EXAM 7

1.What do you understand by the “Principle of Active or Affective Nationality” as embodied in the Hague Convention of 1930 on the Conflict of Nationality Laws? How was it applied in the Nottebohm case as decided by the International Court of Justice in 1955?

2.There is always a possibility that failure of unity among the Big Five of the UN will render the Security Council impotent in the solution of international disputes. As observed, the veto cast by any of the permanent members will prevent agreement on this matter. To avoid this predicament of inaction, what did the General Assembly of the United Nations adopt? Explain some of the details cncerning said resolution.

3.What are franc tireurs? Are they considered as combatants? Under what conditions?

4.Explain the significance of levee en masse. Are they considered as “prisoners of war” when captured?

5.Explain the principle of “military necessity”. Distinguish it from the principle of humanity and chivalry.

6.What is the “right of angary”?

7.Distinguish neutrality from neutralization.

8.Distinguish uti posseditis from status qou ante.

9. Explain “international humanitarian law”, its scope, coverage and application. How is this law concretized in the Geneva conventions?

10. When Adolf Eichman was captured in Argentina, tried and sentenced to die in Israel, the Isreali government invoked a certain principle of international law to validate its action. What was that principle? Explain.

11. 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? Rule on the issues, inoking by analogy the ruling of the Supreme Court, in Yamashita v.Styer.

12. 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?

13.The Extradition Treaty between France and the Philippines is silent as to its applicability with respect to crimes committed prior to its effectivity.

i) Can France demand the extradition of “A”, a French National residing in the Philippines, for an offense committed in France prior to the effectivity of the treaty?

ii) Can “A” contest his extradition on the ground that it violates the ex post facto provision of the Philippine Constitution? Explain.

14.The Federation of Islamabad concluded an agreement with the Republic of Baleria, concerning the facilitation of entry of Balerian contract workers into Islamabad.Thereafter, a revolution broke out in Islamabad, which is now governed by a military junta. Most of the Balerian contract workers were arrrested by Islamabad Immigration Officers for not having with them necessary papers and proper documents. Upon learning of the incident, the government of Baleria loadge a formal protest with the Islamabad revolutionary government invoking certain provisions of the aforementioned agreement. The latter replied, however, that the new governmentis not “internationally bound” by the same. Moreover, Islamabad further contended that said agreement is contrary to its Islamic Law.

Is the new revolutionary government under obligation, pursuant to international law, to comply with what have been agreed upon and set forth in the agreement concluded with Baleria by its former government? Reason.

15. Patrick Cruz, a Filipino, solicited P40, 000 each from Juan, Pedro, Maria, Petra and Pablo in the Philippines, as downpayment for a contractual teaching job in the United States. The job abroad did not materialize, and it was later known that Patrick was an unlicensed recruiter. The victims filed a case for Illegal recruitment in large scale and Estafa before the RTC in Manila. A warrant of arrest was issued against him.

In the meantime, he eluded arrest and escaped in the United States, where he is now presently residing.

The Philippines has an extradition treaty with the U.S., which does not include “illegal recruitment” as an extraditable crime. Estafa is included.

1. Juan comes to you for advice. He desires that Patrcik should be made answerable for the offense he committed. What should be your advice to Juan?

2. Patrick claims that he could not be extradited and tried because “illegal recruitment” is not an extraditable offense as listed in the treaty. Is he correct? Reason.

3. Upon an extradition request made by the Philippine government before the Department of Foreign Affairs in the U.S., is Patrick, under International Law, given the right to be furnished the copies of the extradition documents so that he can properly defend himself? Reason.

4. It is stated that a proceeding for extradition is a sui generis. What do you understand by this?

5. In the case at bar, is deportation applicable?

16. Plaintiff-appellant instituted this action in the Court of First Instance of Manila against the defendant-appellee, China Banking Corporation, to compel the latter to execute a deed of cancellation of the mortgage on the property described in the complaint, and to deliver to the said plaintiff the Transfer Certificate of Title No. 47634 of the Register of Deeds of Manila, with the mortgage annotated therein already cancelled, as well as to pay the plaintiff the sum of P1,000.00 for damages as attorney's fees and to pay the costs of the suit. The cause of action is that the plaintiff's indebtedness to the China Banking Corporation in the sum of P5,103.35 by way of overdraft in current account payable on demand together with its interests, has been completely paid, on different occasions, from October 7, 1942, to August 29, 1944, to the defendant China Banking Corporation through the defendant Bank of Taiwan, Ltd., that was appointed by the Japanese Military authorities as liquidator of the China Banking Corporation.

Upon having been served with summons the defendant-appellee China Banking Corporation made a demand from the plaintiff-appellant for the payment of the sum of P5,103.35 with interests representing the debt of the said appellant, and in the answer it set up a counter claim against the plaintiff-appellant demanding the payment, within 90 days from and after the date Executive Order No. 32 on moratorium, series of 1945, has been repealed, of said amount due from the latter to the former by way of overdraft together with its interests at the rate of 9 per cent per annum to be compounded monthly, and the additional sum of P1,500 as attorney's fees and the costs of the suit.

After the hearing of the case, the trial court rendered a decision holding that, as there was no evidence presented to show that the defendant China Banking Corporation had authorized the Bank of Taiwan, Ltd., to accept the payment of the plaintiff's debt to the said defendant, and said Bank of Taiwan, as an agency of the Japanese invading army, was not authorized under the international law to liquidate the business of the China Banking Corporation, the payment has not extinguished the indebtedness of the plaintiff to the said defendant under article 1162 of the Civil Code. The court absolved the defendant China Banking Corporation from the complaint of the plaintiff, and sentenced the latter to pay the former the sum of P5,103.35 with interests within the period of 90 days from and after the above mentioned Executive Order No. 32 had been repealed or set aside, and ordered that, if the plaintiff failed to pay it within the said period, the property mortgaged shall be sold at public auction and the proceeds of the sale applied to the payment of said obligation. The plaintiff appealed from the decision to this Court.

QUESTIONS:

1. Under the rules of international law did the Japanese Military Administration have authority to order the liquidation or winding up of the business of defendant-appellee China Banking Corporation, and to appoint the Bank of Taiwan liquidator authorized as such to accept the payment by the plaintiff-appellant to said defendant-appellee?

2. Is the payment by the plaintiff-appellant of her monetary obligation in Japanese notes during the Japanese occupation has the effect of extinguishing her obligation to said defendant-appellee?

17. 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.

18. 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?

19. 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?

20. 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.

END OF THE EXAMINATION