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.