sea.)
by a subsequent norm of general international Diplomatic Immunity (2000)
law having the same character. An example is No XX - A foreign ambassador to the
the prohibition against the use of force. Philippines leased a vacation house in
Tagaytay for his personal use. For some
Constitutive Theory vs. Declaratory Theory reason, he failed to pay rentals for more than
(2004) one year. The lessor filed an action for the
(2-a-4) Distinguish: The constitutive theory and recovery of his property in court.
the declaratory theory concerning recognition a) Can the foreign ambassador invoke his
of states. diplomatic immunity to resist the lessor's
action? (3%)
SUGGESTED ANSWER: b) The lessor gets hold of evidence that the
According to the CONSTITUTIVE THEORY, ambassador is about to return to his home
recognition is the last indispensable element country. Can the lessor ask the court to stop
that converts the state being recognized into the
an international person. According to the ambassador's departure from the Philippines?
DECLARATORY THEORY, recognition is (2%)
merely an acknowledgment of the pre-existing SUGGESTED ANSWER:
fact that the state being recognized is an a) No, the foreign ambassador cannot invoke
international person.(Cruz, International his diplomatic immunity to resist the action,
Law, 2003 ed.) since he is not using the house in Tagaytay
City for the purposes of his mission but
Contiguous Zone vs. Exclusive Economic merely for vacation. Under Article 3(l)(a) of
Zone (2004) the Vienna Convention on Diplomatic
II-A. Distinguish briefly but clearly between: Relations, a diplomatic agent has no
2) The contiguous zone and the exclusive immunity in case of a real action relating to
economic zone. private immovable property situated in the
SUGGESTED ANSWER: territory of the receiving State unless he
(2) CONTIGUOUS ZONE is a zone contiguous holds it on behalf of the sending State for
to the territorial sea and extends up to twelve purposes of the mission.
nautical miles from the territorial sea and over b) No, the lessor cannot ask the court to stop
which the coastal state may exercise control the departure of the ambassador from the
Philippines. Under Article 29 of the Vienna At the instance of police authorities, the
Convention, a diplomatic agent shall not be Regional Trial Court (RTC) of Makati issued a
liable to any form of arrest or detention. warrant for the search and seizure of Dr.
(per Dondee) The grounds cited by YZ is Velen's personal effects in view of an alleged
tenable on violation of the Tariff and Custom's Code.
the basis that the precept that a State cannot According to the police, the crates contained
be contraband items. Upon protest of WHO
sued in the courts of a foreign state is a officials, the Secretary of Foreign Affairs
longstanding formally advised the RTC as to Dr. Velen's
rule of customary international law then immunity. The Solicitor General likewise
closely identified with the personal immunity joined
of a Dr. Velen's plea of immunity and motion to
foreign sovereign from suit and, with the quash the search warrant. The RTC denied the
emergence motion.
of democratic states, made to attach not just Is the denial of the motion to quash proper?
to the (5%)
person of the head of state, or his SUGGESTED ANSWER:
representative, The denial of the motion is improper. As held
but also distinctly to the state itself in its in
sovereign World Health Organization vs. Aquino, 48
capacity. If the acts giving rise to a suit are SCRA 242 (1972). as an official of the World
those of Health Organization, Dr. Velen enjoyed
a foreign government done by its foreign diplomatic immunity and this included
agent, exemption from duties and taxes. Since
although not necessarily a diplomatic diplomatic immunity involves a political
personage, question, where a plea of diplomatic immunity
but acting in his official capacity, the complaint is
could recognized and affirmed by the Executive
be barred by the immunity of the foreign Department, it is the duty of the court to
sovereign accept
from suit without its consent. Suing a the claim of immunity.
representative Diplomatic Immunity (2003)
of a state is believed to be, in effect, suing the No XVIII - A group of high-ranking officials
state and
itself. (KHOSROW MINUCHER vs. COURT rank-and-file employees stationed in a foreign
OF embassy in Manila were arrested outside
APPEALS, G.R. No. 142396. February 11, embassy grounds and detained at Camp
2003) Crame on suspicion that they were actively
Diplomatic Immunity (2001) collaborating with "terrorists" out to
No XX - Dr. Velen, an official of the World overthrow or
Health Organization (WHO) assigned in the destabilize the Philippine Government. The
Philippines, arrived at the Ninoy Aquino Foreign Ambassador sought their immediate
International Airport with his personal effects release, claiming that the detained embassy
contained in twelve crates as unaccompanied officials and employees enjoyed diplomatic
baggage. As such, his personal effects were immunity. If invited to express your legal
allowed free entry from duties and taxes, and opinion on the matter, what advice would
were directly stored at Arshaine Corporation's you
BAR Q&A (as arranged by Topics) POLITICAL give?
LAW (1987-2006) 161 SUGGESTED ANSWER:
warehouse at Makati, pending Dr. Velen's I shall advice that the high-ranking officials and
relocation to his permanent quarters. rank-and-file employees be released because
of their diplomatic immunity. Article 29 of the MBC alleged that YZ concocted false and
Vienna Convention on Diplomatic Relations malicious charges that he was engaged in drug
provides: trafficking, whereupon narcotics policemen
"The person of a diplomatic agent shall conducted a "buy-bust" operation and without
be inviolable. He shall not be liable to warrant arrested him, searched his house, and
any form of arrest or detention." seized his money and jewelry, then detained
Under Article 37 of the Vienna Convention on and tortured him in violation of his civil and
Diplomatic Relations, members of the human rights as well as causing him, his family
administrative and technical staff of the and business serious damages amounting to
diplomatic mission, shall, if they are not two million pesos. MBC added that the trial
nationals of or permanent residents in the court acquitted him of the drug charges.
receiving State, enjoy the privileges and BAR Q&A (as arranged by Topics) POLITICAL
immunities specified in Article 29. LAW (1987-2006) 162
Under Article 9 of the Vienna Convention on Assailing the court's jurisdiction: YZ now
Diplomatic Relations, the remedy is to declare moves
the high-ranking officials and rank-and-file to dismiss the complaint, on the ground that
employees personae non gratae and ask them (1)
to leave. he is an embassy officer entitled to diplomatic
ALTERNATIVE ANSWER: immunity; and that (2) the suit is really a suit
Under the Vienna Convention on Diplomatic against his home state without its consent. He
Relations, a diplomatic agent "shall not be presents diplomatic notes from XX Embassy
liable certifying that he is an accredited embassy
to any form of arrest or detention (Article 29) officer recognized by the Philippine
and he enjoys immunity from criminal government. He performs official duties, he
jurisdiction (Article 31). says, on a mission to conduct surveillance on
This immunity may cover the "high-ranking drug exporters and then inform local police
officials" in question, who are assumed to be officers who make the actual arrest of suspects.
diplomatic officers or agents. With respect to Are the two grounds cited by YZ to dismiss the
the "rank-and-file employees" they are covered suit tenable? (5%)
by the immunity referred to above, provided SUGGESTED ANSWER:
they are not nationals or permanent residents A. The claim of diplomatic immunity of YZ is
of not tenable, because he does not possess an
the Philippines, pursuant to Article 37(2) of the acknowledged diplomatic title and is not
said Convention. performing duties of a diplomatic nature.
If the said rank-and-file employees However, the suit against him is a suit against
belong to the service staff of the diplomatic XX without its consent. YZ was acting as an
mission (such as drivers) they may be covered agent of XX and was performing his official
by the immunity (even if they are not functions when he conducted surveillance on
Philippine drug exporters and informed the local police
nationals or residents) as set out in Article officers who arrested MBC. He was
37(3), if at the time of the arrest they were in performing
"acts performed in the course of their duties." If such duties with the consent of the Philippine
a driver was among the said rank-and-file government, therefore, the suit against YZ is a
employees and he was arrested while driving a suit against XX without its consent. (Minucher
diplomatic vehicle or engaged in related acts, v.
still he would be covered by immunity. Court of Appeals, 397 SCRA 244 [1992]).
Diplomatic Immunity (2004) ALTERNATIVE SUGGESTED ANSWER:
(8-a) A. MBC, an alien businessman dealing in Diplomatic Immunity; Ambassador (Q3-
carpets and caviar, filed a suit against 2005)
policemen and YZ, an attache of XX Embassy, (1) Italy, through its Ambassador, entered into
for damages because of malicious prosecution. a contract with Abad for the maintenance
and repair of specified equipment at its contract is in pursuit of a sovereign
Embassy and Ambassador's Residence, activity in which case, it cannot be
such as air conditioning units, generator deemed to have waived its immunity
sets, electrical facilities, water heaters, and from suit.
water motor pumps. It was stipulated that On the matter of whether or not the
the agreement shall be effective for a period Ambassador may be sued, Article 31
of four years and automatically renewed of the Vienna Convention on
unless cancelled. Further, it provided that Diplomatic Relations provides that a
any suit arising from the contract shall be diplomatic agent enjoys immunity
filed with the proper courts in the City of from the criminal, civil and
Manila. administrative jurisdiction of the
Claiming that the Maintenance Contract receiving state except if the act
was unilaterally, baselessly and arbitrarily performed is outside his official
terminated, Abad sued the State of Italy and functions, in accordance with the
its Ambassador before a court in the City of principle of functional necessity. In
Manila. Among the defenses, they raised this case, the act of entering into the
were "sovereign immunity" and "diplomatic contract by the Ambassador was part
immunity." (5%) of his official functions and thus, he
(a) As counsel of Abad, refute the is entitled to diplomatic immunity.
defenses of "sovereign immunity" (Republic of Indonesia v. Vinzons,
and "diplomatic immunity" raised by G.R. No. 154705, June 26, 2003)
the State of Italy and its Diplomatic Immunity; Ambassadors (1990)
Ambassador. BAR Q&A (as arranged by Topics) POLITICAL
SUGGESTED ANSWER: LAW (1987-2006) 163
As counsel for Abad, I will argue that No. 5: D, the Ambassador of the Kingdom of
sovereign immunity will not lie as it is Nepal to the Philippines, leased a house in
an established rule that when a State Baguio City as his personal vacation home. On
enters into a contract, it waives its account of military disturbance in Nepal, D did
immunity and allows itself to be not receive his salary and allowances from his
sued. Moreover, there is a provision government and so he failed to pay his rentals
in the contract that any suit arising for more than one year. E, the lessor, filed an
therefrom shall be filed with the action for recovery of his property with the
proper courts of the City of Manila. Regional Trial Court of Baguio City.
On the issue of diplomatic immunity, (1) Can the action against D prosper?
I will assert that the act of the (2) Can E ask for the attachment of the
Ambassador unilaterally terminating furniture and other personal properties of D
the agreement is tortuous and done after getting hold of evidence that D is about
with malice and bad faith and not a to
sovereign or diplomatic function. leave the country?
(b) At any rate, what should be the (3} Can E ask for the court to stop D's
court's ruling on the said defenses? departure from the Philippines?
SUGGESTED ANSWER: SUGGESTED ANSWER:
The court should rule against said (1) Yes, the action can prosper. Article 31 of
defenses. The maintenance contract the Vienna Convention on Diplomatic
and repair of the Embassy and Relations
Ambassador's Residence is a provides:
contract in jus imperii, because such "1. A diplomatic agent shall enjoy
repair of said buildings is immunity from the criminal jurisdiction of
indispensable to the performance of the receiving State. He shall also enjoy
the official functions of the immunity from its civil and
Government of Italy. Hence, the administrative jurisdiction, except in the
case of: of Nepal from the Philippines. Article 29 of the
(a) A real action relating to private Vienna Convention on Diplomatic Relations
immovable property situated in the provides: "The person of a diplomatic agent
territory of the receiving State, unless shall be inviolable. He shall not be liable to
he holds it on behalf of the sending any
State for the purposes of the mission;" form of arrest or detention."
The action against the Ambassador is a real Diplomatic Immunity; Coverage (Q3-2005)
action involving private immovable property (2) Adams and Baker are American citizens
situated within the territory of the Philippines residing in the Philippines. Adams
as befriended Baker and became a frequent
the receiving state. The action falls within the visitor at his house. One day, Adams
exception to the grant of immunity from the arrived with 30 members of the Philippine
civil National Police, armed with a Search
and administrative jurisdiction of the Warrant authorizing the search of Baker's
Philippines. house and its premises for dangerous drugs
ALTERNATIVE ANSWER; being trafficked to the United States of
No, the action will not prosper. Although the America.
action is a real action relating to private The search purportedly yielded positive
immovable property within the territory of the results, and Baker was charged with
Philippines, nonetheless, the vacation house Violation of the Dangerous Drugs Act.
may be considered property held by the Adams was the prosecution's principal
Ambassador In behalf of his state (the witness. However, for failure to prove his
Kingdom guilt beyond reasonable doubt, Baker was
of Nepal) for the purposes of the mission and, acquitted.
therefore, such is beyond the civil and Baker then sued Adams for damages for
administrative jurisdiction of the Philippines, filing trumped-up charges against him.
including its courts, Among the defenses raised by Adams is
SUGGESTED ANSWER: that he has diplomatic immunity,
(2) No, E cannot ask for the attachment of the conformably with the Vienna Convention on
personal properties of the Ambassador. Arts. Diplomatic Relations. He presented
30 Diplomatic Notes from the American
and 31 of the Vienna Convention on Embassy stating that he is an agent of the
Diplomatic United States Drug Enforcement Agency
Relations provides that the papers, tasked with "conducting surveillance
correspondence and the property of diplomat operations" on suspected drug dealers in
agents shall be inviolable. Therefore, a writ of the Philippines believed to be the source of
attachment cannot be issued against his prohibited drugs being shipped to the U.S. It
furniture and any personal properties. was also stated that after having
Moreover, on the assumption that the ascertained the target, Adams would then
Kingdom BAR Q&A (as arranged by Topics) POLITICAL
of Nepal grants similar protection to Philippine LAW (1987-2006) 164
diplomatic agents. Section 4 of Republic Act inform the Philippine narcotic agents to
No. 75 provides that any writ or process make the actual arrest. (5%)
issued a) As counsel of plaintiff Baker, argue why
by any court in the Philippines for the his complaint should not be dismissed
attachment of the goods or chattels of the on the ground of defendant Adams'
ambassador of a foreign State to the diplomatic immunity from suit.
Philippines shall be void. SUGGESTED ANSWER.
SUGGESTED ANSWER: As counsel for Baker, I would argue that
(3) No, E cannot ask the court to stop the Adams is not a diplomatic agent
departure of the Ambassador of the Kingdom considering that he is not a head of
mission nor is he part of the diplomatic Diplomatic Relations, a diplomatic agent shall
staff that is accorded diplomatic rank. enjoy immunity from the criminal jurisdiction
Thus, the suit should not be dismissed of
as Adams has no diplomatic immunity the receiving State. He shall also enjoy
under the 1961 Vienna Convention on immunity from its civil and administrative
Diplomatic Relations. jurisdiction except in the case of:
b) As counsel of defendant Adams, argue (a) A real action relating to private
for the dismissal of the complaint. immovable property situated in the territory of
SUGGESTED ANSWER the receiving State, unless he holds it on behalf
As counsel for Adams, I would argue of the sending State for the purposes of the
that he worked for the United States mission;
Drug Enforcement Agency and was (b) An action relating to succession in
tasked to conduct surveillance of which the diplomatic agent is invoked as
suspected drug activities within the executor, administrator, heir or legatee as a
country with the approval of the private person and not on behalf of the
Philippine government. Under the sending
doctrine of State Immunity from Suit, if State;
the acts giving rise to a suit are those of (c) An action relating to any
a foreign government done by its professional or commercial activity exercised
foreign agent, although not necessarily by
a diplomatic personage, but acting in the diplomatic agent in the receiving State
his official capacity, the complaint could outside his official functions.
be barred by the immunity of the foreign On the other hand, under Article 41 of
sovereign from suit without its consent. the Vienna Convention on Consular Relations,
Adams may not be a diplomatic agent a consular officer does not enjoy Immunity
but the Philippine government has given from
its imprimatur, if not consent, to the the Criminal jurisdiction of the receiving State.
activities within Philippine territory of Under Article 43 of the Vienna Convention on
Adams and thus he is entitled to the Consular Relations, consular officers are not
defense of state immunity from suit. amenable to the Jurisdiction of the Judicial or
(Minucher v. CA, G.R. No. 142396, administrative authorities of the receiving State
February 11, 2003) in respect of acts performed in the exercise of
Diplomatic Immunity; Diplomatic Envoy and consular functions. However, this does not
Consular Officers (1995) apply in respect of a civil action either:
No. 3: (a) arising out of a contract concluded
1. Discuss the differences, if any, in the by a consular officer in which he did not
privileges or immunities of diplomatic envoys contract expressly or impliedly as an agent of
and consular officers from the civil or criminal the sending State; or
jurisdiction of the receiving state. (b) by a third party for damage arising
2. A consul of a South American country from an accident in the receiving State caused
stationed in Manila was charged with serious by a vehicle, vessel, or aircraft.
physical injuries. May he claim Immunity from SUGGESTED ANSWER:
jurisdiction of the local court? Explain. 2. No, he may not claim immunity from the
3. Suppose after he was charged, he was jurisdiction of the local court. Under Article 41
appointed as his country's ambassador to the of
Philippines. Can his newly-gained diplomatic the Vienna Convention of Consular Relations,
status be a ground for dismissal of his criminal consuls do not enjoy immunity from the
case? Explain. criminal
SUGGESTED ANSWER: Jurisdiction of the receiving State. He is not
1. Under Article 32 of the Vienna Convention liable to arrest or detention pending trial
on unless
the offense was committed against his father, dismiss.
BAR Q&A (as arranged by Topics) POLITICAL As consul, X is not immune from criminal
LAW (1987-2006) 165 prosecution. Under Paragraph 3 of Article 41
mother, child, ascendant, descendant or of
spouse. Consuls are not liable to arrest and the Vienna Convention on Consular Relations,
detention pending trial except in the case of a a consular officer is not immune from the
grave crime and pursuant to a decision by the criminal jurisdiction of the receiving state. In
competent judicial authority. The crime of Schneckenburger vs. Moron, 63 Phil. 249, it
physical Injuries is not a grave crime unless it was held that a consul is not exempt from
be committed against any of the criminal prosecution in the country where he is
abovementioned assigned. However, as secretary in the
persons. (Schneckenburger v. American Embassy, X enjoys diplomatic
Moran 63 Phil. 249). immunity from criminal prosecution As
SUGGESTED ANSWER: secretary, he is a diplomatic agent. Under
3. Yes, the case should be dismissed. Under Paragraph 1 of Article 31 of the Vienna
Article 40 of the Vienna Convention on Convention on Diplomatic Relations, a
Diplomatic Relations, if a diplomatic agent is diplomatic agent enjoys immunity from the
in criminal jurisdiction of the receiving State.
the territory of a third State, which has granted Exclusive Economic Zone (2000)
him a passport visa if such visa was necessary, No XIX. b) What is the concept of the
while proceeding to take up his post, the third exclusive economic zone under the UN
State shall accord him inviolability and such Convention on the Law of the Sea? (2%)
other immunities as may be required to ensure SUGGESTED ANSWER:
his transit. b) The exclusive economic zone under the
Diplomatic Immunity; Diplomatic Envoy and Convention on the Law of the Sea is an area
Consular Officers (1997) beyond and adjacent to the territorial sea,
No 19: X, a Secretary and Consul in the which
American Embassy in Manila, bought from B a shall not extend beyond 200 nautical miles
diamond ring in the amount of P50,000.00 from
which he later gave as a birthday present to his the baselines from which the territorial sea is
Filipino girlfriend. The purchase price was paid measured. The coastal State has in the
in check drawn upon the Citibank. Upon exclusive economic zone:
presentment for payment, the check was (a) Sovereign rights for the purpose of
dishonored for insufficiency of funds. Because exploring and exploiting, conserving and
of X's failure to make good the dishonored managing the natural resources, whether living
check, B filed a complaint against X in the or non-living, if the waters superjacent to the
Office of the City Prosecutor of Manila for sea-bed and of the seabed and subsoil, and
violation of Batas Pambansa Big. 22. After with regard to other activities for the
preliminary investigation, the information was economic
filed against X in the City Court of Manila. X exploitation and exploration of the zone, such
filed a motion to dismiss the case against him as the production of energy from the water,
on the ground that he is a Secretary and currents and winds;
Consul (b) Jurisdiction as provided in the
in the American Embassy enjoying diplomatic relevant provisions of the Convention with
immunity from criminal prosecution in the regard to:
Philippines. (i) the establishment and use of
If you were the Judge, how would you resolve artificial islands, installations and
the motion to dismiss? structures;
SUGGESTED ANSWER: (ii) marine scientific research;
If I were the Judge, I would grant the motion and
to (iii) the protection and
preservation of the marine environment; DEPORTATION is effected for the protection
(c) Other rights and duties provided of
form the Convention. [Article 56 of the the State expelling an alien because his
Convention of the Law of the Sea.) presence is not conducive to the public good.
Executive Agreements; Binding Effect b. EXTRADITION is effected on the
(2003) basis of an extradition treaty or upon the
No XX An Executive Agreement was executed request of another state, while
between the Philippines and a neighboring DEPORTATION
State. The Senate of the Philippines took it is the unilateral act of the state expelling an
BAR Q&A (as arranged by Topics) POLITICAL alien.
LAW (1987-2006) 166 c. In EXTRADITION, the alien will be
upon itself to procure a certified true copy of surrendered to the state asking for his
the extradition, while in DEPORTATION the
Executive Agreement and, after deliberating on undesirable alien may be sent to any state
it, declared, by a unanimous vote, that the willing to accept him.
agreement was both unwise and against the Extradition; Doctrine of Specialty (1993)
best interest of the country. Is the Executive No. 10: 2) Patrick is charged with illegal
Agreement binding (a) from the standpoint of recruitment and estafa before the RTC of
Philippine law and (b) from the standpoint of Manila. He jumped bail and managed to
international law? Explain escape
SUGGESTED ANSWER: to America. Assume that there is an extradition
(a) As to Philippine law, the Executive treaty between the Philippines and America
Agreement is binding.... and
(b) The Executive Agreement is also binding it does not include illegal recruitment as one of
from the standpoint of international law. As the extraditable offenses. Upon surrender of
held Patrick by the U.S. Government to the
in Bavan v. Zamora. 342 SCRA 449 [2000], in Philippines, Patrick protested that he could not
international law executive agreements are be tried for illegal recruitment. Decide.
equally binding as treaties upon the States who SUGGESTED ANSWER:
are parties to them. Additionally, under Article 2) Under the principle of specialty in
2{1)(a) of the Vienna Convention on the Law extradition,
of Patrick cannot be tried for illegal recruitment,
Treaties, whatever may be the designation of a since this is not included in the list of
written agreement between States, whether it extraditable offenses in the extradition treaty
is between the Philippines and the United States,
indicated as a Treaty, Convention or Executive unless the United States does not object to the
Agreement, is not legally significant. Still it is trial of Patrick for Illegal recruitment.
considered a treaty and governed by the Extradition; Effectivity of treaty (1996)
international law of treaties. No. 6; 1) The Extradition Treaty between
Extradition vs. Deportation (1993) France and the Philippines is silent as to its
No. 10: 1) What is the difference if any applicability with respect to crimes committed
between prior to its effectivity.
extradition and deportation? a) Can France demand the
SUGGESTED ANSWER: extradition of A, a French national residing in
1) The following are the differences between the Philippines, for an offense committed in
extradition and deportation: France prior to the effectivity of the treaty?
a. EXTRADITION is effected for the Explain.
benefit of the state to which the person being b) Can A contest his extradition on
extradited will be surrendered because he is a the ground that it violates the ex post facto
fugitive criminal in that state, while provision of the Philippine Constitution?
Explain.
SUGGESTED ANSWER: plan was to weaken the government and,
1. a) Yes, France can ask for the extradition of when
A for an offense committed in France before the situation became ripe for a take-over, to
the assassinate President Harry.
effectivity of the Extradition Treaty between William, on the other hand, is a believer
France and the Philippines. In Cleugh vs. in human rights and a former follower of
Strakosh. 109 F2d 330, it was held that an President Harry. Noting the systematic acts of
extradition treaty applies to crimes committed harassment committed by government agents
before its effectivity unless the extradition against farmers protesting the seizure of their
treaty lands, laborers complaining of low wages, and
expressly exempts them. As Whiteman points students seeking free tuition, William
out, extradition does not define crimes but organized
merely provides a means by which a State may groups which held peaceful rallies in front of
obtain the return and punishment of persons the
charged with or convicted of having Presidential Palace to express their grievances.
committed On the eve of the assassination
a crime who fled the jurisdiction of the State attempt, John's men were caught by members
whose law has been violated. It is therefore of the Presidential Security Group. President
immaterial whether at the time of the Harry went on air threatening to prosecute
commission of the crime for which extradition plotters and dissidents of his administration.
is The next day, the government charged John
sought no treaty was in existence. If at the with assassination attempt and William with
time inciting to sedition.
extradition is requested there is in force John fled to Republic A. William, who
between the requesting and "the requested was in Republic B attending a lecture on
States a treaty covering the offense on which democracy, was advised by his friends to stay
BAR Q&A (as arranged by Topics) POLITICAL in Republic B.
LAW (1987-2006) 167 Both Republic A and Republic B have
the request is based, the treaty is applicable. conventional extradition treaties with Republic
(Whiteman, Digest of International Law, Vol. X.
6, If Republic X requests the extradition of John
pp. 753-754.) and William, can Republic A deny the request?
b) No, A cannot contest his extradition on the Why? State your reason fully. (5%)
ground that it violates the ex post facto SUGGESTED ANSWER:
provision of the Constitution. As held in Republic A can refuse to extradite John,
Wright because his offense is a political offense. John
vs. Court of Appeals, 235 SCRA 341, the was plotting to take over the government and
prohibition against ex post facto laws in the plan of John to assassinate President Harry
Section was part of such plan. However, if the
22, Article III of the Constitution applies to extradition treaty contains an attentat clause,
penal Republic A can extradite John, because under
laws only and does not apply to extradition the attentat clause, the taking of the life or
treaties. attempt against the life of a head of state or
Extradition; Grounds (2002) that
No XVIII. John is a former President of the of the members of his family does not
Republic X, bent on regaining power which he constitute
lost to President Harry in an election. Fully a political offense and is therefore extraditable.
convinced that he was cheated, he set out to FIRST ALTERNATIVE ANSWER:
destabilize the government of President Harry Republic A may or can refuse the request of
by means of a series of protest actions. His extradition of William because he is not in its
territory and thus it is not in the position to
deliver him to Republic X. Flag State vs. Flag of Convenience (2004)
Even if William were in the territorial II-A. Distinguish briefly but clearly between:
jurisdiction (3) The flag state and the flag of convenience.
of Republic A, he may not be extradited SUGGESTED ANSWER:
because inciting to sedition, of which he is FLAG STATE means a ship has the nationality
charged, constitutes a political offense. It is a of the flag of the state it flies, but there must
standard provision of extradition treaties, such be
as the one between Republic A and Republic a genuine link between the state and the ship.
X, (Article 91 of the Convention on the Law of
that political offenses are not extraditable. the
SECOND ALTERNATIVE ANSWER: Sea.)
Republic B can deny the request of Republic X FLAG OF CONVENIENCE refers to a state
to extradite William, because his offense was with
not a political offense. On the basis of the which a vessel is registered for various reasons
predominance or proportionality test his acts such as low or non-existent taxation or low
were not directly connected to any purely operating costs although the ship has no
political offense. genuine link with that state. (Harris, Cases and
Extradition; Retroactive Application (Q2- Materials on International Law, 5th ed., 1998,
2005) p.
(1) The Philippines and Australia entered into a 425.)
Treaty of Extradition concurred in by the Genocide (1988)
Senate of the Philippines on September 10, What is "Genocide," and what is the foremost
1990. Both governments have notified each example thereof in recent history?
other that the requirements for the entry SUGGESTED ANSWER:
into force of the Treaty have been complied "Genocide" refers to any of the following acts,
with. It took effect in 1990. whether committed in time of war or peace,
The Australian government is requesting with
the Philippine government to extradite its intent to destroy in whole or in part national,
citizen, Gibson, who has committed in his ethnic, racial or religious group:
country the indictable offense of Obtaining (a) Killing members of a group;
Property by Deception in 1985. The said (b) Causing bodily or mental harm to its
offense is among those enumerated as members;
extraditable in the Treaty. (c) Deliberately inflicting on the group
For his defense, Gibson asserts that the conditions of life calculated to bring
retroactive application of the extradition about its physical destruction in whole
treaty amounts to an ex post facto law. Rule or in part;
on Gibson's contention. (5%) (d) Imposing measures to prevent births
SUGGESTED ANSWER: within the group; and
Gibson is incorrect. In Wright v. Court of (e) Forcibly transforming children of the
Appeals, G.R. No.113213, August 15,1994, group to another group. (J. SALONGA
it was held that the retroactive application of & P. YAP, PUBLIC INTERNATIONAL
the Treaty of Extradition does not violate LAW 399-400 (1966)).
BAR Q&A (as arranged by Topics) POLITICAL The foremost example of genocide is the
LAW (1987-2006) 168 Holocaust (1933-1945) where about 6 million
the prohibition against ex post facto laws, Jews (two thirds of the Jewish population of
because the Treaty is neither a piece of Europe before World War II) were
criminal legislation nor a criminal procedural exterminated
statute. It merely provided for the by the Nazis. Along with the Jews, another 9
extradition of persons wanted for offenses to
already committed at the time the treaty 10 million people (Gypsies and Slavs) were
was ratified.
massacred. (WORLD ALMANAC 120 (40th BAR Q&A (as arranged by Topics) POLITICAL
ed., LAW (1987-2006) 169
1987)). Covenant on Civil and Political Rights
Human Rights (1999) provides:
1999 No X - A. Give three multilateral "No one shall be subjected to torture or to
conventions on Human Rights adopted under cruel,
the direct auspices of the United Nations? inhuman or degrading treatment or
(2%) punishment."
SUGGESTED ANSWER: In accordance with Article 2 of the Covenant
A. The following are multilateral conventions on
on Civil and Political Rights, it is the obligation of
Human Rights adopted under the direct the Philippines to ensure that Dr. Mengele has
auspices of the United Nations: an effective remedy, that he shall have his right
1. International Covenant on Civil and Political to such a remedy determined by competent
Rights; authority, and to ensure the enforcement of
2. Convention on the Elimination of All Forms such remedy when granted.
of Discrimination against Women; ALTERNATIVE ANSWER:
3. Convention on the Rights of the Child; On the assumption that Dr. Mengele is a
4. Convention against Torture and Other foreigner, his claim will have to be directed
Cruel, Inhuman or Degrading Treatment or against the members of Walang Sugat on the
Punishment; basis of the Philippine law and be addressed to
5. International Convention on the Elimination the jurisdiction of Philippine courts. His claim
of All Forms of Racial Discrimination; may be based on the generally accepted
6. Convention on the Prevention and principles of international law, which form
Punishment of the Crime of Genocide; and part
7. International Convention on Economic, of Philippine law under Section 2, Article II of
Social, and Cultural Rights the Constitution. His claim may be premised
Human Rights; Civil and Political Rights on
(1992) relevant norms of international law of human
No. 15: Walang Sugat, a vigilante group rights.
composed of private businessmen and civic Under international law, Dr. Mengele must
leaders previously victimized by the first
Nationalist exhaust the remedies under Philippine law
Patriotic Army (NPA) rebel group, was before his individual claim can be taken up by
implicated in the torture and kidnapping of the State of which he is a national unless the
Dr. said State can satisfactorily show it is its own
Mengele, a known NPA sympathizer. interests that are directly injured. If this
a) Under public international law, what rules condition is fulfilled, the said State's claim will
properly apply? What liabilities, if any, arise be directed against the Philippines as a subject
thereunder if Walang Sugat's involvement is of international law. Thus it would cease to be
confirmed. an individual claim of Dr. Mengele.
b) Does the Commission on Human Rights Dr. Mengele's case may concern international
have the power to investigate and adjudicate law norms on State responsibility. But the
the matter? application of these norms require that the
SUGGESTED ANSWER: basis of responsibility is the relevant acts that
a) On the assumption that Dr. Mengele is a can be attributed to the Philippines as a State.
foreigner, his torture violates the International Hence, under the principle of attribution it is
Covenant on Civil and Political Rights, to necessary to show that the acts of the vigilante
which group Walang Sugat can be legally attributed
the Philippine has acceded. Article 7 of the to
the Philippines by the State of which Dr.
Mengele is a national. to education.
The application of treaty norms of Examples of political rights are the right of
international suffrage, the right of assembly, and the right to
law on human rights, such as the provision petition for redress of grievances.
against torture in the International Covenants 2) Human rights are broader in scope than
in civil
Civil and Political Rights pertain to States. The and political rights. They also include social,
acts of private citizens composing Walang economic, and cultural rights. Human rights
Sugat cannot themselves constitute a violation are
by the Philippines as a State. inherent in persons from the fact of their
SUGGESTED ANSWER: humanity. Every man possesses them
b) Can only investigate, no power of everywhere and at all times simply because he
adjudication is a human being. On the other hand, some
Human Rights; Civil and Political Rights civil
(1996) and political rights are not natural rights. They
1996 No. 1: 1) Distinguish civil rights from exist because they are protected by a
political rights and give an example of each BAR Q&A (as arranged by Topics) POLITICAL
right. LAW (1987-2006) 170
2) What are the relations of civil and political constitution or granted by law. For example,
rights to human rights? Explain. the
SUGGESTED ANSWER: liberty to enter into contracts is not a human
1) The term "CIVIL RIGHTS" refers to the rights right but is a civil right.
secured by the constitution of any state or Intl Court of Justice; Jurisdiction Over
country to all its Inhabitants and not States
connected 1994 No. 20: The sovereignty over certain
with the organization or administration of islands is disputed between State A and State
government, [Black, Handbook of American B. These two states agreed to submit their
Constitutional Law, 4th ed., 526.) POLITICAL disputes to the International Court of Justice
RIGHTS consist in the power to participate, [ICJ].
directly or indirectly, in the management of 1) Does the ICJ have jurisdiction to take
the cognizance of the case?
government. Thus, civil rights have no relation 2) Who shall represent the parties before the
to the establishment, management or support Court?
of SUGGESTED ANSWER:
the government. (Anthony vs. Burrow, 129 F 1) The International Court of Justice has
783). jurisdiction over the case, because the parties
CIVIL RIGHTS defines the relations of have jointly submitted the case to it and have
individual amongst themselves while thus indicated their consent to its jurisdiction.
POLITICAL RIGHTS defines the relations of 2) Parties to a case may appoint agents to
Individuals vis-a-vis the state. CIVIL RIGHTS appear before the International Court of
extend protection to all inhabitants of a state, Justice
while POLITICAL RIGHTS protect merely its in their behalf, and these agents need not be
citizens. their own nationals. However, under Article
Examples of civil rights are the rights against 16
involuntary servitude, religious freedom, the of the Statutes of the International Court of
guarantee against unreasonable searches and Justice, no member of the court may appear as
seizures, liberty of abode, the prohibition agent in any case.
against imprisonment for debt, the right to Intl Court of Justice; Jurisdiction Over
travel, equal protection, due process, the right States (1994)
to marry, right to return to this country and No. 19; The State of Nova, controlled by an
right authoritarian government, had unfriendly
relations with its neighboring state, America. Jurisdiction (1999)
Bresla, another neighboring state, had been No X - B. Under its Statute, give two
shipping arms and ammunitions to Nova for limitations on the jurisdiction of the
use International
in attacking Ameria. Court of Justice? (2%)
To forestall an attack, Ameria placed SUGGESTED ANSWER:
floating mines on the territorial waters B. The following are the limitations on the
surrounding Nova. Ameria supported a group jurisdiction of the International Court of
of Justice
rebels organized to overthrow the government under its Statute:
of Nova and to replace it with a friendly 1. Only states may be parties in cases before
government. it. (Article 34)
Nova decided to file a case against 2. The consent of the parties is needed for the
Ameria in the International Court of Justice court to acquire jurisdiction over a case.
1) On what grounds may Nova's causes of (Article 36)
action against Ameria be based? Intl Court of Justice; Parties; Pleadings and
2) On what grounds may Ameria move to Oral Argument (1994)
dismiss the case with the ICJ? No. 20: The sovereignty over certain islands is
Decide the case. disputed between State A and State B. These
SUGGESTED ANSWER: two states agreed to submit their disputes to
1) If Nova and Ameria are members of the the
United Nations, Nova can premise its cause of International Court of Justice [ICJ].
action on a violation of Article 2(4) of the BAR Q&A (as arranged by Topics) POLITICAL
United LAW (1987-2006) 171
Nations Charter, which requires members to 3) What language shall be used in the
refrain from the threat or use of force ... pleadings and oral argument?
2) By virtue of the principle of sovereign 4) In case State A, the petitioner, falls
immunity, no sovereign state can be made a to appear at the oral argument, can State B,
party to a proceeding before the International the
Court of Justice unless it has given its consent. respondent, move for the dismissal of the
If Ameria has not accepted the Jurisdiction of petition?
the International Court of Justice. Ameria can SUGGESTED ANSWER:
invoke the defense of lack of jurisdiction. Even 3) Under Article 39 of the Statutes of the
if Ameria has accepted the jurisdiction of the International Court of Justice, the official
court but the acceptance is limited and the languages of the court are English and French.
limitation applies to the case, it may invoke In the absence of an agreement, each party
such limitation its consent as a bar to the may use the language it prefers. At the request
assumption of jurisdiction. of any party, the court may authorize a party
If jurisdiction has been accepted, to
Ameria can invoke the principle of use a language other than English or French.
anticipatory self-defense, recognized under 4) Under Article 53 of the Statutes of the
customary international law, because Nova is International Court of Justice, whenever one
planning to launch an attack against Ameria by of
using the arms it bought from Bresia. the parties does not appear before the court or
3) If jurisdiction over Ameria is fails to defend its case, the other party may ask
established, the case should be decided in the court to decide in favor of its claim.
favor of Nova, .... if jurisdiction over Ameria is However, the court must, before doing so,
not established, the case should be decided in satisfy itself it has Jurisdiction and that the
favor of Ameria because of the principle of claim is well founded in fact and law.
sovereign immunity. International Convention; Law of the Sea
Intl Court of Justice; Limitations On (2004)
(2-b) En route to the tuna fishing grounds in respectively. Immediate re-election is
the allowed (I.C.J. Statute, Art. 13).
Pacific Ocean, a vessel registered in Country 4. Who is its incumbent president? (1%)
TW entered the Balintang Channel north of The incumbent President is Rosalyn
Babuyan Island and with special hooks and Higgins.
nets dragged up red corals found near Batanes. 5. What is his/her nationality? (1 %)
By international convention certain corals are She is a national of the United Kingdom or
protected species, just before the vessel a British subject.
reached the high seas, the Coast Guard patrol (NOTE: Since questions IX(4) and IX(5) do
intercepted the vessel and seized its cargo not test the examinees' knowledge of the
including tuna. The master of the vessel and law, it is suggested that they be
the owner of the cargo protested, claiming the disregarded)
rights of transit passage and innocent passage, 6. In 1980, the United States filed with the
and sought recovery of the cargo and the International Court of Justice a complaint
release of the ship. Is the claim meritorious or against Iran alleging that the latter is
not? Reason briefly. (5%) detaining American diplomats in violation
SUGGESTED ANSWER; of International Law. Explain how the
The claim of innocent passage is not International Court of Justice can acquire
meritorious. While the vessel has the right of jurisdiction over these contending
innocent passage, it should not commit a countries. (5%)
violation of any international convention. The Under Article 36 of the I.C.J. Statutes,
vessel did not merely navigate through the both parties must agree to submit
territorial sea, it also dragged red corals in themselves to the jurisdiction of the
violation of the international convention International Court of Justice.
which International Law vs. Municipal Law;
protected the red corals. This is prejudicial to Territorial Principle; International Crimes
the good order of the Philippines. (Article (Q2-2005)
19(2) (2) Police Officer Henry Magiting of the
of the Convention on the Law of the Sea) Narcotics Section of the Western Police
International Court of Justice (Q9-2006) District applied for a search warrant in the
1. Where is the seat of the International Regional Trial Court of Manila for violation
Court of Justice? 11%) BAR Q&A (as arranged by Topics) POLITICAL
The seat of the International Court of LAW (1987-2006) 172
Justice is at the Hague or elsewhere, as it of Section 11, Article II (Possession of
may decide, except during the judicial Prohibited Drugs) of Republic Act (R.A.)
vacations the dates and duration of which No. 9165 (Comprehensive Dangerous
it shall fix (I.C.J. Statute, Art. 22). Drugs Act of 2002) for the search and
2. How many are its members? (1%) seizure of heroin in the cabin of the Captain
The Court is composed of fifteen members of the MSS Seastar, a foreign-registered
who must be of high moral character and vessel which was moored at the South
possess the qualifications required in their Harbor, Manila, its port of destination.
respective countries for appointment to the Based on the affidavits of the applicant's
highest judicial office or are jurisconsults witnesses who were crew members of the
of recognized competence in international vessel, they saw a box containing ten (10)
law (I.C.J. Statute, Art. 2). kilograms of heroin under the bed in the
3. What is the term of their office? (1%) Captain's cabin. The RTC found probable
They are elected for a term of nine years, cause for the issuance of a search warrant;
staggered at three-year intervals by nevertheless, it denied the application on
dividing the judges first elected into three the ground that Philippine courts have no
equal groups and assigning them by criminal jurisdiction over violations of R.A.
lottery terms of three, six and nine years No. 9165 committed on foreign-registered
vessels found in Philippine waters. possessions of the defeated states of Germany
Is the ruling of the court correct? Support and Turkey which were placed by the League
your answer with reasons. (5%) of
ALTERNATIVE ANSWER: Nations under the administration of
The court's ruling is not correct. The mandatories to promote their development
foreign-registered vessel was not in transit. and
It was moored in South Harbor, Manila, its ultimate independence. (Harris, Cases and
port of destination. Hence, any crime Materials on International Law, 5th ed., p.
committed on board said vessel, like 131.)
possession of heroin, is triable by our When the United Nations replaced the League
courts (U.S. v. Ah Sing, G.R. No. 13005, of Nations, the system of Mandates was
October 10, 1917), except if the crime replaced by the System of Trust Territories.
involves the internal management of the The
vessel. United Nations exercised residuary sovereignty
ALTERNATIVE ANSWER: over the Trust Territories through the Trustee
The RTC may assert its jurisdiction over the Powers, who exercised the powers of
case by invoking the territorial principle, sovereignty subject to supervision by and
which provides that crimes committed accountability to the United Nations.
within a state's territorial boundaries and (Oppenheim-Lauterpacht, International Law,
persons within that territory, either Vol. I, 7th ed., pp. 213-214.) (Since there are
permanently or temporarily, are subject to no
the application of local law. Jurisdiction may more Trust Territories, this is just a matter of
also be asserted on the basis of the historical interest.)
universality principle, which confers upon all ALTERNATIVE ANSWER:
states the right to exercise jurisdiction over Mandates pertains to the mandate
delicta juris gentium or international crimes, system established under Article 22 of the
such as the international traffic narcotics. Covenant of the League of Nations for the
The possession of 10 kgs. of heroin tutelage and guardianship of colonies and
constitutes commercial quantity and territories formerly held by Germany and
therefore qualifies as trafficking of Turkey
narcotics. before the First World War, by a victorious
Consequently, the denial of the search power on behalf of the League of Nations until
warrant should have been anchored on the they were prepared for independence.
failure of the court to conduct personal Territories under mandate were not under the
examination of the witnesses to the crime in sovereignty of any State; they were
order to establish probable cause, as administered by a mandatory power which
required by Sections 3 and 4 of Rule 126. was
In any event, there is no showing that the responsible to the League of Nations for the
requisite quantum of probable cause was development and welfare of the
established by mere reference to the disadvantaged
affidavits and other documentary evidence subject peoples towards independence. Thus,
presented. mandated territories were under the
Mandates and Trust Territories (2003) jurisdiction
No XVII - What are the so-called Mandates of the mandatory power, subject to the
and supervision of the League of Nations.
Trust Territories? Does the United Nations The general legal framework of the
exercise sovereignty over these territories? In mandate system passed into the trusteeship
the affirmative, how is this jurisdiction system of the United Nations, together with
exercised? BAR Q&A (as arranged by Topics) POLITICAL
SUGGESTED ANSWER: LAW (1987-2006) 173
The Mandates were the overseas mandated territories which did not attain
independence status by the end of the Second supreme in their own respective fields. Neither
World War. Trust territories and the has hegemony over the other. (Brownlie,
Trusteeship Principles of Public International Law, 4th ed.
Council are created by the UN Charter. p.
The trusteeship system under Chapters 157.) Under Article II, Section 2 of the 1987
XII and XIII of the UN Charter is established Constitution, the generally accepted principles
under the supervision of the UN Trusteeship of international law form part of the law of
Council under the authority of the General the
Assembly for the promotion of political and land. Since they merely have the force of law,
socio-economic development of peoples in if
trust it is Philippine courts that will decide the case,
territories towards independent status. A new they will uphold the Constitution over
feature of the UN trusteeship system is the international law. If it is an international
creation of a new category of territories, the tribunal
strategic trust territories, which is under the that will decide the case, it will uphold
supervision of the Security Council instead of international law over municipal law. As held
the Trusteeship Council. by
Under the foregoing conditions, the the Permanent International Court of Justice in
United Nations may not be said to exercise the case of the Polish Nationals in Danzig, a
sovereignty over trust territories, the functions State cannot invoke its own Constitution to
and powers of the Trusteeship Council and the evade obligations incumbent upon it under
General Assembly being limited to international law.
administration and supervision under the ALTERNATIVE ANSWER
principle of self-determination as set forth in I would take the proposition assigned to
individual trust agreements concluded in Team "C" as being nearer to the legal reality in
accordance with the UN Charter. UN the Philippines, namely, "A country's
jurisidiction is exercised through the Constitution prevails over international law
Trusteeship Council under the authority of the but
General Assembly, except with respect to international law prevails over municipal
strategic areas or territories which are placed statutes".
under the jurisdiction of the Security Council. This is, however, subject to the place of
Municipal Law vs. International Law (2003) international law in the Philippine
No XVI- An organization of law students Constitutional
sponsored an inter-school debate among three setting in which treaties or customary norms in
teams with the following assignments and international law stand in parity with statutes
propositions for each team to defend: and in case of irreconcilable conflict, this may
Team "A" - International law prevails be resolved by /ex posteriori derogat lex priori
over municipal law. Team "B" - Municipal law as the Supreme Court obiter dictum in Abbas
prevails over international law. Team "C" - A v.
country's Constitution prevails over COMELEC holds. Hence, a statute enacted
international later than the conclusion or effectivity of a
law but international law prevails over treaty
municipal may prevail.
statutes. In the Philippine legal system, there are
If you were given a chance to choose the no norms higher than constitutional norms.
correct proposition, which would you take The
and fact that the Constitution makes generally
why? accepted principles of international law or
SUGGESTED ANSWER: conventional international law as part of
I shall take the proposition for Team C. Philippine law does not make them superior to
International Law and municipal law are statutory law, as clarified in Secretary of Justice
v. Lantion and Philip Morris decisions. There are several schools of thought regarding
Neutrality of States (1988) the determination of outer space, such as the
No. 20: Switzerland and Australia are limit of air flight, the height of atmospheric
outstanding examples of neutralized states, space, infinity, the lowest altitude of an
1. What are the characteristics of a artificial
neutralized state? satellite, and an altitude approximating
2. Is neutrality synonymous with aerodynamic lift. Another school of thought
neutralization? If not, distinguish one from the proceeds by analogy to the law of the sea. It
other. proposes that a State should exercise full
SUGGESTED ANSWER: sovereignty up to the height to which an
1. Whether simple or composite, a State is said aircraft
to be neutralized where its independence and can ascend. Non-militant flight
integrity are guaranteed by an international instrumentalities
convention on the condition that such State should be allowed over a second area, a
obligates itself never to take up arms against contiguous zone of 300 miles. Over that
any other State, except for self-defense, or should
enter into such international obligations as be outer space. The boundary between
would indirectly involve it in war. A State airspace and outer space has not yet been
seeks defined. (Harris, Cases and Materials on
neutralization where it is weak and does not International Law, 5th ed.. pp. 251-253.)
BAR Q&A (as arranged by Topics) POLITICAL Under
LAW (1987-2006) 174 Article 8 of the Treaty on the Principles
wish to take an active part in international Governing the Activities of States in the
politics. The power that guarantee its Exploration and Use of Outer Space, Including
neutralization may be motivated either by the Moon and Other Celestial Bodies, a State
balance of power considerations or by the on whose registry an object launched into
desire to make the weak state a buffer outer
between space retains jurisdiction over the astronauts
the territories of the great powers. (J. while they are in outer space.
SALONGA & P. YAP, PUBLIC ALTERNATIVE ANSWER:
INTERNATIONAL LAW 76 (1966)). Outer space is the space beyond the airspace
2. Firstly, neutrality obtains only during surrounding the Earth or beyond the national
war, whereas neutralization is a condition that airspace. In law, the boundary between outer
applies in peace or in war. Secondly, space and airspace has remained
neutralization is a status created by means of undetermined. But in theory, this has been
treaty, whereas neutrality is a status created estimated to be between 80 to 90 kilometers.
under international law, by means of a stand Outer space in this estimate begins from the
on lowest altitude an artificial satellite can remain
the part of a state not to side with any of the in orbit. Under the Moon Treaty of 1979 the
parties at war. Thirdly, neutrality is brought moon and the other celestial bodies form part
about by a unilateral declaration by the of
neutral outer space.
State, while neutralization cannot be effected In outer space, the space satellites or objects
by are under the jurisdiction of States of registry
unilateral act, but must be recognized by other which covers astronauts and cosmonauts. This
States. (Id.) matter is covered by the Registration of
Outer Space; Jurisdiction (2003) Objects
No XIX - What is outer-space? Who or which in Space Convention of 1974 and the Liability
can exercise jurisdiction over astronauts while for Damage Caused by Spaced Objects
in outer space? Convention of 1972.
ALTERNATIVE ANSWER: Principle of Auto-Limitation (Q10-2006)
1. What is the principle of auto-limitation? 3. De facto recognition is limited to certain
(2.5%) juridical relations; de jure recognition brings
ALTERNATIVE ANSWER: about full diplomatic relations. (Cruz.
Under the principle of auto-limitation, any International Law. 1996 ed.. p. 83.)
state may by its consent, express or ALTERNATIVE ANSWER:
implied, submit to a restriction of its The distinction between de facto
sovereign rights. There may thus be a recognition and de jure recognition of a State
curtailment of what otherwise is a plenary is
power (Reagan v. CIR, G.R. L-26379, not clear in international law. It is, however,
December 27, 1969). usually assumed as a point of distinction that
Reciprocity v. Principle of Auto-Limitation while de facto recognition is provisional and
(Q10-2006) hence may be withdrawn, de jure recognition
2. What is the relationship between is
reciprocity and the principle of autolimitation? final and cannot be withdrawn.
(2.5%) Confronted with the emergence of a
ALTERNATIVE ANSWER: new political entity in the international
When the Philippines enters into treaties, community, a State may experience some
necessarily, these international difficulty in responding to the question
agreements may contain limitations on whether
Philippine sovereignty. The consideration the new political order qualifies to be regarded
in this partial surrender of sovereignty is as a state under international law, in particular
the reciprocal commitment of other from the viewpoint of its effectiveness and
contracting states in granting the same independence on a permanent basis. The
privilege and immunities to the Philippines. recognizing State may consider its act in regard
For example, this kind of reciprocity in to the new political entity as merely a de facto
relation to the principle of auto-limitation recognition, implying that it may withdraw it
characterizes the Philippine commitments if in
under WTO-GATT. This is based on the the end it turns out that the conditions of
constitutional provision that the Philippines statehood are not fulfilled should the new
"adopts the generally accepted principles authority not remain in power.
of international law as part of the law of But even then, a de facto recognition in
the land and adheres to the policy of ... this context produces legal effects in the same
cooperation and amity with all nations" way as de jure recognition. Whether
(Tanada v. Angara, G.R. No. 118295, May recognition
2, 1997). is de facto or de jure, steps may be taken to
Recognition of States; De Facto vs. De Jure withdraw recognition if the conditions of
Recognition (1998) statehood in international law are not fulfilled.
No XII. Distinguish between de facto Thus, from this standpoint, the distinction is
recognition and de jure recognition of states. not
[5%) legally significant.
BAR Q&A (as arranged by Topics) POLITICAL Note: The question should refer to recognition
LAW (1987-2006) 175 of government not recognition of state
SUGGESTED ANSWER: because
The following are the distinctions between de there is no such distinction in recognition of
facto recognition and de Jure recognition of a state.
government: Reparations Agreement; Validity (1992)
1. De facto recognition is provisional, de Jure No. 14: The Japanese Government confirmed
recognition is relatively permanent; that during the Second World War, Filipinas
2. De facto recognition does not vest title in were among those conscripted as "comfort
the government to its properties abroad; de women" (or prostitutes) for Japanese troops in
Jure recognition does; various parts of Asia. The Japanese
Government has accordingly launched a force majeure in conformity with the provision
goodwill campaign and has offered the of
Philippine Government substantial assistance Article 18(2) of the 1982 Convention on the
for a program that will promote through Law
government and non-governmental of the Sea (UNCLOS). Seven months later,
organizations womens' rights, child welfare, Epsilon suspended the right of innocent
nutrition and family health care. BAR Q&A (as arranged by Topics) POLITICAL
An executive agreement is about to be LAW (1987-2006) 176
signed for that purpose. The agreement passage of warships through Mantranas Strait
includes a clause whereby the Philippine without giving any reason therefor.
Government acknowledges that any liability to Subsequently, another warship of Beta passed
the "comfort women" or their descendants are through the said strait, and was fired upon by
deemed covered by the reparations Epsilon's coastal battery. Beta protested the
agreements signed and implemented aforesaid act of Epsilon drawing attention to
immediately after the Second World War. the
Juliano Iglesias, a descendant of a now existing customary international law that the
deceased comfort woman, seeks your advice regime of innocent passage (even of transit
on the validity of the agreement. Advise him. passage) is non-suspendable. Epsilon
SUGGESTED ANSWER: countered that Mantranas Strait is not a
The agreement is valid. The comfort women necessary route, there being another suitable
and their descendants cannot assert individual alternative route. Resolve the above-
claims against Japan. As stated in Davis & mentioned
Moore vs. Regan, 453 U.S. 654, the sovereign controversy, Explain your answer. (4%)
authority of a State to settle claims of its SUGGESTED ANSWER:
nationals against foreign countries has Assuming that Epsilon and Beta are parties to
repeatedly been recognized. This may be made the UNCLOS, the controversy maybe resolved
without the consent of the nationals or even as follows:
without consultation with them. Since the Under the UNCLOS, warships enjoy a
continued amity between a State and other right of innocent passage. It appearing that the
countries may require a satisfactory portion of Epsilon's territorial sea in question is
compromise of mutual claims, the necessary a strait used for international navigation,
power to make such compromises has been Epsilon has no right under international law to
recognized. The settlement of such claims may suspend the right of innocent passage. Article
be made by executive agreement. 45(2) of the UNCLOS is clear in providing that
Right to Innocent Passage (1999) there shall be no suspension of innocent
No X - C. State Epsilon, during peace time, passage through straits used for international
has allowed foreign ships innocent passage navigation.
through Mantranas Strait, a strait within On the assumption that the straits in
Epsilon's territorial sea which has been used by question is not used for international
foreign ships for international navigation. Such navigation,
passage enabled the said ships to traverse the still the suspension of innocent passage by
strait between one part of the high seas to Epsilon cannot be effective because
another. On June 7, 1997, a warship of State suspension is required under international law
Beta passed through the above-named strait. to be duly published before it can take effect.
Instead of passing through continuously and There being no publication prior to the
expeditiously, the ship delayed its passage to suspension of innocent passage by Beta's
render assistance to a ship of State Gamma warship, Epsilon's act acquires no validity.
which was distressed with no one nearby to Moreover, Epsilon's suspension of
assist. When confronted by Epsilon about the innocent passage may not be valid for the
delay, Beta explained that the delay was due reason that there is no showing that it is
to essential for the protection of its security. The
actuation of Beta's warship in resorting to complies with the embargo but refuses to take
delayed passage is for cause recognized by the part in the enforcement action, sending a
UNCLOS as excusable, i.e., for the purpose of medical mission instead of fighting troops to
rendering assistance to persons or ship in the
distress, as provided in Article 18(2) of the troubled area.
UNCLOS. Hence, Beta's warship complied (a) Did State Z violate its obligations under the
with U.N. Charter?
the international law norms on right of (b) If so, what sanctions may be taken against
innocent it?
passage. (c) If not, why not?
Right to Transit and Innocent Passage ANSWER:
(2004) (a) No, State Z did not violate its
II-B. En route to the tuna fishing grounds in obligations under the United Nations Charter.
the Pacific Ocean, a vessel registered in It
Country TW entered the Balintang Channel complied with the resolution calling for
north of Babuyan Island and with special enforcement action against State X, because it
hooks sent a medical team.
and nets dragged up red corals found near (b) No sanctions may be taken against
Batanes. By international convention certain State Z. because it did not violate its obligation
corals are protected species. Just before the under the United Nations Charter.
vessel reached the high seas, the Coast Guard (c) Compliance with the resolution
patrol intercepted the vessel and seized its calling for enforcement action against Slate X
cargo including tuna. The master of the vessel does not necessarily call for the sending of
and the owner of the cargo protested, claiming BAR Q&A (as arranged by Topics) POLITICAL
the rights of transit passage and innocent LAW (1987-2006) 177
passage, and sought recovery of the cargo and fighting troops. Under Art 43 of the United
the release of the ship. Is the claim meritorious Nations Charter, compliance with the call for
or not? Reason briefly. (5%) enforcement action against State X has to be
SUGGESTED ANSWER; made in accordance with a special agreement
The claim of innocent passage is not with the Security Council and such agreement
meritorious. While the vessel has the right of shall govern the numbers and types of forces,
innocent passage, it should not commit a their degree of readiness and general locations,
violation of any international convention. The and the nature of the facilities and assistance to
vessel did not merely navigate through the be supplied by members of the United
territorial sea, it also dragged red corals in Nations.
violation of the international convention Sources of International Law; Primary &
which Subsidiary Sources (2003)
protected the red corals. This is prejudicial to No XV - State your general understanding of
the good order of the Philippines. (Article the primary sources and subsidiary sources of
19(2) international law, giving an illustration of
of the Convention on the Law of the Sea) each.
Rights and Obligation under UN Charter SUGGESTED ANSWER:
(1991) Under Article 38 of the Statute of the
No. 14: State X invades and conquers State Y. International Court of Justice, the PRIMARY
The United Nations Security Council declares SOURCES of international law are the
the invasion and conquest illegal and orders an following:
international embargo against State X. 1. International conventions, e.g., Vienna
Subsequently, the same U.N. body adopts a Convention on the Law of Treaties.
resolution calling for an enforcement action 2. International customs, e.g., sabotage, the
against State X under Chapter VII of the U.N. prohibition against slavery, and the
Charter. State Z, a U.N. member, religiously prohibition against torture.
3. General principles of law recognized by The subsidiary means serves as evidence of
civilized nations, e.g., prescription, res law. A decision of the International Court of
judicata, and due process. Justice, for example, may serve as material
The SUBSIDIARY SOURCES of international evidence confirming or showing that the
law are judicial decisions, subject to the prohibition against the use of force is a
provisions of Article 59, e.g., the decision in customary norm, as the decision of the Court
the has demonstrated in the Nicaragua Case. The
Anglo-Norwegian Fisheries Case and status of a principle as a norm of international
Nicaragua v. United States, and TEACHINGS law may find evidence in the works of highly
of the most highly qualified publicists of qualified publicists in international law, such as
various McNair, Kelsen or Oppenheim.
nations, e.g., Human Rights in International Sovereign Immunity of States; Absolute vs.
Law by Lauterpacht and International Law by Restrictive (1998)
Oppenhe im -Lauterpacht. No XIII. What is the doctrine of Sovereign
ALTERNATIVE ANSWER: immunity in international Law? [5%]
Reflecting general international law, Article SUGGESTED ANSWER:
38(1) of the Statute of the International Court By the doctrine of sovereign immunity, a
of State, its agents and property are immune from
Justice is understood as providing for the judicial process of another State, except
international convention, international with its consent. Thus, immunity may be
custom, waived
and general principles of law as primary and a State may permit itself to be sued in the
sources of international law, while indicating courts of another State,
that judicial decisions and teachings of the Sovereign immunity has developed into
most two schools of thought, namely, absolute
highly qualified publicists as "subsidiary means immunity and restrictive immunity. By
for the determination of the rules of law." absolute
The primary sources may be considered as immunity, all acts of a State are covered or
formal sources in that they are the methods by protected by immunity. On the other hand,
which norms of international law are created restrictive immunity makes a distinction
and recognized. A conventional or treaty between governmental or sovereign acts (acta
norm jure imperii) and nongovernmental, propriety
comes into being by established treaty-making or
procedures and a customary norm is the commercial acts (acta jure gestiones). Only the
product of the formation of general practice first category of acts is covered by sovereign
accepted as law. immunity.
By way of illustrating International The Philippine adheres to the restrictive
Convention immunity school of thought.
as a source of law, we may refer to the ALTERNATIVE ANSWER;
principle BAR Q&A (as arranged by Topics) POLITICAL
embodied in Article 6 of the Vienna LAW (1987-2006) 178
Convention In United States vs. Ruiz, 136 SCRA 487. 490-
on the Law of Treaties which reads: "Every 491. the Supreme Court explained the doctrine
State possesses capacity to conclude treaties". of sovereign immunity in international law;
It tells us what the law is and the process or "The traditional rule of State immunity
method by which it came into being. exempts
International Custom may be concretely a State from being sued in the courts of
illustrated by pacta sunt servanda, a customary another
or general norm which came about through State without its consent or waiver, this rule is
extensive and consistent practice by a great a
number of states recognizing it as obligatory. necessary consequence of the principles of
independence and equality of states. However, to other States and their environment.
the rules of International Law are not petrified, Principle
they are constantly developing and evolving. 21 of the United Nations Conference on the
And because the activities of states have Human Environment imposes upon states the
multiplied. It has been necessary to distinguish responsibility to ensure that activities within
them between sovereign and government their jurisdiction or control do not cause
acts [jure imperii] and private, commercial and damage to the environment of other States.
proprietary acts (jure gestionis), The result is Sovereignty; Definition; Nature (Q10-2006)
that State immunity now extends only to acts 3. How is state sovereignty defined in
jure imperii." International Law? (2.5%)
Sovereignty of States; Natural Use of ALTERNATIVE ANSWER:
Territory (1989) State sovereignty signifies independence
No. 19: The Republic of China (Taiwan), in its in regard to a portion of the globe, and the
bid to develop a hydrogen bomb and defend right to exercise and enforce jurisdiction
itself against threats of invasion coming from therein, to the exclusion of any other state
the People's Republic of China, conducted a the functions of the state [See Island of
series of secret nuclear weapons tests in its Las Palmas Case (US v. The Netherlands)
own atmosphere. The tests resulted in 2 R.IAA. 829]. Sovereignty means
radioactive fallouts which contaminated the independence
rivers in and around Aparri and other bodies from outside control. The
of 1933 Montevideo Convention expresses
water within the territorial jurisdiction of the this in positive terms as including "the
Philippines, Can the Philippines complain capacity to enter into relations with other
against the Republic of China for violation of states."
its ALTERNATIVE ANSWER:
sovereignty? Under the principle of state sovereignty in
ANSWER: International Law, all states are sovereign
In the Trial Smelter Arbitration between equals and cannot assert jurisdiction over
the United States and Canada, the Arbitral one another. A contrary disposition would
Tribunal held that air pollution from Canada "unduly vex the peace of nations" (Da
should be enjoined, because sovereignty Haber v. Queen of Portugal, 17 Q. B. 171).
includes the right against any encroachment 4. Is state sovereignty absolute? (2.5%)
which might prejudice the natural use of the ALTERNATIVE ANSWER:
territory and the free movement of its State sovereignty is not absolute. On the
inhabitants. contrary, the rule says that the state may
Since the nuclear tests conducted by not be sued without its consent, which
the Republic China resulted in radioactive clearly imports that it may be sued if it
fallouts which contaminated the rivers and consents. Moreover, certain restrictions
other enter into the picture: (1) limitations
bodies of water within the Philippines, the imposed by the very nature of membership
Republic of China violated the sovereignty of in the family of nations; and (2) limitations
the Philippines. imposed by treaty stipulations. The
YES, the Philippines can complain against the sovereignty of a state therefore cannot in
Republic of China for violation of its fact and in reality be considered absolute
sovereignty. Article 194 of the Convention on (Tanada v. Angara, G.R. No. 118295, May
the Law of the Sea requires States to take all 2,1997).
measures necessary to ensure that activities ALTERNATIVE ANSWER:
under their jurisdiction or control are so Sovereignty is absolute with respect to
conducted as not to cause damage by exclusive competence over internal
pollution matters [See Island of Las Palmas Case
(US v. The Netherlands) 2 R.IAA. 829],
subject only to such limitations as may be killed several of them.
imposed or recognized by the state itself 2. The new government may be held
as part of its obligations under responsible if it succeeds in overthrowing the
international law. In the international plain, government. Victorious rebel movements are
state sovereignty is realized as the coexistence responsible for the illegal acts of their forces
with other sovereignties under during the course of the rebellion. The acts of
conditions of independence and equality. the rebels are imputable to them when they
BAR Q&A (as arranged by Topics) POLITICAL assumed as duly constituted authorities of the
LAW (1987-2006) 179 state.
State Liabilities (1995) State Sovereignty; Effective Occupation;
No. 8: In a raid conducted by rebels in a Terra Nullius (2000)
Cambodian town, an American businessman No XIX - a) What is the basis of the
who has been a long-time resident of the place Philippines' claim to a part of the Spratly
was caught by the rebels and robbed of his Islands?
cash and other valuable personal belongings. SUGGESTED ANSWER:
Within minutes, two truckloads of government The basis of the Philippine claim is effective
troops arrived prompting the rebels to occupation of a territory not subject to the
withdraw. sovereignty of another state. The Japanese
Before fleeing they shot the American causing forces occupied the Spratly Island group during
him physical injuries. Government troopers the Second World War. However, under the
immediately launched pursuit operations and San Francisco Peace Treaty of 1951 Japan
killed several rebels. No cash or other valuable formally renounced all right and claim to the
property taken from the American Spratlys. The San Francisco Treaty or any
businessman other International agreement however, did
was recovered. not
In an action for indemnity filed by the US designate any beneficiary state following the
Government in behalf of the businessman for Japanese renunciation of right. Subsequently,
injuries and losses in cash and property, the the Spratlys became terra nullius and was
Cambodian government contended that under occupied by the Philippines in the title of
International Law it was not responsible for sovereignty. Philippine sovereignty was
the displayed by open and public occupation of a
acts of the rebels. number of islands by stationing of military
1. Is the contention of the Cambodian forces, by organizing a local government unit,
government correct? Explain. and by awarding petroleum drilling rights,
2. Suppose the rebellion is successful and a among other political and administrative acts.
new government gains control of the entire In
State, replacing the lawful government that 1978, it confirmed its sovereign title by the
was promulgation of Presidential Decree No. 1596,
toppled, may the new government be held which declared the Kalayaan Island Group part
responsible for the injuries or losses suffered by of Philippine territory.
the American businessman? Explain. Stateless Persons; Effects; Status; Rights
ANSWER; (1995)
1. Yes, the contention of the Cambodian 1. Who are stateless persons under
Government is correct. Unless it clearly International Law?
appears that the government has failed to use 2. What are the consequences of
promptly and with appropriate force its statelessness?
constituted authority it cannot be held 3. Is a stateless person entirely without right,
responsible for the acts of rebels, for the rebels protection or recourse under the Law of
are not its agents and their acts were done Nations? Explain.
without its volition. In this case, government 4. What measures, if any, has International
troopers immediately pursued the rebels and Law taken to prevent statelessness?
ANSWER: Under the Convention on the Reduction of
1. STATELESS PERSONS are those who are Stateless-ness of 1961, a contracting state shall
not considered as nationals by any State under grant its nationality to a person born in its
the operation of its laws. territory who would otherwise be stateless and
2. The consequences of statelessness are the a contracting state may not deprive a person
following: or
(a) No State can intervene or complain a group of persons of their nationality for
in behalf of a stateless person for racial,
an international delinquency ethnic, religious or political grounds.
committed by another State in Territorial Sea vs. Internal Waters (2004)
inflicting injury upon him. II-A. Distinguish briefly but clearly between:
(b) He cannot be expelled by the State (1) The territorial sea and the internal waters
if he is lawfully in its territory except of
on grounds of national security or the Philippines.
public order. SUGGESTED ANSWER:
(c) He cannot avail himself of the A. (1) TERRITORIAL SEA is an adjacent belt of
protection and benefits of sea with a breadth of twelve nautical miles
BAR Q&A (as arranged by Topics) POLITICAL measured from the baselines of a state and
LAW (1987-2006) 180 over which the state has sovereignty. (Articles
citizenship like securing for himself 2
a passport or visa and personal and 3 of the Convention on the Law of the
documents. Sea.)
3. No. Under the Convention in Relation to Ship of all states enjoy the right of innocent
the Status of Stateless Person, the Contracting passage through the territorial sea. (Article 14
States agreed to accord to stateless persons of the Convention on the Law of the Sea.)
within their territories treatment at least as Under Section 1, Article I of the 1987
favorable as that accorded to their nationals Constitution, the INTERNAL WATERS of the
with respect to freedom of religion, access to Philippines consist of the waters around,
the courts, rationing of products in short between and connecting the islands of the
supply, Philippine Archipelago, regardless of their
elementary education, public relief and breadth and dimensions, including the waters
assistance, labor legislation and social security. in
They also agreed to accord to them treatment bays, rivers and lakes. No right of innocent
not less favorable than that accorded to aliens passage for foreign vessels exists in the case of
generally in the same circumstances. The internal waters. (Harris, Cases and Materials
Convention also provides for the issuance of on
identity papers and travel documents to International Law, 5th ed., 1998, p. 407.)
stateless person. Internal waters are the waters on the
4. In the Convention on the Conflict of landward side of baselines from which the
Nationality Laws of 1930, the Contracting breadth of the territorial sea is calculated.
States agreed to accord nationality to persons (Brownlie, Principles of Public International
born in their territory who would otherwise Law, 4th ed., 1990, p. 120.)
be Use of Force; Exceptions (2003)
stateless. The Convention on the Reduction of No XIV- Not too long ago, "allied forces", led
Statelessness of 1961 provides that if the law of by
the contracting States results in the loss of American and British armed forces, invaded
nationality as a consequence of marriage or Iraq to "liberate the Iraqis and destroy
termination of marriage, such loss must be suspected weapons of mass destruction." The
conditional upon possession or acquisition of Security Council of the United Nations failed
another nationality. to
ALTERNATIVE ANSWER; reach a consensus on whether to support or
oppose the "war of liberation". exceptions to the prohibition against the use of
Can the action taken by the allied forces force which the UN Charter allows. These are:
find justification in International Law? Explain. (1) inherent right of individual or
SUGGESTED ANSWER: collective self-defense under Article
The United States and its allied forces 51;
cannot justify their invasion of Iraq on the (2) enforcement measure involving the
basis use of armed forces by the UN
of self-defense under Article 51 attack by Iraq, Security Council under Article 42;
and there was no necessity for anticipatory and
selfdefense (3) enforcement measure by regional
which may be justified under arrangement under Article 53, as
customary international law. Neither can they authorized by the UN Security
justify their invasion on the ground that Article Council. The allied forces did not
42 of the Charter of the United Nations launch military operations and did
permits not occupy Iraq on the claim that
the use force against a State if it is sanctioned their action was in response to an
by the Security Council. Resolution 1441, armed attack by Iraq, of which there
which was none.
gave Iraq a final opportunity to disarm or face Moreover, the action of the allied forces was
serious consequences, did not authorize the taken in defiance or disregard of the Security
use of armed force. Council Resolution No. 1441 which set up "an
ALTERNATIVE ANSWER: enhanced inspection regime with the aim of
In International Law, the action taken by bringing to full and verified completion the
the allied forces cannot find justification. It is disarmament process", giving Iraq "a final
covered by the prohibition against the use of opportunity to comply with its disarmament
force prescribed by the United Nations Charter obligations". This resolution was in the process
and it does not fall under any of the of implementation; so was Iraq's compliance
exceptions with such disarmament obligations.
to that prohibition. Use of Force; Principle of Non-Intervention
The UN Charter in Article 2(4) prohibits (1994)
the use of force in the relations of states by No. 19; The State of Nova, controlled by an
providing that all members of the UN "shall authoritarian government, had unfriendly
refrain in their international relations from the relations with its neighboring state, Ameria.
threat or use of force against the territorial Bresla, another neighboring state, had been
integrity or political independence of any shipping arms and ammunitions to Nova for
state, use
BAR Q&A (as arranged by Topics) POLITICAL in attacking Arneria.
LAW (1987-2006) 181 To forestall an attack, Ameria placed
or in any other manner inconsistent with the floating mines on the territorial waters
purposes of the United Nations." This mandate surrounding Nova. Ameria supported a group
does not only outlaw war; it encompasses all of
threats of and acts of force or violence short of rebels organized to overthrow the government
war. of Nova and to replace it with a friendly
As thus provided, the prohibition is government.
addressed to all UN members. However, it is Nova decided to file a case against
now recognized as a fundamental principle in Ameria in the International Court of Justice
customary international law and, as such, is 1) On what grounds may Nova's causes of
binding on all members of the international action against Ameria be based?
community. 2) On what grounds may Ameria move to
The action taken by the allied forces dismiss the case with the ICJ?
cannot be justified under any of the three 3) Decide the case.
ANSWER: 3) If jurisdiction over Ameria is established, the
1) If Nova and Ameria are members of the case should be decided in favor of Nova,
United Nations, Nova can premise its cause of because Ameria violated the principle against
action on a violation of Article 2(4) of the the use of force and the principle of non-
United Intervention. The defense of anticipatory
Nations Charter, which requires members to selfdefense
refrain from the threat or use of force against cannot be sustained, because there is
the territorial integrity or political no showing that Nova had mobilized to such
independence an
of any state. If either or both Nova or Ameria extent that if Ameria were to wait for Nova to
are not members of the United Nations, Nova strike first it would not be able to retaliate.
may premise its cause of action on a violation However, if jurisdiction over Ameria is not
of the non-use of force principle in customary established, the case should be decided in
international law which exists parallel to favor of Ameria because of the principle of
Article sovereign immunity.
2(4) of the United Nations Charter. Use of Force; Right of Self-defense (2002)
In the Case Concerning Military and No XIX. On October 13, 2001, members of Ali
Paramilitary Activities in and Against Nicaragua Baba, a political extremist organization based
(1986 ICJ Rep. 14), the International Court of in
Justice considered the planting of mines by and under the protection of Country X and
one espousing violence worldwide as a means of
state within the territorial waters of another as achieving its objectives, planted high-powered
a explosives and bombs at the International
violation of Article 2(4) of the United Nations Trade Tower (ITT) in Jewel City in Country Y,
Charter. If the support provided by Ameria to a
the rebels of Nova goes beyond the mere member of the United Nations. As a result of
giving the bombing and the collapse of the 100-story
of monetary or psychological support but twin towers, about 2,000 people, including
consists in the provision of arms and training, women and children, were killed or injured,
the acts of Ameria can be considered as and
indirect aggression amounting to another billions of dollars in property were lost.
violation of Article 2(4). Immediately after the incident, Ali Baba,
In addition, even if the provision of speaking through its leader Bin Derdandat,
support is not enough to consider the act a admitted and owned responsibility for the
violation of the non-use of force principle, this bombing of ITT, saying that it was done to
is pressure Country Y to release captured
a violation of the principle of non-intervention members of the terrorist group. Ali Baba
in threatened to repeat its terrorist acts against
customary International law. Country Y if the latter and its allies failed to
Aggression is the use of armed force by accede to Ali Baba's demands. In response,
a state against the sovereignty, territorial Country Y demanded that Country X
integrity or political independence of another surrender
state or in any other manner inconsistent with and deliver Bin Derdandat to the government
the United Nations Charter. authorities of Country Y for the purpose of
2) By virtue of the principle of sovereign trial
immunity, no sovereign state can be made a and "in the name of justice." Country X refused
party to a proceeding before the International to accede to the demand of Country Y.
Court of Justice unless it has given its consent. What action or actions can Country Y
... legally take against Ali Baba and Country X to
BAR Q&A (as arranged by Topics) POLITICAL stop the terrorist activities of Ali Baba and
LAW (1987-2006) 182 dissuade Country X from harboring and giving
protection to the terrorist organization? wage aggressive war without transgressing
Support International law, it could use war as an
your answer with reasons. (5%) Instrument of self-defense, and that the nation
FIRST ALTERNATIVE ANSWER: itself must be the sole judge of whether its
(1) Country Y may exercise the right actions were in self-defense. How would you
of self-defense, as provided under Article 51 of meet the argument if you were a member of
the UN Charter "until the Security Council has the
taken measure necessary to maintain Tribunal trying the case? [5%]
international peace and security". Self-defense SUGGESTED ANSWER:
enables Country Y to use force against Country No rule of International law gives a state
X as well as against the Ali Baba organization. resorting to war allegedly in self-defense the
(2) It may bring the matter to the right to determine with a legally conclusive
Security Council which may authorize effect the legality of such action.
sanctions The Judgment of the Nuremberg
against Country X, including measure invoking International Military Tribunal rejected the
the use of force. Under Article 4 of the UN defense of the Nazi war criminals:
Charter, Country Y may use force against "But whether action taken under the
Country X as well as against the Ali Baba claim of self-defense was in fact aggressive or
organization by authority of the UN Security defensive must ultimately be subject to
Council. BAR Q&A (as arranged by Topics) POLITICAL
SECOND ALTERNATIVE ANSWER: LAW (1987-2006) 183
Under the Security Council Resolution No. investigation and adjudication if international
1368, the terrorist attack of Ali Baba may be law is ever to be enforced."
defined as a threat to peace, as it did in ALTERNATIVE ANSWER:
defining International law on self-defense cannot
the September 11, 2001 attacks against the assume the nature of war. War requires "a
United States. The resolution authorizes declaration of war giving reasons" under the
military Hague Convention II of 1907. Precisely, the
and other actions to respond to terrorist Nazi war criminalwere indicted before the
attacks. Nuremberg Tribunal for violating this
However, the use of military force must be Convention and were found guilty.
proportionate and intended for the purpose of Since the Nazi war criminal argued that
detaining the persons allegedly responsible for war as self-defense is understood by them as
the crimes and to destroy military objectives meaning "that the nation itself must be the sole
used by the terrorists. Judge of whether its action were in
The fundamental principles of international selfdefense",
humanitarian law should also be respected. it is clear that what they had in mind
Country Y cannot be granted sweeping in fact is "war as an instrument of national
discretionary powers that include the power to policy", not self-defense as an objective right
decide what states are behind the terrorist under International law.
organizations. It is for the Security Council to Waging was as an instrument of
decide whether force may be used against national law is prohibited by the Pact of Paris
specific states and under what conditions the of
force may be used. 1928 (Kellog - Braid Part) of which Germany
Use of Force; Self-Defense; Waging War was already a state party before the Second
(1998) World War. Precisely, the German Reich was
No XIV. At the Nuremberg trial of the Nazi indicted before the Nuremberg Tribunal for
war violation of the Pact of Paris and the Nazi war
criminals at the end of the World War II. the criminals were found guilty of this as a war
defense argued on behalf of the German crime.
defendants that although a nation could not Hence, the argument is itself an admission of
violation of international law. Moslems. The Serbs prevailed resulting in the
Use of Force; When allowed (1988) capture of Reden, Jolan and Andy, and part of
1. The Charter of the United Nations prohibits the civilian fighting force.
not only recourse to war but also resort to the 1) Are Reden, Jolan and Andy considered
use of force or threat. In the ardent desire to combatants thus entitled to treatment as
maintain peace, the Charter obliges members prisoners of war?
to settle their international disputes by 2) Are the captured civilians likewise prisoners
peaceful of war?
means and to refrain in their international ANSWER:
relations from the threat or use of force. 1) Reden, Jolan and Andy are not combatants
The same Charter, however, recognizing and are not entitled to treatment as prisoners
perhaps the realities of international relations, of
allows the use of force in exceptional war, because they are mercenaries. Article 47
occasions. of the Protocol I to the Geneva Conventions
Please state two occasions when the use of of
armed forces is allowed by the U.N. Charter. 1949 provides:
SUGGESTED ANSWER: "A Mercenary shall not have the right to
1. Under art. 42 of the UN Charter, should the be combatant or a prisoner of war."
Security Council consider that pacific Pursuant to Article 47 of Protocol I of
methods of settling disputes are the Geneva Conventions of 1949, Reden,
inadequate, it may take such action by air, Jolan, and Andy are mercenaries, because they
sea, or land forces as may be necessary to were recruited to fight in an armed conflict,
maintain or restore international peace and they
security. Such action may include in fact took direct part in the hostilities, they
demonstrations, blockade, and other were motivated to take part in the hostilities
operations by air, sea, or land forces of essentially by the desire for private gain and in
members of the UN. fact was promised a handsome salary by the
2. Under art. 51 member states also have the Moslems, they were neither nationals of a
inherent right of collective self defense if an party
armed attack occurs against a member to the conflict nor residents of territory
state, until the Security Council has taken controlled by a party to the conflict, they are
measures necessary to maintain not
international peace and security. members of the armed forces of a party to the
War; Combatants/ Prisoners of War vs. BAR Q&A (as arranged by Topics) POLITICAL
Mercenaries (1993) LAW (1987-2006) 184
No. 3: Reden, Jolan and Andy. Filipino conflict, and they were not sent by a state
tourists, which
were in Bosnia-Herzegovina when hostilities is not a party to the conflict on official duty as
erupted between the Serbs and the Moslems. members of its armed forces.
Penniless and caught in the crossfire, Reden, 2) The captured civilians are prisoners of war.
Jolan, and Andy, being retired generals, Under Article 4 of the Geneva Convention
offered relative to the Treatment of Prisoners of War,
their services to the Moslems for a handsome, inhabitants of a non-occupied territory, who
salary, which offer was accepted. When the on
Serbian National Guard approached Sarajevo, the approach of the enemy spontaneously take
the Moslem civilian population spontaneously up arms to resist the invading forces, without
took up arms to resist the invading troops. Not having had time to form themselves into
finding time to organize, the Moslems wore regular
armbands to identify themselves, vowing to armed forces, provided they carry arms openly
observe the laws and customs of war. The and respect the laws and customs of war, are
three Filipinos fought side by side with the considered prisoners of war if they fall into the
power of the enemy.
Wilson doctrine vs. Estrada doctrine (2004)
(2-a-5) Distinguish: The Wilson doctrine and
the Estrada doctrine regarding recognition of
governments.
SUGGESTED ANSWER:
Under the WILSON DOCTRINE, recognition
shall not be extended to any government
established by revolution or internal violence
until the freely elected representatives of the
people have organized a constitutional
government.
Under the ESTRADA DOCTRINE, the Mexican
government declared that it would, as it saw
fit,
continue or terminate its diplomatic relations
with any country in which a political upheaval
had taken place and in so doing it would not
pronounce judgment on the right of the
foreign
state to accept, maintain or replace its
government. (Cruz, International Law, 2003
ed.)
(In view of recent developments, the Wilson
doctrine and the Estrada doctrine are no
longer
in the mainstream of public international law.)