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Public International Law BAR REVIEWER Rex Book Store, Inc. ISBN No. 978-971-23-4828-0
Title Description: This is an indispensable text for serious Bar Exam candidates and law students. It is an up-to-date reviewer that covers the great doctrines, key concepts, issues, principles, and the theoretical perspectives that underlie the different areas of Public International Law. It incorporates almost a century of Bar questions but providing answers using contemporary concepts and principles. It covers all the important areas as well as the recent development in the areas of International Environment Law, International Human Rights Law, the Law of International Organizations, Diplomatic Law, International Dispute Settlement, the Law of War and Armed Conflict, the Law against Terrorism, International Humanitarian Law, International Criminal Law, and the Law of the Sea, Airspace and Outer Space.
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2009 Bar Questions September 6, 2009
SUGGESTED ANSWERS TO THE 2009 BAR EXAM QUESTIONS ON PUBLIC INTERNATIONAL LAW XII
William, a private
American citizen, a university graduate and frequent visitor to the
Philippines, was inside the U.S. embassy when he got into a heated
argument with a private Filipino citizen. Then, in front of many shocked
witnesses, he killed the person he was arguing with. The police came,
and brought him to the nearest police station. Upon reaching the
station, the police investigator, in halting English, informed William
of his Miranda rights, and assigned him an independent local counsel.
William refused the services of the lawyer, and insisted that he be
assisted by a Filipino lawyer currently based in the U.S. The request
was denied, and the counsel assigned by the police stayed for the
duration of the investigation.
William protested his
arrest.
[a] He argued that
since the incident took place inside the U.S. embassy, Philippine courts
have no jurisdiction because the U.S. embassy grounds are not part of
Philippine territory; thus, technically, no crime under Philippine law
was committed. Is William correct? Explain your answer. (3%) Ans. No, William is not correct. While Article 22 of the Vienna Convention on Diplomatic Relations provides that the premises of a diplomatic mission shall be inviolable, and may not be entered by the police or by any other agent of the receiving State, except with the consent of the Ambassador or the head of the mission, it does not alter the fact, however, that such premises are still part of Philippine territory. The concept of “exterritoriality,” under which diplomatic premises are deemed to be part of the sovereign territory of the sending State, has not been adopted in the Vienna Convention. Hence, a crime committed on or within such premises by a private person like Williams who enjoys no diplomatic immunity falls within the jurisdiction of Philippine courts. XIII
A terrorist group
called the Emerald Brigade is based in the State of Asyaland. The
government of Asyaland does not support the terrorist group, but being a
poor country, is powerless to stop it.
The Emerald Brigade
launched an attack on the Philippines, firing two missiles that killed
thousands of Filipinos. It then warned that more attacks were
forthcoming. Through diplomatic channels, the Philippines demanded that
Asyaland stop the Emerald Brigade; otherwise, it will do whatever is
necessary to defend itself.
Receiving reliable
intelligence reports of another imminent attack by the Emerald Brigade,
and it appearing that Asyaland was incapable of preventing the assault,
the Philippines sent a crack commando team to Asyaland. The team stayed
only for a few hours in Asyaland, succeeded in killing the leaders and
most of the members of the Emerald Brigade, then immediately returned to
the Philippines.
[a] Was the Philippine
action justified under the international law principle of
“self-defense”? Explain your answer. (3%)
Ans.
Yes, the Philippine action was justified. Article 51 of the U.N. Charter
affirms the inherent right of States to individual or collective self-defence.
The terrorist group
Emerald Brigade had already launched actual armed attacks on the
Philippines which killed thousands of Filipinos with a warning that more
attacks were forthcoming. Asyland, on the other hand, had failed to
fulfill its obligations, under international law, to prevent the use of
its territory for the staging of terrorist acts against the Philippines.
As such, in the face of another imminent attack by the Emerald Brigade,
and it appearing that Asyland was incapable of preventing the assault,
the Philippines was therefore justified in resorting to military action
to protect its own security as an act of self-defence.
[b] As a consequence of
the foregoing incident, Asyaland charges the Philippines with violation
of Article 2.4 of the United Nations Charter that prohibits “the threat
or use of force against the territorial integrity or political
independence of any State.” The Philippines counters that its commando
team neither took any territory nor interfered in the political
processes of Asyaland. Which contention is correct? Reasons. (3%)
Ans.
The contention of the Philippines is the correct one. State practice and
the U.N. Security Council's actions after 9/11 indicate a trend towards
recognizing that a State that suffers large-scale violence perpetrated
by non-State actors located in another State has a right to use force
when (1) that other State proves unwilling or unable to reduce or
eliminate the source of the violence, (2) the use of force is
proportional to the threat posed by the non-State actor, and (3) the use
of force is temporary and does not result in non-consensual occupation
or annexation of territory.
Under UN/A/RES/60/288 (2006), known as the UN
global counter-terrorism strategy, member States shall adopt a plan of
action, including a number of measures to prevent and combat terrorism,
in particular by denying terrorists access to the means to carry out
their attacks, to their targets and to the desired impact of their
attacks.
[c] Assume that the
commando team captured a member of the Emerald Brigade and brought him
back to the Philippines. The Philippine Government insists that a
special international tribunal should try the terrorist. On the other
hand, the terrorist argues that terrorism is not an international crime
and, therefore, the municipal laws of the Philippines, which recognize
access of the accused to constitutional rights, should apply. Decide
with reasons. (3%)
Ans.
Terrorism is an
international crime both in peace time and in times of armed conflicts,
and therefore it may be tried by a special international tribunal. The
municipal laws of the Philippines cannot apply because the terrorist
acts in question are transnational in nature; that is, not limited to
the territory of the Philippines and they do not fall under the
extraterritorial criminal jurisdiction of the Philippines under Article
2 of the Revised Penal Code. When committed during peacetime, international
terrorism may be prosecuted under the different international
conventions on the prevention, suppression and punishment of terrorism,
and when committed during an armed conflict, it may be prosecuted as a
distinct category of war crimes. International law indisputably bans
terrorism in time of armed conflict. Article 33(1) of the Fourth Geneva
Convention of 1949 prohibits “all
measures of terrorism against civilians.” A similar provision is
contained in the Second Additional Protocol of 1977. Article 4(2)(d)
prohibits “acts of terrorism” against all persons who do not take a
direct part or have ceased to take part in hostilities. XIV
The Philippine
Government is negotiating a new security treaty with the United States
which could involve engagement in joint military operations of the two
countries’ armed forces. A loose organization of Filipinos, the Kabataan
at Matatandang Makabansa (KMM) wrote the Department of Foreign Affairs
(DFA) and the Department of National Defense (DND) demanding disclosure
of the details of the negotiations, as well as copies of the minutes of
the meetings. The DFA and the DND refused, contending that premature
disclosure of the offers and counter-offers between the parties could
jeopardize on-going negotiations with another country. KMM filed suit to
compel disclosure of the negotiation details, and be granted access to
the records of the meetings, invoking the constitutional right of the
people to information on matters of public concern.
[a] Decide with
reasons. (3%)
Ans.
The suit filed by KMM should be dismissed. It is true that the details
of the treaty negotiation, including the offers and counter-offers
between the Philippine Government and United States, are matters of
public concern. However, it is also
well-established in jurisprudence that neither the right to information
nor the policy of full public disclosure is absolute, there being
matters which, albeit of public concern or public interest, are
recognized as privileged in nature.
As held in
the recent case of Akbayan vs.
Aquino (G.R. No. 170516, July 16, 2008), the privileged character of
diplomatic negotiations has been recognized in this jurisdiction.
In discussing
valid limitations on the right to information, the Supreme Court in Chavez
v. PCGG (360 Phil. 133, 764 [1998])
held that “information on inter-government exchanges prior to the
conclusion of treaties and executive agreements may be subject to
reasonable safeguards for the sake of national interest.” Even earlier,
the same privilege was upheld in People’s
Movement for Press Freedom (PMPF) v. Manglapus
(G.R. No.
84642, September 13, 1988) wherein
the Supreme Court stressed that “secrecy of negotiations with foreign
countries is not violative of the constitutional provisions of freedom
of speech or of the press nor of the freedom of access to information.”
[b] Will your answer be
the same if the information sought by KMM pertains to contracts entered
into by the Government in its proprietary or commercial capacity? Why or
why not? (3%)
Ans.
No, the answer will be different. Information pertaining to contracts
entered into by the Government in its proprietary or commercial capacity
are not covered by the doctrine of executive privilege. These
information are matters of public concern to which the people have the
right to information under Section 7 of the Bill of Rights. Under
Section 7, citizens shall be afforded access to official records, and to
documents, and papers pertaining to government transactions. Moreover,
Section 28 of the Declaration of Principles directs the State to adopt
and implement a policy of full public disclosure of all its transactions
involving public interest.
SUGGESTED ANSWERS TO THE 2008 BAR EXAM QUESTIONS ON PUBLIC INTERNATIONAL LAW
USLS LAW MOOT COURT TEAM FINISHES AS SEMI-FINALIST TO THE 6th RED CROSS ASIA-PACIFIC MOOT COURT COMPETITION ON INTERNATIONAL HUMANITARIAN LAW (IHL)
The USLS Moot Court Team in front of the Hong Court High Court: Coach Atty. Ralph Sarmiento & oralists Michael Hanz Villaster & Adylyn Dioso.
The USLS Law Moot Court Team composed of Mr.
Michael Hanz Villaster (3rd Year), Ms. Adylyn Dioso (2nd
Year) and Coach Atty. Ralph Sarmiento finished as Semi-Finalist in the
recently concluded 6th Red Cross International Humanitarian
Law (IHL) Moot Court Competition held in Hong Kong on 7-8 March 2008.
The event was co-organized by the Hong Kong Red Cross and the
International Committee of the Red Cross (ICRC) in collaboration with
Hong Kong University and the City University of Hong Kong. (Read
full story...) USLS
Moot Court Team wins the 2008 National Moot Court
Competition on International Humanitarian Law (IHL) held at the Supreme Court En Banc Session Hall, 21
November 2007. (Read
full story...) Atty. Ralph explains fundamental concepts of Public International Law in the IBP Hour hosted by Atty. Andy Hagad & Atty. Jocelle Sigue:
Click here to View More Video Explanations of Fundamental Concepts of Public International Law!
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Copyright © 2005-2007 Atty. Ralph A. Sarmiento All Rights Reserved. |
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