exam 3

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?

exam 4

1. Is a treaty self-executing, or does it require a further legislative or executive act to be a source of legal rights and obligations?

2. In the hierarchy of rules in the Philippine legal system, how does a treaty stand in relation to the Constitution? May courts declare a treaty unconstitutional?

3. May the President or his representatives in on-going treaty negotiations be required to open the negotiation sessions to the press, reveal the agreed points so far achieved, and disclose to the public the positions of each side in unresolved issues, in the interest of freedom of speech and of the press as well as of the right to information on matters of public concern?

4. Reiterating in the same language its approach in Philip Morris v. Court of Appeals (224 SCRA 576), the Supreme Court in Mighty Corporation v. Gallo Winery (GR No. 154342, July 14, 2004) declares:

“Following universal acquiescence and comity, our municipal law on trademarks regarding the requirement of actual use in he Philippines must subordinate an international agreement inasmuch as the apparent clash is being decided by a municipal tribunal. . . 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 the most countries, rules of international law are given a standing equal not superior to legislative enactments”.

Does this opinion raise a problem in international law?

5. In the conventional international law of extradition, what is meant by the attentat clause?

6. What are the formal requirements by which the act declaring invalid, terminating, withdrawing from or suspending the operation of a treaty shall be carried out?

7.May a treaty be terminated on the ground of fundamental change of circumstances (rebus sic stantibus)? State the requisites thereto.

8. a) In the context of the law of treaties, what is a third State?

b) May a treaty create rights or obligations for a third State without its consent?

9. As a general rule, does a treaty have retroactive applications?

10. What is an exequatur?

quiz

1. What are the three grand divisions of international law?
2. What is the doctrine of incorporation? What is its constitutional basis?
3. State the main issue and principle enunciated in the case of Ichong v. Hernandez.
4. State at least three examples of “generally accepted principles of international law”.
5. Define: (a) pacta sunt servanda (b) rebus sic stantibus (c) par in parem non habet imperium (d) domestic jurisdiction clause (e) jus cogens

special exam in pil

1.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?

Answer: Act of State doctrine.

2. What crimes are under the jurisdiction of the International Criminal Court?

Answer: For instance, the International Criminal Court was established to deal with the “most serious crimes of concern to the international community,” with jurisdiction over genocide, crimes against humanity, and war crimes, as defined in the Rome Statute. 

3.What is jus cogens? Literally what is its meaning? Give examples of JUS COGENS.

. In international law, the term “jus cogens” (literally, “compelling law”) refers to norms that command peremptory authority, superseding conflicting treaties and custom. Jus cogens norms are considered peremptory in the sense that they are mandatory, do not admit derogation, and can be modified only by general international norms of equivalent authority.

 

4. What is erga omnes? Give examples of erga omnes.

The term erga omnes (Latin: in relation to everyone) in international law has been used as a legal term describing obligations owed by States towards the community of states as a whole. The concept was recognized by the ICJ in Barcelona Traction:

x x x 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.

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.

6. Explain the principle of exterritoriality. Give examples of its application in international law.

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. It is also employed to describe the quasi-extraterritorial position, to borrow the phrase of Grotius, of the dwelling-place of an accredited diplomatic agent, and of the public ships of one state while in the waters of another. Latterly its sense has been extended to all cases in which states refrain from enforcing their laws within their territorial jurisdiction. The cases recognized by the law of nations relate to: (I) the persons and belongings of foreign sovereigns, whether incognito or not; (2) the persons and belongings of ambassadors, ministers plenipotentiary, and other accredited diplomatic agents and their suites (but not consuls, except in some nonChristian countries, in which they sometimes have a diplomatic character); (3) public ships in foreign waters. 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. Lastly, it is held that when armies or regiments are allowed by a foreign state to cross its territory, they necessarily have exterritorial rights.

7.Under admiralty law, how is a “prize” defined? What is a letter of marque?

Prize is a term used in admiralty law to refer to equipment, vehicles, vessels, and cargo captured during armed conflict. The most common use of prize in this sense is the capture of an enemy ship and its cargo as a prize of war. In the past, it was common that the capturing force would be allotted a share of the worth of the captured prize. Nations often granted letters of marque which would entitle private parties to capture enemy property, usually ships. Once the ship was secured on friendly territory, it would be made the subject of a prize case, an in rem proceeding in which the court determined the status of the condemned property and the manner in which it was to be disposed of.

8. What are the four Geneva conventions? Please state them.

The Geneva Conventions are:

· First Geneva Convention "for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field" (first adopted in 1864, last revision in 1949)

· Second Geneva Convention "for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea" (first adopted in 1949, successor of the 1907 Hague Convention X)

· Third Geneva Convention "relative to the Treatment of Prisoners of War" (first adopted in 1929, last revision in 1949)

· Fourth Geneva Convention "relative to the Protection of Civilian Persons in Time of War" (first adopted in 1949, based on parts of the 1907 Hague Convention IV)

9. State the basic principles of International Humanitarian Law (a) with respect to hors de combat (b) the Red Cross or Red Crescent (c) captured combatants (d) civilian population (e) wounded and sick

1. Persons hors de combat and those not taking part in hostilities shall be protected and treated humanely.

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 cared for and protected by the party to the conflict which has them in its power. The emblem of the "Red Cross," or of the "Red Crescent," shall be required to be respected as the sign of protection.

4. Captured combatants and civilians must be protected against acts of violence and reprisals. They shall have the right to correspond with their families and to receive relief.

5. No one shall be subjected to 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.

7. Parties to a conflict shall at all times distinguish between the civilian population and combatants. Attacks shall be directed solely against military objectives.^[22]

10. A treaty is defined as a formal agreement, usually but not necessarily in writing, which is entered into by states or entities possessing the treaty-making capacity for the purpose of regulating their mutual relations under the law of nations.

1.In a generic sense, what other words are equivalent to the term treaty?

2.From the viewpoint of international law, is treaty different from executive agreement? What about under municipal law?

3.What do you understand by the term pacta tertiis nec nocent nec prosunt?

4.State the exception to the principle of pacta sunt servanda.It is what is termed by Jessup as the “equivalent exception to the principle of pacta sunt servanda”, and also considered as one of the modes of terminating a treaty.

5.a travaux preparatories and protocol are some of the tools to be resorted in interpreting a treaty in case of doubt to its provisions.What is a travaux preparatories ? protocol?

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.

exam 6

OBJECTIVE QUESTIONS CONCERNING HUMAN RIGHTS

1. All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a (A) proper manner (b) spirit of brotherhood (c) way acceptable to society (d) moral way (e) camaraderie (f) none of the above

2. We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain (a) unalienable Rights (b) human rights (c) privileges (d) obligations (e) civil rights (f) none of the above that among these are Life, Liberty and the pursuit of Happiness

3. The two theories that dominate contemporary human rights discussion are the interest theory and the will theory. Interest theory argues that the that the principal function of human rights: (a) is to protect and promote certain essential human interests (b) attempts to establish the validity of human rights based on the unique human capacity for freedom (c) is to see to it that men behave in acceptable standards (d) is to create a peaceful world (e) none of the above.

4. The (a) Universal Declaration on the rights of the child (b)Universal Declaration of Human Rights (UDHR) (c) Civil and Political Rights of Detainees (d) Convention on Humanitarian Law (e) none of the above ---was adopted by the United Nations General Assembly in 1948, partly in response to the atrocities of World War II. Although the it was a non-binding resolution, it is now considered by some to have acquired the force of international customary law which may be invoked in appropriate circumstances by national and other judiciaries

5. In 1966, the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR) were adopted by the (a) United Nations (b) NATO (c) ASEAN (d) Security Council (e) General Assembly-- between them making the rights contained in the Universal Declaration on Human Rights (UDHR) binding on all states that have signed this treaty, creating human-rights law.

6. All human rights are universal, indivisible and interdependent and related. The international community must treat human rights (a) within their state (b) within their government (c) internationally (d) globally --- in a fair and equal manner, on the same footing, and with the same emphasis.

7. Human rights abuses are monitored by United Nations committees, national institutions and governments and by many independent (a) states (b) civic organizations (c) non-governmental organizations (d) enforcement agencies (e) none of the above ----- such as Amnesty International, International Federation of Human Rights, Human Rights Watch, World Organization Against Torture, Freedom House, International Freedom of Expression Exchange and Anti-Slavery International. These organizations collect evidence and documentation of alleged human rights abuses and apply pressure to enforce human rights laws.

8. (a) Governmental cruelty (b) Police brutality (c) police attack (d) human rights violation (e) none of the above-----is the intentional use of excessive force, usually physical, but potentially also in the form of verbal attacks and psychological intimidation, by a police officer.

9. A (a) standard operating procedure (b) code of conduct (c) use of force continuum (d) code of silence (e) none of the above -----is a standard that provides law enforcement officials & security guards (such as police officers, probation officers, or corrections officers) with guidelines as to how much force may be used against a resisting subject in a given situation. In certain ways it is similar to the military rules of engagement. The purpose of these models is to clarify, both for officers and citizens, the complex subject of use of force by law officers. They are often central parts of law enforcement agencies' use of force policies. It sets levels of force considered appropriate in direct response to a subject's behavior.

The (a) writ of habeas data (b) writ of habeas corpus (c) writ of amparo (d) anti-wire tapping law (e) none of the above is a remedy available to any person whose right to privacy in life, liberty or security is violated or threatened by an unlawful act or omission of a public official or employee, or of a private individual or entity engaged in the gathering, collecting or storing of data or information regarding the person, family, home and correspondence of the aggrieved party.

exam 7

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.