Monday, July 14, 2014

THE RIGHT OF ANGARY

Angary (Lat. jus angariae; Fr. droit d'angarie; Ger. Angarie; from the Gr. ἀγγαρεία, (angaria), the office of an ἄγγαρος, courier or messenger), is 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.

Friday, February 28, 2014

Kidnapped and put on trial

At the age of 26, Eichmann joined the Nazi party and became a full member of the Schutzstaffel or SS, the Nazi elite military organization which, under Heinrich Himmler, was responsible for establishing and running the concentration/extermination camps in which millions of inmates died of malnutrition, shooting, systematic mass gassing, or brutal medical experiments. Eichmann became chief of the Gestapo’s Office for Jewish Emigration, and was ultimately responsible for the transport of Jews from all over Nazi-occupied Europe into the concentration camps, where an estimated six million Jews died as part of the Nazis’ ‘Final Solution of the Jewish Question’.3 His principal concern was to maintain the killing capacity of the camps by providing a steady flow of victims. The chain of command in his office was Hitler, Himmler, Heydrich, Müller (Head of the Gestapo), Eichmann.

Kidnapped and put on trial

His principal concern was to maintain the killing capacity of the concentration camps by providing a steady flow of victims.
After WW2, Eichmann fled to Argentina, where he lived in Buenos Aeries as Ricardo Klement until May 1960. He was then kidnapped by Israeli Mossad [secret service] agents, who smuggled him back to Jerusalem on an El Al plane for trial as a war criminal. The Israeli court decided that the legality of Eichmann’s trial was not compromised by the illegality of his capture, as the latter was a political matter. He was indicted on 15 criminal charges, including crimes against humanity and crimes against the Jewish people,4 under Israel’s Nazis and Nazi Collaborators (Punishment) Law 5710 of 1950.
A series of trials of the other major Nazi War criminals had taken place in the German city of Nuremberg from 1945 to 1949. These centred on war crimes and crimes against humanity and were conducted by the victorious Allies. However, ‘the trial of Adolf Eichmann was initiated and conducted by the Israeli nation and was a Jewish affair. It was the intention of Israeli Prime Minister David Ben-Gurion to make Eichmann’s trial a general indictment, not only of Nazi actions, but of anti-Semitism in general.’5 ‘Until the Eichmann trial, no other occasion [after Nuremberg] presented itself to communicate on a worldwide scale what the Nazis had done. … Thus the trial provided a unique opportunity to re-educate an older generation and to educate a newer one’, i.e. ‘those who were at the time too young to have been informed by these earlier events’.6

Defence arguments rejected

the dispatch of each train by the Accused to Auschwitz or to any other extermination site, carrying one thousand human beings, meant that the Accused was a direct accomplice in a thousand premeditated acts of murder
The contention by the defence that Eichmann could not get a fair trial in Israel was rejected because the case would be tried on the basis of the evidence brought before the court. According to the court, ‘Those who sit in judgment are professional judges, accustomed to weighing evidence; they are carrying out their task in full view of the public.’7
The objection that the legislation was retroactive was rejected on the basis that ‘the four major Allies, including America, had sat in judgment at Nuremberg and elsewhere under precisely such retroactive statutes’ and ‘there was no other way to put the culprits on trial’.8 The further contention that the acts were done before the creation of the State of Israel, outside its borders, and to people who were not citizens of Israel was rejected on the basis of the universal nature of the crime of genocide, the principle of universal jurisdiction, and the fact that there was no international tribunal with competent jurisdiction, as the Nuremberg and Tokyo tribunals had long ceased to exist. And ‘At the time of the trial there was no other country that claimed the right or assumed the duty to try Adolf Eichmann.’9
Image Wikipedia
Adolf Hitler
Adolf Hitler believed he was promoting evolutionary progress by killing 6 million Jews.
At the trial, Eichmann’s main personal defence was that he was a subordinate lieutenant-colonel (Obersturmbannführer) and as such was only a ‘cog’ obeying ‘superior orders’, albeit zealously, because it was the will of Hitler. Hitler’s orders had possessed the force of law in the Third Reich, and so what had been done was an Act of State. (If the Germans had won he would have been decorated, not hanged.)
This prompted the presiding judge to state: ‘The objective of the crimes … was to obliterate an entire people from the face of the earth.’ … ‘the dispatch of each train by the Accused to Auschwitz or to any other extermination site, carrying one thousand human beings, meant that the Accused was a direct accomplice in a thousand premeditated acts of murder ’ … ‘the Accused acted out of an inner identification with the orders that he was given and out of a fierce will to achieve the criminal objective, and in our opinion it is irrelevant … how this identification and this will came about, and whether they were the outcome of the training which the Accused received under the regime which raised him, as his Counsel argues.’10
After 14 weeks of testimony, involving 1,543 documents and 100 prosecution witnesses (90 of whom were Nazi concentration camp survivors), Eichmann was found guilty on all charges by the three-judge panel, and sentenced to death by hanging. This was carried out shortly after midnight on May 31/June 1, 1962. His ashes were then speedily scattered over international waters of the Mediterranean Sea to ensure that he would have no final resting place that might serve as a future memorial.

BAD CAPTURE BUT VALID TRIAL

After Germany's defeat in 1945, Eichmann fled to Austria. He lived there until 1950, when he moved to Argentina using false papers. Information collected by the Mossad, Israel's intelligence agency, confirmed Eichmann's location in 1960. A team of Mossad and Shin Bet agents captured Eichmann and brought him to Israel to stand trial on 15 criminal charges, including war crimes, crimes against humanity, and crimes against the Jewish people. Found guilty on many of these charges, he was sentenced to death by hanging and executed on 31 May 1962. The trial was widely followed in the media and was later the subject of several books, including Hannah Arendt's work, Eichmann in Jerusalem. Arendt calls him the embodiment of the "banality of evil", asserting that he appeared to be ordinary and sane, yet displayed neither guilt nor hatred. Nazi hunter Simon Wiesenthal said: "The world now understands the concept of 'desk murderer'. We know that one doesn't need to be fanatical, sadistic, or mentally ill to murder millions; that it is enough to be a loyal follower eager to do one's duty."[1]

Thursday, February 20, 2014

Erga omnes



Erga omnes

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]:
"… an essential distinction should be drawn between the obligations of a State towards the international community as a whole, and those arising vis-à-vis another State in the field of diplomatic protection. By their very nature, the former are the concern of all States. In view of the importance of the rights involved, all States can be held to have a legal interest in their protection; they are obligations erga omnes. [at 34] Such obligations derive, for example, in contemporary international law, from the outlawing of acts of aggression, and of genocide, as also from the principles and rules concerning the basic rights of the human person, including protection from slavery and racial discrimination. Some of the corresponding rights of protection have entered into the body of general international law . . . others are conferred by international instruments of a universal or quasi-universal character."

Preliminary examination in PUBLIC INTERNATIONAL LAW 2009



Preliminary examination in PUBLIC INTERNATIONAL LAW 2009


1. 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”.

2. STATE THE  (4) EFFECTS OF RECOGNITION OF BELLIGERENCY.

3. 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.
4. . What is the doctrine of sovereign immunity under international law?


6

PRELIMINARY EXAMINATION IN PUBLIC INTERNATIONAL LAW



PRELIMINARY EXAMINATION IN PUBLIC INTERNATIONAL LAW
January 10, 2010


1. Q.   May a treaty violate international law? If your answer is in the affirmative, explain when such may happen. If your answer is in the negative, explain why.

2. When the Japanese forces occupied the Philippines, answer the following questions:
            a) Did courts continue to function?
            b) Did the Japanese government have the right to use its currency?
            c) Was it valid for them to require Filipinos to pay taxes to them?
            d) Was the divorce granted during their occupation considered valid?
e) Was payment of debt using the Japanese currency still assumes validity after its occupation was replaced by the American government?

3. Explain the following principles of international law”
a) par in parem non habet imperium
b) restrictive application of state immunity
c) pacta sunt servanda
d) territorial sea
e) belligerency

4. Juan Cruz donated a parcel of land to the Holy See (i.e. Vatican) for religious purpose where it can establish its catholic mission in the Philippines. Since the Vatican was not able to use it, it decided to sell the land for 8 million pesos to Starbright Corporation. The agreement was that, Starbright will pay the full amount, until the Holy See shall have caused the ejectment of squatters. The Holy See was not able to achieve it, so Starbright sued the Holy See for Specific Performance and Damages before the RTC of Makati. The Holy See files a Motion to dismiss invoking its immunity from suit. At the same time, it also files another case for Starbright to pay the complete amount.
      a) If you were the judge will you dismiss outright the case filed by Starbright Corporation against the Holy See? Explain your answer.
      b) What about the case filed by the Holy See? Will you give course to it and conduct trial on the matter? Explain.

5. .    Under international law, differentiate “hard law” from “soft law”.

6. (a) What office in the U.N. is headed by the Secretary General? (b) Distinguish the “preventive action” from the “enforcement action”  of the Security Council. (c) Explain the Yalta Formula. (d) State the composition of the General Assembly (e) What body is established (under the UN CHARTER), whose function is to advise and assist the Security Council and which is also responsible for military strategic positioning.

7.What do you understand by the “thalweg doctrine”?

8. What is the “doctrine of incorporation”? Is it embodied in the 1987 constitution? Explain.

9. Explain the concept of “jus cogens”. Cite at least two examples of “jus cogens”.

10. What is the function of the International Court of Justice? Who is the incumbent President of ICJ?

End of the Examination

Friday, February 7, 2014

THE STOCKHOLM DECLARATION OF 1972

Declaration of the United Nations Conference on the Human Environment

Declaration of the United Nations Conference on the Human Environment  (1972) 
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The Declaration of the United Nations Conference on the Human Environment, or Stockholm Declaration, was adopted June 16, 1972 by the at the 21st plenary meeting as the first document in international environmental law to recognize the right to a healthy environment.
The United Nations Conference on the Human Environment, having met at Stockholm from 5 to 16 June 1972,having considered the need for a common outlook and for common principles to inspire and guide the peoples of the world in the preservation and enhancement of the human environment,
Proclaims that:
1. Man is both creature and moulder of his environment, which gives him physical sustenance and affords him the opportunity for intellectual, moral, social and spiritual growth. In the long and tortuous evolution of the human race on this planet a stage has been reached when, through the rapid acceleration of science and technology, man has acquired the power to transform his environment in countless ways and on an unprecedented scale. Both aspects of man's environment, the natural and the man-made, are essential to his well-being and to the enjoyment of basic human rights the right to life itself.
2. The protection and improvement of the human environment is a major issue which affects the well-being of peoples and economic development throughout the world; it is the urgent desire of the peoples of the whole world and the duty of all Governments.
3. Man has constantly to sum up experience and go on discovering, inventing, creating and advancing. In our time, man's capability to transform his surroundings, if used wisely, can bring to all peoples the benefits of development and the opportunity to enhance the quality of life. Wrongly or heedlessly applied, the same power can do incalculable harm to human beings and the human environment. We see around us growing evidence of man-made harm in many regions of the earth: dangerous levels of pollution in water, air, earth and living beings; major and undesirable disturbances to the ecological balance of the biosphere; destruction and depletion of irreplaceable resources; and gross deficiencies, harmful to the physical, mental and social health of man, in the man-made environment, particularly in the living and working environment.
4. In the developing countries most of the environmental problems are caused by under-development. Millions continue to live far below the minimum levels required for a decent human existence, deprived of adequate food and clothing, shelter and education, health and sanitation. Therefore, the developing countries must direct their efforts to development, bearing in mind their priorities and the need to safeguard and improve the environment. For the same purpose, the industrialized countries should make efforts to reduce the gap themselves and the developing countries. In the industrialized countries, environmental problems are generally related to industrialization and technological development.
5. The natural growth of population continuously presents problems for the preservation of the environment, and adequate policies and measures should be adopted, as appropriate, to face these problems. Of all things in the world, people are the most precious. It is the people that propel social progress, create social wealth, develop science and technology and, through their hard work, continuously transform the human environment. Along with social progress and the advance of production, science and technology, the capability of man to improve the environment increases with each passing day.
6. A point has been reached in history when we must shape our actions throughout the world with a more prudent care for their environmental consequences. Through ignorance or indifference we can do massive and irreversible harm to the earthly environment on which our life and well being depend. Conversely, through fuller knowledge and wiser action, we can achieve for ourselves and our posterity a better life in an environment more in keeping with human needs and hopes. There are broad vistas for the enhancement of environmental quality and the creation of a good life. What is needed is an enthusiastic but calm state of mind and intense but orderly work. For the purpose of attaining freedom in the world of nature, man must use knowledge to build, in collaboration with nature, a better environment. To defend and improve the human environment for present and future generations has become an imperative goal for mankind-a goal to be pursued together with, and in harmony with, the established and fundamental goals of peace and of worldwide economic and social development.
7. To achieve this environmental goal will demand the acceptance of responsibility by citizens and communities and by enterprises and institutions at every level, all sharing equitably in common efforts. Individuals in all walks of life as well as organizations in many fields, by their values and the sum of their actions, will shape the world environment of the future.
Local and national governments will bear the greatest burden for large-scale environmental policy and action within their jurisdictions. International cooperation is also needed in order to raise resources to support the developing countries in carrying out their responsibilities in this field. A growing class of environmental problems, because they are regional or global in extent or because they affect the common international realm, will require extensive cooperation among nations and action by international organizations in the common interest.
The Conference calls upon Governments and peoples to exert common efforts for the preservation and improvement of the human environment, for the benefit of all the people and for their posterity.

Principle 1

Man has the fundamental right to freedom, equality and adequate conditions of life, in an environment of a quality that permits a life of dignity and well-being, and he bears a solemn responsibility to protect and improve the environment for present and future generations. In this respect, policies promoting or perpetuating apartheid, racial segregation, discrimination, colonial and other forms of oppression and foreign domination stand condemned and must be eliminated.

Principle 2

The natural resources of the earth, including the air, water, land, flora and fauna and especially representative samples of natural ecosystems, must be safeguarded for the benefit of present and future generations through careful planning or management, as appropriate.

Principle 3

The capacity of the earth to produce vital renewable resources must be maintained and, wherever practicable, restored or improved.

Principle 4

Man has a special responsibility to safeguard and wisely manage the heritage of wildlife and its habitat, which are now gravely imperilled by a combination of adverse factors. Nature conservation, including wildlife, must therefore receive importance in planning for economic development.

Principle 5

The non-renewable resources of the earth must be employed in such a way as to guard against the danger of their future exhaustion and to ensure that benefits from such employment are shared by all mankind.

Principle 6

The discharge of toxic substances or of other substances and the release of heat, in such quantities or concentrations as to exceed the capacity of the environment to render them harmless, must be halted in order to ensure that serious or irreversible damage is not inflicted upon ecosystems. The just struggle of the peoples of ill countries against pollution should be supported.

Principle 7

States shall take all possible steps to prevent pollution of the seas by substances that are liable to create hazards to human health, to harm living resources and marine life, to damage amenities or to interfere with other legitimate uses of the sea.

Principle 8

Economic and social development is essential for ensuring a favorable living and working environment for man and for creating conditions on earth that are necessary for the improvement of the quality of life.

Principle 9

Environmental deficiencies generated by the conditions of under-development and natural disasters pose grave problems and can best be remedied by accelerated development through the transfer of substantial quantities of financial and technological assistance as a supplement to the domestic effort of the developing countries and such timely assistance as may be required.

Principle 10

For the developing countries, stability of prices and adequate earnings for primary commodities and raw materials are essential to environmental management, since economic factors as well as ecological processes must be taken into account.

Principle 11

The environmental policies of all States should enhance and not adversely affect the present or future development potential of developing countries, nor should they hamper the attainment
of better living conditions for all, and appropriate steps should be taken by States and international organizations with a view to reaching agreement on meeting the possible national and international economic consequences resulting from the application of environmental measures.

Principle 12

Resources should be made available to preserve and improve the environment, taking into account the circumstances and particular requirements of developing countries and any costs which may emanate- from their incorporating environmental safeguards into their development planning and the need for making available to them, upon their request, additional international technical and financial assistance for this purpose.

Principle 13

In order to achieve a more rational management of resources and thus to improve the environment, States should adopt an integrated and coordinated approach to their development planning so as to ensure that development is compatible with the need to protect and improve environment for the benefit of their population.

Principle 14

Rational planning constitutes an essential tool for reconciling any conflict between the needs of development and the need to protect and improve the environment.

Principle 15

Planning must be applied to human settlements and urbanization with a view to avoiding adverse effects on the environment and obtaining maximum social, economic and environmental benefits for all. In this respect projects which arc designed for colonialist and racist domination must be abandoned.

Principle 16

Demographic policies which are without prejudice to basic human rights and which are deemed appropriate by Governments concerned should be applied in those regions where the rate of population growth or excessive population concentrations are likely to have adverse effects on the environment of the human environment and impede development.

Principle 17

Appropriate national institutions must be entrusted with the task of planning, managing or controlling the 9 environmental resources of States with a view to enhancing environmental quality.

Principle 18

Science and technology, as part of their contribution to economic and social development, must be applied to the identification, avoidance and control of environmental risks and the solution of environmental problems and for the common good of mankind.

Principle 19

Education in environmental matters, for the younger generation as well as adults, giving due consideration to the underprivileged, is essential in order to broaden the basis for an enlightened opinion and responsible conduct by individuals, enterprises and communities in protecting and improving the environment in its full human dimension. It is also essential that mass media of communications avoid contributing to the deterioration of the environment, but, on the contrary, disseminates information of an educational nature on the need to project and improve the environment in order to enable mal to develop in every respect.

Principle 20

Scientific research and development in the context of environmental problems, both national and multinational, must be promoted in all countries, especially the developing countries. In this connection, the free flow of up-to-date scientific information and transfer of experience must be supported and assisted, to facilitate the solution of environmental problems; environmental technologies should be made available to developing countries on terms which would encourage their wide dissemination without constituting an economic burden on the developing countries.

Principle 21

States have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction.

Principle 22

States shall cooperate to develop further the international law regarding liability and compensation for the victims of pollution and other environmental damage caused by activities within the jurisdiction or control of such States to areas beyond their jurisdiction.

Principle 23

Without prejudice to such criteria as may be agreed upon by the international community, or to standards which will have to be determined nationally, it will be essential in all cases to consider the systems of values prevailing in each country, and the extent of the applicability of standards which are valid for the most advanced countries but which may be inappropriate and of unwarranted social cost for the developing countries.

Principle 24

International matters concerning the protection and improvement of the environment should be handled in a cooperative spirit by all countries, big and small, on an equal footing.
Cooperation through multilateral or bilateral arrangements or other appropriate means is essential to effectively control, prevent, reduce and eliminate adverse environmental effects resulting from activities conducted in all spheres, in such a way that due account is taken of the sovereignty and interests of all States.

Principle 25

States shall ensure that international organizations play a coordinated, efficient and dynamic role for the protection and improvement of the environment.

Principle 26

Man and his environment must be spared the effects of nuclear weapons and all other means of mass destruction. States must strive to reach prompt agreement, in the relevant international organs, on the elimination and complete destruction of such weapons.