QUAMTO (1987-2017) forthe admission ofa student (University of San Agustininc. v. Court of Appeals, GR. No, 1100588, March 7, 1994, 280 SCRA761). PUBLIC INTERNATIONAL LAW Q Select any five (5) of the following and explain each, using examples: a. Reprisal Db. Retorsion €. Declaratory Theory of Recognition Principle 4. Recognition of Belligerency fe. Continental Shelf f Exequatur g Principle of Double Criminality (also asked in 2007 Bar), hh, Protective Personality i. Innocent Passage j. Jus cogens in International Law (1991 Bar) REPRISAL is a coercive measure short of war, directed by a state against another, in retaliation for acts of the latter and as means of obtaining reparstion or satisfaction for such acts, Reprisal involves retaliatory acts which by themselves would be illegal. For example, for violation of a treaty by'a state, the aggrieved state seizes ‘on the high seas the ships of the offending state, RETORSION is a legal but deliberately unftiendly act directed by a state against another in retaliation for an unfriendly ‘though legalact to compel that state to alter its unfriendly conduct. An example of retorsion is barming exports to the offending state © The DECLARATORY THEORY OF RECOGNITION is a theory according to which recognition of a state is merely an acknowledgment of the fact of its existence, Inother words, the recognized state already exists and can exist even without such recognition. For example, when other countries recognized Bangladesh, Bangladesh already existed as a state even, ‘without suchrecognition, RECOGNITION OF BELLIGERENCY is the formal acknowledgment by a third party of the existence of a date of war between the central government and a portion of that state, Belligerency exists when a sizeable portion of the territory of a sate is under the effective control of an insurgent community which is seeking to establish a separste goverment and the insurgents are in de facto control of portion of the temitory and population, have a_ political organization, are able to maintain such control, and conduct themselves according to the laws of war, For example, Great Britain recognizeda state of belligerency in ‘the United states during the Civil War. €. CONTINENTAL SHELF of a coastal state comprises the sea-bed and subsoil of the submarine areas that extend beyond its temitorial sea throughout the” natural prolongation of its land tertitory to the outer edge of the continental margin, orto a distance of 200 nautical miles from the baselines from which the breadth of the ‘territorial sea is measured where the outer edge of the continental shelf does not extend upto that distance, {, EXEQUATUR is an authorization from the receiving state admitting the head of a consular’ post to the exercise of his functions. For example, if the Philippines appoints consul general for New York, he cannot start performing his functions unless the President of the United States issues an exequaturto him, ‘The principle of DOUBLE CRIMINALITY is the rule in extradition which states that for arequestto be honoredthe crime for which extradition is requested must be a crime in both the requesting state and the state to which the fugitive has fled. For esample, since murder is a crime both in the Philippines and in Canada, under the Treaty ‘on Extradition between the Philippines and Cama, the Philippines can request Camda to extradite a Filipino who has fled to camda. PROTECTIVE PERSONALITY principle is the principle by which the state exercise Jurisdletion over the acts of an alien even if conmitted outside ite territory, if such acts sare adverse to the interest of the national state, i, INNOCENT PASSAGE means the right of continuous and expeditious navigation of a foreign ship through the territorial cea of a state for the purpose of traversing that sea without entering the internal waters or calling at aroadstead or port facility outside internal waters, or proceeding to or from internal waters or a call at such roadstead ‘or port facility. The passage is innocent so long as it is not prejudicial to the peace, gpod order or security of the coastal state, j. JUS COGENS is a peremptory norm of general intemational law accepted and recognized by the international community at a whole as a norm from which no derogation is permitted and which can be modified only by subsequent norm of general international law having the same character, An example is the prohibition against the use of fore. Q: How is state sovereignty defined in International Law? (2006 Bar) ‘A: Sovereignty signifies the right to exercise the functions of a State in regard to a portion of the lobe to the exclusion of any other State. Itis the principle of exclusive competence of a State in regard to its own ternitory (The Island of Las UNIVERSITY OF SANTO TOMAS PAcuLTY oF CiviL LAW 105POLITICAL LAW Palmas Case, 2 Report Arbitration Awards 839 [1928]. of International ALTERNATIVE ANSWER: State sovereignty is the ability of a state to act without extemal controls on the conduct of its affairs (Fox, Dictionary of International and Comparative Law,p. 294) Q:Is state sovereignty absolute? (2006 Bar) te sovereignty is not absolute. It is subject to limitations imposed by membership in the family of mations and limitations imposed by treaty stipulations (Tanade v Angara, 272 SCRA 18, 1997). May a treaty violate international law? If your answer is in the affirmative, explain When such may happen. If your answer is in the negative, explain why. (2008 Bar) A: Yes, a treaty may violate international law (understood as general international law) if it conflicts witha peremptory norm or jus cogens of international law. Jus cogens nom is defined ‘asa norm of general intemational law accepted and recognized by the international community of states as a whole “as a norm from which no derogation is permitted and which can be ‘modified only by a subsequent norm of general international law having the same character” Article 58 of the Vienna Convention on the Law ‘of Treaties (1969) provides that (a) treaty is void if the at the time of its conduson, it conflicts with jus cogens norm. Moreover, under Article 54 of this Convention if a new peremptory norm of general international law emerges, any existing treaty which is in eonflie with that nom becomes voidand terminates, Pra Artronniae in February 1990, the Ministry of the Army Republic of Indonesia, invited bids for the supply of 500,000 pairs of combat boots for the use of the Indonesian Army. The Marikina Shoe Corporation, a Philippine corporation, which has no branch office and no assets in Indonesia, submitted a bid to supply 500,000 pairs of combat boots at US. $30 per pair delivered in Jakarta on or before 30 October 1990. The contract was awarded by the Ministry of the Army to Marikina Shoe Corporation and was signed by the parties in Jakarta, Marikina Shoe Corporation was able to deliver only 200,000 pairs of combat boots im Jakarta by 30 October 1990 and it received payment for 100,000 pairs or a total of US. $3,000,000.00. The Ministry of the Army promised to pay for the other 100,000 pairs already delivered as soon as the remaining 300,000 pairs of combat boots are delivered, at which time the said 300,000 pairs will also be paid for. Marikina Shoe Corporation failed to deliver any more ‘combat boots. On 1 June 1991, the Republic of Indonesia filed an action before the Regional Trial Court of Pasig, Rizal to compel Marikina ‘Shoe Corporation to perform the balance of its obligations under the contract and for damages. In its answer, Marikina Shoe Corporation sets up a counterclaim for US. $3,000,000.00 representing the payment for the 100,000 pairs of combat boots already delivered but unpaid. Indonesia moved to dismiss the ‘counterclaim, asserting that it is entitled to sovereign immunity from suit. The trial court denied the motion to dismiss and issued two writs of garnishment upon Indonesian Government funds deposited in the Philippine National Bank and Far East Bank. Indonesia went to the Court of Appeals ‘on a petition for certiorari under Rule 65 of the Rules of Court. How would the Court of Appeals decide the ease? (1991 Bar) A: The Court of Appeals should dismiss the petition insofar as it seeks to armul the order denying the motion of the Govemment of Indonesia to dismiss the counterclaim, ‘The counterclaim in this case is a compulsory counterclaim since it arises from the sme contract involved in the complaint, As such it muist be set up otherwise it will be barred. Above all, as held in Froilan v. Pan Oriental Shipping Co., 95 Phil. $05, by filing a complaint, the State of indonesia waivedits immunity from suit It is not right that it can sue in the courts bout it cammot be sued, The defendant therefore acquires the right to set up a compulsory counterclaim against it However, the Court of Appeals should grant the petition of the Indonesian government insofar a it sought to annul the gamishment of the funds of Indonesia which were depositedin the Philippine National Bank and Far East Bank, Consent to the exercise of jurisdiction of a foreign court does not include waiver of the separate immunity from execution (Brownlie, Principles of Public Intemational Law, ath ed, p. 344) Thus, in Dexter v. Carpenter vs. Kunglig Jarnvagsstyrelsen, 43 Fed. 705, it was held the consent to be sued does not give consent to the attachment of the property of a sovereign goverment, Q: The State of Nova, controlled by an authoritarian government, had unfriendly relations with its neighboring State, Ameria. Bresia, another neighboring State, had been shipping arms and ammunitions to Nova for use in aftacking Ameria. ‘To forestall an attack, Ameria placed floating ‘mines on the territorial waters surrounding Nova. Ameria supported a group of rebels ‘organized to overthrow the government of UST BAR OPERATIONS To UNIVERSITY OF SANTO Tomas ACADEMICS COMMITTEE 2017QUAMTO (1987-2017) Nova and to replace it with a friendly government. Nova decided to file a case against Ameria in the International Court of Justice. a. On what grounds may Ameria move to dismiss the case with the IC}? Decide the case. (1994 Bar) By vitue of the principle of sovereign immunity, no sovereign state can be made a party to a proceeding before the Intemational Court of Justice unless it has given its consent. If Ameria has not accepted the Jurisdiction of the Intemational Court of Justice, Ameria can invoke the defense of lack of jurisdiction, Evenif Ameria hasaccepted the jurisdiction of the court but the acceptance is limited and the limitation applies to the ease, it may invoke such limitation its consent as a bar to the assumption of junsdiction, If jurisdiction bas been accepted, Ameria can invoke the principle of anticipatory self defense, recognized under customary international law, because Nova is plaming to launchanattack against Ameria by using ‘the arms it bought from Bresia, If jurisdiction over Ameria is established, the case should be decided in favor of Nova, because Ameria violated the principle ‘against the use of force and the principle of nonintervention, The defense of anticipatory self-defense camot be sustained, because there is no showing that Novahad mobilized to suchan extent that if Ameria were to wait for Nova to strike first it would not be able to retaliate, However, if jurisdiction over Ameria is not established, the case should be decided in favor of Ameria because of the principle of sovereign immunity. Q: What do you understand by the "Doctrine ‘of Incorporation” in Constitutional Law? (1997 Bar) A: The DOCTRINE OF INCORPORATION means ‘that the rules of Intemational law form part of the law of the land and no legislative action is required to make them applicable to a country. ‘The Philippines follows this doctrine, because Section 2, Article II of the Constitution states that the Philippines adopts the generally accepted principles of international law as part of the law of the land. Q: What is the doctrine of sovereign ‘immunity in International Law? (1998 Bar) A‘By the doctrine of sovereign immunity, a State, its agents and property are immame from ‘the judicial pro cess of another State, except with, its consent, Thus, immunity may be waived and a State may permit iteelfto be sued in the courts ofanother state. Sovereign immunity has developed into two schools of thought, namely, absolute inmunity and restrictive immunity. By absolute immu all acts ofa State are covered or protected by Immunity. On the other hand, restrictive immunity makes a distinetion between govermental or sovereign acts (acta jure imperii) and nongovemmental, propriety or commercial acts (acta jure gestiones). Only the first category of acts 1s covered by sovereign immunity. The Philippine adheres to the restrictive immunity school of thought. ALTERNATIVE ANSWER: In United States vs. Ruiz, 128 SCRA 487, 490-491, the Supreme Court explained the doctrine of sovereign Immunity in international law;"The traditional rule of State immunity exempts a State from being sued in the courts of another state without its consent or waiver, this rule isa necessary consequence of the principles of independence and equality of states, However, the rules of Intemational Law are not petrified they are constantly developing and evolving. Arid because the activities of states have multiplied it has been necessay to didinguish them — between sovereign and govemment acts (jure imperi) and private, commercial and proprietary acts (ure gestionis). The result is that State immunity now extends only to acts jure imperi” Q@ An organization of law students sponsored an inter-school debate among three teams with the following assignments and propositions for each team to defend: ‘Team "A" - International law prevails over municipal law. Team “B" - Municipal law prevails over international law. Team "CA country’s Constitution prevails over international law but international law prevails over municipal statutes. If you were given a chance to choose the correct proposition, which would you take and why? (2003 Bar) ‘Az I shall take the proposition for Team C Intemational Law and municipal laws are supreme in their own respective Relds, Neither has hegemony over the other (Brownlie, Principles of Public International Law, ath ed. p. 157), Under Article Il, Section 2 of the 1987 Constitution, the generally accepted principles of international law form part of the law of the land. Since they merely have the force oflaw, if it is Philippine courts that will decide the case, ‘they will uphold the Constitution over intemational law. If it is an_intematioral ‘tribunal that will decide the case, it will uphold international law over municipal law. Asheld by the Permanent Intemational Count of Justice in the case of the Polish Nationals in Danzig, a State cannot invoke its own Constitution to evade obligations incumbent upon it under international law. UNIVERSITY OF SANTO TOMAS PAcuLTY oF CiviL LAW 107POLITICAL LAW ALTERNATIVE ANSWER: I would take the proposition assigned to Team 'C" as being nearer to the legal reality in the Philippines, namely, "A comty's Constitution prevails over international law but international law prevails over municipal statutes" This is however, aubject to the place of international law =n the Philippine Constitutional setting in which treaties or customary noms in international law stand in parity with statutesand in case of irreconeilable conflict, this may be resolved by lex posteriori derogat lex prior’ as the Supreme Court obiter ichum in Abbas v, COMELEC GR. No, 89651 (4989) holds. Hence,a statute enacted later than the conclusion or effectivity of a treaty may prevail In the Philippine legal system, there are no norms higher than constitutional norms. The fact that the Constitution makes generally accepted principles of international law or conventional international law as part of Philippine law does not make them superior to statutory law, as clavfied in Secretary of justice v, Lantion and Philip Morris, GR. No, 139465 (2000) decision. Q: What is the principle of auto-limitation? (2006 Bar) A: Under the principle of auto-limitation, anystate may by its consent, express or implied, submit to a restriction of its sovereign rights ‘There may thus be a curtalment of what otherwise is a plenary power (Reagan v. CIR, GR.1-26379, 1969). @ What is the relationship between reciprocity and the principle of auto- Limitation? (2006 Bar) ‘A: By reciprocity, States grants to one another rights or concessions, in exchange for identical cor comparable duties, thus acquiting a right as an extension ofits sovereignty and at the sane ‘time accepting an obligation asa limitation to its sovereign will, hence, 2 complementation of reciprocity and auto-limitation. Q: The dictatorial regime of President A of the Republic of Gordon was toppled by a combined force led by Gen. Abe, former royal guards and the secessionist Gordon People’s Army. The new government constituted a Truth and Reconciliation Commission to look into the serious crimes committed under President A’s regime. After the hearings, the Commission recommended that an amnesty law be passed to cover even those involved in mass killings of members of indigenous groups who opposed President ‘A.International human rights groups argued that the proposed amnesty law is contrary to international law. Decide with reasons. (2010 Bar) ‘A: The proposed amnesty law is contrary to intemational law. The mass killings of member of indigenous groups constitute genocide under Article l(a), Convention for the Prevention and Punishment of the crime of Genocide, The proposed anmesty law is against international law because it is incompatible with, or in violation of the international obligation under Article IV of this Convention that ‘Persons committing genocide... shall be punished whether they are constitutionally responsible rulers, public officials or private individuals.” ‘The Contracting Parties confirm that genocide, whether committed in time of peace of in time of war, sa crime under international law which ‘they undertake to preventand to punish, @: What is the concept of association under international law? (2009 Bar) ‘A: An association is formed when two states of unequal power voluntarily establish durable links, ‘The associate delegates certain responsibilities to the other, the prineipal, while maintaining its status as a state, It is an association between sovereigns, The associated state arrangement has usually been used as a ‘transitional device of former colonies on their way to full independence, (Province of North Cotabato v. GRP Peace Panel on Ancestral Domain, 568 SCRA 402 [2008] Association, under international law, isa formal rangement betwee a_non-self-governing territory and an independent State whereby such territory becomes an associated State with, intemal self government, but the independent state is responsible for foreign relations and defense, For an association to be lawful, it must comply with the general conditions prescribed in UN General Assembly Resolution 1541 (XV) of 14 December 160: (1) the population must consent to the association; and (2) the association must promote the development and well being of the dependent state (the _mon-self-governing territory), Association s subject to UN approval SY Q: State your general understanding of the primary sources and subsidiary sources of international law, giving an illustration of ‘each. (2003 Bar) A: Under Article 38 of the Statute of the Intermational Court of Justice, the primary sources of international law are the folowing: 1. International conventions, eg. Convention on the Law of Treaties. 2. International customs, eg, cabotage, the prohibition against slavery, and the prohibition against torture Viema UST BAR OPERATIONS To UNIVERSITY OF SANTO Tomas ACADEMICS COMMITTEE 2017