PUBLIC INTERNATIONAL LAWBasic Principles in Public Int’l Law (1991)Select any five (5) of the following and explaineach, using examples:(a) Reprisal(b) RetorsionBAR Q&A (as arranged by Topics) – POLITICAL LAW (1987-2006) 159(c) Declaratory Theory of RecognitionPrinciple(d) Recognition of Belligerency(e) Continental Shelf(f) Exequatur(g) Principle of Double Criminality(h) Protective Personality(i) Innocent Passage(j) Jus cogens in International LawSUGGESTED ANSWER:(a) REPRISAL is a coercive measure short ofwar, directed by a state against another, inretaliation for acts of the latter and as means ofobtaining reparation or satisfaction for suchacts. Reprisal involves retaliatory acts which bythemselves would be illegal. For example, forviolation of a treaty by a state, the aggrievedstate seizes on the high seas the ships of theoffending state.(b) RETORSION is a legal but deliberatelyunfriendly act directed by a state againstanother in retaliation for an unfriendly thoughlegal act to compel that state to alter itsunfriendly conduct. An example of retorsion isbanning exports to the offending state.(c) The DECLARATORY THEORY OFRECOGNITION is a theory according to whichrecognition of a state is merely anacknowledgment of the fact of its existence. Inother words, the recognized state already existsand can exist even without such recognition.For example, when other countries recognizedBangladesh, Bangladesh already existed as astate even without such recognition.(d) RECOGNITION OF BELLIGERENCY is theformal acknowledgment by a third party of theexistence of a state of war between the centralgovernment and a portion of that state.Belligerency exists when a sizeable portion ofthe territory of a state is under the effectivecontrol of an insurgent community which isseeking to establish a separate governmentand the insurgents are in de facto control of aportion of the territory and population, have apolitical organization, are able to maintain suchcontrol, and conduct themselves according to

the laws of war. For example, Great Britainrecognized a state of belligerency in the UnitedStates during the Civil War,(e) CONTINENTAL SHELF of a coastal statecomprises the sea-bed and subsoil of thesubmarine areas that extend beyond itsterritorial sea throughout the naturalprolongation of its land territory to the outeredge of the continental margin, or to a distanceof 200 nautical miles from the "baselines fromwhich the breadth of the territorial sea ismeasured where the outer edge of thecontinental shelf does not extend up to thatdistance.(f) EXEQUATUR is an authorization from thereceiving state admitting the head of a consularpost to the exercise of his functions. Forexample, if the Philippines appoints a consulgeneral for New York, he cannot startperforming his functions unless the President ofthe United States issues an exequatur to him,(g) The principle of DOUBLE CRIMINALITY isthe rule in extradition which states that for arequest to be honored the crime for whichextradition is requested must be a crime in boththe requesting state and the state to which thefugitive has fled. For example, since murder isa crime both in the Philippines and in Canada,under the Treaty on Extradition between thePhilippines and Canada, the Philippines canrequest Canada to extradite a Filipino who hasfled to Canada.(h) PROTECTIVE PERSONALITY principle isthe principle by which the state exercisejurisdiction over the acts of an alien even ifcommitted outside its territory, if such acts areadverse to the interest of the national state.(i) INNOCENT PASSAGE means the right ofcontinuous and expeditious navigation of aforeign ship through the territorial sea of a statefor the purpose of traversing that sea withoutentering the internal waters or calling at aroadstead or port facility outside internal waters,or proceeding to or from internal waters or a callat such roadstead or port facility. The passageis innocent so long as it is not prejudicial to thepeace, good order or security of the coastalstate.(j) JUS COGENS is a peremptory norm ofgeneral international law accepted andrecognized by the international community as awhole as a norm from which no derogation ispermitted and which can be modified only by a

subsequent norm of general international lawhaving the same character, An example is theprohibition against the use of force.BAR Q&A (as arranged by Topics) – POLITICAL LAW (1987-2006) 160Constitutive Theory vs. Declaratory Theory(2004)(2-a-4) Distinguish: The constitutive theoryand the declaratory theory concerningrecognition of states.SUGGESTED ANSWER:According to the CONSTITUTIVE THEORY,recognition is the last indispensable elementthat converts the state being recognized into aninternational person.According to the DECLARATORY THEORY,recognition is merely an acknowledgment of thepre-existing fact that the state being recognizedis an international person.(Cruz, InternationalLaw, 2003 ed.)Contiguous Zone vs. Exclusive EconomicZone (2004)II-A. Distinguish briefly but clearly between:2) The contiguous zone and the exclusiveeconomic zone.SUGGESTED ANSWER:(2) CONTIGUOUS ZONE is a zone contiguousto the territorial sea and extends up to twelvenautical miles from the territorial sea and overwhich the coastal state may exercise controlnecessary to prevent infringement of itscustoms, fiscal, immigration or sanitary lawsand regulations within its territory or territorialsea. (Article 33 of the Convention on the Law ofthe Sea.)The EXCLUSIVE ECONOMIC ZONE isa zone extending up to 200 nautical miles fromthe baselines of a state over which the coastalstate has sovereign rights for the purpose ofexploring and exploiting, conserving andmanaging the natural resources, whether livingor nonliving, of the waters superjacent to theseabed and of the seabed and subsoil, and withregard to other activities for the economicexploitation and exploration of the zone.(Articles 56 and 57 of the Convention on theLaw of the Sea.)Diplomatic Immunity (2000)No XX - A foreign ambassador to thePhilippines leased a vacation house inTagaytay for his personal use. For somereason, he failed to pay rentals for more thanone year. The lessor filed an action for therecovery of his property in court.

a) Can the foreign ambassador invoke hisdiplomatic immunity to resist the lessor'saction? (3%)b) The lessor gets hold of evidence that theambassador is about to return to his homecountry. Can the lessor ask the court to stop theambassador's departure from the Philippines?(2%)SUGGESTED ANSWER:a) No, the foreign ambassador cannot invokehis diplomatic immunity to resist the action,since he is not using the house in TagaytayCity for the purposes of his mission butmerely for vacation. Under Article 3(l)(a) ofthe Vienna Convention on DiplomaticRelations, a diplomatic agent has noimmunity in case of a real action relating toprivate immovable property situated in theterritory of the receiving State unless heholds it on behalf of the sending State forpurposes of the mission.b) No, the lessor cannot ask the court to stopthe departure of the ambassador from thePhilippines. Under Article 29 of the ViennaConvention, a diplomatic agent shall not beliable to any form of arrest or detention.(per Dondee) The grounds cited by YZ is tenable onthe basis that the precept that a State cannot besued in the courts of a foreign state is a longstandingrule of customary international law thenclosely identified with the personal immunity of aforeign sovereign from suit and, with the emergenceof democratic states, made to attach not just to theperson of the head of state, or his representative,but also distinctly to the state itself in its sovereigncapacity. If the acts giving rise to a suit are those ofa foreign government done by its foreign agent,although not necessarily a diplomatic personage,but acting in his official capacity, the complaint couldbe barred by the immunity of the foreign sovereignfrom suit without its consent. Suing a representativeof a state is believed to be, in effect, suing the stateitself. (KHOSROW MINUCHER vs. COURT OFAPPEALS, G.R. No. 142396. February 11, 2003)Diplomatic Immunity (2001)No XX - Dr. Velen, an official of the WorldHealth Organization (WHO) assigned in thePhilippines, arrived at the Ninoy AquinoInternational Airport with his personal effectscontained in twelve crates as unaccompaniedbaggage. As such, his personal effects wereallowed free entry from duties and taxes, andwere directly stored at Arshaine Corporation's

BAR Q&A (as arranged by Topics) – POLITICAL LAW (1987-2006) 161warehouse at Makati, pending Dr. Velen'srelocation to his permanent quarters.At the instance of police authorities, theRegional Trial Court (RTC) of Makati issued awarrant for the search and seizure of Dr.Velen's personal effects in view of an allegedviolation of the Tariff and Custom's Code.According to the police, the crates containedcontraband items. Upon protest of WHOofficials, the Secretary of Foreign Affairsformally advised the RTC as to Dr. Velen'simmunity. The Solicitor General likewise joinedDr. Velen's plea of immunity and motion toquash the search warrant. The RTC denied themotion.Is the denial of the motion to quash proper?(5%)SUGGESTED ANSWER:The denial of the motion is improper. As held inWorld Health Organization vs. Aquino, 48SCRA 242 (1972). as an official of the WorldHealth Organization, Dr. Velen enjoyeddiplomatic immunity and this includedexemption from duties and taxes. Sincediplomatic immunity involves a politicalquestion, where a plea of diplomatic immunity isrecognized and affirmed by the ExecutiveDepartment, it is the duty of the court to acceptthe claim of immunity.Diplomatic Immunity (2003)No XVIII - A group of high-ranking officials andrank-and-file employees stationed in a foreignembassy in Manila were arrested outsideembassy grounds and detained at CampCrame on suspicion that they were activelycollaborating with "terrorists" out to overthrow ordestabilize the Philippine Government. TheForeign Ambassador sought their immediaterelease, claiming that the detained embassyofficials and employees enjoyed diplomaticimmunity. If invited to express your legalopinion on the matter, what advice would yougive?SUGGESTED ANSWER:I shall advice that the high-ranking officials andrank-and-file employees be released becauseof their diplomatic immunity. Article 29 of theVienna Convention on Diplomatic Relationsprovides:"The person of a diplomatic agent shallbe inviolable. He shall not be liable toany form of arrest or detention."

Under Article 37 of the Vienna Convention onDiplomatic Relations, members of theadministrative and technical staff of thediplomatic mission, shall, if they are notnationals of or permanent residents in thereceiving State, enjoy the privileges andimmunities specified in Article 29.Under Article 9 of the Vienna Convention onDiplomatic Relations, the remedy is to declarethe high-ranking officials and rank-and-fileemployees personae non gratae and ask themto leave.ALTERNATIVE ANSWER:Under the Vienna Convention on DiplomaticRelations, a diplomatic agent "shall not be liableto any form of arrest or detention (Article 29)and he enjoys immunity from criminaljurisdiction (Article 31).This immunity may cover the "high-rankingofficials" in question, who are assumed to bediplomatic officers or agents. With respect tothe "rank-and-file employees" they are coveredby the immunity referred to above, providedthey are not nationals or permanent residents ofthe Philippines, pursuant to Article 37(2) of thesaid Convention.If the said rank-and-file employeesbelong to the service staff of the diplomaticmission (such as drivers) they may be coveredby the immunity (even if they are not Philippinenationals or residents) as set out in Article37(3), if at the time of the arrest they were in"acts performed in the course of their duties." Ifa driver was among the said rank-and-fileemployees and he was arrested while driving adiplomatic vehicle or engaged in related acts,still he would be covered by immunity.Diplomatic Immunity (2004)(8-a) A. MBC, an alien businessman dealing incarpets and caviar, filed a suit againstpolicemen and YZ, an attache of XX Embassy,for damages because of malicious prosecution.MBC alleged that YZ concocted false andmalicious charges that he was engaged in drugtrafficking, whereupon narcotics policemenconducted a "buy-bust" operation and withoutwarrant arrested him, searched his house, andseized his money and jewelry, then detainedand tortured him in violation of his civil andhuman rights as well as causing him, his familyand business serious damages amounting totwo million pesos. MBC added that the trialcourt acquitted him of the drug charges.

Assailing the court's jurisdiction: YZ now movesto dismiss the complaint, on the ground that (1)he is an embassy officer entitled to diplomaticimmunity; and that (2) the suit is really a suitagainst his home state without its consent. Hepresents diplomatic notes from XX Embassycertifying that he is an accredited embassyofficer recognized by the Philippinegovernment. He performs official duties, hesays, on a mission to conduct surveillance ondrug exporters and then inform local policeofficers who make the actual arrest of suspects.Are the two grounds cited by YZ to dismiss thesuit tenable? (5%)SUGGESTED ANSWER:A. The claim of diplomatic immunity of YZ isnot tenable, because he does not possess anacknowledged diplomatic title and is notperforming duties of a diplomatic nature.However, the suit against him is a suit againstXX without its consent. YZ was acting as anagent of XX and was performing his officialfunctions when he conducted surveillance ondrug exporters and informed the local policeofficers who arrested MBC. He was performingsuch duties with the consent of the Philippinegovernment, therefore, the suit against YZ is asuit against XX without its consent. (Minucher v.Court of Appeals, 397 SCRA 244 [1992]).ALTERNATIVE SUGGESTED ANSWER:Diplomatic Immunity; Ambassador (Q3-2005)(1) Italy, through its Ambassador, entered intoa contract with Abad for the maintenanceand repair of specified equipment at itsEmbassy and Ambassador's Residence,such as air conditioning units, generatorsets, electrical facilities, water heaters, andwater motor pumps. It was stipulated thatthe agreement shall be effective for a periodof four years and automatically renewedunless cancelled. Further, it provided thatany suit arising from the contract shall befiled with the proper courts in the City ofManila.Claiming that the Maintenance Contractwas unilaterally, baselessly and arbitrarilyterminated, Abad sued the State of Italy andits Ambassador before a court in the City ofManila. Among the defenses, they raisedwere "sovereign immunity" and "diplomaticimmunity." (5%)(a) As counsel of Abad, refute the

defenses of "sovereign immunity"and "diplomatic immunity" raised bythe State of Italy and itsAmbassador.SUGGESTED ANSWER:As counsel for Abad, I will argue thatsovereign immunity will not lie as it isan established rule that when a Stateenters into a contract, it waives itsimmunity and allows itself to besued. Moreover, there is a provisionin the contract that any suit arisingtherefrom shall be filed with theproper courts of the City of Manila.On the issue of diplomatic immunity,I will assert that the act of theAmbassador unilaterally terminatingthe agreement is tortuous and donewith malice and bad faith and not asovereign or diplomatic function.(b) At any rate, what should be thecourt's ruling on the said defenses?SUGGESTED ANSWER:The court should rule against saiddefenses. The maintenance contractand repair of the Embassy andAmbassador's Residence is acontract in jus imperii, because suchrepair of said buildings isindispensable to the performance ofthe official functions of theGovernment of Italy. Hence, thecontract is in pursuit of a sovereignactivity in which case, it cannot bedeemed to have waived its immunityfrom suit.On the matter of whether or not theAmbassador may be sued, Article 31of the Vienna Convention onDiplomatic Relations provides that adiplomatic agent enjoys immunityfrom the criminal, civil andadministrative jurisdiction of thereceiving state except if the actperformed is outside his officialfunctions, in accordance with theprinciple of functional necessity. Inthis case, the act of entering into thecontract by the Ambassador was partof his official functions and thus, heis entitled to diplomatic immunity.(Republic of Indonesia v. Vinzons,G.R. No. 154705, June 26, 2003)

Diplomatic Immunity; Ambassadors (1990)BAR Q&A (as arranged by Topics) – POLITICAL LAW (1987-2006) 163No. 5: D, the Ambassador of the Kingdom ofNepal to the Philippines, leased a house inBaguio City as his personal vacation home. Onaccount of military disturbance in Nepal, D didnot receive his salary and allowances from hisgovernment and so he failed to pay his rentalsfor more than one year. E, the lessor, filed anaction for recovery of his property with theRegional Trial Court of Baguio City.(1) Can the action against D prosper?(2) Can E ask for the attachment of thefurniture and other personal properties of Dafter getting hold of evidence that D is about toleave the country?(3} Can E ask for the court to stop D'sdeparture from the Philippines?SUGGESTED ANSWER:(1) Yes, the action can prosper. Article 31 ofthe Vienna Convention on Diplomatic Relationsprovides:"1. A diplomatic agent shall enjoyimmunity from the criminal jurisdiction ofthe receiving State. He shall also enjoyimmunity from its civil andadministrative jurisdiction, except in thecase of:(a) A real action relating to privateimmovable property situated in theterritory of the receiving State, unlesshe holds it on behalf of the sendingState for the purposes of the mission;"The action against the Ambassador is a realaction involving private immovable propertysituated within the territory of the Philippines asthe receiving state. The action falls within theexception to the grant of immunity from the civiland administrative jurisdiction of thePhilippines.ALTERNATIVE ANSWER;No, the action will not prosper. Although theaction is a real action relating to privateimmovable property within the territory of thePhilippines, nonetheless, the vacation housemay be considered property held by theAmbassador In behalf of his state (the Kingdomof Nepal) for the purposes of the mission and,therefore, such is beyond the civil andadministrative jurisdiction of the Philippines,including its courts,SUGGESTED ANSWER:(2) No, E cannot ask for the attachment of the

personal properties of the Ambassador. Arts. 30and 31 of the Vienna Convention on DiplomaticRelations provides that the papers,correspondence and the property of diplomatagents shall be inviolable. Therefore, a writ ofattachment cannot be issued against hisfurniture and any personal properties.Moreover, on the assumption that the Kingdomof Nepal grants similar protection to Philippinediplomatic agents. Section 4 of Republic ActNo. 75 provides that any writ or process issuedby any court in the Philippines for theattachment of the goods or chattels of theambassador of a foreign State to thePhilippines shall be void.SUGGESTED ANSWER:(3) No, E cannot ask the court to stop thedeparture of the Ambassador of the Kingdomof Nepal from the Philippines. Article 29 of theVienna Convention on Diplomatic Relationsprovides: "The person of a diplomatic agentshall be inviolable. He shall not be liable to anyform of arrest or detention."Diplomatic Immunity; Coverage (Q3-2005)(2) Adams and Baker are American citizensresiding in the Philippines. Adamsbefriended Baker and became a frequentvisitor at his house. One day, Adamsarrived with 30 members of the PhilippineNational Police, armed with a SearchWarrant authorizing the search of Baker'shouse and its premises for dangerous drugsbeing trafficked to the United States ofAmerica.The search purportedly yielded positiveresults, and Baker was charged withViolation of the Dangerous Drugs Act.Adams was the prosecution's principalwitness. However, for failure to prove hisguilt beyond reasonable doubt, Baker wasacquitted.Baker then sued Adams for damages forfiling trumped-up charges against him.Among the defenses raised by Adams isthat he has diplomatic immunity,conformably with the Vienna Convention onDiplomatic Relations. He presentedDiplomatic Notes from the AmericanEmbassy stating that he is an agent of theUnited States Drug Enforcement Agencytasked with "conducting surveillanceoperations" on suspected drug dealers inthe Philippines believed to be the source of

prohibited drugs being shipped to the U.S. Itwas also stated that after havingascertained the target, Adams would thenBAR Q&A (as arranged by Topics) – POLITICAL LAW (1987-2006) 164inform the Philippine narcotic agents tomake the actual arrest. (5%)a) As counsel of plaintiff Baker, argue whyhis complaint should not be dismissedon the ground of defendant Adams'diplomatic immunity from suit.SUGGESTED ANSWER.As counsel for Baker, I would argue thatAdams is not a diplomatic agentconsidering that he is not a head ofmission nor is he part of the diplomaticstaff that is accorded diplomatic rank.Thus, the suit should not be dismissedas Adams has no diplomatic immunityunder the 1961 Vienna Convention onDiplomatic Relations.b) As counsel of defendant Adams, arguefor the dismissal of the complaint.SUGGESTED ANSWERAs counsel for Adams, I would arguethat he worked for the United StatesDrug Enforcement Agency and wastasked to conduct surveillance ofsuspected drug activities within thecountry with the approval of thePhilippine government. Under thedoctrine of State Immunity from Suit, ifthe acts giving rise to a suit are those ofa foreign government done by itsforeign agent, although not necessarilya diplomatic personage, but acting inhis official capacity, the complaint couldbe barred by the immunity of the foreignsovereign from suit without its consent.Adams may not be a diplomatic agentbut the Philippine government has givenits imprimatur, if not consent, to theactivities within Philippine territory ofAdams and thus he is entitled to thedefense of state immunity from suit.(Minucher v. CA, G.R. No. 142396,February 11, 2003)Diplomatic Immunity; Diplomatic Envoy andConsular Officers (1995)No. 3:1. Discuss the differences, if any, in theprivileges or immunities of diplomatic envoysand consular officers from the civil or criminaljurisdiction of the receiving state.

2. A consul of a South American countrystationed in Manila was charged with seriousphysical injuries. May he claim Immunity fromjurisdiction of the local court? Explain.3. Suppose after he was charged, he wasappointed as his country's ambassador to thePhilippines. Can his newly-gained diplomaticstatus be a ground for dismissal of his criminalcase? Explain.SUGGESTED ANSWER:1. Under Article 32 of the Vienna Convention onDiplomatic Relations, a diplomatic agent shallenjoy immunity from the criminal jurisdiction ofthe receiving State. He shall also enjoyimmunity from its civil and administrativejurisdiction except in the case of:(a) A real action relating to privateimmovable property situated in the territory ofthe receiving State, unless he holds it on behalfof the sending State for the purposes of themission;(b) An action relating to succession inwhich the diplomatic agent is invoked asexecutor, administrator, heir or legatee as aprivate person and not on behalf of the sendingState;(c) An action relating to anyprofessional or commercial activity exercised bythe diplomatic agent in the receiving Stateoutside his official functions.On the other hand, under Article 41 ofthe Vienna Convention on Consular Relations,a consular officer does not enjoy Immunity fromthe Criminal jurisdiction of the receiving State.Under Article 43 of the Vienna Convention onConsular Relations, consular officers are notamenable to the Jurisdiction of the Judicial oradministrative authorities of the receiving Statein respect of acts performed in the exercise ofconsular functions. However, this does notapply in respect of a civil action either:(a) arising out of a contract concludedby a consular officer in which he did notcontract expressly or impliedly as an agent ofthe sending State; or(b) by a third party for damage arisingfrom an accident in the receiving State causedby a vehicle, vessel, or aircraft.SUGGESTED ANSWER:2. No, he may not claim immunity from thejurisdiction of the local court. Under Article 41 ofthe Vienna Convention of Consular Relations,consuls do not enjoy immunity from the criminal

Jurisdiction of the receiving State. He is notliable to arrest or detention pending trial unlessthe offense was committed against his father,BAR Q&A (as arranged by Topics) – POLITICAL LAW (1987-2006) 165mother, child, ascendant, descendant orspouse. Consuls are not liable to arrest anddetention pending trial except in the case of agrave crime and pursuant to a decision by thecompetent judicial authority. The crime ofphysical Injuries is not a grave crime unless itbe committed against any of the abovementionedpersons. (Schneckenburger v.Moran 63 Phil. 249).SUGGESTED ANSWER:3. Yes, the case should be dismissed. UnderArticle 40 of the Vienna Convention onDiplomatic Relations, if a diplomatic agent is inthe territory of a third State, which has grantedhim a passport visa if such visa was necessary,while proceeding to take up his post, the thirdState shall accord him inviolability and suchother immunities as may be required to ensurehis transit.Diplomatic Immunity; Diplomatic Envoy andConsular Officers (1997)No 19: X, a Secretary and Consul in theAmerican Embassy in Manila, bought from B adiamond ring in the amount of P50,000.00which he later gave as a birthday present to hisFilipino girlfriend. The purchase price was paidin check drawn upon the Citibank. Uponpresentment for payment, the check wasdishonored for insufficiency of funds. Becauseof X's failure to make good the dishonoredcheck, B filed a complaint against X in theOffice of the City Prosecutor of Manila forviolation of Batas Pambansa Big. 22. Afterpreliminary investigation, the information wasfiled against X in the City Court of Manila. Xfiled a motion to dismiss the case against himon the ground that he is a Secretary and Consulin the American Embassy enjoying diplomaticimmunity from criminal prosecution in thePhilippines.If you were the Judge, how would you resolvethe motion to dismiss?SUGGESTED ANSWER:If I were the Judge, I would grant the motion todismiss.As consul, X is not immune from criminalprosecution. Under Paragraph 3 of Article 41 ofthe Vienna Convention on Consular Relations,a consular officer is not immune from the

criminal jurisdiction of the receiving state. InSchneckenburger vs. Moron, 63 Phil. 249, itwas held that a consul is not exempt fromcriminal prosecution in the country where he isassigned. However, as secretary in theAmerican Embassy, X enjoys diplomaticimmunity from criminal prosecution Assecretary, he is a diplomatic agent. UnderParagraph 1 of Article 31 of the ViennaConvention on Diplomatic Relations, adiplomatic agent enjoys immunity from thecriminal jurisdiction of the receiving State.Exclusive Economic Zone (2000)No XIX. b) What is the concept of theexclusive economic zone under the UNConvention on the Law of the Sea? (2%)SUGGESTED ANSWER:b) The exclusive economic zone under theConvention on the Law of the Sea is an areabeyond and adjacent to the territorial sea, whichshall not extend beyond 200 nautical miles fromthe baselines from which the territorial sea ismeasured. The coastal State has in theexclusive economic zone:(a) Sovereign rights for the purpose ofexploring and exploiting, conserving andmanaging the natural resources, whether livingor non-living, if the waters superjacent to thesea-bed and of the seabed and subsoil, andwith regard to other activities for the economicexploitation and exploration of the zone, suchas the production of energy from the water,currents and winds;(b) Jurisdiction as provided in therelevant provisions of the Convention withregard to:(i) the establishment and use ofartificial islands, installations andstructures;(ii) marine scientific research;and(iii) the protection andpreservation of the marine environment;(c) Other rights and duties providedform the Convention. [Article 56 of theConvention of the Law of the Sea.)Executive Agreements; Binding Effect(2003)No XX An Executive Agreement was executedbetween the Philippines and a neighboringState. The Senate of the Philippines took itBAR Q&A (as arranged by Topics) – POLITICAL LAW (1987-2006) 166upon itself to procure a certified true copy of the

Executive Agreement and, after deliberating onit, declared, by a unanimous vote, that theagreement was both unwise and against thebest interest of the country. Is the ExecutiveAgreement binding (a) from the standpoint ofPhilippine law and (b) from the standpoint ofinternational law? ExplainSUGGESTED ANSWER:(a) As to Philippine law, the ExecutiveAgreement is binding....(b) The Executive Agreement is also bindingfrom the standpoint of international law. As heldin Bavan v. Zamora. 342 SCRA 449 [2000], ininternational law executive agreements areequally binding as treaties upon the States whoare parties to them. Additionally, under Article2{1)(a) of the Vienna Convention on the Law ofTreaties, whatever may be the designation of awritten agreement between States, whether it isindicated as a Treaty, Convention or ExecutiveAgreement, is not legally significant. Still it isconsidered a treaty and governed by theinternational law of treaties.Extradition vs. Deportation (1993)No. 10: 1) What is the difference if any betweenextradition and deportation?SUGGESTED ANSWER:1) The following are the differences betweenextradition and deportation:a. EXTRADITION is effected for thebenefit of the state to which the person beingextradited will be surrendered because he is afugitive criminal in that state, whileDEPORTATION is effected for the protection ofthe State expelling an alien because hispresence is not conducive to the public good.b. EXTRADITION is effected on thebasis of an extradition treaty or upon therequest of another state, while DEPORTATIONis the unilateral act of the state expelling analien.c. In EXTRADITION, the alien will besurrendered to the state asking for hisextradition, while in DEPORTATION theundesirable alien may be sent to any statewilling to accept him.Extradition; Doctrine of Specialty (1993)No. 10: 2) Patrick is charged with illegalrecruitment and estafa before the RTC ofManila. He jumped bail and managed to escapeto America. Assume that there is an extraditiontreaty between the Philippines and America andit does not include illegal recruitment as one of

the extraditable offenses. Upon surrender ofPatrick by the U.S. Government to thePhilippines, Patrick protested that he could notbe tried for illegal recruitment. Decide.SUGGESTED ANSWER:2) Under the principle of specialty in extradition,Patrick cannot be tried for illegal recruitment,since this is not included in the list ofextraditable offenses in the extradition treatybetween the Philippines and the United States,unless the United States does not object to thetrial of Patrick for Illegal recruitment.Extradition; Effectivity of treaty (1996)No. 6; 1) The Extradition Treaty betweenFrance and the Philippines is silent as to itsapplicability with respect to crimes committedprior to its effectivity.a) Can France demand theextradition of A, a French national residing inthe Philippines, for an offense committed inFrance prior to the effectivity of the treaty?Explain.b) Can A contest his extradition onthe ground that it violates the ex post factoprovision of the Philippine Constitution?Explain.SUGGESTED ANSWER:1. a) Yes, France can ask for the extradition ofA for an offense committed in France before theeffectivity of the Extradition Treaty betweenFrance and the Philippines. In Cleugh vs.Strakosh. 109 F2d 330, it was held that anextradition treaty applies to crimes committedbefore its effectivity unless the extradition treatyexpressly exempts them. As Whiteman pointsout, extradition does not define crimes butmerely provides a means by which a State mayobtain the return and punishment of personscharged with or convicted of having committeda crime who fled the jurisdiction of the Statewhose law has been violated. It is thereforeimmaterial whether at the time of thecommission of the crime for which extradition issought no treaty was in existence. If at the timeextradition is requested there is in forcebetween the requesting and "the requestedStates a treaty covering the offense on whichBAR Q&A (as arranged by Topics) – POLITICAL LAW (1987-2006) 167the request is based, the treaty is applicable.(Whiteman, Digest of International Law, Vol. 6,pp. 753-754.)b) No, A cannot contest his extradition on theground that it violates the ex post facto

provision of the Constitution. As held in Wrightvs. Court of Appeals, 235 SCRA 341, theprohibition against ex post facto laws in Section22, Article III of the Constitution applies to penallaws only and does not apply to extraditiontreaties.Extradition; Grounds (2002)No XVIII. John is a former President of theRepublic X, bent on regaining power which helost to President Harry in an election. Fullyconvinced that he was cheated, he set out todestabilize the government of President Harryby means of a series of protest actions. Hisplan was to weaken the government and, whenthe situation became ripe for a take-over, toassassinate President Harry.William, on the other hand, is a believerin human rights and a former follower ofPresident Harry. Noting the systematic acts ofharassment committed by government agentsagainst farmers protesting the seizure of theirlands, laborers complaining of low wages, andstudents seeking free tuition, William organizedgroups which held peaceful rallies in front of thePresidential Palace to express their grievances.On the eve of the assassinationattempt, John's men were caught by membersof the Presidential Security Group. PresidentHarry went on air threatening to prosecuteplotters and dissidents of his administration.The next day, the government charged Johnwith assassination attempt and William withinciting to sedition.John fled to Republic A. William, whowas in Republic B attending a lecture ondemocracy, was advised by his friends to stayin Republic B.Both Republic A and Republic B haveconventional extradition treaties with RepublicX.If Republic X requests the extradition of Johnand William, can Republic A deny the request?Why? State your reason fully. (5%)SUGGESTED ANSWER:Republic A can refuse to extradite John,because his offense is a political offense. Johnwas plotting to take over the government andthe plan of John to assassinate President Harrywas part of such plan. However, if theextradition treaty contains an attentat clause,Republic A can extradite John, because underthe attentat clause, the taking of the life orattempt against the life of a head of state or that

of the members of his family does not constitutea political offense and is therefore extraditable.FIRST ALTERNATIVE ANSWER:Republic A may or can refuse the request ofextradition of William because he is not in itsterritory and thus it is not in the position todeliver him to Republic X.Even if William were in the territorial jurisdictionof Republic A, he may not be extraditedbecause inciting to sedition, of which he ischarged, constitutes a political offense. It is astandard provision of extradition treaties, suchas the one between Republic A and Republic X,that political offenses are not extraditable.SECOND ALTERNATIVE ANSWER:Republic B can deny the request of Republic Xto extradite William, because his offense wasnot a political offense. On the basis of thepredominance or proportionality test his actswere not directly connected to any purelypolitical offense.Extradition; Retroactive Application (Q2-2005)(1) The Philippines and Australia entered into aTreaty of Extradition concurred in by theSenate of the Philippines on September 10,1990. Both governments have notified eachother that the requirements for the entryinto force of the Treaty have been compliedwith. It took effect in 1990.The Australian government is requestingthe Philippine government to extradite itscitizen, Gibson, who has committed in hiscountry the indictable offense of ObtainingProperty by Deception in 1985. The saidoffense is among those enumerated asextraditable in the Treaty.For his defense, Gibson asserts that theretroactive application of the extraditiontreaty amounts to an ex post facto law. Ruleon Gibson's contention. (5%)SUGGESTED ANSWER:Gibson is incorrect. In Wright v. Court ofAppeals, G.R. No.113213, August 15,1994,it was held that the retroactive application ofthe Treaty of Extradition does not violateBAR Q&A (as arranged by Topics) – POLITICAL LAW (1987-2006) 168the prohibition against ex post facto laws,because the Treaty is neither a piece ofcriminal legislation nor a criminal proceduralstatute. It merely provided for theextradition of persons wanted for offensesalready committed at the time the treaty

was ratified.Flag State vs. Flag of Convenience (2004)II-A. Distinguish briefly but clearly between:(3) The flag state and the flag of convenience.SUGGESTED ANSWER:FLAG STATE means a ship has the nationalityof the flag of the state it flies, but there must bea genuine link between the state and the ship.(Article 91 of the Convention on the Law of theSea.)FLAG OF CONVENIENCE refers to a state withwhich a vessel is registered for various reasonssuch as low or non-existent taxation or lowoperating costs although the ship has nogenuine link with that state. (Harris, Cases andMaterials on International Law, 5th ed., 1998, p.425.)Genocide (1988)What is "Genocide," and what is the foremostexample thereof in recent history?SUGGESTED ANSWER:"Genocide" refers to any of the following acts,whether committed in time of war or peace, withintent to destroy in whole or in part national,ethnic, racial or religious group:(a) Killing members of a group;(b) Causing bodily or mental harm to itsmembers;(c) Deliberately inflicting on the groupconditions of life calculated to bringabout its physical destruction in wholeor in part;(d) Imposing measures to prevent birthswithin the group; and(e) Forcibly transforming children of thegroup to another group. (J. SALONGA& P. YAP, PUBLIC INTERNATIONALLAW 399-400 (1966)).The foremost example of genocide is theHolocaust (1933-1945) where about 6 millionJews (two thirds of the Jewish population ofEurope before World War II) were exterminatedby the Nazis. Along with the Jews, another 9 to10 million people (Gypsies and Slavs) weremassacred. (WORLD ALMANAC 120 (40th ed.,1987)).Human Rights (1999)1999 No X - A. Give three multilateralconventions on Human Rights adopted underthe direct auspices of the United Nations? (2%)SUGGESTED ANSWER:A. The following are multilateral conventions onHuman Rights adopted under the direct

auspices of the United Nations:1. International Covenant on Civil and PoliticalRights;2. Convention on the Elimination of All Formsof Discrimination against Women;3. Convention on the Rights of the Child;4. Convention against Torture and OtherCruel, Inhuman or Degrading Treatment orPunishment;5. International Convention on the Eliminationof All Forms of Racial Discrimination;6. Convention on the Prevention andPunishment of the Crime of Genocide; and7. International Convention on Economic,Social, and Cultural RightsHuman Rights; Civil and Political Rights(1992)No. 15: Walang Sugat, a vigilante groupcomposed of private businessmen and civicleaders previously victimized by the NationalistPatriotic Army (NPA) rebel group, wasimplicated in the torture and kidnapping of Dr.Mengele, a known NPA sympathizer.a) Under public international law, what rulesproperly apply? What liabilities, if any, arisethereunder if Walang Sugat's involvement isconfirmed.b) Does the Commission on Human Rightshave the power to investigate and adjudicatethe matter?SUGGESTED ANSWER:a) On the assumption that Dr. Mengele is aforeigner, his torture violates the InternationalCovenant on Civil and Political Rights, to whichthe Philippine has acceded. Article 7 of theBAR Q&A (as arranged by Topics) – POLITICAL LAW (1987-2006) 169Covenant on Civil and Political Rights provides:"No one shall be subjected to torture or to cruel,inhuman or degrading treatment orpunishment."In accordance with Article 2 of the Covenant onCivil and Political Rights, it is the obligation ofthe Philippines to ensure that Dr. Mengele hasan effective remedy, that he shall have his rightto such a remedy determined by competentauthority, and to ensure the enforcement ofsuch remedy when granted.ALTERNATIVE ANSWER:On the assumption that Dr. Mengele is aforeigner, his claim will have to be directedagainst the members of Walang Sugat on thebasis of the Philippine law and be addressed tothe jurisdiction of Philippine courts. His claim

may be based on the generally acceptedprinciples of international law, which form partof Philippine law under Section 2, Article II ofthe Constitution. His claim may be premised onrelevant norms of international law of humanrights.Under international law, Dr. Mengele must firstexhaust the remedies under Philippine lawbefore his individual claim can be taken up bythe State of which he is a national unless thesaid State can satisfactorily show it is its owninterests that are directly injured. If thiscondition is fulfilled, the said State's claim willbe directed against the Philippines as a subjectof international law. Thus it would cease to bean individual claim of Dr. Mengele.Dr. Mengele's case may concern internationallaw norms on State responsibility. But theapplication of these norms require that thebasis of responsibility is the relevant acts thatcan be attributed to the Philippines as a State.Hence, under the principle of attribution it isnecessary to show that the acts of the vigilantegroup Walang Sugat can be legally attributed tothe Philippines by the State of which Dr.Mengele is a national.The application of treaty norms of internationallaw on human rights, such as the provisionagainst torture in the International Covenants inCivil and Political Rights pertain to States. Theacts of private citizens composing WalangSugat cannot themselves constitute a violationby the Philippines as a State.SUGGESTED ANSWER:b) Can only investigate, no power ofadjudicationHuman Rights; Civil and Political Rights(1996)1996 No. 1: 1) Distinguish civil rights frompolitical rights and give an example of eachright.2) What are the relations of civil and politicalrights to human rights? Explain.SUGGESTED ANSWER:1) The term "CIVIL RIGHTS" refers to the rightssecured by the constitution of any state orcountry to all its Inhabitants and not connectedwith the organization or administration ofgovernment, [Black, Handbook of AmericanConstitutional Law, 4th ed., 526.) POLITICALRIGHTS consist in the power to participate,directly or indirectly, in the management of thegovernment. Thus, civil rights have no relation

to the establishment, management or support ofthe government. (Anthony vs. Burrow, 129 F783).CIVIL RIGHTS defines the relations ofindividual amongst themselves whilePOLITICAL RIGHTS defines the relations ofIndividuals vis-a-vis the state. CIVIL RIGHTSextend protection to all inhabitants of a state,while POLITICAL RIGHTS protect merely itscitizens.Examples of civil rights are the rights againstinvoluntary servitude, religious freedom, theguarantee against unreasonable searches andseizures, liberty of abode, the prohibitionagainst imprisonment for debt, the right totravel, equal protection, due process, the rightto marry, right to return to this country and rightto education.Examples of political rights are the right ofsuffrage, the right of assembly, and the right topetition for redress of grievances.2) Human rights are broader in scope than civiland political rights. They also include social,economic, and cultural rights. Human rights areinherent in persons from the fact of theirhumanity. Every man possesses themeverywhere and at all times simply because heis a human being. On the other hand, some civiland political rights are not natural rights. Theyexist because they are protected by aBAR Q&A (as arranged by Topics) – POLITICAL LAW (1987-2006) 170constitution or granted by law. For example, theliberty to enter into contracts is not a humanright but is a civil right.Int’l Court of Justice; Jurisdiction OverStates1994 No. 20: The sovereignty over certainislands is disputed between State A and StateB. These two states agreed to submit theirdisputes to the International Court of Justice[ICJ].1) Does the ICJ have jurisdiction to takecognizance of the case?2) Who shall represent the parties before theCourt?SUGGESTED ANSWER:1) The International Court of Justice hasjurisdiction over the case, because the partieshave jointly submitted the case to it and havethus indicated their consent to its jurisdiction.2) Parties to a case may appoint agents toappear before the International Court of Justicein their behalf, and these agents need not be

their own nationals. However, under Article 16of the Statutes of the International Court ofJustice, no member of the court may appear asagent in any case.Int’l Court of Justice; Jurisdiction OverStates (1994)No. 19; The State of Nova, controlled by anauthoritarian government, had unfriendlyrelations with its neighboring state, America.Bresla, another neighboring state, had beenshipping arms and ammunitions to Nova for usein attacking Ameria.To forestall an attack, Ameria placedfloating mines on the territorial waterssurrounding Nova. Ameria supported a group ofrebels organized to overthrow the governmentof Nova and to replace it with a friendlygovernment.Nova decided to file a case againstAmeria in the International Court of Justice1) On what grounds may Nova's causes ofaction against Ameria be based?2) On what grounds may Ameria move todismiss the case with the ICJ?Decide the case.SUGGESTED ANSWER:1) If Nova and Ameria are members of theUnited Nations, Nova can premise its cause ofaction on a violation of Article 2(4) of the UnitedNations Charter, which requires members torefrain from the threat or use of force ...2) By virtue of the principle of sovereignimmunity, no sovereign state can be made aparty to a proceeding before the InternationalCourt of Justice unless it has given its consent.If Ameria has not accepted the Jurisdiction ofthe International Court of Justice. Ameria caninvoke the defense of lack of jurisdiction. Evenif Ameria has accepted the jurisdiction of thecourt but the acceptance is limited and thelimitation applies to the case, it may invokesuch limitation its consent as a bar to theassumption of jurisdiction.If jurisdiction has been accepted,Ameria can invoke the principle ofanticipatory self-defense, recognized undercustomary international law, because Nova isplanning to launch an attack against Ameria byusing the arms it bought from Bresia.3) If jurisdiction over Ameria isestablished, the case should be decided infavor of Nova, .... if jurisdiction over Ameria isnot established, the case should be decided in

favor of Ameria because of the principle ofsovereign immunity.Int’l Court of Justice; Limitations OnJurisdiction (1999)No X - B. Under its Statute, give twolimitations on the jurisdiction of the InternationalCourt of Justice? (2%)SUGGESTED ANSWER:B. The following are the limitations on thejurisdiction of the International Court of Justiceunder its Statute:1. Only states may be parties in cases beforeit. (Article 34)2. The consent of the parties is needed for thecourt to acquire jurisdiction over a case.(Article 36)Int’l Court of Justice; Parties; Pleadings andOral Argument (1994)No. 20: The sovereignty over certain islands isdisputed between State A and State B. Thesetwo states agreed to submit their disputes to theInternational Court of Justice [ICJ].BAR Q&A (as arranged by Topics) – POLITICAL LAW (1987-2006) 1713) What language shall be used in thepleadings and oral argument?4) In case State A, the petitioner, fallsto appear at the oral argument, can State B, therespondent, move for the dismissal of thepetition?SUGGESTED ANSWER:3) Under Article 39 of the Statutes of theInternational Court of Justice, the officiallanguages of the court are English and French.In the absence of an agreement, each partymay use the language it prefers. At the requestof any party, the court may authorize a party touse a language other than English or French.4) Under Article 53 of the Statutes of theInternational Court of Justice, whenever one ofthe parties does not appear before the court orfails to defend its case, the other party may askthe court to decide in favor of its claim.However, the court must, before doing so,satisfy itself it has Jurisdiction and that theclaim is well founded in fact and law.International Convention; Law of the Sea(2004)(2-b) En route to the tuna fishing grounds in thePacific Ocean, a vessel registered in CountryTW entered the Balintang Channel north ofBabuyan Island and with special hooks andnets dragged up red corals found near Batanes.By international convention certain corals are

protected species, just before the vesselreached the high seas, the Coast Guard patrolintercepted the vessel and seized its cargoincluding tuna. The master of the vessel andthe owner of the cargo protested, claiming therights of transit passage and innocent passage,and sought recovery of the cargo and therelease of the ship. Is the claim meritorious ornot? Reason briefly. (5%)SUGGESTED ANSWER;The claim of innocent passage is notmeritorious. While the vessel has the right ofinnocent passage, it should not commit aviolation of any international convention. Thevessel did not merely navigate through theterritorial sea, it also dragged red corals inviolation of the international convention whichprotected the red corals. This is prejudicial tothe good order of the Philippines. (Article 19(2)of the Convention on the Law of the Sea)International Court of Justice (Q9-2006)1. Where is the seat of the InternationalCourt of Justice? 11%)The seat of the International Court ofJustice is at the Hague or elsewhere, as itmay decide, except during the judicialvacations the dates and duration of whichit shall fix (I.C.J. Statute, Art. 22).2. How many are its members? (1%)The Court is composed of fifteen memberswho must be of high moral character andpossess the qualifications required in theirrespective countries for appointment to thehighest judicial office or are jurisconsultsof recognized competence in internationallaw (I.C.J. Statute, Art. 2).3. What is the term of their office? (1%)They are elected for a term of nine years,staggered at three-year intervals bydividing the judges first elected into threeequal groups and assigning them bylottery terms of three, six and nine yearsrespectively. Immediate re-election isallowed (I.C.J. Statute, Art. 13).4. Who is its incumbent president? (1%)The incumbent President is RosalynHiggins.5. What is his/her nationality? (1 %)She is a national of the United Kingdom ora British subject.(NOTE: Since questions IX(4) and IX(5) donot test the examinees' knowledge of thelaw, it is suggested that they be

disregarded)6. In 1980, the United States filed with theInternational Court of Justice a complaintagainst Iran alleging that the latter isdetaining American diplomats in violationof International Law. Explain how theInternational Court of Justice can acquirejurisdiction over these contendingcountries. (5%)Under Article 36 of the I.C.J. Statutes,both parties must agree to submitthemselves to the jurisdiction of theInternational Court of Justice.International Law vs. Municipal Law;Territorial Principle; International Crimes(Q2-2005)(2) Police Officer Henry Magiting of theNarcotics Section of the Western PoliceDistrict applied for a search warrant in theRegional Trial Court of Manila for violationBAR Q&A (as arranged by Topics) – POLITICAL LAW (1987-2006) 172of Section 11, Article II (Possession ofProhibited Drugs) of Republic Act (R.A.)No. 9165 (Comprehensive DangerousDrugs Act of 2002) for the search andseizure of heroin in the cabin of the Captainof the MSS Seastar, a foreign-registeredvessel which was moored at the SouthHarbor, Manila, its port of destination.Based on the affidavits of the applicant'switnesses who were crew members of thevessel, they saw a box containing ten (10)kilograms of heroin under the bed in theCaptain's cabin. The RTC found probablecause for the issuance of a search warrant;nevertheless, it denied the application onthe ground that Philippine courts have nocriminal jurisdiction over violations of R.A.No. 9165 committed on foreign-registeredvessels found in Philippine waters.Is the ruling of the court correct? Supportyour answer with reasons. (5%)ALTERNATIVE ANSWER:The court's ruling is not correct. Theforeign-registered vessel was not in transit.It was moored in South Harbor, Manila, itsport of destination. Hence, any crimecommitted on board said vessel, likepossession of heroin, is triable by ourcourts (U.S. v. Ah Sing, G.R. No. 13005,October 10, 1917), except if the crimeinvolves the internal management of thevessel.

ALTERNATIVE ANSWER:The RTC may assert its jurisdiction over thecase by invoking the territorial principle,which provides that crimes committedwithin a state's territorial boundaries andpersons within that territory, eitherpermanently or temporarily, are subject tothe application of local law. Jurisdiction mayalso be asserted on the basis of theuniversality principle, which confers upon allstates the right to exercise jurisdiction overdelicta juris gentium or international crimes,such as the international traffic narcotics.The possession of 10 kgs. of heroinconstitutes commercial quantity andtherefore qualifies as trafficking ofnarcotics.Consequently, the denial of the searchwarrant should have been anchored on thefailure of the court to conduct personalexamination of the witnesses to the crime inorder to establish probable cause, asrequired by Sections 3 and 4 of Rule 126.In any event, there is no showing that therequisite quantum of probable cause wasestablished by mere reference to theaffidavits and other documentary evidencepresented.Mandates and Trust Territories (2003)No XVII - What are the so-called Mandates andTrust Territories? Does the United Nationsexercise sovereignty over these territories? Inthe affirmative, how is this jurisdictionexercised?SUGGESTED ANSWER:The Mandates were the overseaspossessions of the defeated states of Germanyand Turkey which were placed by the League ofNations under the administration ofmandatories to promote their development andultimate independence. (Harris, Cases andMaterials on International Law, 5th ed., p. 131.)When the United Nations replaced the Leagueof Nations, the system of Mandates wasreplaced by the System of Trust Territories. TheUnited Nations exercised residuary sovereigntyover the Trust Territories through the TrusteePowers, who exercised the powers ofsovereignty subject to supervision by andaccountability to the United Nations.(Oppenheim-Lauterpacht, International Law,Vol. I, 7th ed., pp. 213-214.) (Since there are nomore Trust Territories, this is just a matter of

historical interest.)ALTERNATIVE ANSWER:Mandates pertains to the mandatesystem established under Article 22 of theCovenant of the League of Nations for thetutelage and guardianship of colonies andterritories formerly held by Germany and Turkeybefore the First World War, by a victoriouspower on behalf of the League of Nations untilthey were prepared for independence.Territories under mandate were not under thesovereignty of any State; they wereadministered by a mandatory power which wasresponsible to the League of Nations for thedevelopment and welfare of the disadvantagedsubject peoples towards independence. Thus,mandated territories were under the jurisdictionof the mandatory power, subject to thesupervision of the League of Nations.The general legal framework of themandate system passed into the trusteeshipsystem of the United Nations, together withBAR Q&A (as arranged by Topics) – POLITICAL LAW (1987-2006) 173mandated territories which did not attainindependence status by the end of the SecondWorld War. Trust territories and the TrusteeshipCouncil are created by the UN Charter.The trusteeship system under ChaptersXII and XIII of the UN Charter is establishedunder the supervision of the UN TrusteeshipCouncil under the authority of the GeneralAssembly for the promotion of political andsocio-economic development of peoples in trustterritories towards independent status. A newfeature of the UN trusteeship system is thecreation of a new category of territories, thestrategic trust territories, which is under thesupervision of the Security Council instead ofthe Trusteeship Council.Under the foregoing conditions, theUnited Nations may not be said to exercisesovereignty over trust territories, the functionsand powers of the Trusteeship Council and theGeneral Assembly being limited toadministration and supervision under theprinciple of self-determination as set forth inindividual trust agreements concluded inaccordance with the UN Charter. UNjurisidiction is exercised through theTrusteeship Council under the authority of theGeneral Assembly, except with respect tostrategic areas or territories which are placedunder the jurisdiction of the Security Council.

Municipal Law vs. International Law (2003)No XVI- An organization of law studentssponsored an inter-school debate among threeteams with the following assignments andpropositions for each team to defend:Team "A" - International law prevailsover municipal law. Team "B" - Municipal lawprevails over international law. Team "C" - Acountry's Constitution prevails over internationallaw but international law prevails over municipalstatutes.If you were given a chance to choose thecorrect proposition, which would you take andwhy?SUGGESTED ANSWER:I shall take the proposition for Team C.International Law and municipal law aresupreme in their own respective fields. Neitherhas hegemony over the other. (Brownlie,Principles of Public International Law, 4th ed. p.157.) Under Article II, Section 2 of the 1987Constitution, the generally accepted principlesof international law form part of the law of theland. Since they merely have the force of law, ifit is Philippine courts that will decide the case,they will uphold the Constitution overinternational law. If it is an international tribunalthat will decide the case, it will upholdinternational law over municipal law. As held bythe Permanent International Court of Justice inthe case of the Polish Nationals in Danzig, aState cannot invoke its own Constitution toevade obligations incumbent upon it underinternational law.ALTERNATIVE ANSWERI would take the proposition assigned toTeam "C" as being nearer to the legal reality inthe Philippines, namely, "A country'sConstitution prevails over international law butinternational law prevails over municipalstatutes".This is, however, subject to the place ofinternational law in the Philippine Constitutionalsetting in which treaties or customary norms ininternational law stand in parity with statutesand in case of irreconcilable conflict, this maybe resolved by /ex posteriori derogat lex priorias the Supreme Court obiter dictum in Abbas v.COMELEC holds. Hence, a statute enactedlater than the conclusion or effectivity of a treatymay prevail.In the Philippine legal system, there areno norms higher than constitutional norms. The

fact that the Constitution makes generallyaccepted principles of international law orconventional international law as part ofPhilippine law does not make them superior tostatutory law, as clarified in Secretary of Justicev. Lantion and Philip Morris decisions.Neutrality of States (1988)No. 20: Switzerland and Australia areoutstanding examples of neutralized states,1. What are the characteristics of aneutralized state?2. Is neutrality synonymous withneutralization? If not, distinguish one from theother.SUGGESTED ANSWER:1. Whether simple or composite, a State is saidto be neutralized where its independence andintegrity are guaranteed by an internationalconvention on the condition that such Stateobligates itself never to take up arms againstany other State, except for self-defense, orenter into such international obligations aswould indirectly involve it in war. A State seeksneutralization where it is weak and does notBAR Q&A (as arranged by Topics) – POLITICAL LAW (1987-2006) 174wish to take an active part in internationalpolitics. The power that guarantee itsneutralization may be motivated either bybalance of power considerations or by thedesire to make the weak state a buffer betweenthe territories of the great powers. (J.SALONGA & P. YAP, PUBLICINTERNATIONAL LAW 76 (1966)).2. Firstly, neutrality obtains only duringwar, whereas neutralization is a condition thatapplies in peace or in war. Secondly,neutralization is a status created by means oftreaty, whereas neutrality is a status createdunder international law, by means of a stand onthe part of a state not to side with any of theparties at war. Thirdly, neutrality is broughtabout by a unilateral declaration by the neutralState, while neutralization cannot be effected byunilateral act, but must be recognized by otherStates. (Id.)Outer Space; Jurisdiction (2003)No XIX - What is outer-space? Who or whichcan exercise jurisdiction over astronauts whilein outer space?ALTERNATIVE ANSWER:There are several schools of thought regardingthe determination of outer space, such as thelimit of air flight, the height of atmospheric

space, infinity, the lowest altitude of an artificialsatellite, and an altitude approximatingaerodynamic lift. Another school of thoughtproceeds by analogy to the law of the sea. Itproposes that a State should exercise fullsovereignty up to the height to which an aircraftcan ascend. Non-militant flight instrumentalitiesshould be allowed over a second area, acontiguous zone of 300 miles. Over that shouldbe outer space. The boundary betweenairspace and outer space has not yet beendefined. (Harris, Cases and Materials onInternational Law, 5th ed.. pp. 251-253.) UnderArticle 8 of the Treaty on the PrinciplesGoverning the Activities of States in theExploration and Use of Outer Space, Includingthe Moon and Other Celestial Bodies, a Stateon whose registry an object launched into outerspace retains jurisdiction over the astronautswhile they are in outer space.ALTERNATIVE ANSWER:Outer space is the space beyond the airspacesurrounding the Earth or beyond the nationalairspace. In law, the boundary between outerspace and airspace has remainedundetermined. But in theory, this has beenestimated to be between 80 to 90 kilometers.Outer space in this estimate begins from thelowest altitude an artificial satellite can remainin orbit. Under the Moon Treaty of 1979 themoon and the other celestial bodies form part ofouter space.In outer space, the space satellites or objectsare under the jurisdiction of States of registrywhich covers astronauts and cosmonauts. Thismatter is covered by the Registration of Objectsin Space Convention of 1974 and the Liabilityfor Damage Caused by Spaced ObjectsConvention of 1972.Principle of Auto-Limitation (Q10-2006)1. What is the principle of auto-limitation?(2.5%)ALTERNATIVE ANSWER:Under the principle of auto-limitation, anystate may by its consent, express orimplied, submit to a restriction of itssovereign rights. There may thus be acurtailment of what otherwise is a plenarypower (Reagan v. CIR, G.R. L-26379,December 27, 1969).Reciprocity v. Principle of Auto-Limitation(Q10-2006)2. What is the relationship between

reciprocity and the principle of autolimitation?(2.5%)ALTERNATIVE ANSWER:When the Philippines enters into treaties,necessarily, these internationalagreements may contain limitations onPhilippine sovereignty. The considerationin this partial surrender of sovereignty isthe reciprocal commitment of othercontracting states in granting the sameprivilege and immunities to the Philippines.For example, this kind of reciprocity inrelation to the principle of auto-limitationcharacterizes the Philippine commitmentsunder WTO-GATT. This is based on theconstitutional provision that the Philippines"adopts the generally accepted principlesof international law as part of the law ofthe land and adheres to the policy of ...cooperation and amity with all nations"(Tanada v. Angara, G.R. No. 118295, May2, 1997).Recognition of States; De Facto vs. De JureRecognition (1998)No XII. Distinguish between de factorecognition and de jure recognition of states.[5%)BAR Q&A (as arranged by Topics) – POLITICAL LAW (1987-2006) 175SUGGESTED ANSWER:The following are the distinctions between defacto recognition and de Jure recognition of agovernment:1. De facto recognition is provisional, de Jurerecognition is relatively permanent;2. De facto recognition does not vest title inthe government to its properties abroad; deJure recognition does;3. De facto recognition is limited to certainjuridical relations; de jure recognition bringsabout full diplomatic relations. (Cruz.International Law. 1996 ed.. p. 83.)ALTERNATIVE ANSWER:The distinction between de factorecognition and de jure recognition of a State isnot clear in international law. It is, however,usually assumed as a point of distinction thatwhile de facto recognition is provisional andhence may be withdrawn, de jure recognition isfinal and cannot be withdrawn.Confronted with the emergence of anew political entity in the internationalcommunity, a State may experience somedifficulty in responding to the question whether

the new political order qualifies to be regardedas a state under international law, in particularfrom the viewpoint of its effectiveness andindependence on a permanent basis. Therecognizing State may consider its act in regardto the new political entity as merely a de factorecognition, implying that it may withdraw it if inthe end it turns out that the conditions ofstatehood are not fulfilled should the newauthority not remain in power.But even then, a de facto recognition inthis context produces legal effects in the sameway as de jure recognition. Whether recognitionis de facto or de jure, steps may be taken towithdraw recognition if the conditions ofstatehood in international law are not fulfilled.Thus, from this standpoint, the distinction is notlegally significant.Note: The question should refer to recognitionof government not recognition of state becausethere is no such distinction in recognition ofstate.Reparations Agreement; Validity (1992)No. 14: The Japanese Government confirmedthat during the Second World War, Filipinaswere among those conscripted as "comfortwomen" (or prostitutes) for Japanese troops invarious parts of Asia. The JapaneseGovernment has accordingly launched agoodwill campaign and has offered thePhilippine Government substantial assistancefor a program that will promote — throughgovernment and non-governmentalorganizations — womens' rights, child welfare,nutrition and family health care.An executive agreement is about to besigned for that purpose. The agreementincludes a clause whereby the PhilippineGovernment acknowledges that any liability tothe "comfort women" or their descendants aredeemed covered by the reparationsagreements signed and implementedimmediately after the Second World War.Juliano Iglesias, a descendant of a nowdeceased comfort woman, seeks your adviceon the validity of the agreement. Advise him.SUGGESTED ANSWER:The agreement is valid. The comfort womenand their descendants cannot assert individualclaims against Japan. As stated in Davis &Moore vs. Regan, 453 U.S. 654, the sovereignauthority of a State to settle claims of itsnationals against foreign countries has

repeatedly been recognized. This may be madewithout the consent of the nationals or evenwithout consultation with them. Since thecontinued amity between a State and othercountries may require a satisfactorycompromise of mutual claims, the necessarypower to make such compromises has beenrecognized. The settlement of such claims maybe made by executive agreement.Right to Innocent Passage (1999)No X - C. State Epsilon, during peace time,has allowed foreign ships innocent passagethrough Mantranas Strait, a strait withinEpsilon's territorial sea which has been used byforeign ships for international navigation. Suchpassage enabled the said ships to traverse thestrait between one part of the high seas toanother. On June 7, 1997, a warship of StateBeta passed through the above-named strait.Instead of passing through continuously andexpeditiously, the ship delayed its passage torender assistance to a ship of State Gammawhich was distressed with no one nearby toassist. When confronted by Epsilon about thedelay, Beta explained that the delay was due toforce majeure in conformity with the provision ofArticle 18(2) of the 1982 Convention on the Lawof the Sea (UNCLOS). Seven months later,Epsilon suspended the right of innocentBAR Q&A (as arranged by Topics) – POLITICAL LAW (1987-2006) 176passage of warships through Mantranas Straitwithout giving any reason therefor.Subsequently, another warship of Beta passedthrough the said strait, and was fired upon byEpsilon's coastal battery. Beta protested theaforesaid act of Epsilon drawing attention to theexisting customary international law that theregime of innocent passage (even of transitpassage) is non-suspendable. Epsiloncountered that Mantranas Strait is not anecessary route, there being another suitablealternative route. Resolve the above-mentionedcontroversy, Explain your answer. (4%)SUGGESTED ANSWER:Assuming that Epsilon and Beta are parties tothe UNCLOS, the controversy maybe resolvedas follows:Under the UNCLOS, warships enjoy aright of innocent passage. It appearing that theportion of Epsilon's territorial sea in question isa strait used for international navigation,Epsilon has no right under international law tosuspend the right of innocent passage. Article

45(2) of the UNCLOS is clear in providing thatthere shall be no suspension of innocentpassage through straits used for internationalnavigation.On the assumption that the straits inquestion is not used for international navigation,still the suspension of innocent passage byEpsilon cannot be effective becausesuspension is required under international lawto be duly published before it can take effect.There being no publication prior to thesuspension of innocent passage by Beta'swarship, Epsilon's act acquires no validity.Moreover, Epsilon's suspension ofinnocent passage may not be valid for thereason that there is no showing that it isessential for the protection of its security. Theactuation of Beta's warship in resorting todelayed passage is for cause recognized by theUNCLOS as excusable, i.e., for the purpose ofrendering assistance to persons or ship indistress, as provided in Article 18(2) of theUNCLOS. Hence, Beta's warship complied withthe international law norms on right of innocentpassage.Right to Transit and Innocent Passage(2004)II-B. En route to the tuna fishing grounds inthe Pacific Ocean, a vessel registered inCountry TW entered the Balintang Channelnorth of Babuyan Island and with special hooksand nets dragged up red corals found nearBatanes. By international convention certaincorals are protected species. Just before thevessel reached the high seas, the Coast Guardpatrol intercepted the vessel and seized itscargo including tuna. The master of the vesseland the owner of the cargo protested, claimingthe rights of transit passage and innocentpassage, and sought recovery of the cargo andthe release of the ship. Is the claim meritoriousor not? Reason briefly. (5%)SUGGESTED ANSWER;The claim of innocent passage is notmeritorious. While the vessel has the right ofinnocent passage, it should not commit aviolation of any international convention. Thevessel did not merely navigate through theterritorial sea, it also dragged red corals inviolation of the international convention whichprotected the red corals. This is prejudicial tothe good order of the Philippines. (Article 19(2)of the Convention on the Law of the Sea)

Rights and Obligation under UN Charter(1991)No. 14: State X invades and conquers State Y.The United Nations Security Council declaresthe invasion and conquest illegal and orders aninternational embargo against State X.Subsequently, the same U.N. body adopts aresolution calling for an enforcement actionagainst State X under Chapter VII of the U.N.Charter. State Z, a U.N. member, religiouslycomplies with the embargo but refuses to takepart in the enforcement action, sending amedical mission instead of fighting troops to thetroubled area.(a) Did State Z violate its obligations under theU.N. Charter?(b) If so, what sanctions may be taken againstit?(c) If not, why not?ANSWER:(a) No, State Z did not violate itsobligations under the United Nations Charter. Itcomplied with the resolution calling forenforcement action against State X, because itsent a medical team.(b) No sanctions may be taken againstState Z. because it did not violate its obligationunder the United Nations Charter.(c) Compliance with the resolutioncalling for enforcement action against Slate Xdoes not necessarily call for the sending ofBAR Q&A (as arranged by Topics) – POLITICAL LAW (1987-2006) 177fighting troops. Under Art 43 of the UnitedNations Charter, compliance with the call forenforcement action against State X has to bemade in accordance with a special agreementwith the Security Council and such agreementshall govern the numbers and types of forces,their degree of readiness and general locations,and the nature of the facilities and assistance tobe supplied by members of the United Nations.Sources of International Law; Primary &Subsidiary Sources (2003)No XV - State your general understanding ofthe primary sources and subsidiary sources ofinternational law, giving an illustration of each.SUGGESTED ANSWER:Under Article 38 of the Statute of theInternational Court of Justice, the PRIMARYSOURCES of international law are thefollowing:1. International conventions, e.g., ViennaConvention on the Law of Treaties.

2. International customs, e.g., sabotage, theprohibition against slavery, and theprohibition against torture.3. General principles of law recognized bycivilized nations, e.g., prescription, resjudicata, and due process.The SUBSIDIARY SOURCES of internationallaw are judicial decisions, subject to theprovisions of Article 59, e.g., the decision in theAnglo-Norwegian Fisheries Case andNicaragua v. United States, and TEACHINGSof the most highly qualified publicists of variousnations, e.g., Human Rights in InternationalLaw by Lauterpacht and International Law byOppenhe im -Lauterpacht.ALTERNATIVE ANSWER:Reflecting general international law, Article38(1) of the Statute of the International Court ofJustice is understood as providing forinternational convention, international custom,and general principles of law as primarysources of international law, while indicatingthat judicial decisions and teachings of the mosthighly qualified publicists as "subsidiary meansfor the determination of the rules of law."The primary sources may be considered asformal sources in that they are the methods bywhich norms of international law are createdand recognized. A conventional or treaty normcomes into being by established treaty-makingprocedures and a customary norm is theproduct of the formation of general practiceaccepted as law.By way of illustrating International Conventionas a source of law, we may refer to the principleembodied in Article 6 of the Vienna Conventionon the Law of Treaties which reads: "EveryState possesses capacity to conclude treaties".It tells us what the law is and the process ormethod by which it came into being.International Custom may be concretelyillustrated by pacta sunt servanda, a customaryor general norm which came about throughextensive and consistent practice by a greatnumber of states recognizing it as obligatory.The subsidiary means serves as evidence oflaw. A decision of the International Court ofJustice, for example, may serve as materialevidence confirming or showing that theprohibition against the use of force is acustomary norm, as the decision of the Courthas demonstrated in the Nicaragua Case. Thestatus of a principle as a norm of international

law may find evidence in the works of highlyqualified publicists in international law, such asMcNair, Kelsen or Oppenheim.Sovereign Immunity of States; Absolute vs.Restrictive (1998)No XIII. What is the doctrine of Sovereignimmunity in international Law? [5%]SUGGESTED ANSWER:By the doctrine of sovereign immunity, aState, its agents and property are immune fromthe judicial process of another State, exceptwith its consent. Thus, immunity may be waivedand a State may permit itself to be sued in thecourts of another State,Sovereign immunity has developed intotwo schools of thought, namely, absoluteimmunity and restrictive immunity. By absoluteimmunity, all acts of a State are covered orprotected by immunity. On the other hand,restrictive immunity makes a distinctionbetween governmental or sovereign acts (actajure imperii) and nongovernmental, propriety orcommercial acts (acta jure gestiones). Only thefirst category of acts is covered by sovereignimmunity.The Philippine adheres to the restrictiveimmunity school of thought.ALTERNATIVE ANSWER;BAR Q&A (as arranged by Topics) – POLITICAL LAW (1987-2006) 178In United States vs. Ruiz, 136 SCRA 487. 490-491. the Supreme Court explained the doctrineof sovereign immunity in international law;"The traditional rule of State immunity exemptsa State from being sued in the courts of anotherState without its consent or waiver, this rule is anecessary consequence of the principles ofindependence and equality of states. However,the rules of International Law are not petrified,they are constantly developing and evolving.And because the activities of states havemultiplied. It has been necessary to distinguishthem — between sovereign and governmentacts [jure imperii] and private, commercial andproprietary acts (jure gestionis), The result isthat State immunity now extends only to actsjure imperii."Sovereignty of States; Natural Use ofTerritory (1989)No. 19: The Republic of China (Taiwan), in itsbid to develop a hydrogen bomb and defenditself against threats of invasion coming fromthe People's Republic of China, conducted aseries of secret nuclear weapons tests in its

own atmosphere. The tests resulted inradioactive fallouts which contaminated therivers in and around Aparri and other bodies ofwater within the territorial jurisdiction of thePhilippines, Can the Philippines complainagainst the Republic of China for violation of itssovereignty?ANSWER:In the Trial Smelter Arbitration betweenthe United States and Canada, the ArbitralTribunal held that air pollution from Canadashould be enjoined, because sovereigntyincludes the right against any encroachmentwhich might prejudice the natural use of theterritory and the free movement of itsinhabitants.Since the nuclear tests conducted bythe Republic China resulted in radioactivefallouts which contaminated the rivers and otherbodies of water within the Philippines, theRepublic of China violated the sovereignty ofthe Philippines.YES, the Philippines can complain against theRepublic of China for violation of itssovereignty. Article 194 of the Convention onthe Law of the Sea requires States to take allmeasures necessary to ensure that activitiesunder their jurisdiction or control are soconducted as not to cause damage by pollutionto other States and their environment. Principle21 of the United Nations Conference on theHuman Environment imposes upon states theresponsibility to ensure that activities withintheir jurisdiction or control do not causedamage to the environment of other States.Sovereignty; Definition; Nature (Q10-2006)3. How is state sovereignty defined inInternational Law? (2.5%)ALTERNATIVE ANSWER:State sovereignty signifies independencein regard to a portion of the globe, and theright to exercise and enforce jurisdictiontherein, to the exclusion of any other statethe functions of the state [See Island ofLas Palmas Case (US v. The Netherlands)2 R.IAA. 829]. Sovereignty means independencefrom outside control. The1933 Montevideo Convention expressesthis in positive terms as including "thecapacity to enter into relations with otherstates."ALTERNATIVE ANSWER:Under the principle of state sovereignty in

International Law, all states are sovereignequals and cannot assert jurisdiction overone another. A contrary disposition would"unduly vex the peace of nations" (DaHaber v. Queen of Portugal, 17 Q. B. 171).4. Is state sovereignty absolute? (2.5%)ALTERNATIVE ANSWER:State sovereignty is not absolute. On thecontrary, the rule says that the state maynot be sued without its consent, whichclearly imports that it may be sued if itconsents. Moreover, certain restrictionsenter into the picture: (1) limitationsimposed by the very nature of membershipin the family of nations; and (2) limitationsimposed by treaty stipulations. Thesovereignty of a state therefore cannot infact and in reality be considered absolute(Tanada v. Angara, G.R. No. 118295, May2,1997).ALTERNATIVE ANSWER:Sovereignty is absolute with respect toexclusive competence over internalmatters [See Island of Las Palmas Case(US v. The Netherlands) 2 R.IAA. 829],subject only to such limitations as may beimposed or recognized by the state itselfas part of its obligations underinternational law. In the international plain,state sovereignty is realized as the coexistencewith other sovereignties underconditions of independence and equality.BAR Q&A (as arranged by Topics) – POLITICAL LAW (1987-2006) 179State Liabilities (1995)No. 8: In a raid conducted by rebels in aCambodian town, an American businessmanwho has been a long-time resident of the placewas caught by the rebels and robbed of hiscash and other valuable personal belongings.Within minutes, two truckloads of governmenttroops arrived prompting the rebels to withdraw.Before fleeing they shot the American causinghim physical injuries. Government troopersimmediately launched pursuit operations andkilled several rebels. No cash or other valuableproperty taken from the American businessmanwas recovered.In an action for indemnity filed by the USGovernment in behalf of the businessman forinjuries and losses in cash and property, theCambodian government contended that underInternational Law it was not responsible for theacts of the rebels.

1. Is the contention of the Cambodiangovernment correct? Explain.2. Suppose the rebellion is successful and anew government gains control of the entireState, replacing the lawful government that wastoppled, may the new government be heldresponsible for the injuries or losses suffered bythe American businessman? Explain.ANSWER;1. Yes, the contention of the CambodianGovernment is correct. Unless it clearlyappears that the government has failed to usepromptly and with appropriate force itsconstituted authority it cannot be heldresponsible for the acts of rebels, for the rebelsare not its agents and their acts were donewithout its volition. In this case, governmenttroopers immediately pursued the rebels andkilled several of them.2. The new government may be heldresponsible if it succeeds in overthrowing thegovernment. Victorious rebel movements areresponsible for the illegal acts of their forcesduring the course of the rebellion. The acts ofthe rebels are imputable to them when theyassumed as duly constituted authorities of thestate.State Sovereignty; Effective Occupation;Terra Nullius (2000)No XIX - a) What is the basis of thePhilippines' claim to a part of the SpratlyIslands?SUGGESTED ANSWER:The basis of the Philippine claim is effectiveoccupation of a territory not subject to thesovereignty of another state. The Japaneseforces occupied the Spratly Island group duringthe Second World War. However, under theSan Francisco Peace Treaty of 1951 Japanformally renounced all right and claim to theSpratlys. The San Francisco Treaty or anyother International agreement however, did notdesignate any beneficiary state following theJapanese renunciation of right. Subsequently,the Spratlys became terra nullius and wasoccupied by the Philippines in the title ofsovereignty. Philippine sovereignty wasdisplayed by open and public occupation of anumber of islands by stationing of militaryforces, by organizing a local government unit,and by awarding petroleum drilling rights,among other political and administrative acts. In1978, it confirmed its sovereign title by the

promulgation of Presidential Decree No. 1596,which declared the Kalayaan Island Group partof Philippine territory.Stateless Persons; Effects; Status; Rights(1995)1. Who are stateless persons underInternational Law?2. What are the consequences ofstatelessness?3. Is a stateless person entirely without right,protection or recourse under the Law ofNations? Explain.4. What measures, if any, has InternationalLaw taken to prevent statelessness?ANSWER:1. STATELESS PERSONS are those who arenot considered as nationals by any State underthe operation of its laws.2. The consequences of statelessness are thefollowing:(a) No State can intervene or complainin behalf of a stateless person foran international delinquencycommitted by another State ininflicting injury upon him.(b) He cannot be expelled by the Stateif he is lawfully in its territory excepton grounds of national security orpublic order.(c) He cannot avail himself of theprotection and benefits ofBAR Q&A (as arranged by Topics) – POLITICAL LAW (1987-2006) 180citizenship like securing for himselfa passport or visa and personaldocuments.3. No. Under the Convention in Relation tothe Status of Stateless Person, the ContractingStates agreed to accord to stateless personswithin their territories treatment at least asfavorable as that accorded to their nationalswith respect to freedom of religion, access tothe courts, rationing of products in short supply,elementary education, public relief andassistance, labor legislation and social security.They also agreed to accord to them treatmentnot less favorable than that accorded to aliensgenerally in the same circumstances. TheConvention also provides for the issuance ofidentity papers and travel documents tostateless person.4. In the Convention on the Conflict ofNationality Laws of 1930, the ContractingStates agreed to accord nationality to persons

born in their territory who would otherwise bestateless. The Convention on the Reduction ofStatelessness of 1961 provides that if the law ofthe contracting States results in the loss ofnationality as a consequence of marriage ortermination of marriage, such loss must beconditional upon possession or acquisition ofanother nationality.ALTERNATIVE ANSWER;Under the Convention on the Reduction ofStateless-ness of 1961, a contracting state shallgrant its nationality to a person born in itsterritory who would otherwise be stateless anda contracting state may not deprive a person ora group of persons of their nationality for racial,ethnic, religious or political grounds.Territorial Sea vs. Internal Waters (2004)II-A. Distinguish briefly but clearly between:(1) The territorial sea and the internal waters ofthe Philippines.SUGGESTED ANSWER:A. (1) TERRITORIAL SEA is an adjacent belt ofsea with a breadth of twelve nautical milesmeasured from the baselines of a state andover which the state has sovereignty. (Articles 2and 3 of the Convention on the Law of the Sea.)Ship of all states enjoy the right of innocentpassage through the territorial sea. (Article 14of the Convention on the Law of the Sea.)Under Section 1, Article I of the 1987Constitution, the INTERNAL WATERS of thePhilippines consist of the waters around,between and connecting the islands of thePhilippine Archipelago, regardless of theirbreadth and dimensions, including the waters inbays, rivers and lakes. No right of innocentpassage for foreign vessels exists in the case ofinternal waters. (Harris, Cases and Materials onInternational Law, 5th ed., 1998, p. 407.)Internal waters are the waters on thelandward side of baselines from which thebreadth of the territorial sea is calculated.(Brownlie, Principles of Public InternationalLaw, 4th ed., 1990, p. 120.)Use of Force; Exceptions (2003)No XIV- Not too long ago, "allied forces", led byAmerican and British armed forces, invadedIraq to "liberate the Iraqis and destroysuspected weapons of mass destruction." TheSecurity Council of the United Nations failed toreach a consensus on whether to support oroppose the "war of liberation".Can the action taken by the allied forces

find justification in International Law? Explain.SUGGESTED ANSWER:The United States and its allied forcescannot justify their invasion of Iraq on the basisof self-defense under Article 51 attack by Iraq,and there was no necessity for anticipatory selfdefensewhich may be justified undercustomary international law. Neither can theyjustify their invasion on the ground that Article42 of the Charter of the United Nations permitsthe use force against a State if it is sanctionedby the Security Council. Resolution 1441, whichgave Iraq a final opportunity to disarm or faceserious consequences, did not authorize theuse of armed force.ALTERNATIVE ANSWER:In International Law, the action taken bythe allied forces cannot find justification. It iscovered by the prohibition against the use offorce prescribed by the United Nations Charterand it does not fall under any of the exceptionsto that prohibition.The UN Charter in Article 2(4) prohibitsthe use of force in the relations of states byproviding that all members of the UN "shallrefrain in their international relations from thethreat or use of force against the territorialintegrity or political independence of any state,BAR Q&A (as arranged by Topics) – POLITICAL LAW (1987-2006) 181or in any other manner inconsistent with thepurposes of the United Nations." This mandatedoes not only outlaw war; it encompasses allthreats of and acts of force or violence short ofwar.As thus provided, the prohibition isaddressed to all UN members. However, it isnow recognized as a fundamental principle incustomary international law and, as such, isbinding on all members of the internationalcommunity.The action taken by the allied forcescannot be justified under any of the threeexceptions to the prohibition against the use offorce which the UN Charter allows. These are:(1) inherent right of individual orcollective self-defense under Article51;(2) enforcement measure involving theuse of armed forces by the UNSecurity Council under Article 42;and(3) enforcement measure by regionalarrangement under Article 53, as

authorized by the UN SecurityCouncil. The allied forces did notlaunch military operations and didnot occupy Iraq on the claim thattheir action was in response to anarmed attack by Iraq, of which therewas none.Moreover, the action of the allied forces wastaken in defiance or disregard of the SecurityCouncil Resolution No. 1441 which set up "anenhanced inspection regime with the aim ofbringing to full and verified completion thedisarmament process", giving Iraq "a finalopportunity to comply with its disarmamentobligations". This resolution was in the processof implementation; so was Iraq's compliancewith such disarmament obligations.Use of Force; Principle of Non-Intervention(1994)No. 19; The State of Nova, controlled by anauthoritarian government, had unfriendlyrelations with its neighboring state, Ameria.Bresla, another neighboring state, had beenshipping arms and ammunitions to Nova for usein attacking Arneria.To forestall an attack, Ameria placedfloating mines on the territorial waterssurrounding Nova. Ameria supported a group ofrebels organized to overthrow the governmentof Nova and to replace it with a friendlygovernment.Nova decided to file a case againstAmeria in the International Court of Justice1) On what grounds may Nova's causes ofaction against Ameria be based?2) On what grounds may Ameria move todismiss the case with the ICJ?3) Decide the case.ANSWER:1) If Nova and Ameria are members of theUnited Nations, Nova can premise its cause ofaction on a violation of Article 2(4) of the UnitedNations Charter, which requires members torefrain from the threat or use of force againstthe territorial integrity or political independenceof any state. If either or both Nova or Ameriaare not members of the United Nations, Novamay premise its cause of action on a violationof the non-use of force principle in customaryinternational law which exists parallel to Article2(4) of the United Nations Charter.In the Case Concerning Military andParamilitary Activities in and Against Nicaragua

(1986 ICJ Rep. 14), the International Court ofJustice considered the planting of mines by onestate within the territorial waters of another as aviolation of Article 2(4) of the United NationsCharter. If the support provided by Ameria tothe rebels of Nova goes beyond the mere givingof monetary or psychological support butconsists in the provision of arms and training,the acts of Ameria can be considered asindirect aggression amounting to anotherviolation of Article 2(4).In addition, even if the provision ofsupport is not enough to consider the act aviolation of the non-use of force principle, this isa violation of the principle of non-intervention incustomary International law.Aggression is the use of armed force bya state against the sovereignty, territorialintegrity or political independence of anotherstate or in any other manner inconsistent withthe United Nations Charter.2) By virtue of the principle of sovereignimmunity, no sovereign state can be made aparty to a proceeding before the InternationalCourt of Justice unless it has given its consent....BAR Q&A (as arranged by Topics) – POLITICAL LAW (1987-2006) 1823) If jurisdiction over Ameria is established, thecase should be decided in favor of Nova,because Ameria violated the principle againstthe use of force and the principle of non-Intervention. The defense of anticipatory selfdefensecannot be sustained, because there isno showing that Nova had mobilized to such anextent that if Ameria were to wait for Nova tostrike first it would not be able to retaliate.However, if jurisdiction over Ameria is notestablished, the case should be decided infavor of Ameria because of the principle ofsovereign immunity.Use of Force; Right of Self-defense (2002)No XIX. On October 13, 2001, members of AliBaba, a political extremist organization based inand under the protection of Country X andespousing violence worldwide as a means ofachieving its objectives, planted high-poweredexplosives and bombs at the InternationalTrade Tower (ITT) in Jewel City in Country Y, amember of the United Nations. As a result ofthe bombing and the collapse of the 100-storytwin towers, about 2,000 people, includingwomen and children, were killed or injured, andbillions of dollars in property were lost.

Immediately after the incident, Ali Baba,speaking through its leader Bin Derdandat,admitted and owned responsibility for thebombing of ITT, saying that it was done topressure Country Y to release capturedmembers of the terrorist group. Ali Babathreatened to repeat its terrorist acts againstCountry Y if the latter and its allies failed toaccede to Ali Baba's demands. In response,Country Y demanded that Country X surrenderand deliver Bin Derdandat to the governmentauthorities of Country Y for the purpose of trialand "in the name of justice." Country X refusedto accede to the demand of Country Y.What action or actions can Country Ylegally take against Ali Baba and Country X tostop the terrorist activities of Ali Baba anddissuade Country X from harboring and givingprotection to the terrorist organization? Supportyour answer with reasons. (5%)FIRST ALTERNATIVE ANSWER:(1) Country Y may exercise the rightof self-defense, as provided under Article 51 ofthe UN Charter "until the Security Council hastaken measure necessary to maintaininternational peace and security". Self-defenseenables Country Y to use force against CountryX as well as against the Ali Baba organization.(2) It may bring the matter to theSecurity Council which may authorize sanctionsagainst Country X, including measure invokingthe use of force. Under Article 4 of the UNCharter, Country Y may use force againstCountry X as well as against the Ali Babaorganization by authority of the UN SecurityCouncil.SECOND ALTERNATIVE ANSWER:Under the Security Council Resolution No.1368, the terrorist attack of Ali Baba may bedefined as a threat to peace, as it did in definingthe September 11, 2001 attacks against theUnited States. The resolution authorizes militaryand other actions to respond to terrorist attacks.However, the use of military force must beproportionate and intended for the purpose ofdetaining the persons allegedly responsible forthe crimes and to destroy military objectivesused by the terrorists.The fundamental principles of internationalhumanitarian law should also be respected.Country Y cannot be granted sweepingdiscretionary powers that include the power todecide what states are behind the terrorist

organizations. It is for the Security Council todecide whether force may be used againstspecific states and under what conditions theforce may be used.Use of Force; Self-Defense; Waging War(1998)No XIV. At the Nuremberg trial of the Nazi warcriminals at the end of the World War II. thedefense argued on behalf of the Germandefendants that although a nation could notwage aggressive war without transgressingInternational law, it could use war as anInstrument of self-defense, and that the nationitself must be the sole judge of whether itsactions were in self-defense. How would youmeet the argument if you were a member of theTribunal trying the case? [5%]SUGGESTED ANSWER:No rule of International law gives a stateresorting to war allegedly in self-defense theright to determine with a legally conclusiveeffect the legality of such action.The Judgment of the NurembergInternational Military Tribunal rejected thedefense of the Nazi war criminals:"But whether action taken under theclaim of self-defense was in fact aggressive ordefensive must ultimately be subject toBAR Q&A (as arranged by Topics) – POLITICAL LAW (1987-2006) 183investigation and adjudication if internationallaw is ever to be enforced."ALTERNATIVE ANSWER:International law on self-defense cannotassume the nature of war. War requires "adeclaration of war giving reasons" under theHague Convention II of 1907. Precisely, theNazi war criminalwere indicted before theNuremberg Tribunal for violating thisConvention and were found guilty.Since the Nazi war criminal argued thatwar as self-defense is understood by them asmeaning "that the nation itself must be the soleJudge of whether its action were in selfdefense",it is clear that what they had in mindin fact is "war as an instrument of nationalpolicy", not self-defense as an objective rightunder International law.Waging was as an instrument ofnational law is prohibited by the Pact of Paris of1928 (Kellog - Braid Part) of which Germanywas already a state party before the SecondWorld War. Precisely, the German Reich wasindicted before the Nuremberg Tribunal for

violation of the Pact of Paris and the Nazi warcriminals were found guilty of this as a warcrime.Hence, the argument is itself an admission ofviolation of international law.Use of Force; When allowed (1988)1. The Charter of the United Nations prohibitsnot only recourse to war but also resort to theuse of force or threat. In the ardent desire tomaintain peace, the Charter obliges membersto settle their international disputes by peacefulmeans and to refrain in their internationalrelations from the threat or use of force.The same Charter, however, recognizingperhaps the realities of international relations,allows the use of force in exceptionaloccasions.Please state two occasions when the use ofarmed forces is allowed by the U.N. Charter.SUGGESTED ANSWER:1. Under art. 42 of the UN Charter, should theSecurity Council consider that pacificmethods of settling disputes areinadequate, it may take such action by air,sea, or land forces as may be necessary tomaintain or restore international peace andsecurity. Such action may includedemonstrations, blockade, and otheroperations by air, sea, or land forces ofmembers of the UN.2. Under art. 51 member states also have theinherent right of collective self defense if anarmed attack occurs against a memberstate, until the Security Council has takenmeasures necessary to maintaininternational peace and security.War; Combatants/ Prisoners of War vs.Mercenaries (1993)No. 3: Reden, Jolan and Andy. Filipino tourists,were in Bosnia-Herzegovina when hostilitieserupted between the Serbs and the Moslems.Penniless and caught in the crossfire, Reden,Jolan, and Andy, being retired generals, offeredtheir services to the Moslems for a handsome,salary, which offer was accepted. When theSerbian National Guard approached Sarajevo,the Moslem civilian population spontaneouslytook up arms to resist the invading troops. Notfinding time to organize, the Moslems worearmbands to identify themselves, vowing toobserve the laws and customs of war. Thethree Filipinos fought side by side with theMoslems. The Serbs prevailed resulting in the

capture of Reden, Jolan and Andy, and part ofthe civilian fighting force.1) Are Reden, Jolan and Andy consideredcombatants thus entitled to treatment asprisoners of war?2) Are the captured civilians likewise prisonersof war?ANSWER:1) Reden, Jolan and Andy are not combatantsand are not entitled to treatment as prisoners ofwar, because they are mercenaries. Article 47of the Protocol I to the Geneva Conventions of1949 provides:"A Mercenary shall not have the right tobe combatant or a prisoner of war."Pursuant to Article 47 of Protocol I ofthe Geneva Conventions of 1949, Reden,Jolan, and Andy are mercenaries, because theywere recruited to fight in an armed conflict, theyin fact took direct part in the hostilities, theywere motivated to take part in the hostilitiesessentially by the desire for private gain and infact was promised a handsome salary by theMoslems, they were neither nationals of a partyto the conflict nor residents of territorycontrolled by a party to the conflict, they are notmembers of the armed forces of a party to theBAR Q&A (as arranged by Topics) – POLITICAL LAW (1987-2006) 184conflict, and they were not sent by a state whichis not a party to the conflict on official duty asmembers of its armed forces.2) The captured civilians are prisoners of war.Under Article 4 of the Geneva Conventionrelative to the Treatment of Prisoners of War,inhabitants of a non-occupied territory, who onthe approach of the enemy spontaneously takeup arms to resist the invading forces, withouthaving had time to form themselves into regulararmed forces, provided they carry arms openlyand respect the laws and customs of war, areconsidered prisoners of war if they fall into thepower of the enemy.Wilson doctrine vs. Estrada doctrine (2004)(2-a-5) Distinguish: The Wilson doctrine andthe Estrada doctrine regarding recognition ofgovernments.SUGGESTED ANSWER:Under the WILSON DOCTRINE, recognitionshall not be extended to any governmentestablished by revolution or internal violenceuntil the freely elected representatives of thepeople have organized a constitutionalgovernment.

Under the ESTRADA DOCTRINE, the Mexicangovernment declared that it would, as it saw fit,continue or terminate its diplomatic relationswith any country in which a political upheavalhad taken place and in so doing it would notpronounce judgment on the right of the foreignstate to accept, maintain or replace itsgovernment. (Cruz, International Law, 2003 ed.)(In view of recent developments, the Wilsondoctrine and the Estrada doctrine are no longerin the mainstream of public international law.)