Sunday, October 16, 2011

International law quizzer

1.QUESTION: The Philippines has become a member of the World Trade Organization and resultantly agreed that it shall ensure the conformity of its own laws, regulations, and administrative procedures with its obligations as provided in the annexed Agreements. This is assailed as unconstitutional because this is undertaking unduly limits, restricts, impairs Philippine sovereignty and means among others that Congress could not pass legislation that will be good for our national interest and general welfare if such legislation will not conform with WTO agreements. Refute this argument.

ANSWER: According to TaƱada v. Angara, 272 SCRA 18 (1997), the sovereignty of the Philippines is subject to restriction by its membership in the family of nations and the limitations imposed of treaty limitations. Section 2 of Art. II of the constitution adopts the generally accepted principles of international law as part of the law of the land. One of such principles is pacta sunt servanda. The Constitution did not envision a hermit-like isolation of the country from the rest of the world.

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2.QUESTIONS:
1.What is the basis of the Philippine’s claim to the Spratly Islands?
ANSWER: The basis of the Phil. Claim is effective occupation of a territory not subject to the sovereignty of another state. The Japanese forces occupied Spratly Island Group during the Second World War. However, under the San Francisco Peace Treaty of 1951 Japan formally renounced all right and claims to the Spratlys. The San Francisco Treaty or any other international agreement, however, did not designate any beneficiary state following the Japanese renunciation of right. Subsequently, the Spratlys became terra nullius and was occupied by the Philippines in the title of sovereignty. Phil sovereignty was displayed by open, public occupation of a number of islands by stationing military forces, by organizing a local government unit, and by awarding petroleum-drilling rights, among other political and administrative acts. In 1978, it confirmed its sovereign title by the promulgation of PD No. 1596, which declared the Kalayaan Island group as part of Philippine territory.
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3.What is the concept of the exclusive economic zone under the UN convention of the law of the sea?
ANSWER: The exclusive economic zone is an area beyond and adjacent to the territorial sea, which shall not extend beyond 200 nautical miles from the baselines from which the territorial sea is measured. The coastal state has in the exclusive economic zone:
(A) sovereign rights for the purpose of exploring, exploiting, conserving and managing the natural resources, whether living or non-living, if the waters superjacent to the sea-bed and of the sea-bed and subsoil, and with regard to other activities for the economic exploitation and exploration of the zone, such as the production of energy from the water, currents and winds;
(B) Jurisdiction as provided in the relevant provisions of the Convention with regard to (i) the establishment and use of artificial islands, installations, and structures (ii) marine scientific research and (iii) protection and preservation of marine environment;

(C) Other rights and duties provided for in the convention (Art. 56 of the UNCLOS).
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4.QUESTION: A foreign ambassador to the Philippines leased a vacation house in Tagaytay for his personal use. For some reason, he failed to pay rentals for more than one year. The lessor filed an action for the recovery of possession of the property in court.
1.Can the foreign ambassador invoke his diplomatic immunity to resist the lessor’s action?
2.The lessor gets hold of evidence that the ambassador is about to return to his home country. Can the lessor ask the court to stop the ambassador’s departure from the Philippines?
ANSWER: 1.No, he cannot since he is not using the house in Tagaytay for the purpose of his mission but merely for vacation. Under, Article 3(1) of the Vienna Convention on Diplomatic Relations, a diplomatic agent has no immunity in case of a real action relating to private immovable property situated in the territory of the receiving state unless he holds it on behalf of the sending state for the purpose of the mission.
2.No, the lessor cannot ask the court to stop the departure of the ambassador from the Philippines. Under Art. 29 of the Vienna convention, a diplomatic agent shall not be liable to any form of arrest or detention.

5.Question: Give three multi-lateral conventions on Human Rights adopted under the direct auspices of the United Nations.

The following are the multilateral conventions on Human Rights adopted under the auspices of the United Nations:
1.Internnational Covenant on Civil and Political Rights
2.Convention on the elimination of all forms of discrimination against women
3.convention on the rights of the child
4.convention against torture and other cruel, inhuman or degrading treatment or punishment
5.international convention on the elimination of all forms of racial discrimination
6.convention on prevention and punishment of crime of genocide
7.international convention on economic, social, and cultural rights.

6.Under its Statute, give two limitations on the jurisdiction of the International Court of Justice.

1.Only states may be parties in case before it
2.The consent of the parties is needed for the court to acquire jurisdiction over a case.


7.QUESTION: State E, during peacetime has allowed foreign ships innocent passage through the Mantranas straits, a strait within E’s territorial sea, which has been used by foreign ships for International navigation. Such passage enables the said ships to traverse the strait between one part of the high seas to another. On June 7, 1997, a warship of state B, passed thru the above-named strait. Instead of passing continuously and expeditiously, the ship delayed its passage to render assistance to a ship of state G, which was distressed with no one nearby to assist. When confronted by E about the delay, B explained that the delay was due to force majeure in conformity with the provision of Art. 18(2) of the 1982 Convention of the law on the Sea (UNCLOS). Seven months later, E suspended the right of innocent passage of warships thru the Mantranas strait without giving any reason therefor. Subsequently another warship of B passed thru the strait, and was fired upon by E’s coastal battery. B protested the aforesaid act of E drawing attention to the existing customary international law that the regime of innocent passage (even on transit passage) is non-suspendable. E countered that Mantranas strait is not a necessary route, there being another suitable alternative route. Resolve the controversy.
ANSWER: Under the UNCLOS, warships enjoy innocent passage. It appearing that the portion of E’s territorial sea in question is a strait used for international navigation, E has no right under international law to suspend the right of innocent passage. Art. 45(2) of the UNCLOS is clear in providing that there shall be no suspension of innocent passage thru the straits used for international navigation.
On the assumption that the strait in question is not used for international navigation, still the suspension of innocent passage by E cannot be effective because subsequent suspension is required by international law to be published before it can take effect. There being no publication prior to suspension of innocent passage by B’s warship, E’s act acquires no validity.
Moreover, E’s suspension of innocent passage may not be valid for the reason that there is no showing that it is necessary for the protection of its security. The actuation of B’s warship in resorting to delayed passage is for cause recognized by the UNCLOS as excusable, i.e., for the purpose of rendering assistance to persons or ships in distress, as provided in Art. 18 (2) of the UCNLOS. Hence, B’s warship complied with the international law norms on right of innocent passage.


8.QUESTION: What is the doctrine of sovereign immunity under international law?

Answer: By the doctrine of sovereign immunity, a state, its agents, and property are immune from the judicial process of another state, except with its consent. Thus, immunity may be waived and a state may permit itself to be sued in the courts of another state.
Sovereign immunity has developed into two schools of thought, namely (1) absolute immunity – which states that all acts of a state are covered or protected by immunity and (2) restrictive immunity - which makes a distinction between governmental/sovereign acts (acta jure imperii) and non-governmental, property or commercial acts (acta jure gestiones). Only acta jure imperii is covered by sovereign immunity.
The Philippines adheres to the restrictive immunity school of thought.


9.At the Nuremberg trial of the Nazi war criminals at the end of the WW II, the defense argued on behalf of the German defendants that although a nation could not wage aggressive war without transgressing international law, it could use war as an instrument of self-defense, and that the nation itself must be the sole judge of whether its actions were in self-defense. How would you meet the argument if you were a member of the Tribunal trying the case?
ANSWER: No rule of international law gives a state resorting to war allegedly in self-defense the right to determine with legally conclusive effect, the legality of such action. The judgment of the Nuremberg International Military Tribunal rejected the defense of the Nazi war criminal, as follows: “But whether the action taken under the claim of self-defense was in fact aggression or defensive must ultimately be subject to investigation and adjudication if international law is ever to be enforced”.

10. How was immunity from suit invoked/or conveyed in the following cases?

(a) International Catholic Migration Commission v. Calleja, 190 SCRA 130 (1990),
(b) World Health Organization v. Aquino, 48 SCRA 242 (1972),

ANSWER. Public International Law, when a state or international agency wishes to plead sovereign or diplomatic immunity in a foreign court, it requests the Foreign Office of the state where it is sued to convey to the court that said defendant is entitled to immunity.

In the United States, the procedure followed is the process of "suggestion," where the foreign state or the international organization sued in an American court requests the Secretary of State to make a determination as to whether it is entitled to immunity. If the Secretary of State finds that the defendant is immune from suit, he, in turn, asks the Attorney General to submit to the court a "suggestion" that the defendant is entitled to immunity. In England, a similar procedure is followed, only the Foreign Office issues a certification to that effect instead of submitting a "suggestion" (O'Connell, I International Law 130 [1965]; Note: Immunity from Suit of Foreign Sovereign Instrumentalities and Obligations, 50 Yale Law Journal 1088 [1941]).
In the Philippines, the practice is for the foreign government or the internationalorganization to first secure an executive endorsement of its claim of sovereign or diplomatic immunity. But how the Philippine Foreign Office conveys its endorsement to the courts varies. In the Secretary of Foreign Affairs just sent a letter directly to the Secretary of Labor and Employment, informing the latter that the respondent-employer could not be sued because it enjoyed diplomatic immunity. In World Health Organization v. Aquino, 48 SCRA 242 (1972), the Secretary of Foreign Affairs sent the trial court a telegram to that effect. In Baer v. Tizon, 57 SCRA 1 (1974), the U.S. Embassy asked the Secretary of Foreign Affairs to request the Solicitor General to make, in behalf of the Commander of the United States Naval Base at Olongapo City, Zambales, a "suggestion" to respondent Judge. The Solicitor General embodied the "suggestion" in a Manifestation and Memorandum as amicus curiae.

In the case at bench, the Department of Foreign Affairs, through the Office of Legal Affairs moved with this Court to be allowed to intervene on the side of petitioner. The Court allowed the said Department to file its memorandum in support of petitioner's claim of sovereign immunity. In some cases, the defense of sovereign immunity was submitted directly to the local courts by the respondents through their private counsels (Raquiza v. Bradford, 75 Phil. 50 [1945]; Miquiabas v. Philippine-Ryukyus Command, 80 Phil. 262 [1948]; United States of America v. Guinto, 182 SCRA 644 [1990] and companion cases). In cases where the foreign states bypass the Foreign Office, the courts can inquire into the facts and make their own determination as to the nature of the acts and transactions involved.
11.STATE THE (4) EFFECTS OF RECOGNITION OF BELLIGERENCY.
ANSWER: 1.responsibility for acts of rebels resulting to injury to nationals of the recognizing state shall be shifted to the rebel government;
2.the legitimate government recognizing the rebels shall observe the laws of war in conducting hostilities;
3.third states recognizing the belligerency shall maintain neutrality and
4. Recognition is only provisional (for the duration of the armed struggle) and only for the purpose of the hostilities.

12.STATE AND DEFINE THE DIFFERENT FORMS OF REPRISALS;
Answer to No. 5: unfriendly and unlawful acts in retaliation for reciprocal unlawful acts of another state .It may take the form of freezing of assets of the other state.EMBARGO,the forcible detention of sequestration of the vessels and other property of the offending state; PACIFIC BLOCKADE, the prevention of entry to or exit from the ports of the offending state of means of communication and transportation; non-intercourse and Boycott

13.In case a non-resident alien in the Philippines files a complaint, can his complaint be dismissed on the ground of forum non-conveniens? What is forum non-conveniens? Is it considered as one of the grounds for a motion to dismiss under the rules of court?

No. The doctrine of forum non-conveniens literally means “the forum is inconvenient, which emerged in private international law to deter the practice of global forum shopping, that is to prevent non-resident litigants from choosing the forum or place wherein to bring their suit for malicious reasons, such as to secure procedural advantages, to annoy and harass the defendant, to avoid overcrowded dockets or to select a more friendly venue. Under this doctrine, a court, in conflict of law cases, may refuse impositions in its jurisdiction where it is not the most convenient or available forum and the parties are precluded from seeking remedies elsewhere.
Whether a suit should be entertained or dismissed on the basis of said doctrine depends largely upon the facts of the particular case and is addressed to the sound discretion of the trial court. In the case of Communication Materials and Design, Inc. vs. Court of Appeals, it was held that the Philippine Court may assume jurisdiction over the case if it chooses to do so; provided that the following requisites are met: (1) that the Phil. Court is one to which the parties may conveniently resort to; (2) that it is in a position to make an intelligent decision as to the law and the facts (3) that the Phil. Court has or is likely to have the power to enforce its decision.
Moreover, it was enunciated in Philsec. Investment Corporation v. CA., that the doctrine of non-forum conveniens should not be used as a ground for a motion to dismiss because se. 1, rule 16 of the rules of court does not include said doctrine as a ground. The Supreme Court further ruled that while it is within the discretion of the trial court to abstain from assuming jurisdiction on this ground, it should do so only after vital facts are established, to determine whether special circumstances require the court’s desistance; and that the propriety of dismissing a case based on this principle of forum non-conveniens requires a factual determination, hence it is more properly considered a matter of defense.
(Reference: Bank of America v. Court of Appeals, G.R. No. 120135, March 31, 2003)

QUESTION: What is the effect of military occupation on (1) the political laws of an occupied territory, (2) on the municipal laws (3) on the citizen’s allegiance to the legitimate government?

A: (1) Laws of political nature or laws affecting political relations such as among other things, the right of assembly, the right to bear arms, the freedom of the press, and the right to travel freely in the territotry occupied are considered suspended or held in abeyance during the military occupation.These principles have the sanction of all publicists who have considered the subject and have been asserted by the Supreme Court (Co Kim Chan v. Valdez 75 Phil 113).
(2) Unless absolutely prevented by the circumstances prevailing in the occupied territory, the municipal laws in force in the country, that is, those laws that enforce public order and regulate the social and commercial life of the country, shall be deemed continued and enforced.
(3) The absolute and permanent allegiance of the inhabitants of a territory occupied by the enemy to their legitimate government or sovereign is not abrogated or severed by the enemy occupation, because the sovereignty of the government or sovereign de jure is not transferred by the occupier and if it is not transferred to the occupant it must necessarily remain vested in the legitimate government. What may be suspended is the exercise of the rights of sovereignty when the control of the government of the territory occupied by the enemy passes temporarily to the occupant (Laurel v. Misa 77 Phil. 856).

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