Monday, January 23, 2012

1. The Agreement Establishing the World Trade Organization to which the Philippines is a party is challenged as unconstitutional because it requires a signatory state to pass laws implementing the terms of the Treaty. It is argued that this is an undue limitation on the legislative power of the Congress. Is the treaty valid?

Held: The Philippines adopts the generally accepted principles of international law as part of the law of the land. One of these fundamentally accepted principles is pacta sunt servanda – international agreements must be performed in good faith. When the Philippines signs treaties, it effectively agrees to limit the exercise of its sovereign powers of taxation, eminent domain and police power. In the same manner, its commitments under the WTO Agreement to pass certain laws to implement the pact may be considered as a permissible restriction on the power of the Congress to legislate.

2. The Agreement Establishing the World Trade Organization (WTO) to which the Philippines is a signatory requires a State Party to accord no less favorable treatment to products imported into the country from abroad and to foreign nationals in various areas related to trade. Does this violate Sec. 19, Art. II of the 1987 Constitution which mandates the development of a self-reliant and independent national economy controlled by Filipinos?

Held: By its very title, Art. II of the Constitution is a “declaration of principles and state policies.” These principles in Art. II are not intended to be self-executing principles ready for enforcement through the courts. They are used by the judiciary as aids or as guides in the exercise of its power of judicial review, and by the legislature in its enactment of laws. They do not embody judicially enforceable constitutional rights, the disregard of which can give rise to a cause of action in the courts.

3. WHAT IS INTERNATIONAL HUMANITARIANLAW (IHL)?

Answer: International humanitarian law is a set of rules which seek, for humanitarian reasons, to limit the effects of armed conflict. It protects persons who are not or are no longer participating in the hostilities and restricts the means and methods of warfare. International humanitarian law is also known as the law of war or the law of armed conflict.

4. WHAT ARE THE SEVEN FUNDAMENTAL RULES OF IHL?

Answer:The seven fundamental rules which are the basis of the Geneva Conventions and the Additional Protocols.

*1 - Persons hors de combat and those who do not take a direct part in hostilities are entitled to respect for their lives and their moral and physical integrity. They shall in all circumstances be protected and treated humanely without any adverse distinction.


*2 - It is forbidden to kill or injure an enemy who surrenders or who is hors de combat.
*3 - The wounded and sick shall be collected and cared for by the party to the conflict which has them in its power. Protection also covers medical personnel, establishments, transports and equipment. The emblem of the Red Cross or the Red Crescent is the sign of such protection and must be respected.
*4 - Captured combatants and civilians under the authority of an adverse party are entitled to respect for their lives, dignity, personal rights and convictions. They shall be protected against all acts of violence and reprisals. They shall have the right to correspond with their families and to receive relief.
*5 - Everyone shall be entitled to benefit from fundamental judicial guarantees. No one shall be held responsible for an act he has not committed. No one shall be subjected to physical or mental torture, corporal punishment or cruel or degrading treatment.
*6 - Parties to a conflict and members of their armed forces do not have an unlimited choice of methods and means of warfare. It is prohibited to employ weapons or methods of warfare of a nature to cause unnecessary losses or excessive suffering.
*7 - Parties to a conflict shall at all times distinguish between the civilian population and combatants in order to
spare civilian population and property. Neither the civilian population as such nor civilian persons shall be the object of attack. Attacks shall be directed solely against military objectives.

5. Distinguish International Humanitarian Law (IHL) from International Human Rights Law (IHRL)?

International humanitarian law and international human rights law (hereafter referred to as human rights) are complementary. Both strive to protect the lives, health and dignity of individuals, albeit from a different angle.

Humanitarian law applies in situations of armed conflict (see Q7), whereas human rights, or at least some of them, protect the individual at all times, in war and peace alike. However, some human rights treaties permit governments to derogate from certain rights in situations of public emergency. No derogations are permitted under IHL because it was
conceived for emergency situations, namely armed conflict.

Humanitarian law aims to protect people who do not or are no longer taking part in hostilities. The rules embodied in IHL impose duties on all parties to a conflict. Human rights, being tailored primarily for peacetime, apply to everyone. Their principal goal is to protect individuals from arbitrary behaviour by their own governments. Human rights law does not deal with the conduct of hostilities.

The duty to implement IHL and human rights lies first and foremost with States. Humanitarian law obliges States to take practical and legal measures, such as enacting penal legislation and disseminating IHL. Similarly, States are bound by human rights law to accord national law with international obligations. IHL provides for several specific mechanisms that help its implementation. Notably, States are required to ensure respect also by other States. Provision is also made for an enquiry procedure, a Protecting Power mechanism, and the International Fact-Finding Commission. In addition, the ICRC is given a key role in ensuring respect for the humanitarian rules.

Human rights implementing mechanisms are complex and, contrary to IHL, include regional systems. Supervisory bodies, such as the UN Commission on Human Rights, are either based on the UN Charter or provided for in specific treaties (for example the Human Rights Committee, which is rooted in the International Covenant on Civil and Political Rights of 1966). The Human Rights Commission and its Subcommissions have developed a mechanism of special rapporteurs and working groups, whose task is to monitor and report on human rights situations either by country or by topic. Six of the main human rights treaties also provide for the establishment of committees (e.g. the Human Rights Committee) of independent experts charged with monitoring their implementation. Certain regional treaties (European and American) also establish human rights courts. The Office of the UN High Commissioner for Human Rights (UNHCHR) plays a key part in the overall protection and promotion of human rights. Its role is to enhance the effectiveness of the UN human rights machinery and to build up national, regional and international capacity to promote and protect human rights and to disseminate human rights texts and information.

6.What is the Rome Statute? Is the Philippines a party to it?

The Rome Statute established the International Criminal Court. The Stature opened for signature by all states in Rome on July 178, 1998 and had remained open for signature until December 31, 2000 at the UN Headquarters in New York.ThePhilippines is not yet a party to the statute.

7. (a) Is there an obligatory rule derived from treaties or conventions that requires the Philippines to recognize foreign judgments?(b) in one decision of the Supreme Court , it mentions of the term “opinion juris necessitates”, what do you understand by this term?

ANSWER: There is no obligatory rule derived from treaties or conventions that requires the Philippines to recognize foreign judgments, or allow a procedure for the enforcement thereof. However, generally accepted principles of international law, by virtue of the incorporation clause of the Constitution, form part of the laws of the land even if they do not derive from treaty obligations.[66] The classical formulation in international law sees those customary rules accepted as binding result from the combination two elements: the established, widespread, and consistent practice on the part of States; and a psychological element known as the opinion juris sive necessitates (opinion as to law or necessity). Implicit in the latter element is a belief that the practice in question is rendered obligatory by the existence of a rule of law requiring it.[67]

8. If a foreign judgment is presented before the Court, particularly under Philippine setting, what procedural law may be invoked?

ANSWER:Aside from the widespread practice, it is indubitable that the procedure for recognition and enforcement is embodied in the rules of law, whether statutory or jurisprudential, adopted in various foreign jurisdictions. In the Philippines, this is evidenced primarily by Section 48, Rule 39 of the Rules of Court which has existed in its current form since the early 1900s. Certainly, the Philippine legal system has long ago accepted into its jurisprudence and procedural rules the viability of an action for enforcement of foreign judgment, as well as the requisites for such valid enforcement, as derived from internationally accepted doctrines. Again, there may be distinctions as to the rules adopted by each particular state,[69] but they all prescind from the premise that there is a rule of law obliging states to allow for, however generally, the recognition and enforcement of a foreign judgment. The bare principle, to our mind, has attained the status of opinio juris in international practice. (PRISCILLA C. MIJARES, LORETTA ANN P. ROSALES, HILDA B. NARCISO, SR. MARIANI DIMARANAN, SFIC, and JOEL C. LAMANGAN in their behalf and on behalf of the Class Plaintiffs in Class Action No. MDL 840, United States District Court of Hawaii, petitioners, vs. HON. SANTIAGO JAVIER RANADA, in his capacity as Presiding Judge of Branch 137, Regional Trial Court, Makati City, and the ESTATE OF FERDINAND E. MARCOS, through its court appointed legal representatives in Class Action MDL 840, United States District Court of Hawaii, namely: Imelda R. Marcos and Ferdinand Marcos, Jr., respondents. SECOND DIVISION [G.R. No. 139325. April 12, 2005])

9. It is stated in one ruling of the Supreme Court that “international law proscribes discrimination. Cite some examples of “international laws” which uphold the right of a person against discrimination. (i.e.” discrimination” to imply any distinction, exclusion, restriction or preference which is based on any ground such as race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status, and which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise by all persons, on an equal footing, of all rights and freedoms)?

ANSWER: International law, which springs from general principles of law, likewise proscribes discrimination. (1)General principles of law include principles of equity, i.e., the general principles of fairness and justice, based on the test of what is reasonable. (2)The Universal Declaration of Human Rights, (3) the International Covenant on Economic, Social, and Cultural Rights, (4)the International Convention on the Elimination of All Forms of Racial Discrimination,(5) the Convention against Discrimination in Education, the Convention (No. 111) Concerning Discrimination in Respect of Employment and Occupation - all embody the general principle against discrimination, the very antithesis of fairness and justice. The Philippines, through its Constitution, has incorporated this principle as part of its national laws.( CENTRAL BANK (now Bangko Sentral ng Pilipinas) EMPLOYEES ASSOCIATION, INC., petitioner, vs. BANGKO SENTRAL NG PILIPINAS and the EXECUTIVE SECRETARY, respondents. EN BANC

[G.R. No. 148208. December 15, 2004]

10. The principle of equality has long been recognized under international law. How is this principle concretized in terms of “international law” and “regional instruments”? Cite some specific examples.

ANSWER: The principle of equality has long been recognized under international law. Article 1 of the Universal Declaration of Human Rights proclaims that all human beings are born free and equal in dignity and rights. Non-discrimination, together with equality before the law and equal protection of the law without any discrimination, constitutes basic principles in the protection of human rights. [74]

Most, if not all, international human rights instruments include some prohibition on discrimination and/or provisions about equality.[75] The general international provisions pertinent to discrimination and/or equality are the International Covenant on Civil and Political Rights (ICCPR);[76] the International Covenant on Economic, Social and Cultural Rights (ICESCR); the International Convention on the Elimination of all Forms of Racial Discrimination (CERD);[77] the Convention on the Elimination of all Forms of Discrimination against Women (CEDAW); and the Convention on the Rights of the Child (CRC).

In the broader international context, equality is also enshrined in regional instruments such as the American Convention on Human Rights;[78] the African Charter on Human and People's Rights;[79] the European Convention on Human Rights;[80] the European Social Charter of 1961 and revised Social Charter of 1996; and the European Union Charter of Rights (of particular importance to European states). Even the Council of the League of Arab States has adopted the Arab Charter on Human Rights in 1994, although it has yet to be ratified by the Member States of the League.[81] .( CENTRAL BANK (now Bangko Sentral ng Pilipinas) EMPLOYEES ASSOCIATION, INC., petitioner, vs. BANGKO SENTRAL NG PILIPINAS and the EXECUTIVE SECRETARY, respondents. EN BANC

[G.R. No. 148208. December 15, 2004]

11. When is a person considered hors de combat? What are the safeguards of an enemy hors de combat?

ANSWER: A person is hors de combat if: he is in the power of the adverse party; he clearly expresses an intention to surrender; or he has been rendered unconscious or is otherwise incapacitated by wounds or sickness, and therefore is incapable of defending himself; provided that in any of these cases he abstains from any hostile act and does not attempt to escape.

A person who is recognized or who, in the circumstances, should be recognized to be hors de combat shall not be made the object of attack.

12. In 2004, allegations regarding the mistreatment of Iragi detainees by US Coalition Forces particularly as regards the Abu Ghraib prison in Baghdad began to be reported in the media. It was reported that incident of sadistic, blatant and wanton criminal abuses were inflicted on several detainees.

A)Are the US Forces subject to international humanitarian law?

B)Are the Geneva Conventions of 1949 applicable to the conflict? If yes, cite some specific rules of the Geneva Conventions that apply?

ANSWER: Yes, the US Coalition Forces in Iraq, are subject to IHL. UN Security Council Resolution 1483 (May 22, 2003) called upon all states to observe their obligations under the Geneva Conventions of 1949 and the Hague Regulations of 1907, and the report should receive the “full protection of the Geneva Conventions, unless the denial of these protections is due to specifically articulated military necessity.

Yes, both Geneva Convention III (Relative to Prisoners of War) and Geneva Convention IV (Relative to the Protection of Civilian Persons in Time of War) were applicable to the conflict. The following principles of the Geneva Convention III shall apply: (a) prisoners of war must at all times be humanely treated… must at all times be protected against acts of violence or intimidation and insults and public curiosity (b)outrages upon personal dignity and humiliating and degrading treatment are prohibited. Under Geneva Convention IV, the following are noted: (a) civilians are entitled, in all circumstances, to respect for their honor, their family rights, their religious convictions, and practices, and their manners and customs. They shall at all times be humanely treated and shall be protected especially against all acts of violence, or threats thereof and against all insults and public curiosity. (b) be treated with humanity, and in case of trial shall not be deprived of fair and regular trial prescribed by the present convention (c) no physical or moral coercion shall be exercised against protected person, in particular to obtain information from them or from third parties (d) murder, torture, corporal punishments, mutilation and medical or scientific experiments and any other measures of brutality whether applied by civilian or military agents are prohibited.

13. On what grounds can a foreign judgment be annulled?

ANSWER:It is entrenched in Section 48, Rule 39 of the Rules of Civil Procedure that a foreign judgment on the mere strength of its promulgation is not yet conclusive, as it can be annulled on the grounds of (1) want of jurisdiction, (2)want of notice to the party, (3)collusion, fraud, or clear mistake of law or fact.[1] It is likewise recognized in Philippine jurisprudence and international law that a foreign judgment may be (4)barred from recognition if it runs counter to public policy.[2] (Republic of the Philippines v. Gingoyon and PIATCO, GR 166429, Feb. 1, 2006)

14. Sometime in April 1985, respondent Unimex Micro-Electronics GmBH (Unimex) shipped a 40-foot container and 171 cartons of Atari game computer cartridges, duplicators, expanders, remote controllers, parts and accessories to Handyware Phils., Inc. (Handyware). Don Tim Shipping Corporation transported the goods with Evergreen Marine Corporation as shipping agent.

After the shipment arrived in the Port of Manila on July 9, 1985, the Bureau of Customs (BOC) agents discovered that it did not tally with the description appearing on the cargo manifest. As a result, BOC instituted seizure proceedings against Handyware and later issued a warrant of seizure and detention against the shipment.

On June 5, 1987, the Collector of Customs issued a default order against Handyware for failing to appear in the seizure proceedings. After an ex parte hearing, the Collector of Customs forfeited the goods in favor of the government.

Subsequently, on June 15, 1987, respondent Unimex (as shipper and owner of the goods) filed a motion to intervene in the seizure proceedings. The Collector of Customs granted the motion but later on declared the June 5, 1987 default order against Handyware as final and executory, thus affirming the goods’ forfeiture in favor of the government.

Respondent filed a petition for review against petitioner Commissioner of Customs (BOC Commissioner) in the Court of Tax Appeals (CTA). This case was docketed as CTA Case No. 4317.[1][3]

In a decision[2][4] dated June 15, 1992, the CTA reversed the forfeiture decree and ordered the release of the subject shipment to respondent subject to the payment of customs duties. The CTA decision became final and executory on July 20, 1992. The decision read:

WHEREFORE, the decree of forfeiture of [petitioner] Commissioner of Customs is hereby reversed and the subject shipment is hereby ordered released to [respondent] subject to the condition that the correct duties, taxes, fees and other charges thereon be paid to the Bureau of Customs based on the actual quality and condition of the shipments at the time of the filing of the corresponding import entry in compliance with this decision and further subject to the presentation of Central Bank Release Certificate.[3][5]

Unfortunately, however, respondent’s counsel failed to secure a writ of execution to enforce the CTA decision. Instead, it filed separate claims for damages against Don Tim Shipping Corporation and Evergreen Marine Corporation[4][6] but both cases were dismissed.

On September 5, 2001, respondent filed in the CTA a petition for the revival of its June 15, 1992 decision. It prayed for the immediate release by BOC of its shipment or, in the alternative, payment of the shipment’s value plus damages. The BOC Commissioner failed to file his answer, hence, he was declared in default.

During the ex parte presentation of respondent’s evidence, BOC informed the court that the subject shipment could no longer be found at its warehouses.

QUESTION: Is the BOC liable for damages by reason of said loss of goods?Can it invoke the doctrine of state immunity?

ANSWER: Although it may be gainsaid that the satisfaction of respondent’s demand will ultimately fall on the government, and that, under the political doctrine of “state immunity,” it cannot be held liable for governmental acts (jus imperii),[5][28] we still hold that petitioner cannot escape its liability. The circumstances of this case warrant its exclusion from the purview of the state immunity doctrine.

As previously discussed, the Court cannot turn a blind eye to BOC’s ineptitude and gross negligence in the safekeeping of respondent’s goods. We are not likewise unaware of its lackadaisical attitude in failing to provide a cogent explanation on the goods’ disappearance, considering that they were in its custody and that they were in fact the subject of litigation. The situation does not allow us to reject respondent’s claim on the mere invocation of the doctrine of state immunity. Succinctly, the doctrine must be fairly observed and the State should not avail itself of this prerogative to take undue advantage of parties that may have legitimate claims against it.[6][29]

In Department of Health v. C.V. Canchela & Associates,[7][30] we enunciated that this Court, as the staunch guardian of the people’s rights and welfare, cannot sanction an injustice so patent in its face, and allow itself to be an instrument in the perpetration thereof. Over time, courts have recognized with almost pedantic adherence that what is inconvenient and contrary to reason is not allowed in law.[8][31] Justice and equity now demand that the State’s cloak of invincibility against suit and liability be shredded.

Accordingly, we agree with the lower courts’ directive that, upon payment of the necessary customs duties by respondent, petitioner’s “payment shall be taken from the sale or sales of goods or properties seized or forfeited by the Bureau of Customs.”[9][32] (Republic of the Philippines v. UNIMEX MICROELECTRONICS (GR 166309-10, March 9, 2007).

15. One of the recent international law concepts discussed in Tañada v, Angara is the concept of “sovereignty as autolimitation”. What do you understand by said concept? Cite some examples concerning its concrete application in international law.

ANSWER: Thus, when the Philippines joined the United Nations as one of its 51 charter members, it consented to restrict its sovereign rights under the “concept of sovereignty as auto-limitation.”47-A Under Article 2 of the UN Charter, “(a)ll members shall give the United Nations every assistance in any action it takes in accordance with the present Charter, and shall refrain from giving assistance to any state against which the United Nations is taking preventive or enforcement action.” Such assistance includes payment of its corresponding share not merely in administrative expenses but also in expenditures for the peace-keeping operations of the organization. In its advisory opinion of July 20, 1961, the International Court of Justice held that money used by the United Nations Emergency Force in the Middle East and in the Congo were “expenses of the United Nations” under Article 17, paragraph 2, of the UN Charter. Hence, all its members must bear their corresponding share in such expenses. In this sense, the Philippine Congress is restricted in its power to appropriate. It is compelled to appropriate funds whether it agrees with such peace-keeping expenses or not. So too, under Article 105 of the said Charter, the UN and its representatives enjoy diplomatic privileges and immunities, thereby limiting again the exercise of sovereignty of members within their own territory. Another example: although “sovereign equality” and “domestic jurisdiction” of all members are set forth as underlying principles in the UN Charter, such provisos are however subject to enforcement measures decided by the Security Council for the maintenance of international peace and security under Chapter VII of the Charter. A final example: under Article 103, “(i)n the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligation under the present charter shall prevail,” thus unquestionably denying the Philippines -- as a member -- the sovereign power to make a choice as to which of conflicting obligations, if any, to honor.

16. (a) It is said that the sovereignty of a state therefore cannot in fact and in reality be considered absolute for the reason that there are certain restrictions that apply to it. State two of these two restrictions. (b) Can a portion of sovereignty be waived without violating the Constitution?Explain.

ANSWER: (a)The sovereignty of a state therefore cannot in fact and in reality be considered absolute. Certain restrictions enter into the picture: (1) limitations imposed by the very nature of membership in the family of nations and (2) limitations imposed by treaty stipulations. As aptly put by John F. Kennedy, “Today, no nation can build its destiny alone. The age of self-sufficient nationalism is over. The age of interdependence is here. (b) The point is that, as shown by the foregoing treaties, a portion of sovereignty may be waived without violating the Constitution, based on the rationale that the Philippines “adopts the generally accepted principles of international law as part of the law of the land and adheres to the policy of x x x cooperation and amity with all nations.”(TAñADA V. ANGARA, GR 118295, May 2, 1997).

17. Is International law given a superior standing than a municipal law (i.e. national legislative enactments)?

ANSWER: Following universal acquiescence and comity, our municipal law on trademarks regarding the requirement of actual use in the Philippines must subordinate an international agreement inasmuch as the apparent clash is being decided by a municipal tribunal (Mortisen vs. Peters, Great Britain, High Court of Judiciary of Scotland, 1906, 8 Sessions, 93; Paras, International Law and World Organization, 1971 Ed., p. 20). Withal, the fact that international law has been made part of the law of the land does not by any means imply the primacy of international law over national law in the municipal sphere. Under the doctrine of incorporation as applied in most countries, rules of international law are given a standing equal, not superior, to national legislative enactments.( MIGHTY CORPORATION and LA CAMPANA FABRICA DE TABACO, INC. petitioners, vs. E. & J. GALLO WINERY and THE ANDRESONS GROUP, INC. respondents. THIRD DIVISION [G.R. No. 154342. July 14, 2004])

18. (a) In the Philippine setting or system of laws, what office is tasked to determine persons and institutions covered by diplomatic immunities? (b) What are some of the ways by which a state pleads diplomatic immunity?

ANSWER:The DFA's function includes, among its other mandates, the determination of persons and institutions covered by diplomatic immunities, a determination which, when challenged, entitles it to seek relief from the court so as not to seriously impair the conduct of the country's foreign relations. The DFA must be allowed to plead its case whenever necessary or advisable to enable it to help keep the credibility of the Philippine government before the international community. When international agreements are concluded, the parties thereto are deemed to have likewise accepted the responsibility of seeing to it that their agreements are duly regarded. In our country, this task falls principally on the DFA as being the highest executive department with the competence and authority to so act in this aspect of the international arena.[i][18] In Holy See vs. Hon. Rosario, Jr.,[ii][19] this Court has explained the matter in good detail; viz:

"In 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 international organization 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 International Catholic Migration Commission vs. Calleja, 190 SCRA 130 (1990), 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 vs. Aquino, 48 SCRA 242 (1972), the Secretary of Foreign Affairs sent the trial court a telegram to that effect. In Baer vs. 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 vs. Bradford, 75 Phil. 50 [1945]; Miquiabas vs. Philippine-Ryukyus Command, 80 Phil. 262 [1948]; United States of America vs. 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. (Department of Foreign Affairs v. nlrc[G.R. No. 113191. September 18, 1996]

19. What is COMMON ARTICLE 3 of the Geneva Convention of 1949? What is the scope of its application?

Answer: Common Article 3 enjoins the parties to an internal conflict or a non-international armed conflict to apply certain minimum humanitarian principles which constitute the foundation of respect for the human person in cases of armed conflict not of an international character. It also applies to a situation where the conflict is within the state, between the government and the rebel forces or between the rebel forces themselves. It offers minimum protection to persons taking no active part in hostilities, including members of armed forces in certain situations.

20. What is an INTERNATIONAL CRIMINAL COURT (ICC)? What are the crimes falling under its jurisdiction? Can it impose the death penalty?

Answer:The ICC is the first permanent, treaty based, international criminal court established to promote the rule of law and ensure that the gravest international crimes do not go unpunished. It was established by the Rome Statute of the International Criminal Court on July 17, 1998 when 120 states participating in the UN DIPLOMATIC CONFERENCE OF THE PLENIPOTENTIARIES ON THE ESTABLISHMENT OF AN INTERNATIONAL CRIMINAL COURT adopted the statute.The crimes under its jurisdiction are : genocide, crimes against humanity, war crimes, and crimes of aggression. The ICC cannot impose the death penalty, as it is allowed only to impose an imprisonment not to exceed 30 years or life imprisonment when justified by the extreme gravity of the crime.

Alternate question: 1. How is state sovereignty defined in International Law?

2. Is state sovereignty absolute?

3. What is the principle of auto-limitation?

4. What is the relationship between reciprocity and the

principle of auto-limitation?

Answer: 1. Sovereignty is the supreme, uncontrollable power inherent in a state by which that state is governed. It is the supreme power of the state to command and enforce obedience, the power to which, legally speaking , all interest are practically subject and all wills subordinate.In international law, it is this attribute that enables the state to make its own decisions vis-à-vis other states and vests it with competence to enter into relations and agreements with them.Internal sovereignty refers to the power of the state to direct its domestic affairs, as when it establishes its government, enact its own laws for observance within its territory, or adopts economic policies. External sovereignty,on the other hand, signifies the freedom of the state to control its own foreign affairs, as when it concludes treaties, makes war or peace, and maintains diplomatic and commercial relations. External sovereignty is more often referred to as independence.

2. On a domestic level sovereignty is deemed absolute and all encompassing, but on an international level, it is subject to restrictions and limitations voluntarily agreed to by a country, expressly or impliedly, as a member of the family of nations.

3.The principle of autolimitation is the voluntary act of nations in surrendering aspects of their state power in exchange for greater benefits granted by or derives from a convention or pact. After all, states, like individuals, live with coequals, and in pursuit of mutually covenanted objectives and benefits, they also commonly agree to limit the exercise of their otherwise absolute rights. Thus, treaties have been used to record agreements between States concerning such widely diverse matters as, for example, the lease of naval bases, the sale or cession of territory, the termination of war, the regulation of conduct of hostilities, the formation of alliances, the regulation of commercial relations, the settling of claims, the laying down of rules governing conduct in peace and the establishment of international organizations. The sovereignty of a state therefore cannot in fact and in reality be considered absolute. Certain restrictions enter into the picture: (1) limitations imposed by the very nature of membership in the family of nations and (2) limitations imposed by treaty stipulations.

4.When a state consents to limit is exercise of sovereignty thru a voluntary concession with other states, it expects in return reciprocal concessions of the other states (i.e reciprocity).

ANSWER:However, while sovereignty has traditionally been deemed absolute and all-encompassing on the domestic level, it is however subject to restrictions and limitations voluntarily agreed to by the Philippines, expressly or impliedly, as a member of the family of nations. Unquestionably, the Constitution did not envision a hermit-type isolation of the country from the rest of the world. In its Declaration of Principles and State Policies, the Constitution “adopts the generally accepted principles of international law as part of the law of the land, and adheres to the policy of peace, equality, justice, freedom, cooperation and amity, with all nations." By the doctrine of incorporation, the country is bound by generally accepted principles of international law, which are considered to be automatically part of our own laws. One of the oldest and most fundamental rules in international law is pacta sunt servanda -- international agreements must be performed in good faith. “A treaty engagement is not a mere moral obligation but creates a legally binding obligation on the parties x x x. A state which has contracted valid international obligations is bound to make in its legislations such modifications as may be necessary to ensure the fulfillment of the obligations undertaken.”

By their inherent nature, treaties really limit or restrict the absoluteness of sovereignty. By their voluntary act, nations may surrender some aspects of their state power in exchange for greater benefits granted by or derived from a convention or pact. After all, states, like individuals, live with coequals, and in pursuit of mutually covenanted objectives and benefits, they also commonly agree to limit the exercise of their otherwise absolute rights. Thus, treaties have been used to record agreements between States concerning such widely diverse matters as, for example, the lease of naval bases, the sale or cession of territory, the termination of war, the regulation of conduct of hostilities, the formation of alliances, the regulation of commercial relations, the settling of claims, the laying down of rules governing conduct in peace and the establishment of international organizations. The sovereignty of a state therefore cannot in fact and in reality be considered absolute. Certain restrictions enter into the picture: (1) limitations imposed by the very nature of membership in the family of nations and (2) limitations imposed by treaty stipulations. As aptly put by John F. Kennedy, “Today, no nation can build its destiny alone. The age of self-sufficient nationalism is over. The age of interdependence is here.”

Thus, when the Philippines joined the United Nations as one of its 51 charter members, it consented to restrict its sovereign rights under the “concept of sovereignty as auto-limitation.”47-A Under Article 2 of the UN Charter, “(a)ll members shall give the United Nations every assistance in any action it takes in accordance with the present Charter, and shall refrain from giving assistance to any state against which the United Nations is taking preventive or enforcement action.” Such assistance includes payment of its corresponding share not merely in administrative expenses but also in expenditures for the peace-keeping operations of the organization. In its advisory opinion of July 20, 1961, the International Court of Justice held that money used by the United Nations Emergency Force in the Middle East and in the Congo were “expenses of the United Nations” under Article 17, paragraph 2, of the UN Charter. Hence, all its members must bear their corresponding share in such expenses. In this sense, the Philippine Congress is restricted in its power to appropriate. It is compelled to appropriate funds whether it agrees with such peace-keeping expenses or not. So too, under Article 105 of the said Charter, the UN and its representatives enjoy diplomatic privileges and immunities, thereby limiting again the exercise of sovereignty of members within their own territory. Another example: although “sovereign equality” and “domestic jurisdiction” of all members are set forth as underlying principles in the UN Charter, such provisos are however subject to enforcement measures decided by the Security Council for the maintenance of international peace and security under Chapter VII of the Charter. A final example: under Article 103, “(i)n the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligation under the present charter shall prevail,” thus unquestionably denying the Philippines -- as a member -- the sovereign power to make a choice as to which of conflicting obligations, if any, to honor.

Apart from the UN Treaty, the Philippines has entered into many other international pacts -- both bilateral and multilateral -- that involve limitations on Philippine sovereignty.

MORE ALTERNATE QUESTIONS IN PUBLIC INTERNATIONAL LAW

21. In case a revolutionary government succeeds in installing itself against a legitimate government, is it bound by its country’s prevailing constitution? What about the precepts of customary international law, is it not bound by it?

ANSWER: A revolutionary government is not bound by its prevailing constitution, however, it is still bound by customary international law. As the de jure government, the revolutionary government could not escape responsibility for the State’s good faith compliance with its treaty obligations under international law. “

” Thus, to rule that the Bill of Rights of the 1973 Constitution remained in force during the interregnum, absent a constitutional provision excepting sequestration orders from such Bill of Rights, would clearly render all sequestration orders void during the interregnum. Nevertheless, even during the interregnum the Filipino people continued to enjoy, under the Covenant and the Declaration, almost the same rights found in the Bill of Rights of the 1973 Constitution.

The revolutionary government, after installing itself as the de jure government, assumed responsibility for the State’s good faith compliance with the Covenant to which the Philippines is a signatory. Article 2(1) of the Covenant requires each signatory State “to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights[10][45] recognized in the present Covenant.” Under Article 17(1) of the Covenant, the revolutionary government had the duty to insure that “[n]o one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence.”

The Declaration, to which the Philippines is also a signatory, provides in its Article 17(2) that “[n]o one shall be arbitrarily deprived of his property.” Although the signatories to the Declaration did not intend it as a legally binding document, being only a declaration, the Court has interpreted the Declaration as part of the generally accepted principles of international law and binding on the State.[11][46] Thus, the revolutionary government was also obligated under international law to observe the rights[12][47] of individuals under the Declaration.

The revolutionary government did not repudiate the Covenant or the Declaration during the interregnum. Whether the revolutionary government could have repudiated all its obligations under the Covenant or the Declaration is another matter and is not the issue here. Suffice it to say that the Court considers the Declaration as part of customary international law, and that Filipinos as human beings are proper subjects of the rules of international law laid down in the Covenant. The fact is the revolutionary government did not repudiate the Covenant or the Declaration in the same way it repudiated the 1973 Constitution. As the de jure government, the revolutionary government could not escape responsibility for the State’s good faith compliance with its treaty obligations under international law. (Republic of the Philippines, petitioner, vs. Sandiganbayan, Major General Josephus Q. Ramas and Elizabeth Dimaano, respondents. “EN BANC [G.R. No. 104768. July 21, 2003])





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