nature of the "associative" relationship

The MOA-AD is inconsistent with the Constitution and laws as presently worded.

In general, the objections against the MOA-AD center on the extent of the powers conceded therein to the BJE. Petitioners assert that the powers granted to the BJE exceed those granted to any local government under present laws, and even go beyond those of the present ARMM. Before assessing some of the specific powers that would have been vested in the BJE, however, it would be useful to turn first to a general idea that serves as a unifying link to the different provisions of the MOA-AD, namely, the international law concept of association. Significantly, the MOA-AD explicitly alludes to this concept, indicating that the Parties actually framed its provisions with it in mind.

Association is referred to in paragraph 3 on TERRITORY, paragraph 11 on RESOURCES, and paragraph 4 on GOVERNANCE. It is in the last mentioned provision, however, that the MOA-AD most clearly uses it to describe the envisioned relationship between the BJE and the Central Government.

4. The relationship between the Central Government and the Bangsamoro juridical entity shall be associative characterized by shared authority and responsibility with a structure of governance based on executive, legislative, judicial and administrative institutions with defined powers and functions in the comprehensive compact. A period of transition shall be established in a comprehensive peace compact specifying the relationship between the Central Government and the BJE. (Emphasis and underscoring supplied)

The nature of the "associative" relationship may have been intended to be defined more precisely in the still to be forged Comprehensive Compact. Nonetheless, given that there is a concept of "association" in international law, and the MOA-AD - by its inclusion of international law instruments in its TOR- placed itself in an international legal context, that concept of association may be brought to bear in understanding the use of the term "associative" in the MOA-AD.

Keitner and Reisman state that

[a]n association is formed when two states of unequal power voluntarily establish durable links. In the basic model, one state, the associate, delegates certain responsibilities to the other, the principal, while maintaining its international status as a state. Free associations represent a middle ground between integration and independence. x x x¹⁵⁰ (Emphasis and underscoring supplied)

For purposes of illustration, the Republic of the Marshall Islands and the Federated States of Micronesia (FSM), formerly part of the U.S.-administered Trust Territory of the Pacific Islands,¹⁵¹ are associated states of the U.S. pursuant to a Compact of Free Association. The currency in these countries is the U.S. dollar, indicating their very close ties with the U.S., yet they issue their own travel documents, which is a mark of their statehood. Their international legal status as states was confirmed by the UN Security Council and by their admission to UN membership.

According to their compacts of free association, the Marshall Islands and the FSM generally have the capacity to conduct foreign affairs in their own name and right, such capacity extending to matters such as the law of the sea, marine resources, trade, banking, postal, civil aviation, and cultural relations. The U.S. government, when conducting its foreign affairs, is obligated to consult with the governments of the Marshall Islands or the FSM on matters which it (U.S. government) regards as relating to or affecting either government.

In the event of attacks or threats against the Marshall Islands or the FSM, the U.S. government has the authority and obligation to defend them as if they were part of U.S. territory. The U.S. government, moreover, has the option of establishing and using military areas and facilities within these associated states and has the right to bar the military personnel of any third country from having access to these territories for military purposes.

It bears noting that in U.S. constitutional and international practice, free association is understood as an international association between sovereigns. The Compact of Free Association is a treaty which is subordinate to the associated nation's national constitution, and each party may terminate the association consistent with the right of independence. It has been said that, with the admission of the U.S.-associated states to the UN in 1990, the UN recognized that the American model of free association is actually based on an underlying status of independence.¹⁵²

In international practice, the "associated state" arrangement has usually been used as a transitional device of former colonies on their way to full independence. Examples of states that have passed through the status of associated states as a transitional phase are Antigua, St. Kitts-Nevis-Anguilla, Dominica, St. Lucia, St. Vincent and Grenada. All have since become independent states.

G.R. No. 183591             October 14, 2008

THE PROVINCE OF NORTH COTABATO, duly represented by GOVERNOR JESUS SACDALAN and/or VICE-GOVERNOR EMMANUEL PIÑOL, for and in his own behalf, petitioners,
vs. THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON ANCESTRAL DOMAIN (GRP), represented by SEC. RODOLFO GARCIA, ATTY. LEAH ARMAMENTO, ATTY. SEDFREY CANDELARIA, MARK RYAN SULLIVAN and/or GEN. HERMOGENES ESPERON, JR., the latter in his capacity as the present and duly-appointed Presidential Adviser on the Peace Process (OPAPP) or the so-called Office of the Presidential Adviser on the Peace Process, respondents.

FINAL EXAMINATION IN PUBLIC INTERNATIONAL LAW

Each question is five points each. Passing is 25 points. Write the letter of your choice in you examination booklet. Regarding the problem type, always explain your answer. A mere yes or no answer shall earn no points.

1The President forged an executive agreement with Vietnam for a year supply of animal feeds to the Philippines not to exceed 40,000 tons. The Association of Animal Feed Sellers of the Philippines questioned the executive agreement for being contrary to R.A. 462 which prohibits the importation of animal feeds from Asian countries. Is the challenge correct?

A. Yes, the executive agreement is contrary to our existing domestic law.

B. No, the President is the sole organ of the government in external relations and all his actions as such form part of the law of the land.

C. No, international agreements are sui generis which must stand independently of our domestic laws.

D. Yes, the executive agreement is actually a treaty which does not take effect without ratification by the Senate.

2. Carlos, a foreign national was charged with and convicted of a serious crime in State X and sentenced to life imprisonment. His country applied for relief with the International Court of Justice (ICJ), arguing that State X did not inform Carlos of his right under Article 36 of the Vienna Convention to be accorded legal assistance by his government. State X, as signatory to the Vienna Convention,agreed to ICJ's compulsory jurisdiction over all disputes regarding the interpretation or application of the Vienna Convention. ICJ ruled that State X violated its obligation to provide consular notification to the foreign national's country. ICJ also required State X to review and reconsider the life sentence imposed on the foreign national. State X then wrote the United Nations informing that it was withdrawing from the Optional Protocol on Vienna Convention and was not bound by the ICJ decision. What principle of international law did State X violate?

A. Pacta Sunt Servanda

B. Act of State Doctrine

C. Protective Principle

D. Jus Cogens

3. Which of the following statements is NOT correct?

(A) No province, city, or municipality, not even the ARMM, is recognized under our laws as having an "associative" relationship with the national government.

(B) In international practice, the "associated state" arrangement has usually been used as a transitional device of former colonies on their way to full independence.

(C) An association is formed when two states of equal power voluntarily establish durable links

(D) It bears noting that in U.S. constitutional and international practice, free association is understood as an international association between sovereigns.

4. It is a principle of international law that the armed forces of one State, when crossing the territory of another friendly country, with the acquiescence of the latter, is---

(A) not subject to the jurisdiction of the territorial sovereign, but to that of the officers and superior authorities of its own command.

(B)subject to the  criminal and civil jurisdiction of the receiving state

 (C) Must obtain express permission before its troops can pass through the territory of another state

(D) understood to cede a portion of his territorial jurisdiction

5. Uti possidetis 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. Literally it means (a) as you take (b) as you use  (c) as you possess (d) as you use and possess

6. 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. (a) status quo ante bellum (b)right of angary (c) treaty limits theory (d) jus bellum

7. Which of the following does NOT define Rendition in the context of public international law ? (A) a "surrender" or "handing over" of persons or property, particularly from one jurisdiction to another

(B) For criminal suspects, extradition is different from rendition.

(C) Act of rendering, i.e. delivering, a judicial decision, or of explaining a series of events, as a defendant or witness

(D) Each state has a presumptive duty to render suspects on the request of another state, as under the full faith and credit clause.

8. 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”.

9. The case arose when Cuba nationalized its sugar industry, taking control of sugar refineries and other companies in the wake of the Cuban revolution. A large number of Americans who had invested in those companies lost their investments without compensation when the Cuban government assumed control. However, despite the loss suffered by United States nationals, the Supreme Court upheld the validity of Cuba's domestic action and therefore rejected the claim of US nationals against Cuba for their lost investments.

Question: What principle of international law is applied by the U.S. Court regarding this matter? Explain this principle.

10. (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.

End of the  Examination

FINAL EXAMINATION IN PUBLIC INTERNATIONAL LAW

Each question is five points each. Passing is 25 points. Write the letter of your choice in you examination booklet. Regarding the problem type, always explain your answer. A mere yes or no answer shall earn no points.

1The President forged an executive agreement with Vietnam for a year supply of animal feeds to the Philippines not to exceed 40,000 tons. The Association of Animal Feed Sellers of the Philippines questioned the executive agreement for being contrary to R.A. 462 which prohibits the importation of animal feeds from Asian countries. Is the challenge correct?

A. Yes, the executive agreement is contrary to our existing domestic law.

B. No, the President is the sole organ of the government in external relations and all his actions as such form part of the law of the land.

C. No, international agreements are sui generis which must stand independently of our domestic laws.

D. Yes, the executive agreement is actually a treaty which does not take effect without ratification by the Senate.

2. Carlos, a foreign national was charged with and convicted of a serious crime in State X and sentenced to life imprisonment. His country applied for relief with the International Court of Justice (ICJ), arguing that State X did not inform Carlos of his right under Article 36 of the Vienna Convention to be accorded legal assistance by his government. State X, as signatory to the Vienna Convention,agreed to ICJ's compulsory jurisdiction over all disputes regarding the interpretation or application of the Vienna Convention. ICJ ruled that State X violated its obligation to provide consular notification to the foreign national's country. ICJ also required State X to review and reconsider the life sentence imposed on the foreign national. State X then wrote the United Nations informing that it was withdrawing from the Optional Protocol on Vienna Convention and was not bound by the ICJ decision. What principle of international law did State X violate?

A. Pacta Sunt Servanda

B. Act of State Doctrine

C. Protective Principle

D. Jus Cogens

3. Which of the following statements is NOT correct?

(A) No province, city, or municipality, not even the ARMM, is recognized under our laws as having an "associative" relationship with the national government.

(B) In international practice, the "associated state" arrangement has usually been used as a transitional device of former colonies on their way to full independence.

(C) An association is formed when two states of equal power voluntarily establish durable links

(D) It bears noting that in U.S. constitutional and international practice, free association is understood as an international association between sovereigns.

4. It is a principle of international law that the armed forces of one State, when crossing the territory of another friendly country, with the acquiescence of the latter, is---

(A) not subject to the jurisdiction of the territorial sovereign, but to that of the officers and superior authorities of its own command.

(B)subject to the  criminal and civil jurisdiction of the receiving state

 (C) Must obtain express permission before its troops can pass through the territory of another state

(D) understood to cede a portion of his territorial jurisdiction

5. Uti possidetis 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. Literally it means (a) as you take (b) as you use  (c) as you possess (d) as you use and possess

6. 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. (a) status quo ante bellum (b)right of angary (c) treaty limits theory (d) jus bellum

7. Which of the following does NOT define Rendition in the context of public international law ? (A) a "surrender" or "handing over" of persons or property, particularly from one jurisdiction to another

(B) For criminal suspects, extradition is different from rendition.

(C) Act of rendering, i.e. delivering, a judicial decision, or of explaining a series of events, as a defendant or witness

(D) Each state has a presumptive duty to render suspects on the request of another state, as under the full faith and credit clause.

8. 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”.

9. The case arose when Cuba nationalized its sugar industry, taking control of sugar refineries and other companies in the wake of the Cuban revolution. A large number of Americans who had invested in those companies lost their investments without compensation when the Cuban government assumed control. However, despite the loss suffered by United States nationals, the Supreme Court upheld the validity of Cuba's domestic action and therefore rejected the claim of US nationals against Cuba for their lost investments.

Question: What principle of international law is applied by the U.S. Court regarding this matter? Explain this principle.

10. (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.

End of the  Examination

International Criminal Court

The International Criminal Court (commonly referred to as the ICC or ICCt)^[2] is a permanent tribunal to prosecute individuals for genocide, crimes against humanity, war crimes, and the crime of aggression (although it cannot, until at least 2017,^[3] exercise jurisdiction over the crime of aggression).^[4][5]

It came into being on 1 July 2002—the date its founding treaty, the Rome Statute of the International Criminal Court, came into force^[6]—and it can prosecute only crimes committed on or after that date.^[7] The Court's official seat is in The Hague, Netherlands, but its proceedings may take place anywhere.^[8]

As of December 2012, 121 states^[9] are states parties to the Statute of the Court, including all of South America, nearly all of Europe and roughly half the countries in Africa.^[10] A further 32 countries,^[9] including Russia, have signed but not ratified the Rome Statute;^[10] one of them, Ivory Coast, has accepted the Court's jurisdiction.^[11] The law of treaties obliges these states to refrain from “acts which would defeat the object and purpose” of the treaty until they declare they do not intend to become a party to the treaty.^[12] Three of these states—Israel, Sudan and the United States—have informed the UN Secretary General that they no longer intend to become states parties and, as such, have no legal obligations arising from their former representatives' signature of the Statute.^[10][13] 41 United Nations member states^[9] have neither signed nor ratified or acceded to the Rome Statute; some of them, including China and India, are critical of the Court.^[14][15] On 21 January 2009, the Palestinian National Authority formally accepted the jurisdiction of the Court.^[16] On 3 April 2012, the ICC Prosecutor declared himself unable to determine that Palestine is a "state" for the purposes of the Rome Statute.^[17] On 29 November 2012, the United Nations General Assembly voted in favour of recognising Palestine as a non-member observer state which might let the Prosecutor reconsider her predecessor's point of view.^[18]

In June 2010, two amendments to the Rome Statute of the International Criminal Court were adopted by the Review Conference in Kampala, Uganda. The first amendment criminalizes the use of certain kinds of weapons in non-international conflicts whose use was already forbidden in international conflicts.^[19] It is in force in one state party (San Marino); it will enter into force for its second ratifying state, Liechtenstein, on 8 May 2013, its third ratifying state, Samoa, on 25 September 2013, its fourth ratifying state, Trinidad and Tobago, on 13 November 2013, and its fifth ratifying state, Luxembourg, on 15 January 2014.^[20] The second amendment specifies the crime of aggression.^[3] It is in force in no state party but will enter into force for its first ratifying state, Liechtenstein, on 8 May 2013, its second ratifying state, Samoa, on 25 September 2013, its third ratifying state, Trinidad and Tobago, on 13 November 2013, and its fourth ratifying state, Luxembourg, on 15 January 2014.^[21] However, the Court will only have jurisdiction over the crime of aggression after it enters into force for 30 states parties and after the Assembly of States Parties has voted in favour of allowing the Court to have jurisdiction after 1 January 2017.

The Court can generally exercise jurisdiction only in three cases, viz. if the accused is a national of a state party, if the alleged crime took place on the territory of a state party or if a situation is referred to the Court by the United Nations Security Council.^[22] It is designed to complement existing national judicial systems: it can exercise its jurisdiction only when national courts are unwilling or unable to investigate or prosecute such crimes.^[23][24] Primary responsibility to investigate and punish crimes is therefore left to individual states.^[25]

To date, the Court has opened investigations into eight situations in Africa: the Democratic Republic of the Congo; Uganda; the Central African Republic; Darfur, Sudan; the Republic of Kenya; the Libyan Arab Jamahiriya; the Republic of Côte d'Ivoire and Mali.^[26] Of these eight, four were referred to the Court by the concerned states parties themselves (Uganda, Democratic Republic of the Congo, Central African Republic and Mali), two were referred by the United Nations Security Council (Darfur and Libya) and two were begun proprio motu by the Prosecutor (Kenya and Côte d'Ivoire^[27]).

It has publicly indicted 30 people, proceedings against 24 of whom are ongoing. The ICC has issued arrest warrants for 21 individuals and summonses to nine others. Five individuals are in custody; one of them has been found guilty and sentenced (with an appeal lodged), one has been acquitted and released (with an appeal announced), and three are being tried. Ten individuals remain at large as fugitives (although one is reported to have died). Additionally, three individuals have been arrested by national authorities, but have not yet been transferred to the Court. Proceedings against six individuals have finished following the death of two and the dismissal of charges against the other four.

As of December 2012, the Court's first trial, the Lubanga trial in the situation of the DR Congo, is in the appeals phase after the accused was found guilty and sentenced to 14 years in prison and a reparations regime was established. The Katanga-Chui trial regarding the DR Congo was concluded in May 2012; Mr Ngudjolo Chui was acquitted and released. The Prosecutor has announced her intention to appeal both decisions. The decision regarding Mr Katanga is pending. The Bemba trial regarding the Central African Republic is ongoing with the defence presenting its evidence. A fourth trial chamber, for the Banda-Jerbo trial in the situation of Darfur, Sudan, has been established. There are a fifth and a sixth trial both scheduled to begin in April 2013 in the Kenya situation, namely the Ruto-Sang and the Muthaura-Kenyatta trials for which a single Trial Chamber is responsible. The confirmation of charges hearing in the Laurent Gbagbo case in the Côte d'Ivoire situation will begin on 19 February 2013.