MIDTERM INTERNATIONAL LAW, February 14, 2004,Saturday

Prepared by Judge Ric S. Bastasa

Answer the following questions briefly/concisely.

Each item is worth 5 points each.

1.The Nuremberg Charter states about the “crimes of peace” and “crimes against humanity”. What are these crimes of peace? Give at least two examples each.

ANSWER: CRIMES AGAINST PEACE- planning, preparation, initiating, or waging war of aggression or a war in violation of international treaties, agreement or assurances; participation in a common plan or conspiracy for the accomplishment of any of the acts first mentioned; CRIMES AGAINST HUMANITY- murder, extermination, enslavement, deportation, and other inhuman acts done against any civilian population, or persecution on political, racial or religious grounds, when such acts are done or in connection with any crime against peace or any war crime.

2.Once a state comes into being, it is vested with certain rights described as fundamental. State at least three of these rights, and specify what is the most important of these rights and state the reason why.

ANSWER: These are the rights to national existence and self-defense, right of equality, right of sovereignty and independence, right of property and jurisdiction, and the right of legation or diplomatic intercourse .The right of existence and self-defense is considered the most important right because all its rights are supposed to flow or be derived from it. By virtue of this right, the state may take such measures, including the use of force, as may be necessary to counteract any danger to its existence. Such action being the exercise of an inherent right, it does not depend for its validity on the previous recognition of the state asserting it or on the consent of other states.

3.Intervention is an act by which a state interferes with the domestic or foreign affairs of another state thru the employment of force, be it physical, political or economic. It is not sanctioned in international law. There are however instances when intervention, in the present state of world affairs is allowed. State three of these exceptions.

ANSWER: 1.When it is exercised as an act of self-defense; 2. When it is decreed by the Security Council as a preventive or enforcement action 3. Where such action is agreed upon in a treaty; 4. When requested from   fellow states or from the UN by the parties to a dispute or by a state beset by a rebellion.

4.Define the following concepts/doctrines/terms:

            a. Drago doctrine – he contracting parties agree not to have recourse to armed force for the recovery of contract debts claimed from the government of one country by

the government of another country as being due to its nationals.

            b. Treaty limits theory- states that the claim of the Philippines to its territorial sea is based on historic right or title; invoking its sovereignty from that exercised by Spain for more than three centuries over the Phil. Archipelago, including the waters adjacent to the islands beyond the three-mile limit.

            c. Acts of state – this is one of the instances by which a state cannot exercise jurisdiction even within its territory, and it is defined pursuant to the principle that   “every sovereign state is bound to respect the independence of every other sovereign state, and the courts of one country will not sit in judgment on the acts of the government of another, done within its territory. Redress of grievances by reason of such act must be obtained thru the means open to be availed of by sovereign powers between themselves”.

            d.franchise de l’hotel – immunity from local law to the diplomatic premises, including the envoy’s offices, residence and out-buildings, his means of transportation, and the compound where they are found, which may not be entered by the local authorities without his permission.

            e.lettre de provision – or the letter patent is the commission issued by the sending state to a consul, and he derives his authority from such.

5.As a rule a treaty is binding only on the contracting parties. There are instances, however, when third states may be validly held to the observance of or benefit from the provisions of a treaty. State at least two of these instances.

ANSWER: 1.The treaty may be merely a formal expression of customary international law, which, as such, is enforceable on all civilized states because of their membership to a family of nations.

2. Art. 2 of the UN charter, which provides that the organization shall ensure that non-member sates act in accordance with the principles of the charter so far as maybe necessary for the maintenance of international peace and security and under art. 103 that the obligations of member-states shall prevail incase of conflict with “any other international agreement” including those concluded with non-member states;

3. Most-favored-nation clause- under which a contracting state entitled to most-favored nations treatment from the other may claim the benefits extended by the latter to another state in a separate agreement;

6.One of the most fundamental rules of international law is pacta sunt servanda, which requires the performance in good faith of treaty obligations. Despite supervening hardships such as conflicts with municipal law or prejudice to the national interests, the parties must comply with their commitments under a treaty and cannot ignore or modify its provisions without the consent of the other signatories. Despite the general requirement of strict enforcement of treaties, states have often justified the non-performance of a treaty obligation, as an exception to the pacta sunt servanda rule. What is this legal principle, which justifies the non-performance of a treaty? What are its limitations?

ANSWER: rebus sic stantibus – justifies the non-performance of a treaty obligation if the conditions with relation to which the parties contracted have changed so materially and so unexpectedly as to create a situation in which the exaction of performance would be unreasonable.

Limitations; 1. It applies only to treaties of indefinite duration 2. The vital change must have been unforeseen or unforeseeable and should not have been caused by the party invoking the doctrine 3.the doctrine must be invoked within a reasonable time 4. it cannot operate retroactively upon the provisions of the treaty already executed prior tot the change in circumstances.

7.Define the following clauses/doctrines:

a.       attentat clause – the murder of a head of state or any member of his family is not to be regarded as a political offense for purposes of extradition.

b.      Calvo clause – a stipulation by which an alien waives or restricts his right to appeal to his own state in connection with any claim arising from the contract and agrees to limit himself to the remedies available under the laws of the local state.

C .Most-favored-nation clause- under which a contracting state entitled to most-     favored nations treatment from the other may claim the benefits extended by the latter to another state in a separate agreement;

c.       Doctrine of indelible allegiance-an individual may be compelled to retain his original nationality notwithstanding that he has already renounced or forfeited it under the laws of a second state whose nationality he has acquired.         

e. Doctrine of jus cogens- customary international law has the status of a peremptory norm of international law, accepted and recognized by the international community of states as a rule from which no derogation is permitted. Accordingly, a treaty whose provisions contravene such norms/ rules may be invalidated. Thus in the Human Rights Cases v. Marcos, it was held that official torture of prisoners or dissenters is a violation of the principle of jus cogens

8. Case problem:

 Jane and Joe are owners in fee simple of the parcels of land in question, even before the outbreak of World War II. When the Japanese came and occupied the Philippines, the Japanese Imperial Army took these parcels of land and used them for the construction of a railroad line. When the Philippines was liberated from the Japanese Military Occupation, the aforesaid parcels were abandoned and said owners immediately returned to their respective areas and repossessed them.

On September 26, 1947, the Philippine Alien Property Administrator vested in himself pursuant to Vesting Order No. P-386, the aforesaid properties after having found them to be owned or controlled or held by an enemy country. Said properties were to be held, used, administrated, liquidated, sold or otherwise dealt with by the Philippine Alien Property Administrator for the interest and benefit of the United States in accordance with the Philippine Property Act of 1948. Obviously unaware of the implication of Vesting Order No. P-386 and the Philippine Property Act of 1948, Jane & Joe failed to file their notice of claims for the return of their respective properties within the period provided for under the aforesaid Vesting Order. In the middle part of 1954, Manila Railroad Company entered the said parcels of land and re-established its railroad track thereon.

Jane & Joe, who were deprived of said properties by the Manila Railroad Company now file a case for recovery of ownership and possession.

Now be the judge. Would you grant the petition?

ANSWER: No. The Supreme Court held that the Japanese Imperial Army acquired no title over the questioned properties and therefore the same cannot be treated as enemy properties as contemplated in the Trading with the Enemy Act of 1917 and cannot be subjected to the Vesting Order of the Philippine Alien Property Administrator.

(.HEIRS OF ANSELMA TUGADI, ET AL. AND MARGARITA PAJIMOLA, ET AL., plaintiffs-appellees, vs. MANILA RAILROAD COMPANY (PNR), ET AL., defendants-appellants. FIRST DIVISION[G.R. No. L-26478-79.  July 31, 1975.])

9.Case problem.

Five fishing vessels of Philippine registry were apprehended and seized by the Philippine Navy in the high seas between China and the Philippines. The vessels were carrying highly dutifiable goods from China such as cd’s, amplifiers, cassettes and vcd’s.

The owner of the goods, Chiao Chiong, filed a petition for repliven, objecting the seizure stating that the Philippines has no jurisdiction as the vessels are in the high seas.

Rule on the petition, whether to release the goods in question of not. Reason out your answer.

ANSWER: From the apprehension and seizure of the vessel in question on the high seas beyond the territorial waters of the Philippines, the absence of jurisdiction of Commissioner of Customs is predicated. Such contention of petitioners-appellants is without merit. It is unquestioned that all vessels seized are of Philippine registry. The Revised Penal Code leaves no doubt as to its applicability and enforceability not only within the Philippines, its interior waters and maritime zone, but also outside of its jurisdiction against those committing offense while on a Philippine ship . . . . The principle of law that sustains the validity of such a provision equally supplies a firm foundation for the seizure of the five sailing vessels found thereafter to have violated the applicable provisions of the Revised Administrative Code.

Moreover, it is a well settled doctrine of International Law that goes back to Chief Justice Marshall's opinion in Church v. Hubbart,  an 1804 decision, that a state has the right to protect itself and its revenues, a right not limited to its own territory but extending to the high seas. In the language of Chief Justice Marshall: "The authority of a nation within its own territory is absolute and exclusive. The seizure of a vessel within the range of its cannon by a foreign force is an invasion of that territory, and is a hostile act which it is its duty to repel. But its power to secure itself from injury may certainly be exercised beyond the limits of its territory."

The question asked in the brief of petitioners-appellants as to whether the seizure of the vessels in question and the cargoes on the high seas and thus beyond the territorial waters of the Philippines was legal must be answered in the affirmative. ILLUH ASAALI, HATIB ABDURASID, INGKOH BANTALA, BASOK INGKIN, and MOHAMMAD BANTALA, petitioners, vs. THE COMMISSIONER OF CUSTOMS EN BANC[G.R. No. L-24170.  December 16, 1968.]

10.          A. In extradition proceedings, are prospective extraditees entitled to notice and    hearing before warrants for their arrest can be issued? 

B.     Equally important, are they entitled to the right to bail and provisional liberty while the extradition proceedings are pending? Reason out your answer in the light of the Mark Jimenez case.

C.    In the Jimenez case ,what are the so-called five postulates of extradition?

ANSWERS: NO. In general, the answer to these two novel questions is "No."          

The five postulates are as follows:

1. Extradition Is a Major Instrument for the Suppression of Crime.

                         2. The Requesting State Will Accord Due Process to the Accused

                         3. The Proceedings Are Sui Generis

4. Compliance Shall Be in Good Faith.

5. Persons to be extradited are presumed to be flight risks

11.CASE PROBLEM:

On March 17, 1993, Assistant Secretary Sime D. Hidalgo of the Department of Foreign Affairs indorsed to the Department of Justice Diplomatic Note No. 080/93 dated February 19, 1993 from the Government of Australia to the Department of Justice through Attorney General Michael Duffy. Said Diplomatic Note was a formal request for the extradition of Petitioner Paul Joseph Wright who is wanted for the following indictable crimes:

1.Wright/Orr Matter  one count of Obtaining Property by Deception contrary to Section 81(1) of the Victorian Crimes Act of 1958; and

2.Wright/Cracker Matter  Thirteen (13) counts of Obtaining Properties by Deception contrary to Section 81(1) of the Victorian Crimes Act of 1958; one count of attempting to Obtain Property by Deception contrary to Section 321(m) of Victorian Crimes Act of 1958; and one count of Perjury contrary to Section 314 of Victorian Crimes Act of 1958, which crimes were allegedly committed in the following manner:

Pursuant to Section 5 of PD No. 1069, in relation to the Extradition Treaty concluded between the Republic of the Philippines and Australia on September 10, 1990, extradition proceedings were initiated on April 6, 1993 by the State Counsels of the Department of Justice before the respondent court.

In its Order dated April 13, 1993, the respondent court directed the petitioner to appear before it on April 30, 1993 and to file his answer within ten days. In the same order, the respondent Judge ordered the NBI to serve summons and cause the arrest of the petitioner.

The respondent court received return of the warrant of arrest and summons signed by NBI Senior Agent Manuel Almendras with the information that the petitioner was arrested on April 26, 1993 at Taguig, Metro Manila and was subsequently detained at the NBI detention cell where petitioner, to date, continue to be held.

Thereafter, the petitioner filed his answer.

In the course of the trial, the petitioner testified that he was jobless, married to a Filipina, Judith David, with whom he begot a child; that he has no case in Australia; that he is not a fugitive from justice and is not aware of the offenses charged against him; that he arrived in the Philippines on February 25, 1990 returned to Australia on March 1, 1990, then back to the Philippines on April 11, 1990, left the Philippines again on April 24, 1990 for Australia and returned to the Philippines on May 24, 1990, again left for Australia on May 29, 1990 passing by Singapore and then returned to the Philippines on June 25, 1990 and from that time on, has not left  the Philippines; and that his tourist visa has been extended but he could not produce the same in court as it was misplaced, has neither produced any certification thereof, nor any temporary working visa.

The trial court, in its decision dated 14 June 1993, granting the petition for extradition requested by the Government of Australia, concluding that the documents submitted by the Australian Government meet the requirements of Article 7 of the Treaty of Extradition and that the offenses for which the petitioner were sought in his country are extraditable offenses under Article 2 of the said Treaty. The trial court, moreover, held that under the provisions of the same Article, extradition could be granted irrespective of when the offense in relation to the extradition was committed, provided that the offense happened to be an offense in the requesting State at the time the acts or omissions constituting the same were committed.

Petitioner challenged the decision of the Regional Trial Court before the Court of Appeals assigning the following errors:

I.THAT THE HONORABLE RESPONDENT JUDGE GRAVELY ERRED IN GIVING RETROACTIVE FORCE AND EFFECT TO THE EXTRADITION TREATY DESPITE THE FACT THAT THE EVIDENCE ADDUCED BY THE RESPONDENT SHOW THAT THE ALLEGED OFFENSES FOR WHICH PETITIONER IS SOUGHT TO BE EXTRADITED TOOK PLACE IN 1988-1989 AT THE TIME THERE WAS NO EXTRADITION TREATY BETWEEN THE REPUBLIC OF THE PHILIPPINES AND AUSTRALIA.

II.THAT THE ACT OF THE HONORABLE RESPONDENT JUDGE IN GIVING RETROACTIVE FORCE AND EFFECT TO THE EXTRADITION TREATY BETWEEN THE REPUBLIC OF THE PHILIPPINES AND AUSTRALIA AMOUNTS TO AN "EX POST FACTO LAW" AND VIOLATES SECTION 21, ARTICLE VII OF THE 1987 CONSTITUTION.

RULE ON THE ASSIGNED ERRORS.

Answer: Does the Treaty's retroactive application violate the Constitutional prohibition against ex post facto laws? Early commentators understood ex post facto laws to include all laws of retrospective application, whether civil or criminal. 23 However, Chief Justice Salmon P. Chase, citing Blackstone, The Federalist and other early U.S. state constitutions in Calder vs. Bull 24 concluded that the concept was limited only to penal and criminal statutes. As conceived under our Constitution, ex post facto laws are 1) statutes that make an act punishable as a crime when such act was not an offense when committed; 2) laws which, while not creating new offenses, aggravate the seriousness of a crime; 3) statutes which prescribes greater punishment for a crime already committed; or, 4) laws which alter the rules of evidence so as to make it substantially easier to convict a defendant.  "Applying the constitutional principle, the (Court) has held that the prohibition applies only to criminal legislation which affects the substantial rights of the accused."  This being so, there is no absolutely no merit in petitioner's contention that the ruling of the lower court sustaining the Treaty's retroactive application with respect to offenses committed prior to the Treaty's coming into force and effect, violates the Constitutional prohibition against ex post facto laws. As the Court of Appeals correctly concluded, the Treaty is neither a piece of criminal legislation nor a criminal procedural statute. "It merely provides for the extradition of persons wanted for prosecution of an offense or a crime which offense or crime was already committed or consummated at the time the treaty was ratified."

CASE PROBLEM:Doria Denoyo is a former president of the Philippines, bent on regaining power, which she lost to President Freddie Fu in an election. Fully convinced that she was cheated, she set out to destabilize the government of Fu by means of series of protest actions. Her plan was to weaken the government and when the situation became ripe for a take-over, to assassinate President Fu.

Paul on the other hand is a believer in human rights and former follower of President Fu. Noting the systematic acts of harassment committed by government agents against farmers protesting the seizure of their lands, laborers complaining of low wages, and students seeking free tuition, he organized groups which held peaceful rallies in front of the presidential palace to express their grievances.

On the eve of the assassination attempt, members of the Presidential Security Group caught Doria’s men. President Fu went on air threatening to prosecute plotters and dissidents of his administration. The next day, the government charged Doria with assassination attempt and Raul with inciting to sedition.

Doria went to the Republic of Congo while Raul who was in the Republic of Namibia attending a lecture on democracy, was advised by his friends to stay in said country.

            Both Republics (Congo and Namibia) have conventional extradition treaties with the Philippines.

If the Philippines requests the extradition of Doria and Paul, can said Republics deny the request? Why? Reason out your answer.

ANSWER: The Republic of Congo can refuse to extradite Doria because her offense is a political offense. She was plotting to take over the government and the plan of Doria to assassinate Pres. Fu was part of such plan. However, if the extradition treaty contains an attentat clause, Republic of Congo can extradite Doria, because under said clause the taking of the life or attempt against the life of a head of state or that of the members of his family does not constitute a political offense and is therefore extraditable.  

13. What do you understand by the right of postliminy?

ANSWER: The right of postliminy is that in which persons or things taken by the enemy are restored to the former state on coming actually into the power of the nation to which they belong; imports the reinstatement of the authority of the displaced government once control of the enemy is lost over the territory affected. Thus upon the end of a belligerent occupation, the laws of the re-established government are revived and all acts taken by the belligerent occupant which it could not legally do under the law of nations, as well as lawful acts of a political complexion are invalidated.

14. Distinguish deportation from extradition.

ANSWER: Extradition is the surrender of a person by one state to another state where he is wanted for protection of, or if already convicted, for punishment.

It differs from deportation in that it is effected at the request of the state of origin whereas deportation is the unilateral act of the local state; it is based on offenses generally committed in the state of origin, whereas deportation is based on causes arising in the local state; and it calls for the return of the fugitive to the state of origin whereas an undesirable alien a may be deported to a state other than his own or the state of origin.

15.Retorsions and reprisals are two of the hostile methods of settling dispute. Distinguish each and cite examples.

ANSWER: Retorsion is any action taken in retaliation where the acts complained of do not constitute a legal ground of offense but are rather in the nature of unfriendly acts but indirectly hurtful of the other states. The act of retaliation is also unfriendly or of different nature than the act that provoked it. Examples: Severance of diplomatic or consular relations, suspension of commercial intercourse, boycott, stoppage of travel to the other state, denunciation of treaties, imposition of higher tariff rates and other trade barriers, currency restrictions, denial of loans and withdrawal of privileges previously enjoyed, recognition of a rival government, and adverse propaganda.

                Reprisals are acts of self-help on the part of an injured stat, responding after an unsatisfied demand to act contrary to international law on the part of the offending state. They have an effect of suspending momentarily in the relations of the tow states the observance of this or that rule of international law. They aim to impose of the offending state reparation for the offense or the return to legality in avoidance of new offenses. Examples. Display of force, occupation of territory, embargo, and pacific blockade.

16.Three basic principles underlie the rules of warfare. State these three principles and explain each.

Military necessity—the belligerent may, subject to the other two principles, employ any amount and kind of force to compel the complete submission of the enemy with the least possible loss of lives, time and money.

Principles of humanity- prohibit the use of any measure that is not absolutely necessary for purposes of war such as poisoning of wells and destruction of works of art and properties devoted to humanitarian and religious purposes, the bombarding of undefended palaces and attack of hospital ships.

Principles of chivalry- require belligerents to give proper warning before launching a bombardment or prohibit the use of perfidy in the conduct of hostilities.

17.The consul has three duties. State these three duties.

ANSWER: 1.DUTIESpertaining to commerce and navigation

                   2. Duties respecting the issuance of passports and visas

                   3.duties of protection of nationals.

18. Case Problem;

                The Lotus, a French steamer, and the Bozkourt, a Turkish vessel, collided in the Aegean Sea, outside the territorial waters, resulting in the sinking of the latter ship and the death of several Turkish nationals. The Lotus docked at Constantinople, where the Turkish Court subsequently convicted their officer (Lt. Demons) of the watch at the time of the accident, a French National, of manslaughter. France protested on the ground, among others, that the matter was outside the jurisdiction of Turkey, inasmuch as the collision had taken place on the open seas.

                QUESTION: On questions of jurisdiction, which country has jurisdiction to try the offense? Is it the Turkish Court or the French Court?

ANSWER: The offense for which Lt.Demons appears to have been prosecuted was an act of negligence or imprudence –having its origin on board the Lotus where its effects made themselves felt on the Bozkourt. These elements are legally entirely inseparable so much so that their separation renders the offense non-existent. Neither the exclusive jurisdiction of each to the occurrences which took place on the respective ships would appear calculated to satisfy the requirements of justice and effectively to protect the interests of the two states. It is only natural that each should be able to exercise jurisdiction and to do so in respect to the incidents as a whole. It is, therefore, a case of concurrent jurisdiction.

            On the other hand, the Convention on the High Seas, Article 11, states that in the event of a collision of or any other incident of navigation concerning a ship on the high seas, involving penal or disciplinary responsibility of the master or of any other person in the service of the ship, no penal or disciplinary proceeding may be instituted against such persons except before the judicial or administrative authorities either of the flag state or of the state of which such person is a national. 

19.Explain the doctrine of state responsibility

ANSWER: A state is under obligation to make reparations to another state for the failure to fulfill its primary obligation to afford, in accordance with international law, the proper protection due to the alien national of the latter state. The state may therefore, be held liable to injuries and damages sustained by the alien while in the territory of that state.

20.Nottebohm, a German by birth, had been a resident of Guatemala for 34 years when he applied for and acquired naturalization in Liechtenstein, one month before the outbreak of the WW II. Many members of his family and his business connections were in Germany. In 1943, Guatemala, which had declared war on Germany, confiscated all his properties on the ground that he was an enemy national. Liechtenstein thereupon filed suit against Guatemala on his behalf as a naturalized citizen of Liechtenstein.

Was Nottebohm’s naturalization in Liechtenstein binding on Guatemala?

Answer: “The court of third states, when they have before them an individual whom two other states hold to be their national, seek to resolve the conflict by having recourse to international criteria and their prevailing tendency is to prefer the real and affective nationality”. Nottebohm’s actual connections with Liechtenstein were extremely tenuous. No settled abode, no prolonged residence in the country at the time of his naturalization x x x on the contrary he returned to Guatemala very shortly after his naturalization and showed every intention of remaining there. Naturalization was asked so much for the purpose of obtaining a legal recognition x x x Guatemala is under no obligation to recognize nationality granted in such circumstances. Liechtenstein consequently is not entitled to extend its protection to Nottebohm vis-à-vis Guatemala and its claim must for this reason, be held to be inadmissible.