exam 5

1.In the case of Laurel v. Misa,(1947) Justice Perfecto, enumerated four kinds of Allegiance. What are these?

Answer: Allegiance is of four kinds, namely: (1) Natural allegiance that which arises by nature and birth; (2) acquired allegiance that arising through some circumstance or act other than birth, namely, by denization or naturalization; (3) local allegiance-- that arising from residence simply within the country, for however short a time; and (4) legal allegiance that arising from oath, taken usually at the town or leet, for, by the common law, the oath of allegiance might be tendered to every one upon attaining the age of twelve years. (3 C.J.S., p.885.)

2. (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? (c) What are the exceptions to the general rule?

Answer: In general, the answer to these two novel questions is “No.” The explanation of and the reasons for, as well as the exceptions to, this rule are laid out in this Decision.(USA v. Purganan, 2002)x x x Accordingly and to best serve the ends of justice, we believe and so hold that, after a potential extraditee has been arrested or placed under the custody of the law, bail may be applied for and granted as an exception, only upon a clear and convincing showing (1) that, once granted bail, the applicant will not be a flight risk or a danger to the community; and (2) that there exist special, humanitarian and compelling circumstances including, as a matter of reciprocity, those cited by the highest court in the requesting state when it grants provisional liberty in extradition cases therein.

3. Supply the missing word: (a)_____________ is the state of being exempt from the jurisdiction of local law, usually as the result of diplomatic negotiations

(b)_______________, a term of international law, used to denominate certain immunities from the application of the rule that every person is subject for all acts done within the boundaries of a state to its local laws.

(c) ______________ has also been granted by treaty to the subjects and citizens of contracting Christian states resident within the territory of certain non-Christian states.

(d)Lastly, it is held that when armies or regiments are allowed by a foreign state to cross its territory, they necessarily have __________________rights.

(e) An historic case of __________________ was the seizure of the railways of Nicaragua by Brown Brothers and Harriman, a U.S. banking firm. Under the Knox-Castrillo Treaty of 1911 these railroads became legally part of the State of Maine, according to former president of Guatemala, Juan José Arévalo, in his book The Shark and the Sardines (Lyle Stuart, New York, 1961).

Answer: http://www.1911encyclopedia.org/Exterritoriality

(a) Extraterritoriality is the state of being exempt from the jurisdiction of local law, usually as the result of diplomatic negotiations

(b) Exterritoriality, a term of international law, used to denominate certain immunities from the application of the rule that every person is subject for all acts done within the boundaries of a state to its local laws.

(c) Exterritoriality has also been granted by treaty to the subjects and citizens of contracting Christian states resident within the territory of certain non-Christian states.

(d)Lastly, it is held that when armies or regiments are allowed by a foreign state to cross its territory, they necessarily have (d) exterritorial rights.

(e) An historic case of extraterritoriality was the seizure of the railways of Nicaragua by Brown Brothers and Harriman, a U.S. banking firm. Under the Knox-Castrillo Treaty of 1911 these railroads became legally part of the State of Maine, according to former president of Guatemala, Juan José Arévalo, in his book The Shark and the Sardines (Lyle Stuart, New York, 1961).

4. What is the last step in the treaty-making process? What is expected to be achieved on said step? If there is no affectivity date specified in the treaty, what should be its effectivity date?

ANSWER:The last step in the treaty-making process is the exchange of the instruments of ratification, which usually also signifies the effectivity of the treaty unless a different date has been agreed upon by the parties. Where ratification is dispensed with and no effectivity clause is embodied in the treaty, the instrument is deemed effective upon its signature.

5. The petitioner is a minor and a resident of the Philippines. Private respondent Northwest Orient Airlines (NOA) is a foreign corporation with principal office in Minnesota, U.S.A., and licensed to do business and maintain a branch office in the Philippines.

On October 21, 1986, the petitioner purchased from NOA a round-trip ticket in San Francisco, U.S.A., for his flight from San Francisco to Manila via Tokyo and back. The scheduled departure date from Tokyo was December 20, 1986. No date was specified for his return to San Francisco.

On December 19, 1986, the petitioner checked in at the NOA counter in the San Francisco airport for his scheduled departure to Manila. Despite a previous confirmation and re-confirmation, he was informed that he had no reservation for his flight from Tokyo to Manila. He therefore had to be wait-listed.

On March 12, 1987, the petitioner sued NOA for damages in the Regional Trial Court of Makati. On April 13, 1987, NOA moved to dismiss the complaint on the ground of lack of jurisdiction. Citing the above-quoted article, it contended that the complaint could be instituted only in the territory of one of the High Contracting Parties, before:

1. the court of the domicile of the carrier;

2. the court of its principal place of business;

3. the court where it has a place of business through which the contract had been made;

4. the court of the place of destination.

The private respondent contended that the Philippines was not its domicile nor was this its principal place of business. Neither was the petitioner's ticket issued in this country nor was his destination Manila but San Francisco in the United States.

On February 1, 1988, the lower court granted the motion and dismissed the case

QUESTION: Is the dismissal correct? Explain your answer.

ANSWER: Yes. AUGUSTO BENEDICTO SANTOS III, represented by his father and legal guardian, Augusto Benedicto Santos, petitioner, vs. NORTHWEST ORIENT AIRLINES and COURT OF APPEALS, respondents. [G.R. No. 101538. June 23, 1992]

6.(a) According to Jessup, what is the meaning of the doctrine of Rebus sic stantibus? (b) What is the key element of said doctrine?(c) Does this doctrine operate automatically to render a treaty inoperative?

ANSWER: The petitioner is invoking the doctrine of rebus sic stantibus. According to Jessup, "this doctrine constitutes an attempt to formulate a legal principle which would justify non-performance of a treaty obligation if the conditions with relation to which the parties contracted have changed so materially and so unexpectedly as to create a situation in which the exaction of performance would be unreasonable." The key element of this doctrine is the vital change in the condition of the contracting parties that they could not have foreseen at the time the treaty was concluded. The doctrine of rebus sic stantibus does not operate automatically to render the treaty inoperative. There is a necessity for a formal act of rejection, usually made by the head of State, with a statement of the reasons why compliance with the treaty is no longer required.

7. SUPPLY THE missing words:

(A) __________(in relation to everyone) is frequently used in legal terminology describing obligations or rights toward all.

(B) An ________ right (a statutory right) can here be distinguished from a right based on contract, which is only enforceable against the contracting party.

In international law it has been used as a legal term describing obligations owed by states towards the community of states as a whole.

(C)An _________obligation exists because of the universal and undeniable interest in the perpetuation of critical rights (and the prevention of their breach). Consequently, any state has the right to complain of a breach.

(D)Examples of _________ norms include piracy, genocide, slavery, and racial discrimination. The concept was recognized in the International Court of Justice's decision in the Barcelona Traction case [(Belgium v Spain) (Second Phase) ICJ Rep 1970 3 at paragraph 33]:

ANSWER: Erga omnes (in relation to everyone) is frequently used in legal terminology describing obligations or rights toward all. For instance a property right is an erga omnes right, and therefore enforceable against anybody infringing that right. An erga omnes right (a statutory right) can here be distinguished from a right based on contract, which is only enforceable against the contracting party.

In international law it has been used as a legal term describing obligations owed by states towards the community of states as a whole. An erga omnes obligation exists because of the universal and undeniable interest in the perpetuation of critical rights (and the prevention of their breach). Consequently, any state has the right to complain of a breach. Examples of erga omnes norms include piracy, genocide, slavery, and racial discrimination. The concept was recognized in the International Court of Justice's decision in the Barcelona Traction case [(Belgium v Spain) (Second Phase) ICJ Rep 1970 3 at paragraph 33]:

8. A. What is international humanitarian law (IHL)? (b) Name at least two sources of IHL? (c) When does international humanitarian law apply?

ANSWER: A. What is international humanitarian law?

In addition to this very operational side of its work, the ICRC is also the promoter and guardian of international humanitarian law, the body of rules applicable in armed conflict which

· protect those not or no longer taking active part in hostilities

· regulate permissible means and methods of warfare.

The principal sources of international humanitarian law today are

· the four Geneva Conventions of 1949;

· the two Additional Protocols thereto of 1977;

· a number of treaties prohibiting or restricting the use of specific weapons, eg the 1980 Convention on Certain Conventional Weapons and its protocols;

· the 1954 Convention on the Protection of Cultural Property in the Event of War;

· instruments establishing international mechanisms for the enforcement of international humanitarian law such as the 1998 Statute of the International Criminal Court;

· an important body of customary law.

B. When does international humanitarian law apply?

As I stated earlier, international humanitarian law applies in times of armed conflict. This begs the deceptively simple question of “what constitutes an armed conflict”? While in 1974 General Assembly adopted a definition of aggression, nowhere - neither in international humanitarian law instruments nor in any other body of international law – do we find a definition of armed conflict.
If we look to international humanitarian law treaties for guidance, while we do not find a definition, we do have provisions indicating when relevant conventions are applicable. International humanitarian law recognises two types of conflict: international armed conflicts and non-international armed conflicts. Different criteria determine the existence of these types of conflict, which are regulated by different rules.

(9) Accordingly there are three types of treaties in the American system, as enumerated in the case of Suzette Nicolas v. Romulo. What are these three types and explain each.

Accordingly, there are three types of treaties in the American system:

1. Art. II, Sec. 2 treaties – These are advised and consented to by the US Senate in accordance with Art. II, Sec. 2 of the US Constitution.

2. Executive–Congressional Agreements: These are joint agreements of the President and Congress and need not be submitted to the Senate.

3. Sole Executive Agreements. – These are agreements entered into by the President. They are to be submitted to Congress within sixty (60) days of ratification under the provisions of the Case-Zablocki Act, after which they are recognized by the Congress and may be implemented.

10. Explain the right of angary.What are the three requisites?

ANSWER: By the right of angary, a belligerent may, upon payment of just compensation, seize, use or destroy, in case of urgent necessity for purposes of offense or defense, neutral property found in its territory, in enemy territory or on the high seas. The three requisites: (1) that the property is in the territory under the control or jurisdiction of the belligerent (2) that there is urgent necessity for the taking (3) that just compensation is paid to the owner.