PIL QnA 2007-2010

2007 military objective and the harm caused to civilians or civilian property must be
proportional and not excessive in relation to the concrete and direct military
II- advantage anticipated. Having to force women of the enemy state to serve the
(10 points) sexual needs of the soldiers is not absolutely necessary for the conduct of the war.

The City Mayor issues an Executive Order declaring that the city promotes b. The surviving Filipina "comfort women" demand that the Japanese government
responsible parenthood and upholds natural family planning. He prohibits all apologize and pay them compensation. However, under the 1951 San Francisco
hospitals operated by the city from prescribing the use of artificial methods of Peace Agreement -the legal instrument that ended the state of war between Japan
contraception, including condoms, pills, intrauterine devices and surgical and the Allied Forces -all the injured states, including the Philippines, received war
sterilization. As a result, poor women in his city lost their access to affordable reparations and, in return, waived all claims against Japan arising from the war. Is
family planning programs. Private clinics, however, continue to render family that a valid defense?
planning counsel and devices to paying clients.
Alternative Answer: No, that is not a valid defense. Even if it could be argued
(b) Is the Philippines in breach of any obligation under international law? Explain. that the Philippines, by signing said Peace Agreement had the right as a state to
bring further claims, it had no authority to waive the individual right to reparations
Alternative Answer: The Philippines might be in breach of its obligations under vested directly in its nationals who were victims of sexual slavery. The Philippines
the Convention on the Elimination of All Forms of Discrimination Against Women can only validly waive its right to recovery of reparations for injuries to the state.
(CEDAW) of which the country is a signatory. Under the CEDAW, “ State Parties Moreover, there is no defense for the violation of jus cogens norms.
shall take all appropriate measures to eliminate discrimination against women in
the field of health care in order to ensure, on basis of equality of men and women, Alternative Answer: No. The claim is being made by the individuals, not by the
access to health care services, including those related to family planning” (Article State and it is recognized that individuals may also be subjects of international law
12, Section 1) Women shall likewise have “access to adequate health care apart from the state. Further, the San Francisco Peace Agreement could not be
facilities, including information, counseling and services in family planning.” interposed as a valid defense as this could not have been contemplated therein. The
(Article 14, Section 2[b]). use of “comfort women” was only confirmed long after that Agreement. Moreover,
Article 17 (3) of the New Civil Code provides that “prohibitive laws concerning
- III - persons, their acts or property, and those which have for their object public order,
(10 Points) policy and good customs, shall not be rendered ineffective by laws or judgments
promulgated, or by determinations or conventions agreed upon in a foreign
Lawrence is a Filipino computer expert based in Manila who invented a virus that country.
destroys all the files stored in a computer. Assume that in May 2005, this virus
spread all over the world and caused $50 million in damage to property in the c. The surviving Filipina "comfort women" sue the Japanese government for
United States, and that in June 2005, he was criminally charged before United damages before Philippine courts. Will that case prosper?
States courts under their anti-hacker law. Assume that in July 2005, the Philippines
adopted its own anti-hacker law, to strengthen existing sanctions already provided Alternative Answer: The case will not prosper in view of the doctrine of
against damage to property. The United States has requested the Philippines to sovereign immunity from suit. However, a person who feels aggrieved by the acts
extradite him to US courts under the RP-US Extradition Treaty. of a foreign sovereign can ask his own government to espouse his cause through
diplomatic channels. The “comfort women” can request the Philippine
a. Is the Philippines under an obligation to extradite Lawrence? State the government, through the Department of Foreign Affairs, to espouse its claims
applicable rule and its rationale. against the Japanese government. (Holy See v. Rosario, G.R. No. 101949,
December 1, 1994). The sovereign authority of a State to settle the claims of its
Alternative Answer: The Philippine is under no obligation to extradite Lawrence. national against foreign countries has repeatedly been recognized. This may be
Under the principle of dual or double criminality, the crime must be punishable in made without the consent of the nationals or even without consultation without
both the requesting and requested states to make it extraditable. In this case, only them. (Dames and Moore v. Regan, 433 U.S. 654, [1981])
the United States had anti-hacker law at the time of the commission of the crime in
May 2005. The rational for the principle of dual criminality rests “in part on the Alternative Answer: No. since the Philippines is a signatory to that Agreement,
basic principle of reciprocity” and “in part of the maxim nulla poena sine lege.” courts may not entertain a suit since that has been waived by the State. Moreover,
(LA Shearer, 1971 Extradition in International Law, Manchester University Press, it can be argued that there was no state action since the prostitution houses were
Manchester, p. 137.) being run by private operators, without the control or supervision of the Japanese
government. (Southeast Case, United States v. Wilhelm List, Nuremberg Case No.
b. Assume that the extradition request was made after the Philippines adopted its 7, 1949).
anti-hacker legislation. Will that change your answer?
2008
Alternative Answer: It will not change my answer as the rule is that the crime
must be punishable in both countries at the time of the commission of the offense. I.
Since there was yet no such crime in the Philippines at the time when the acts
complained of were done, in so far as the Philippines is concerned, Lawrence did a) The legal yardstick in determining whether usage has become customary
not commit any crime. international law is expressed in the maxim opinio juris sive necessitatis or opinio
juris for short. What does the maxim mean? (3%)
- IV -
(10 points) b) Under international law, differentiate "hard law" from "soft law". (3%)

In 1993, historians confirmed that during World War II, "comfort women" were
forced into serving the Japanese military. These women were either abducted or
lured by false promises of jobs as cooks or waitresses, and eventually forced
against their will to have sex with Japanese soldiers on a daily basis during the
course of the war, and often suffered from severe beatings and venereal diseases.
The Japanese government contends that the "comfort stations" were run as "onsite
military brothels" (or prostitution houses) by private operators, and not by the
Japanese military. There were many Filipina "comfort women."
a. Name at least one basic principle or norm of international humanitarian law that
was violated by the Japanese military in the treatment of the "comfort women."
Alternative Answer: The Japanese military violated jus cogens norms of contract conforming to all the attributes of an international agreement,
international law concerning war crimes, crimes against humanity like white characterized by mutuality. A violation if any, will be on the implementation aspect
slavery, sexual slavery and trafficking in women.
Alternative Answer: The principle of military necessity was violated. It prohibits
the use of any measure that is not absolutely necessary for the purposes of the war.
Military necessity is governed by several constraints: An attack or action must be
intended to help in the military defeat of the enemy, it must be an attack on a
ANSWER: A. Opinio juris sive necessitatis ("an opinion of law or necessity") or
simply opinio juris' ("an opinion of law") is the belief that an action was carried
out because it was a legal obligation.
B. Hard Law: arises from treaties, regulations, community method. Soft Law: not
obligatory, no sanction, no uniformity, not justiciable.
II.
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. (5%)
ANSWER: A treaty cannot violate an international law. A treaty presupposes a
which is whether its subsequent enforcement is in accord with the standards of
international law.
III.
The President alone without the concurrence of the Senate abrogated a treaty.
1
PIL QnA 2007-2010
Assume that the other country-party to the treaty is agreeable to the abrogation
provided it complies with the Philippine Constitution. If a case involving the
validity of the treaty abrogation is brought to the Supreme Court, how should it be
resolved? (6%)
ANSWER: The Supreme Court should declare the treaty abrogation invalid.
While the Constitution is silent on whether a treaty abrogation shall require the
concurrence of the Senate to make it valid and effective, the treaty-ratifying power
of Senate carries with it the power to concur a treaty abrogated by the President by
way of necessary implication.
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.

Under the doctrine of incorporation, a treaty duly ratified by the Senate and [a] Was the Philippine action justified under the international law principle of
recognized as such by the contracting State shall form an integral part of the law of “self-defense”? Explain your answer. (3%)
the land. The President alone cannot effect the repeal of a law of the land formed
by a joint action of the executive and legislative branches, whether the law be a [b] As a consequence of the foregoing incident, Asyaland charges the Philippines
statute or a treaty. To abrogate a treaty, the President’s action must be approved by with violation of Article 2.4 of the United Nations Charter that prohibits “the threat
the Senate. 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
2009 nor interfered in the political processes of Asyaland. Which contention is correct?
Reasons. (3%)
I. TRUE or FALSE. Answer TRUE if the statement is true, or FALSE if the
statement is false. Explain your answer in not more than two (2) sentences. (5%) [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
[b] Under the archipelago doctrine, the waters around, between, and connecting special international tribunal should try the terrorist. On the other hand, the
the islands of the archipelago form part of the territorial sea of the archipelagic terrorist argues that terrorism is not an international crime and, therefore, the
state. municipal laws of the Philippines, which recognize access of the accused to
constitutional rights, should apply. Decide with reasons. (3%)
ANSWER: TRUE. The archipelago doctrine has been sanctioned by the UN
Convention on Law of the Seas (UNCLOS). The waters around, between, and ANSWER: A) Yes. The action of sending a commando to eliminate the imminent
connecting the islands of the archipelago are part of the territorial sea subject to and continuing threat and defend the sovereign territory of the Philippines, more
the right of innocent passage. so its citizens, from the continuing unlawful and unprovoked attacks of the
Emerald Brigade Terrorist Group who has successfully launched an attack by
XII. launching 2 missiles against the Philippines killing thousands of Filipinos in the
process, constitutes self-defense.
William, a private American citizen, a university graduate and frequent visitor to B) The Philippines is correct for there was no territory taken from the
the Philippines, was inside the U.S. embassy when he got into a heated argument Asyaland in the process of eliminating the terrorist threat which the
with a private Filipino citizen. Then, in front of many shocked witnesses, he killed latter could not even suppress. In fact, the team immediately returned
the person he was arguing with. The police came, and brought him to the nearest to the Philippines after completing the mission. Asyaland even
police station. Upon reaching the station, the police investigator, in halting benefited for the action of the Philippine government in eliminating the
English, informed William of his Miranda rights, and assigned him an independent terrorist in their country.
local counsel. William refused the services of the lawyer, and insisted that he be C) The terrorist is not entitled to the rights accorded the Prisoner of War
assisted by a Filipino lawyer currently based in the U.S. The request was denied, under the Geneva Convention for they are not soldiers hence the
and the counsel assigned by the police stayed for the duration of the investigation. Uniform Code of Military Justice also does not apply to them. Neither
are they entitled to the constitutional rights of the accused for hardly
William protested his arrest. enough they aren’t criminals. They should be tried as a terrorist in the
international tribunal otherwise they should be held in captivity for an
[a] He argued that since the incident took place inside the U.S. embassy, Philippine indefinite period of time in Guantanamo
courts have no jurisdiction because the U.S. embassy grounds are not part of
Philippine territory; thus, technically, no crime under Philippine law was 2010
committed. Is William correct? Explain your answer. (3%)
I. The dictatorial regime of President A of the Republic of Gordon was toppled by
[b] He also claimed that his Miranda rights were violated because he was not given a combined force led by Gen. Abe, former royal guards and the secessionist
the lawyer of his choice; that being an American, he should have been informed of Gordon People’s Army. The new government constituted a Truth and
his rights in proper English; and that he should have been informed of his rights as Reconciliation Commission to look into the serious crimes committed under
soon as he was taken into custody, not when he was already at the police station. President A’s regime. After the hearings, the Commission recommended that an
Was William denied his Miranda rights? Why or why not? (3%) amnesty law be passed to cover even those involved in mass killings of members
of indigenous groups who opposed President A. International human rights groups
[c] If William applies for bail, claiming that he is entitled thereto under the argued that the proposed amnesty law is contrary to international law. Decide with
“international standard of justice” and that he comes from a U.S. State that has reasons. (4%)
outlawed capital punishment, should William be granted bail as a matter of right?
Reasons. (3%) Suggested Answer: The proposed amnesty law is contrary to international law.

ANSWER: a. William is not subject to criminal jurisdiction of the Philippines in The indigenous group may constitute an ethnic group which is protected by the
this case inasmuch as the offense took place inside US embassy, an extension of law on Genocide. If the mass killing was committed with the intent to destroy
US sovereignty. (dolus specialis) the said ethnic group as such, in whole or in part, then the crime
of Genocide was committed. The international norm for the prevention,
b.William was not denied his Miranda rights. The local authorities had no prosecution and punishment of Genocide is a peremptory (just cogens) norm of
authority in the first place in apprehending him. thus, the reading of such rights is international law and, therefore, non-derogable. (Prosecutor v. Blagojevic and
immaterial under the circumstances. Jokic, ICTY, January 17, 2005)

c. Bail is a matter of right in all criminal cases, except for capital offenses where Even if the mass killing was not committed with the dolus specialis to destroy the
the evidence of guilt is strong. However in this case, no case was filed against him ethnic group as such, the same may still constitute the Crime Against Humanity of
in court. Thus, there is no need for him to file petition for bail. Extermination if the mass killing was widespread and systematic or the War Crime
of Intentionally Attacking Civilians if the same took place in the context of or was
XIII. associated with an armed conflict. The norm for the prevention, prosecution and
A terrorist group called the Emerald Brigade is based in the State of Asyaland. The punishment of crimes against humanity and war crimes are also customary norms
government of Asyaland does not support the terrorist group, but being a poor of international and therefore binding on all States. (Prosecutor v. Stakic, ICTY,
country, is powerless to stop it. July 31, 2003)

Thus, Republic of Gordon has the obligation under international law to prosecute
2
PIL QnA 2007-2010
and punish all those involved in the mass killing of the members of the indigenous Edition, p. 233)
group and providing amnesty to those involved is violative of this obligation.
To be valid in international law, acts of retorsion should not be excessive when
II. Compare and contrast the jurisdiction of the International Criminal Court and compared to the unfriendly acts committed by the offending State. Moreover, they
International Court of Justice. (3%) should not violate a State’s obligation under Article 2(3) of the U.N. Charter to
settle their disputes by peaceful means in such a manner that international peace
Suggested Answer: The jurisdiction of the International Criminal Court (ICC) and security and justice are not endangered.
primarily deals with the prosecution of individuals for core international crimes,
while the jurisdiction of the International Court of Justice (ICJ) deals with XI. Which statement best completes the following phrase: (1%)
contentious proceedings between States.
“Freedom from torture is a right
As to subject matter jurisdiction (ratione materiae), the jurisdiction of the ICC is
limited to the most serious crimes of concern to the international community as a A. subject to derogation when national security is threatened.”
whole, particularly: (a) the Crime of Genocide; (b) Crimes against Humanity; (c) B. confined only during custodial investigation.”
War crimes; and (d) the Crime of Aggression. (R. Sarmiento, Public International C. which is non-derogable both during peacetime and in a situation of armed
Law Bar Reviewer, 2009 Revised Edition, p. 308). On the other hand, the conflict.”
jurisdiction of the ICJ covers legal disputes which the States refer to it. This D. both (a) and (b)
includes disputes concerning: (a) the interpretation of a treaty; (b) any question of E. none of the above.
international law; (c) the existence of any fact which, if established, would
constitute a breach of an international obligation; and (d) the nature or extent of Suggested Answer: C. “Freedom from torture is a right which is non-derogable
the reparation to be made for the breach of an international obligation. (Article 36, both during peacetime and in a situation of armed conflict.”
ICJ Statute) The ICJ also has jurisdiction to give an advisory opinion on any legal
question as may be requested by the General Assembly or the Security Council or Article 2(2) of the U.N. Convention Against Torture provides that “No exceptional
on legal questions arising within the scope of the activities of other organs and circumstances whatsoever, whether a state of war or a threat of war, internal
specialized agencies of the U.N. upon their request and when so authorized by the political in stability or any other public emergency, may be invoked as a
General Assembly. (Article 96, U.N. Charter) justification of torture.”

As to jurisdiction over the persons or parties (ratione personae), the ICC shall have Because of the importance of the values it protects, the prohibition of torture has
the power to exercise its jurisdiction over persons for the most serious crimes of evolved into a peremptory norm or jus cogens, that is, a norm that enjoys a higher
international concern, and shall be complementary to national criminal rank in the international hierarchy than treaty law and even ordinary customary
jurisdictions. (Art. 1, Rome Statute) On the other hand, only States may be parties rules. The most conspicuous consequence of this higher rank is that the norm
in cases before the ICJ and their consent is needed for the ICJ to acquire prohibiting torture cannot be derogated from by States through international
jurisdiction. (R. Sarmiento, Public International Law Bar Reviewer, 2009 Revised treaties or local or special customs or even general customary rules not endowed
Edition, p. 185) with the same normative force. (Prosecutor v. Furundzija, ICTY, December 10,
1998)
III. A, a British photojournalist, was covering the violent protests of the Thai Red-
Shirts Movement in Bangkok. Despite warnings given by the Thai Prime Minister XXVII. What is the concept of association under international law? (2%)
to foreigners, specially journalists, A moved around the Thai capital. In the course
of his coverage, he was killed with a stray bullet which was later identified as
Suggested Answer: Under international law, an association is formed when two
having come from the ranks of the Red-Shirts. The wife of A sought relief from states of unequal power voluntarily establish durable links. In the basic model, one
Thai authorities but was refused assistance. state, the associate, delegates certain responsibilities to the other, the principal,
while maintaining its international status as a state. Free associations represent a
A. Is there state responsibility on the part of Thailand? (2%) middle ground between integration and independence. (C.I. Keitner and W.M.
B. What is the appropriate remedy available to the victim’s family under Reisman, Free Association: The United States Experience, 39 Tex. Int'l L.J. 1
international law? (3%) (2003)).

Suggested Answer: A. No, there is no state responsibility on the part of
Thailand because the acts of the Thai Red-Shirts were not the acts of Thailand.
Under the Principle of Attribution or Imputation, a State only incurs liability for
individual acts or omission which can be attributed to it. The Thai Red-Shirts are
not its officials, agents, or representatives and they were not acting on the
instructions of, or under the direction or control of, the Thai Government. (R.
Sarmiento, Public International Law Bar Reviewer, 2009 Revised Edition, pp. 65-
66)
B. Unless the Red-Shirts becomes the new Government of Thailand or Thailand
acknowledges and adopts the conduct of the Red-Shirts as its own, the victim’s
family has no appropriate remedy under international law. Their remedy, if any, if
only available under the domestic laws of Thailand by the institution of the
appropriate criminal cases against the persons responsible for A’ killing and the
filing of an action to recover damages arising from A’s death.
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. (Henkin, et al.,
International Law: Cases and Materials, 2nd ed., 274 (1987))
In deciding the constitutionality of the Memorandum of Agreement on the
Ancestral Domain (MOA-AD) Aspect of the GRP-MILF Tripoli Agreement on
Peace of 2001, the Supreme Court had ruled that the concept of association under
international law is not recognized under the 1987 Constitution as it runs counter
to the national sovereignty and territorial integrity of the Republic. (Province of
North Cotabato v. GRP Peace Panel on Ancestral Domain, G.R. No. 183591, Oct.
14, 2008)

IV. Choose the statement which appropriately completes the opening phrase:

“A State which resorts to retorsion in international law

A. must ensure that all states consent to its act.”

B. cannot curtail migration from the offending state.”
C. can expel the nationals of the offending state.”
D. should apply proportionate response within appreciable limit.”
E. None of the above.

Explain your answer. (2%)

Suggested Answer: D. “A State which resorts to retorsion in international law

should apply proportionate response within appreciable limits.”

Retorsion consists in retaliation where the acts complained of do not constitute a

legal ground of offense but are rather in the nature of unfriendly acts done
primarily in pursuance of legitimate State interests but indirectly hurtful to other
States. (R. Sarmiento, Public International Law Bar Reviewer, 2009 Revised
3