right of angary, uti possidetis, rendetion

Angary (Lat. jus angariae; Fr. droit d'angarie; Ger. Angarie; from the Gr. ἀγγαρεία, (angaria), the office of an ἄγγαρος, courier or messenger), the name given to the right of a belligerent (most commonly, a government or other party in conflict) to seize and apply for the purposes of war (or to prevent the enemy from doing so) any kind of property on belligerent territory, including that which may belong to subjects or citizens of a neutral state.

Article 53 of the Regulations respecting the Laws and Customs of War on Land, annexed to the Hague Convention of 1899 on the same subject, provides that railway plant, land telegraphs, telephones, steamers and other ships (other than such as are governed by maritime law), though belonging to companies or private persons, may be used for military operations, but "must be restored at the conclusion of peace and indemnities paid for them." Article 54 adds that "the plant of railways coming from neutral states, whether the property of those states or of companies or private persons, shall be sent back to them as soon as possible."

These articles seem to sanction the right of angary against neutral property, while limiting it as against both belligerent and neutral property. It may be considered, however, that the right to use implies as wide a range of contingencies as the "necessity of war" can be made to cover.

Uti possidetis (Latin for "as you possess") is a principle in international law that territory and other property remains with its possessor at the end of a conflict, unless provided for by treaty. Originating in Roman law, this principle enables a belligerent party to claim territory that it has acquired by war. The term has historically been used to legally formalize territorial conquests, such as the annexation of Alsace-Lorraine by the German Empire in 1871.^{[citation needed]}

In the early 17th century, the term was used by England's James I to state that while he recognized the existence of Spanish authority in those regions of the Western Hemisphere where Spain exercised effective control, he refused to recognize Spanish claims to exclusive possession of all territory west of longitude 46° 37' W under the Treaty of Tordesillas.

More recently, the principle has been used in a modified form (see Uti possidetis juris) to establish the frontiers of newly independent states following decolonization, by ensuring that the frontiers followed the original boundaries of the old colonial territories from which they emerged. This use originated in South America in the 19th century with the withdrawal of the Spanish Empire.^[1] By declaring that uti possidetis applied, the new states sought to ensure that there was no terra nullius in South America when the Spanish withdrew and to reduce the likelihood of border wars between the newly independent states. This last goal was ultimately unsuccessful, since many wars over borders did occur.

The same principle was applied to Africa and Asia following the withdrawal of European powers from those continents, and in locations such as the former Yugoslavia and the

Soviet Union where former centralized governments fell, and constituent states gained independence. In 1964 the Organisation of African Unity passed a resolution stating that the principle of stability of borders – the key principle of uti possidetis – would be applied across Africa. Most of Africa was already independent by this time, so the resolution was principally a political directive to settle disputes by treaty based on pre-existing borders rather than by resorting to force. To date, adherence to this principle has allowed African countries to avoid border wars;^{[citation needed]} the notable exception,^{[citation needed]} the Eritrean-Ethiopian War of 1998–2000, had its roots in a secession from an independent African country rather than a conflict between two decolonized neighbours.^{[citation needed]} On the other hand, the colonial boundaries often did not follow ethnic lines, and this has helped lead to violent and bloody civil wars among differing ethnic groups in many post-colonial (and post-Communist) countries, including Sudan, the Democratic Republic of the Congo, Angola, Nigeria, and the former Yugoslavia.^[2]

The principle was affirmed by the International Court of Justice in the 1986 Case Burkina-Faso v Mali:

[Uti possidetis] is a general principle, which is logically connected with the phenomenon of obtaining independence, wherever it occurs. Its obvious purpose is to prevent the independence and stability of new states being endangered by fratricidal struggles provoked by the changing of frontiers following the withdrawal of the administering power.

The term status quo ante bellum comes from Latin meaning literally, the state in which things were before the war.

The term was originally used in treaties to refer to the withdrawal of enemy troops and the restoration of prewar leadership. When used as such, it means that no side gains or loses territory or economic and political rights. This contrasts with uti possidetis, where each side retains whatever territory and other property it holds at the end of the war.

The term has been generalized to form the phrase status quo and status quo ante. Outside this context, the term antebellum is in the United States usually associated with the period before the American Civil War, while in Europe and elsewhere with the period before World War II.

An early example was the treaty that ended the great 602–629 War between the Eastern Roman and the Sassanian Persian Empires. The Persians had occupied Asia Minor, Palestine and Egypt. After a successful Roman counteroffensive in Mesopotamia finally brought about the end of the war the integrity of Rome's eastern frontier as it was prior to 602 was fully restored. Both empires were exhausted after this war and neither were ready to defend themselves when the armies of Islam emerged from Arabia in 632.

Another example of a war that ended status quo ante bellum was the War of 1812 between the United States and the United Kingdom, which was concluded with the Treaty of Ghent in 1814. During negotiations, British diplomats had suggested ending the war uti possidetis, but the final treaty, due in large part to a resounding American victory in the Battle of Lake Champlain, left neither gains nor losses in land for the United States and the United Kingdom's Canadian colonies.

Also, the Seven Years' War (1756–1763) between Prussia and Austria concluded status quo ante bellum. Austria tried to regain the region of Silesia, lost in the War of the Austrian Succession eight years previously, but the territory remained in the hands of the Prussians.

Another example is Iran–Iraq War (September 1980 - August 1988): "The war left the borders unchanged. Two years later, as war with the western powers loomed, Saddam Hussein recognized Iranian rights over the eastern half of the Shatt al-`Arab, a reversion to the status quo ante bellum that he had repudiated a decade earlier." Another example is the Falklands War (1982). The war ended in British military victory, but did not resolve the sovereignty dispute over the Falkland Islands.

The Kargil War, also known as the Kargil conflict, was an armed conflict between India and Pakistan that took place between May and July 1999 in the Kargil district of Kashmir and elsewhere along the Line of Control (LoC). The cause of the war was the infiltration of Pakistani soldiers and Kashmiri militants into positions on the Indian side of the LoC, which serves as the de facto border between the two states. During the initial stages of the war, Pakistan blamed the fighting entirely on independent Kashmiri insurgents, but documents left behind by casualties and later statements by Pakistan's Prime Minister and Chief of Army Staff showed involvement of Pakistani paramilitary forces, led by General Ashraf Rashid. The Indian Army, later on supported by the Indian Air Force, recaptured a majority of the positions on the Indian side of the LoC infiltrated by the Pakistani troops and militants. With international diplomatic opposition, the Pakistani forces were forced to withdraw from Indian positions along the LoC.

RENDITION

In law, rendition is a "surrender" or "handing over" of persons or property, particularly from one jurisdiction to another. For criminal suspects, extradition is the most common type of rendition. Rendition can also be seen as the act of handing over, after the request for extradition has taken place.

Rendition can also mean the act of rendering, i.e. delivering, a judicial decision, or of explaining a series of events, as a defendant or witness. It can also mean the execution of a judicial order by the directed parties. But extraordinary rendition is distinct from both deportation and extradition, being inherently illegal. [1]

Rendition between states is required by Article Four, Section Two of the United States Constitution; this section is often termed the rendition clause.

Each state has a presumptive duty to render suspects on the request of another state, as under the full faith and credit clause. The Supreme Court has established certain exceptions; a state may allow its own legal proceedings against a suspect to take precedence, for example. It was established in Kentucky v. Dennison that interstate rendition and extradition were not a federal writ; that is, a state could not petition the federal courts to have another state honor its request for rendition, if the state receiving the request chose not to do so. In rare cases, usually involving the death penalty, states have refused or delayed rendition. In 1987, this was overturned by Puerto Rico v. Branstad,^[1] so a federal interest in resolving interstate rendition disputes was established. Nevertheless, the right of refusal of rendition was not overturned.

Extradition for fugitives who are charged with a crime is commonly requested by state or county prosecutors. Formal interstate rendition will involve both state governors. Other procedures can involve waiving documentary formalities before surrender of the fugitive. Under the Uniform Extradition Act adopted in 48 states, Puerto Rico and the Virgin Islands (but not in Mississippi and South Carolina), there is a distinction between fugitives who were in the demanding state at the time of the crime and those nonfugitives whose prior presence is not so alleged. The first type is mandatory under the United States Constitution. The less frequent second type allows for some Governor discretion. These cases can involve bad checks or failure to pay child support but they still must be criminal matters.

Bounty hunters and bondsmen once had limited authority to capture fugitives, even outside the state where they were wanted by the courts. When they deliver such a person, this is considered rendition, as it did not involve the intervention of the justice system in the state of capture. Under more recent law, bounty hunters are not legally permitted to act outside of the state where the offense took place, but cases of rendition still take place due to the financial interest the bondsmen have in returning a fugitive and recovering the bail. Formally, such fugitive cases should be turned over to the state for execution under the Uniform Criminal Extradition Act (1936) and the Uniform Extradition and Rendition Act (1980), if the fugitive's location is known, or the United States Marshals Service, when it is not.

Rendition was infamously used to recapture fugitive slaves, who under the Constitution and various federal laws had virtually no human rights. As the movement for abolition grew, Northern states increasingly refused to comply or cooperate with rendition of escaped slaves, leading to the Fugitive Slave Law of 1850. This non-cooperation was behind the longstanding principle of refusal, only reverted in the 1987 decision.

Human rights groups charge that extraordinary rendition is a violation of Article 3^[2] of the United Nations Convention Against Torture (UNCAT), because suspects are taken to countries where torture during interrogation remains common ^[3], thus circumventing the protections the captives would enjoy in the United States or other nations who abide by the terms of UNCAT. Its legality remains highly controversial, as the United States outlaws the use of torture, and the U.S. Constitution guarantees due process. Rendered suspects are denied due process because they are arrested without charges, deprived of legal counsel, and illegally transferred to third world country with the intent and purpose of facilitating torture and other interrogation measures which would be illegal in the USA.

sample examination in international law

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.

case problems with answers

1.The World Health Organization filed a Request for Advisory Opinion before the International Court of Justice whether the use of nuclear weapons by a state in war or other armed conflict would be a breach of obligations under international law, including the WHO Convention.

Does the ICJ, have jurisdiction on said issue? Under what principle is the jurisdictional issue settled? Explain your answer.

ANSWER: The ICJ ruled that it did not have jurisdiction to decide on the request of the WHO for the former to render an advisory opinion on whether the use of nuclear weapons by a state in war or other armed conflict would be a breach of its obligations under international law, including the WHO convention. Unlike states which posses general competence, international organizations are governed by the principle of specialty, that is, they are invested by the states which create them with powers, the limits of which are a function of the common interest whose promotion those states entrust to them. To ascribe to the WHO the competence to address the legality of the use of nuclear weapon would be tantamount to disregarding the principle of specialty for such competence could not be deemed a necessary implication of the constitution of the WHO in the light of the purposes assigned to it by the member states.

2. In the case of THE HOLY SEE vs. ERIBERTO U. ROSARIO, JR., ET AL. (G.R. No. 101949 December 1, 1994) the procedure is outlined pursuant to public international law in pleading sovereign or diplomatic immunity in a foreign court.

l. State the procedure.

2. In the United States the procedure followed is the process of “suggestion”. EXPLAIN THE “process of suggestion”.

ANSWER: 1.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.

2.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 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.

3. 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: (A)In International Catholic Migration Commission v. 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.

(B)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.

4.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

4.and recognition is only temporary (for the duration of the armed struggle) and only for the purpose of hostilities.

5 STATE AND DEFINE THE DIFFERENT FORMS OF REPRISALS;

ANSWER: REPRISAL – unfriendly and unlawful acts in retaliation for reciprocal unlawful acts of another state, and may take the form of

freezing of the assets of the nationals of the other state;

embargo- the forcible detention or sequestration of the vessels and other property of the offending state;

pacific blockade- the prevention of entry to or exits from the ports of the offending state of means of communication and transportation;

non-intercourse- suspension of all intercourse with the offending state, particularly in mattes of trade and commerce;

boycott- concerted suspension of commercial relations with the offending state, with particular reference to a refusal to purchase goods.

6.WHAT DO YOU UNDERSTAND BY THE TERMS UNCLOS and ITLOS? Explain each.

ANSWER: UNCLOS means United Nations Convention on the Law of the Sea-requires states to settle peacefully any dispute concerning the convention. Failing a bilateral settlement, Art. 286 provide that any dispute shall be submitted for compulsory settlement to one of the tribunals having jurisdiction. This includes the INTERNATIONAL TRIBUNAL for THE LAW OF THE SEA (ITLOS) and the International Court of Justice and arbitral or special arbitral tribunals constituted under the UNCLOS. The ITLOS is composed of 21 independent members elected by the state parties to the UNCLOS from among persons with recognized competence in the field of the law of the sea and representing the legal systems of the world. ITLOS has jurisdiction over all disputes and all applications submitted to it in accordance with the UNCLOS and over all matters specifically provided for in any other agreement, which confers jurisdiction on the ITLOS.

7. FACTS: On November 17, 1964, respondent Edgardo Gener, as plaintiff, filed a complaint for injunction with the Court of First Instance of Bataan against petitioner, Donald Baer, Commander of the United States Naval Base in Olongapo. It was docketed as Civil Case No. 2984 of the Court of First Instance of Bataan. He alleged that he was engaged in the business of logging in an area situated in Barrio Mabayo, Municipality of Morong, Bataan and that the American Naval Base authorities stopped his logging operations. He prayed for a writ of preliminary injunction restraining petitioner from interfering with his logging operations. Respondent Judge issued a restraining order on November 23, 1964. Counsel for petitioner, upon instructions of the American Ambassador to the Philippines, entered their appearance for the purpose of contesting the jurisdiction of respondent Judge on the ground that the suit was one against a foreign sovereign without its consent. Then, on December 12, 1964, petitioner filed a motion to dismiss, wherein such ground was reiterated. It was therein pointed out that he is the chief or head of an agency or instrumentality of the United States of America, with the subject matter of the action being official acts done by him for and in behalf of the United States of America. It was added that in directing the cessation of logging operations by respondent Gener within the Naval Base, petitioner was entirely within the scope of his authority and official duty, the maintenance of the security of the Naval Base and of the installations therein being the first concern and most important duty of the Commander of the Base. There was, on December 14, 1964, an opposition and reply to petitioner's motion to dismiss by respondent Gener, relying on the principle that "a private citizen claiming title and right of possession of certain property may, to recover possession of said property, sue as individuals, officers and agents of the Government, who are said to be illegally withholding the same from him, though in doing so, said officers and agents claim that they are acting for the Government." That was his basis for sustaining the jurisdiction of respondent Judge. Petitioner, thereafter, on January 12, 1965, made a written offer of documentary evidence, including certified copies of telegrams of the Forestry Director to Forestry personnel in Balanga, Bataan dated January 8, and January 11, 1965, directing immediate investigation of illegal timber cutting in Bataan and calling attention to the fact that the records of the office show no new renewal of timber license or temporary extension permits. The above notwithstanding, respondent Judge, on January 12, 1965, issued an order granting respondent Gener's application for the issuance of a writ of preliminary injunction and denying petitioner's motion to dismiss the opposition to the application for a writ of preliminary injunction.

A motion for reconsideration having proved futile, this petition for certiorari was filed with this Court. The prayer was for the nullification and setting aside of the writ of preliminary injunction issued by respondent Judge in the aforesaid Civil Case No. 2984 of the Court of First Instance of Bataan. A resolution of March 17, 1965 was issued by this Court requiring respondents to file an answer and upon petitioner's posting a bond of P5, 000.00 enjoining them from enforcing such writ of preliminary injunction. The answer was duly forthcoming. It sought to meet the judicial question raised by the legal proposition that a private citizen claiming title and right of possession of a certain property may, to recover the same, sue as individuals officers and agents of the government alleged to be illegally withholding such property even if there is an assertion on their part that they are acting for the government.

QUESTION: Peruse the facts of case. Thresh out the issues and rule on the issues, which you think are applicable to the case.

(Source: DONALD BAER vs. TITO V. TIZON, ET AL. GR. No. L-24294 May 3, 1974)

ANSWER: The issue is whether the suit has to be dismissed because the respondents are immune from suit. The answer is that since their acts relate to a sovereign function of the state, defense and military strategies, then the suit has to be dismissed, because of the immunity of the United States from suit.

8. FACTS: The private respondents are suing several officers of the U.S. Air Force stationed in Clark Air Base in connection with the bidding conducted by them for contracts for barber services in the said base.

On February 24, 1986, the Western Pacific Contracting Office, Okinawa Area Exchange, U.S. Air Force, solicited bids for such contracts through its contracting officer, James F. Shaw. Among those who submitted their bids were private respondents Roberto T. Valencia, Emerenciana C. Tanglao, and Pablo C. del Pilar. Valencia had been a concessionaire inside Clark for 34 years; del Pilar for 12 years; and Tanglao for 50 years.

Ramon Dizon, won the bidding over the objection of the private respondents, who claimed that he had made a bid for four facilities, including the Civil Engineering Area, which was not included in the invitation to bid.

The private respondents complained to the Philippine Area Exchange (PHAX). The latter, through its representatives, petitioners Yvonne Reeves and Frederic M. Smouse explained that the Civil Engineering concession had not been awarded to Dizon as a result of the February 24, 1986 solicitation. Dizon was already operating this concession, then known as the NCO club concession, and the expiration of the contract had been extended from June 30, 1986 to August 31, 1986. They further explained that the solicitation of the CE barbershop would be available only by the end of June and the private respondents would be notified.

On June 30, 1986, the private respondents filed a complaint in the court below to compel PHAX and the individual petitioners to cancel the award to defendant Dizon, to conduct a rebidding for the barbershop concessions and to allow the private respondents by a writ of preliminary injunction to continue operating the concessions pending litigation.

Upon the filing of the complaint, the respondent court issued an ex parte order directing the individual petitioners to maintain the status quo.

On July 22, 1986, the petitioners filed a motion to dismiss and opposition to the petition for preliminary injunction on the ground that the action was in effect a suit against the United States of America, which had not waived its non-suability. The individual defendants, as official employees of the U.S. Air Force, were also immune from suit.

Question: AS JUDGE WOULD YOU DISMISS THE CASE? EXPLAIN YOUR ANSWER.

The suit cannot be dismissed because the act involved is proprietary, hence the state does not enjoy the immunity from suit.

9. What is the concept of the exclusive economic zone under the UN convention of the law of the sea?

ANSWER: under the UNCLOS, the costal state has sovereign rights over the exclusive economic zone for purposes of exploring, exploiting, conserving and managing the natural resources, whether living or non-living, of the seabed, the sub-soil, and the superjacent waters as well as the production of energy from the water, currents and wind. Other states shall have the freedom of navigation and over-flight, to lay submarine cables and pipes, and other lawful uses.

10. What is the doctrine of sovereign immunity under international law?

ANSWER: As a consequence of independence, territorial supremacy and equality, a state enjoys immunity from exercise of jurisdiction (legislative, executive, or judicial) by another state, unless it has given consent, waived it immunity or voluntarily submitted to the jurisdiction of the court concerned. Neither may its public property be attached or taxed nor its public vessel be boarded, arrested or sued. THIS IS based on the principle of par in parem non habet imperium. The state’s immunity extends to the Head Of State who is the personification of the state. This immunity however, is recognized with respect to sovereign or public acts of the state, and cannot be invoked wish respect to private or proprietary acts. In US V. Ruiz, 136 SCRA 487, the Supreme Court classified contracts entered into by the state into those in jure imperii and those jure gestiones. Neither may this immunity be invoked when the foreign state sues in the courts of another state, for then, it is deemed to have submitted itself to the ordinary incidents of procedure and thus a counterclaim may be validly set up against it.

exam 2

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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