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Principle of Auto-Limitation (2009)

QUESTION 1: William, a private American Citizen, a university graduate and frequent

visitor to the Philippines, was inside the US 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 US. 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 US embassy, Philippine courts
have no jurisdiction because the US embassy grounds are not part of the Philippine
Territory; thus, technically, no crime under the Philippine law was committed. Is William
correct? Explain your answer? (3%)

SUGGESTED ANSWER: 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

ALTERNATIVE ANSWER: William is not correct. The premises occupied by the United
States Embassy do not constitute territory of the United States but of the Philippines.
Crimes committed within them are subject to the territorial jurisdiction of the Philippines.
Since William has no diplomatic immunity, the Philippines can prosecute him if it
acquires custody over him (Reagan vs. Commissioner of Internal Revenue, 30 SCRA
968 [1969]).


Use of Force; Self-Defense (2009)

QUESTION 2: A terrorist group called the Emerald Brigade is based in the State
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
Emarld Brigae, 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%)

SUGGESTED ANSWER: The Philippines action cannot be justified as self-

defense. Self-defense is an act of a State by reason of an armed attack by
another State. The acts of terrorism in this case were acts of private group and
cannot be attributed to Asyaland, which does not support the Emerald Brigade.
Article 51 of the Charter of the United Nations has no applicability, because self
defense in Article 51 contemplates a response to a legitimate armed attack by a
State against another State. The attack of Emerald Brigade is an attack by a
private group without authority as an organ of Asyaland.

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%)

SUGGESTED ANSWER: The contention of Asyaland is correct. The Philippines

violated Article 2(4) of the Charter of the United Nations, which prohibits States from the
threat or use of force against territorial integrity of any State.

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%)

SUGGESTED ANSWER: The terrorist should be tried in the Philippines. Section 58 of

Republic Act No. 9372, the Human Security Act provides for its extraterritorial
application to individual persons who, although outside the territorial limits of the
Philippines, commit an act of terrorism directly against Filipino citizens where their
citizenship was a factor in the commission of the crime.


Right to Information; Matters of Public Concern (2009)

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 ongoing 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%)

SUGGESTED ANSWER: The petition of KMM must be denied. Diplomatic negotiations

are privileged in order to encourage a frank exchange of exploratory ideas between the
parties by shielding the negotiations from public view (Akbayan Citizens Action Party vs.
Aquino, 558 SCRA 468 [2008]).

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%)

SUGGESTED ANSWER: KKM is entitled to have access to information pertaining to

government contracts entered into by the Government in the exercise of its proprietary
commercial capacity. The right to information under the Constitution does not exclude
contracts of public interest and are not privileged (Section 7, Article III of the
Constitution; Valmonte vs. Belmonte, 170 SCRA 256 [1989])


The Japan-Philippines Economic Partnership Agreement (JPEPA) is an

economic partnership agreement concerning bilateral investment and free trade
agreement between Japan and the Philippines. It was signed in Helsinki, Finland on
September 9, 2006 by former Japanese Prime Minister Junichiro Koizumi and former
Filipino President Gloria Macapagal-Arroyo. It is also the subject of the case Akbayan
Citizens Action Party vs. Aquino, 558 SCRA 468 (2008) where the petitioners sought via
the present petition for mandamus and prohibition to obtain from respondents the full
text JPEPA including the Philippine and Japanese offers submitted during the
negotiation process and all pertinent attachments and annexes thereto. The Supreme
Court ruled, however, that it is 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.The
privileged character of diplomatic negotiations has been recognized in this jurisdiction.
In discussing valid limitations on the right to information, the Court in Chavez v. PCGG
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 Peoples Movement for
Press Freedom (PMPF) v. Manglapus wherein the Court discussed the reasons for the
privilege in more precise terms.


Question 1:
The dictatorial regime of President A of the Republic of Gordon was toppled by a
combined force led by Gen. Abe, former royal guards and the secessionist Gordon People’s
Army. The new government constituted a Truth and Reconciliation Commission to look
into the serious crimes committed under President A’s regime. After the hearings, the
Commission recommended that an 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 argued that the proposed amnesty law is contrary to international
law. Decide with reasons. (4%)

Suggested Answer:
The proposed amnesty law is contrary to international law. The mass killings of members
of indigenous groups constitute genocide under Article II(a), Convention for the Prevention and
Punishment of the Crime of Genocide. The proposed amnesty law is against international law
because it is incompatible with, or in violation of the international obligation under Article IV of
this Convention that “Persons committing genocide… shall be punished, whether they are
constitutionally responsible rulers, public officials or private individuals.”
“The Contracting Parties confirm that genocide, whether committed in time of peace or in
time of war, is a crime under international law which they undertake to prevent and to punish.”
Related Event:
The 2010 Thai political protests were a series of political protests that were organised by
the National United Front of Democracy Against Dictatorship (UDD) (also known as "Red
Shirts") in Bangkok, Thailand from 12 March–19 May 2010 against the Democrat Party-led
government. The UDD called for Prime Minister Abhisit Vejjajiva to dissolve parliament and
hold elections earlier than the end of term elections scheduled in 2012. The UDD demanded that
the government stand down, but negotiations to set an election date failed. The protests escalated
into prolonged violent confrontations between the protesters and the military, and attempts to
negotiate a ceasefire failed. More than 80 civilians and six soldiers were killed, and more than
2,100 injured by the time the military violently put down the protest on 19 May.

Question 2:
Compare and contrast the jurisdiction of the International Criminal Court and
International Court of Justice. (3%)

Suggested Answer:
The jurisdiction of the International Court of Justice pertains to international
responsibility in the concept of civil liability, while that of the International Criminal Court
pertains to criminal liability.

While States are the subject of law in international responsibility under the jurisdiction of
the International Court of Justice, the criminal liability within the jurisdiction of the International
Criminal Court pertains to individual natural person. (Article 34(i) of the Statute of the
International Court of Justice; Articles 25 and 27 of the Statute of the International Criminal
Question 3:
A British photojournalist, was covering the violent protests of the Thai Red-Shirts
Movement in Bangkok, Despite warnings given by the Thai Prime Minister 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 having come from the ranks of
the Red-Shirts. The wife of A sought relief from Thai authorities but was refused
Is there state responsibility on the part of Thailand? (2%)
Suggested Answer:
There is no state responsibility on the part of Thailand. The wrongful act in question is an
act of private individuals and not of an organ of the government or a state official. Hence, it is
not attributable to Thailand as its wrongful act for the purpose of state responsibility.
Related Event:
A foreign journalist has been shot during clashes between anti-government protesters and
troops in central Bangkok. The journalist, whose identity and nationality were unknown, was
standing between troops and protesters when he was shot.He had been holding a video camera.
Blood was seen streaming from his hand when he was carried away by protesters.The man was
shot as soldiers tried to disperse anti-government protesters adjacent to Lumpini Park, where
running battles occurred last night.One person was shot and killed overnight and at least 11 were
injured. A renegade general and key protest strategist is in a coma after being shot by a sniper.
Question 4:
What is the appropriate remedy available to the victim’s family under international
law? (3%)
Suggested Answer:
The appropriate remedy available to the family of A is to seek diplomatic protection from
Great Britain to press a claim for reparation. (Brownlie, Principles of Public International Law,
7th ed., pp. 460 and 477-478.) However, in order that the claim will be allowable under
customary international law, the family of A must first exhaust the legal remedies available in
Thailand. (Brownlie, Principles of Public International Law, 7th ed. p.492.)

Multiple Choice:

Suggested Answer:
The correct answer is letter “D”.
A State which resorts to retorsion in international law should apply proportionate
response within appreciable limit. Retorsion is merely retallation for discourteous, unkind, unfair
or unfriendly acts by acts of the same or similar kind. Oppenheim’s International Law, Vol. II, 7
ed., p. 134.)
The League of Filipino Political Scientists (LFPS) organized an international conference
on the human rights situation in Myanmar at the Central Luzon State University (CLSU). An
exiled Myanmar professor Sung Kui, critical of the military government in Myanmar, was
invited as keynote speaker. The Secretary of Foreign Affairs informed the President of the
regional and national security implications of having Prof. Kui address the conference. The
President thereupon instructed the immigration authorities to prevent the entry of Prof. Kui into
Philippine territory. The chancellor of CLSU argued that the instruction violates the Constitution.
Decide with reasons. (4%)
Suggested Answer:
The argument of the chancellor of Central Luzon State University is not valid. Since an
alien has no right to enter the Philppines, preventing Prof. Sing Kui from entering the Philippines
is not a violation of his rights. (Lee and Quigley, Consular Law and Practice, 34 ed., p. 220.)
Since the President has the power of control over foreign relations, he has the power to ban
aliens from entering the Philippines. (United States v. Curtiss-Wright Export Corporation, 299
U.S. 304 [1936].)

Related Event:
United States v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936),[1] was a United
States Supreme Court case involving principles of both governmental regulation of business and
the supremacy of the executive branch of the federal government to conduct foreign affairs. The
Supreme Court concluded not only that foreign affairs power was vested in the national
government as a whole but also that the President of the United States had "plenary" powers in
the foreign affairs field that were not dependent upon congressional delegation.
Which statement best completes the following phrase: (1%)
“Freedom from torture is a right
1.subject to derogation when national security is threatened.”
2.confined only during custodial investigation.”
3.which is non-derogable both during peacetime and in a situation of armed conflict.”
4.both (a) and (b)
5.none of the above.

Suggested Answer:
The correct answer is letter “C”.
Freedom from torture is non-derogable both during peacetime and in a situation of armed
conflict. Under Article 4 of the International Covenant on Civil and Political Rights, the State
Parties may take measures in derogation of their obligations under this Covenant in time of
public emergency. But this derogation clause does not apply to prohibition against torture,
pursuant to Article 4/2) of the Covenant. Hence, no derogation may be made in regard to torture.

What is the concept of association under international law? (2%)
Suggested Answer:
An association is formed when two states of unequal power voluntarily establish durable
links. The associate delegates certain responsibilities to the other, the principal, while
maintaining its status as a state. It is an association between sovereigns. The associated state
arrangement has usually been used as a transitional device of former colonies on their way to full
independence. (Province of North Cotabato v. Government of the Republic of the Philippines
Peace Panel on Ancestral Domain, 568 SCRA 402 [2008]-)
Association, under international law. is a formal arrangement between a non-self-
governing territory and an independent State whereby such territory becomes an associated State
with internal self-government, but the independent state is responsible for foreign relations and
For an association to be lawful, it must comply with the general conditions prescribed in
UN General Assembly Resolution 1541(XV) of 14 December 160: (1) the population must
consent to the association; and (2) the association must promote the development and wellbeing
of the dependent state (the non-self-governing territory). Association is subject to UN approval.

2011 Bar Exam

(12) The President forged an executive agreement with Vietnam for a year supply of
animal feeds to the Philippines not to exceed 40,000 tons. The Association of Animal
Feed Sellers of the Philippines questioned the executive agreement for being contrary to
R.A. 462 which prohibits the importation of animal feeds from Asian countries. Is the
challenge correct?
(A) Yes, the executive agreement is contrary to our existing domestic law.
(B) No, the President is the sole organ of the government in external relations
and all his actions as such form part of the law of the land.
(C) No, international agreements are sui generis which must stand independently
of our domestic laws.
(D) Yes, the executive agreement is actually a treaty which does not take effect
without ratification by the Senate.

Feed millers have revised their output projection for this year, saying animal feeds would go
down by 23 percent to 5 million metric tons (MT) from 6.5 million MT. "Production was down for
lack of demand. Hogs production not only failed to pickup but in fact was depressed due to a
slack in the production of piglets," an official of the Philippine Association of Feed Millers Inc.,
who refused to disclose his identity, said Thursday. Also, the official said aquaculture production
has decreased by 5 percent, dragging the demand for animal feeds. Earlier, the sector projected
the production to contract 10 percent, but weak demand for feeds prodded most feed millers to
further cut production in order minimize losses. "Poultry was our only saving grace, if not for the
good performance of the poultry sector we'll [be] out of business now," the source said. Feed
millers said the industry remains persistent not to bring in additional corn despite a projected
shortfall in production due to lackluster demand for animal feeds. Corn importation in 2010 is
expected reach not more than 80,099 MT, a lot lower than the 344,945 MT imported in 2009.
"Should there be a surge in demand [for feeds] towards year-end, we might import additional
feed wheat but not corn. We can book November for December arrival," the source said. In
2009, feed millers shipped around 1.1 million MT of feed wheat into the country. For 2010, the
contracted volume was about 1 million MT due for arrival until October. The private sector
projected that feed wheat importation for the year may reach 1.5 million MT.

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

Who is Mary Jane?

Mary Jane was born to a poor family in Nueva Ecija, the youngest of 5 children. She
only made it to the first year high school, married early, and had two children not long
after. The marriage didn’t last long, though, and she and her husband separated.

According to Agus Salim, her Indonesian lawyer, she found work in Dubai as a domestic
helper. However, she returned to Manila before her two-year contract ended because
“she was almost raped”.
How did she end up with a suitcase full of heroin?

In early 2010, Agus said Mary Jane was offered another job as a domestic helper in
Kuala Lumpur by a godsister identified only as Christine or Cristina. But when she
arrived in Kuala Lumpur, the job was no longer available.

Christine then asked Mary Jane to go to Yogyakarta in Indonesia instead. Agus said
Christine gave Mary Jane a brand new suitcase to use plus $500. Mary Jane told her
lawyers the suitcase seemed heavy but was empty.

On April 25, 2010, she arrived at Yogyakarta's Adisucipto airport via an AirAsia flight
from Kuala Lumpur. When the suitcase passed through the X-ray scanner, it set off the
alarm. Indonesian authorities then found packs of heroin wrapped in aluminium foil
weighing a total of 2.6 kilograms hidden inside the lining of the suitcase. They later
estimated the drugs to have a street value of $500,000.

Why was she sentenced to death?

Indonesia, which has some of the toughest anti-drug laws in the world, categorizes
drug-related offenses as extraordinary crimes that deserve the death penalty. For the
Indonesian authorities who arrested Mary Jane, the case was simple: A woman was
caught trying to enter Indonesia with 2.6 kilograms of heroin hidden insider her suitcase.

But according to Agus, Mary Jane wasn’t able to defend herself well. First, they said she
was not given a lawyer or translator when the police were interrogating her in Bahasa
Indonesia, which she did not understand at the time.


73. Under Article 38(1) of the Statute of the International Court of Justice, which one of the
following is not considered a source of international law?

A.) international conventions;

B.) international custom;
C.) international humanitarian law;
D.) general principles of law.
74. In international law, it is a norm which states cannot derogate or deviate from their

a.) terra nullius;

b.) opinion juris;
c.) jus cogens;
d.) jus cogentus.

75. In international law, the status of an entity as a State is accepted by other States
through this act. It is the “act by which another State acknowledges that the political entity
recognized possesses the attributes of statehood.”

a.) accession;
b.) recognition;
c.) acknowledgment;
d.) attribution.

76. An act or process by which a State, in compliance with a formal demand or request,
surrenders to another State an alleged offender or fugitive criminal who has sought refuge
in the territory of the First State, in order to stand trial or complete his prison term:

a.) extramediation;
b.) exterrertioriality;
c.) extradition;
d.) extraterritoriality.

77. This doctrine considers the general and customary norms of international law as a part
of municipal law and are to be enforced as such, without regard as to whether they are
enacted as statutory or legislative rules or not:

a.) accession;
b.) incorporation;
c.) accretion;
d.) adoption.

78. Under the United Nations Conference of the Law of the Sea (UNCLOS), the extent of
the contiguous zone is:

a.) 3 nautical miles from the lowest water mark;

b.) 12 miles from the outer limits;
c.) 12 miles from the lowest watermark;
d.) 200 miles from the outer limits.

79. It is a line from which the breadth of the territorial sea and other maritime zones is

a.) contiguous line;

b.) economic line;
c.) baseline;
d.) archipelagic line.

80. It is the maritime zone adjacent to the territorial seas where the coastal state may
exercise protective jurisdiction:

a.) baseline zone;

b.) contiguous zone;
c.) transit zone;
d.) appurtenant zone.


President Black of the Republic of Pasensya (RP) had a telephone conversation with President
Blue of the People's Republic of Conquerors (PRC). In that conversation, both leaders agreed
that they will both pull-out all their vessels, civilian or otherwise, sea crafts and other ships from
the hotly disputed Kalmado Shoal area within eight (8) days in order to de-escalate the situation.
After eight days, all RP ships and vessels have left the area. However, several military and
civilian ships carrying the PRC flag remained in the area and began construction of a dock that
could provide fuel and other supplies to vessels passing by.


a.) Assuming that President Black and President Blue both had full capacity to represent their
states and negotiate with each other under their respective systems of government, and further
assuming that both leaders acknowledge the existence of the conversation, is the verbal
agreement via telephone binding under international law? Explain. (5%)
b.) Assuming the answer to (a.) is in the affirmative, does that agreement constitute a Treaty
under the 1969 Vienna Convention on the Law on Treaties? (2%)

c.) What are the sources of International Law? (2%)

d.) What is opinio juris in International Law? (1%)

Suggested answer:
a.) Assuming that President Black and President Blue both had full capacity to represent their
states and negotiate with each other under their respective systems of government, and further
assuming that both leaders acknowledge the existence of the conversation, is the verbal
agreement via telephone binding under international law? Explain. (5%)

The verbal agreement by telephone is binding between the parties on the basis of customary
international law. In 1992, ICJ settled the dispute between Denmark and Finland, accepting the
telephone conversation between the two states. The dispute between Denmark and Finland about
the construction of a bridge was settled by a telephone conversation between the Danish and
Finnish Prime Ministers. In return for payment by Denmark, Finland agreed to discontinue the
case it filed.

b.) Assuming the answer to (a.) is in the affirmative, does that agreement constitute a
Treaty under the 1969 Vienna Convention on the Law on Treaties? (2%)

The Verbal Agreement does not constitute a treaty. According to Article 2 of the Vienna
Convention on the Law of Treaties, treaty is an international agreement concluded between
States in written form and governed by international law, whether embodied in a single
instrument or in two or more related instruments and whatever its particular designation.

c.) What are the sources of International Law? (2%)

1.) International Conventions, whether general or particular, establishing rules expressly

recognized by the contesting states;

2.) International custom as evidence of a general practice accepted as Law;

3.) The General Principles of law recognized by civilized nations.

d.) What is opinio juris in International Law? (1%)

To establish customary international law, two elements must concur, a.) general state
practice and b.) opinion juris sive necessitates.
In customary international law, opinio juris is the second element necessary to establish a
legally binding custom. It refers to the continuous repetition of the same or similar kind of acts
or norms by States. Opinio juris requires that the state practice or norm be carried out in such a
way as to be evidence of the belief that it is obligatory by the existence of a rule of law requiring

Related Event:
On 17 May 1991 Finland instituted proceedings against Denmark in respect of a dispute
concerning passage through the Great Belt (Storebælt), and the project by the Government of
Denmark to construct a fixed traffic connection for both road and rail traffic across the West and
East Channels of the Great Belt. The effect of this project, and in particular of the planned high-
level suspension bridge over the East Channel, would have been permanently to close the Baltic
for deep draught vessels of over 65 m height, thus preventing the passage of such drill ships and
oil rigs manufactured in Finland as required more than that clearance. In its Application Finland
requested the Court to adjudge and declare (a) that there was a right of free passage through the
Great Belt which applied to all ships entering and leaving Finnish ports and shipyards ; (b) that
this right extended to drill ships, oil rigs and reasonably foreseeable ships ; (c) that the
construction of a fixed bridge over the Great Belt as currently planned by Denmark would be
incompatible with the right of passage mentioned in subparagraphs (a) and (b) above and ; (d)
that Denmark and Finland ought to start negotiations, in good faith, on how the right of free
passage, as set out in subparagraphs (a) to (c) above, should be guaranteed. On 23 May 1991,
Finland requested the Court to indicate certain provisional measures aimed, principally, at
stopping all construction works in connection with the planned bridge project over the East
Channel of the Great Belt which it was alleged would prevent the passage of ships, in particular
drill ships and oil rigs, entering and leaving Finnish ports and shipyards.

By an Order dated 29 July 1991, the Court dismissed that request for the indication of
provisional measures by Finland, while at the same time indicating that, pending its decision on
the merits, any negotiation between the Parties with a view to achieving a direct and friendly
settlement was to be welcomed, and going on to say that it would be appropriate for the Court,
with the co-operation of the Parties, to ensure that the decision on the merits was reached with all
possible expedition. By a letter dated 3 September 1992, the Agent of Finland, referring to the
relevant passage of the Order, stated that a settlement of the dispute had been attained and
accordingly notified the Court of the discontinuance of the case. Denmark let it be known that it
had no objection to that discontinuance. Consequently, the President of the Court, on 10
September 1992, made an Order recording the discontinuance of the proceedings and directing
the removal of the case from the Court’s List.

Question 1:
The Ambassador of the Republic of Kafiristan referred to you for handling, the case of
the Embassy's Maintenance Agreement with CBM, a private domestic company engaged in
maintenance work. The Agreement binds CBM, for a defined fee, to maintain the Embassy's
elevators, air-conditioning units and electrical facilities.
Section 10 of the Agreement provides that the Agreement shall be governed by
Philippine laws and that any legal action shall be brought before the proper court of Makati.
Kafiristan terminated the Agreement because CBM allegedly did not comply with their agreed
maintenance standards. CBM contested the termination and filed a complaint against Kafiristan
before the Regional Trial Court of Makati. The Ambassador wants you to file a motion to
dismiss on the ground of state immunity from suit and to oppose the position that under Section
10 of the Agreement, Kafiristan expressly waives its immunity from suit.
Under these facts, can the Embassy successfully invoke immunity from suit? (6%)

Suggested Answer:
Yes, the Embassy can invoke immunity from suit. Section 10 of the Maintenance
Agreement is not necessarily a waiver of sovereign immunity from suit. It was meant to apply in
case the Republic of Kafiristan elects to sue in the local courts or waives its immunity by a
subsequent act. The establishment of a diplomatic mission is a sovereign function. This
encompasses its maintenance and upkeep. The Maintenance Agreement was in pursuit of a
sovereign activity. (Republic of the Indonesia vs. Vinzon, 405 SCRA 126).

Related News: Republic of the Indonesia vs. Vinzon, 405 SCRA 12

Ruling: The Supreme Court ruled that the republic of Indonesia cannot be deemed to
have waived its immunity to suit. The mere entering into a contract by a foreign state with a
private party cannot be construed as the ultimate test of whether or not it is an act juri imperii or
juri gestionis. Such act is only the start of the inquiry. There is no dispute that the establishment
of a diplomatic mission is an act juri imperii. The state may enter into contracts with private
entities to maintain the premises, furnishings and equipment of the embassy. The Republic of
Indonesia is acting in pursuit of a sovereign activity when it entered into a contract with the
respondent. The maintenance agreement was entered into by the Republic of Indonesia in the
discharge of its governmental functions. It cannot be deemed to have waived its immunity from

Question 2:
What is the legal effect of decisions of the International Court of Justice in cases
submitted to it for resolution? (1%)

(A) The decision is binding on other countries in similar situations.

(B) The decision is not binding on any country, even the countries that are parties to the case.
(C) The decision is binding only on the parties but only with respect to that particular case.
(D) The decision is not binding on the parties and is only advisory.
(E) The binding effect on the parties depends on their submission agreement.

Suggested Answer:
(C), The decision is binding only on the parties but only with respect to that particular
case. (Article 59 of the ICJ Statute)

“Article 59 The decision of the Court has no binding force except between the parties and in
respect of that particular case.”

Related News: Aerial Herbicide Spraying (Ecuador vs Columbia)

On 31 March 2008, Ecuador filed an Application instituting proceedings against

Colombia in respect of a dispute concerning the alleged “aerial spraying of toxic herbicides at
locations near, at and across its border with Ecuador”. Ecuador maintained that “the spraying has
already caused serious damage to people, to crops, to animals, and to the natural environment on
the Ecuadorian side of the frontier, and poses a grave risk of further damage over time”. It
further contended that it had made “repeated and sustained efforts to negotiate an end to the
fumigations” but that “these negotiations have proved unsuccessful”.

A letter dated 12 September 2013, the Agent of Ecuador, referring to Article 89 of the
Rules of Court and to an Agreement between the Parties dated 9 September 2013 “that fully and
finally resolves all of Ecuador’s claims against Colombia” in the case, notified the Court that his
Government wished to discontinue the proceedings in the case. By a letter of the same date,
the Agent of Colombia informed the Court, pursuant to Article 89, paragraph 2, of the Rules of
Court, that it made no objection to the discontinuance of the case as requested by Ecuador.

In consequence, the President of the Court, on 13 September 2013, made an Order

recording the discontinuance by Ecuador of the proceedings and directing the removal of
the case from the Court’s List.
Question 3:
Under the UN Convention on the Law of the Sea, the exclusive economic zone refers to an
area. (1%)

(A) that is at least 100 miles from the baselines from which the outer limit of the territorial sea is
(B) that is at least 200 miles but not to exceed 300 miles from the baselines from which the outer
limit of the territorial sea is measured
(C) beyond and adjacent to a country's territorial sea which cannot go beyond 200 nautical miles
from the baselines from which the outer limit of the territorial sea is measured
(D) that can go beyond 3 nautical miles but cannot extend 300 nautical miles from the baselines
from which the outer limit of the territorial sea is measured
(E) None of the above.

Suggested Answer:
(E), None of the above.
Note: the nearest to the accurate answer may be (C) but it proposes that EEZ cannot go
beyond 200 nautical miles “from the baseline from which the outer limit of the territorial sea is
This is not correct because the baseline is the point from which the entire breadth of the
territorial sea is measured pursuant to Article 57 of the UNCLOS, not only from its outer limit as
indicated in Letter (C). Letter (C) excludes the entire breadth of the territorial sea of 12 n.m.
from the EEZ contrary to the text of said Article 57. If Letter (C) is followed, EEZ will only
measure 200 n.m. minus 12 n.m. of the territorial sea, resulting in the EEZ measuring only 188
n.m. in breadth.

Question 4:
The President entered into an executive agreement with Vietnam for the supply to
the Philippines of animal feeds not to exceed 40,000 tons in any one year. The Association
of Animal Feed Sellers of the Philippines questioned the executive agreement for being
contrary to R.A. 462 which prohibits the importation of animal feeds from Asian countries.
Is the challenge correct? (1%)

(A) Yes, the executive agreement is contrary to an existing domestic law.

(B) No, the President is solely in charge of foreign relations and all his actions in this role form
part of the law of the land.
(C) No, international agreements are sui generis and stand independently of our domestic laws.
(D) Yes, the executive agreement is actually a treaty which does not take effect without
ratification by the Senate.
(E) Yes, the challenge is correct because there is no law empowering the President to undertake
the importation.
Suggested Answer:

(A) Yes, the executive agreement is contrary to an existing domestic law. Gonzales vs.
Hechanova, 9 SCRA 230
The issue in this case is:
Whether or not an international agreement may be invalidated by our courts.
Yes. The Constitution authorizes the nullification of a treaty, not only when it conflicts
with the fundamental law, but also, when it runs counter to an act of Congress.
Section 2 Article 8 states that judicial review is vested with the Supreme Court. The
alleged consummation of the aforementioned contracts with Vietnam and Burma does not render
this case academic. Republic Act No. 2207 enjoins our government not from entering into
contracts for the purchase of rice, but from entering rice, except under the conditions prescribed
in said Act.
A judicial declaration of illegality of the proposed importation would not compel our
Government to default in the performance of such obligations as it may have contracted with the
sellers of rice in question because aside from the fact that said obligations may be compiled
without importing the said commodity into the Philippines, the proposed importation may still be
legalized by complying with the provisions of the aforementioned laws.


Alienmae is a foreign tourist.
She was asked certain questions in regard to a complaint that was filed against her by someone
who claimed to have been defrauded by her. Alienmae answered all the questions asked,
except in regard to some matters in which she invoked her right against self-incrimination.
When she was pressed to elucidate, she said that the questions being asked might tend to elicit
incriminating answers insofar as her home state is concerned. Could Alienmae invoke the right
against self-incrimination if the fear of incrimination is in regard to her foreign law?
Alienmae can invoke her right against self-incrimination even if it is in regard to her foreign law.
If her home is a party to the International Convention on Civil and Political rights under Article
14 (3)(g) of the said covenant provides:
“In determination of any criminal charge against him, everyone shall be entitled to the
following minimum guarantees, in full equality.
(g) Not to be compelled to testify against himself or to confess guilt.”
Ambassador Gaylor is State Juvenus’ diplomatic representative to State Hinterlands.
During one of his vacations, he decided to experience for himself the sights and sounds of State
Paradise, a country known for its beauty and other attractions. While in State Paradise,
Ambassador Gaylor was caught in the company of children under suspicious circumstances. He
was arrested for violation of strict anti-pedophilia statute of State Paradise. He claims that he is
immune from arrest and incarceration by virtue of his diplomatic immunity. Does the claim of
Ambassador Gaylor hold water?
No. Ambassador Gaylor cannot invoke his diplomatic immunity.
In accordance with paragraph 1, Article 31 of the Vienna Convention of Diplomatic Relations,
since State Paradise is not his receiving state he does not enjoy diplomatic immunity within its
Under paragraph 1, Article 40 of the Vienna Conventions of Diplomatic Relations, he cannot be
accorded diplomatic immunity in State Paradise because he is not passing through it take up or
return to his post or to return to State Juvenus.


For Nuncio Accused of Abuse, Dominicans Want Justice at Home, Not

- New York Times August 2014

The case is the first time that a top Vatican ambassador, or nuncio — who
serves as a personal envoy of the pope — has been accused of sexual abuse
of minors. It has sent shock waves through the Vatican and two predominantly
Catholic countries that have only begun to grapple with clergy sexual abuse: the
Dominican Republic and Poland, where Mr. Wesolowski was ordained by the Polish
prelate who later became Pope John Paul II.

It has also created a test for Pope Francis, who has called child sexual abuse “such an
ugly crime” and pledged to move the Roman Catholic Church into an era of “zero
tolerance.” For priests and bishops who have violated children, he told reporters in May,
“There are no privileges.”

Mr. Wesolowski, 66, was ordained at 23 in Krakow by Archbishop Karol

Józef Wojtyla, who later became Pope John Paul II. In 1999, he was
appointed papal nuncio to Bolivia, and in 2002, he was reassigned to
Kazakhstan, Tajikistan, Kyrgyzstan and Uzbekistan.
In 2008, he was sent to the Dominican Republic. Mr. Wesolowski served as
a ceremonial dean of the international diplomatic corps here, convening an
annual party in honor of the country’s president.

The Vatican says that because Mr. Wesolowski was a member of its diplomatic corps
and a citizen of the Holy See, the case would be handled in Rome. But even many
faithful Catholics in this nation, home to the oldest Catholic cathedral in the Americas,
say they are unsettled that a Vatican official could have been using children for sex, yet
was not arrested and tried in their own country.

“From the pure standpoint of justice, he should be tried in the country where the acts
took place because the conditions for trying him will not be the same elsewhere,” said
Antonio Medina Calcaño, dean of the faculty of law and political science of the
Autonomous University of Santo Domingo. “But all we can do is hope that the courts in
the Vatican will treat this with the severity that it really deserves.”

The Vatican spokesman, the Rev. Federico Lombardi, did not say when the Wesolowski
trial will start, who is representing the former nuncio, or whether he is at liberty while
he awaits trial. Under Vatican law, sexual abuse charges can bring a maximum of 12
years in prison and a fine of nearly $200,000.


No. 1:
The Philippines and the Republic of Kroi Sha established diplomatic relations and
immediately their respective Presidents signed the following: (1) Executive Agreement allowing
the Republic of Kroi Sha to establish its embassy and consular offices within Metro Manila; and
(2) Executive Agreement allowing the Republic of Kroi Sha to bring to the Philippines its
military complement, warships, and armaments from time to time for a period not exceeding one
month for the purpose of training exercises with the Philippine military forces and exempting
from Philippine criminal jurisdiction acts committed in the line of duty by foreign military
personnel, and from paying custom duties on all the goods brought by said foreign forces into
Philippine territory in connection with the holding of the activities authorized under the said
Executive Agreement.
Senator Maagap questioned the constitutionality of the said Executive
Agreements and demanded that the Executive Agreements be submitted to the Senate for
ratification pursuant to the Philippine Constitution. Is Senator Maagap correct? Explain

Suggested Answer:

Senator Maagap is correct in so far as the second Executive Agreement is concerned.

The first Executive Agreement is in such a nature that need not be concurred in by the
Senate. In Bayan muna v. Romulo, the right of the Executive to enter into binding agreements
without the necessity of subsequent congressional approval has been confirmed by long usage.
From the earliest days of our history, we have entered executive agreements covering such
subjects as commercial and consular relations, most favored nation rights, patent rights
trademark and copyright protection, postal and navigation arrangements and the settlement of
In Commissioner of Customs vs Eastern Sea Trading, Executive Agreements which are
in the nature of an International agreement involving political issues or changes on national
policy and those involving international arrangements of a permanent character, is deemed as a
In Article VII, Section 21 of the 1987 Constitution, it is provided “No treaty or
international agreement shall be valid and effective unless concurred in by at least two-thirds of
all the Members of the Senate.”
Therefore, Atty. Maagap is correct only in so far as the second Executive Agreement in
that it must be first submitted to the Senate for concurrence.

Related Event:

Signed on April 28, 2014 by then Defense Secretary Voltaire Gazmin (left) and U.S.
Ambassador Philip Goldberg (right), the Enhanced Defense Cooperation Agreement or
EDCA was entered into for the purpose of, among others, allowing the enhanced rotational
presence of U.S. Forces at agreed places in the Philippines. Such will increase training
opportunities between the two State’s forces, and will enable a greater ability to join forces in
response to humanitarian crises that impacts the Philippines.
In the case of Saguisag vs. Ochoa, Jr. (January 12, 2016), after being assailed in regard
with its constitutionality, the EDCA was held Constitutional and is in no need for the
concurrence of the Senate. The ruling was based on the ruling in the cases of Bayan Muna v.
Romulo and Commissioner v. Eastern Sea Trading.
It was also held to be merely “operationalizing” the Mutual Defense Treaty and the
Visiting Forces Agreement between the US and the Philippines. Therefore, it does not need
Senate concurrence.
No.2 - First Question
A bill was introduced in the House of Representatives in order to implement faithfully the
provisions of the United Nations Convention on the Law of the Sea (UNCLOS) to which the
Philippines is a signatory. Congressman Pat Rio Tek questioned the constitutionality of the bill
on the ground that the provisions of UNCLOS are violative of the provisions of the Constitution
defining the Philippines internal waters and territorial sea. Do you agree or not with the said
objection? Explain. (3%)

Suggested Answer:

No. In the case of Magallona v. Ermita, the Supreme Court held “UNCLOS III has
nothing to do with the acquisition or loss of territory.” It merely regulates sea-use rights over
maritime zones, contiguous zones, exclusive economic zones, and continental shelves which it
delimits. It is still under Philippine jurisdiction whether the bodies of water lying landward of the
baselines of the Philippines are internal waters or archipelagic waters.

Related Event:

The question was patterned before the Magallona vs Ermita case.

In March 2009, the Congress enacted Republic Act 9522 which amends the R.A. 3046
compliant to the Third United Nations Convention on the Law of the Sea. R.A. 9522 shortened
one baseline, optimized the location of some basepoints around the Philippine archipelago and
classified adjacent territories, namely, the Kalayaan Island Group and the Scarborough Shoal as
“regime of islands” which generates their own applicable maritime zone.
R.A. 9522 was alleged to be in violation of the 1987 Constitution because allegedly
reducing the Philippine Maritime Territory also reduced the Philippines’ reach of State
As mentioned above, the Supreme Court held R.A. 9522 constitutional as UNCLOS
III has nothing to do with the acquisition or loss of territory.

No. 2 - Second Question

Describe the following maritime regimes under UNCLOS (4%)
i. Territorial Sea
ii. Contiguous Zone
iii. Exclusive Economic Zone
iv. Continental Shelf
Suggested Answer:

Territorial Sea - is the belt of waters adjacent to the coasts of the State, excluding
internal waters in bays and gulfs, over which the state claims sovereignty and jurisdiction and
which is 12 nautical miles from the baseline.
Contiguous Zone - is that belt of water measured 24 nautical miles from the same
baseline used to measure the breadth of the territorial sea. In this zone, the coastal state may
exercise the control to
a. Prevent infringement of its customs, fiscal, immigration or sanitary laws and
regulations within its territory or territorial sea.
b. Punish infringement of the above laws and regulations committed within its
territory or territorial sea. (Art. 53, UNCLOS)
Exclusive Economic Zone - an area beyond and adjacent to the territorial sea, over
which a state has special rights over the exploration and utilization of marine resources. It shall
not extend beyond 200 nautical miles from the baselines from which the breadth of the territorial
sea is measured. In case of archipelagic states, its breadth shall be measured from the
archipelagic baseline. (Article 57, 58, 48, UNCLOS)
Continental Shelf - The continental shelf of a coastal State comprises the seabed and
subsoil of the submarine areas that extend beyond its territorial sea throughout the natural
prolongation of its land territory to the outer edge of the continental margin, or to a distance of
200 nautical miles from the baselines from which the breadth of the territorial sea is measured
where the outer edge of the continental margin does not extend up to that distance. (Article 76,
2016 Bar Examinations Related to International Law #1

The Philippines entered into an international agreement with members of the

international community creating the International Economic Organization (IEO) which
will serve as a forum to address economic issues between States, create standards,
encourage greater volume of trade between its members, and settle economic disputes.
After the Philippine President signed the agreement, the Philippine Senate demanded that
the international agreement be submitted to it for its ratification. The President refused,
arguing that it is an executive agreement that merely created an international organization
and it dwells mainly on addressing economic issues among States.

Is the international agreement creating the IEO a treaty or an executive agreement?

Explain. (5%)

Suggested Answer:

The agreement creating the International Economic Organization (IEO) is an executive

agreement and not a treaty.

In Commissioner of Customs vs. Eastern Sea Trading (1961), the Supreme Court held
that treaties generally refer to basic political issues, changes in national policy and permanent
international arrangements; while executive agreements refer to adjustments of detail carrying
well-established national policies, and temporary arrangements.

Section 21, Article VII is the only provision in the Constitution which defines a “treaty or
international agreement” as valid and effective as law by reason of concurrence of the Senate.
However it is the intendment of the Constitution that such “treaty or international agreement”
does not include executive agreement which therefore is excluded from the Senate’s authority of
concurrence over treaties.

Moreover, as the Supreme Court has pointed out in Pimentel v. Office of the Executive
Secretary [2005] the President has the sole power to ratify treaties. The Senate may be able to
exercise its authority of concurrence only if the President transmits the instrument of ratification
by which he accepts the terms agreed on by his diplomatic negotiators of the proposed treaty in
question, together with the text of the proposed treaty, with the request addressed to the Senate
President to ratify such proposed treaty as requested by the President.

It is only on the basis of the authority of the President to ratify treaties that the Senate
may act in concurrence under the Treaty clause of the Constitution.



G.R. No. 212426. January 12, 2016

Enhanced Defense Cooperation Agreement (EDCA) authorizes the U.S. military forces to have
access to and conduct activities within certain "Agreed Locations" in the country. It was not transmitted
to the Senate on the executive's understanding that to do so was no longer necessary. Accordingly, in June
2014, the Department of Foreign Affairs (DFA) and the U.S. Embassy exchanged diplomatic notes
confirming the completion of all necessary internal requirements for the agreement to enter into force in
the two countries.

According to the Philippine government, the conclusion of EDCA was the result of intensive and
comprehensive negotiations in the course of almost two years. After eight rounds of negotiations, the
Secretary of National Defense and the U.S. Ambassador to the Philippines signed the agreement on 28
April 2014. President Benigno S. Aquino III ratified EDCA on 6 June 2014. The OSG clarified during the
oral arguments that the Philippine and the U.S. governments had yet to agree formally on the specific
sites of the Agreed Locations mentioned in the agreement.

Two petitions for certiorari were thereafter filed before us assailing the constitutionality of
EDCA. They primarily argue that it should have been in the form of a treaty concurred in by the Senate,
not an executive agreement.

On 10 November 2015, months after the oral arguments were concluded and the parties ordered
to file their respective memoranda, the Senators adopted Senate Resolution No. (SR) 105. The resolution
expresses the "strong sense" of the Senators that for EDCA to become valid and effective, it must first be
transmitted to the Senate for deliberation and concurrence.


The President may enter into an executive agreement on foreign military bases, troops, or
facilities, if (a) it is not the instrument that allows the presence of foreign military bases, troops, or
facilities; or (b) it merely aims to implement an existing law or treaty. The President may generally
enter into executive agreements subject to limitations defined by the Constitution and may be in
furtherance of a treaty already concurred in by the Senate.

The Court find that EDCA did not go beyond the framework. The entry of US troops has long
been authorized under a valid and subsisting treaty, which is the Visiting Forces Agreement (VFA).[14]
Reading the VFA along with the longstanding Mutual Defense Treaty (MDT)[15] led this Court to the
conclusion that an executive agreement such as the EDCA was well within the bounds of the obligations
imposed by both treaties.

Thus, we find no reason for EDCA to be declared unconstitutional. It fully conforms to the
Philippines' legal regime through the MDT and VFA. It also fully conforms to the government's
continued policy to enhance our military capability in the face of various military and humanitarian issues
that may arise.




G.R. No. 204605. July 19, 2016

The Madrid System for the International Registration of Marks (Madrid System), which is the
centralized system providing a one-stop solution for registering and managing marks worldwide. The
Madrid System is governed by the Madrid Agreement, concluded in 1891, and the Madrid Protocol,
concluded in 1989. The Madrid Protocol has two objectives, namely: (1) to facilitate securing protection
for marks; and (2) to make the management of the registered marks easier in different countries.4

In 2004; the Intellectual Property Office of the Philippines (IPOPHL), the government agency
mandated to administer the intellectual property system of the country and to implement the state policies
on intellectual property; began considering the country's accession to the Madrid Protocol. It ultimately
arrived at the conclusion that accession would benefit the country and help raise the level of
competitiveness for Filipino brands. Hence, it recommended in September 2011 to the Department of
Foreign Affairs (DFA) that the Philippines should accede to the Madrid Protocol.6

After its own review, the DFA endorsed to the President the country's accession to the Madrid
Protocol and determined that the Madrid Protocol was an executive agreement.

On March 27, 2012, President Benigno C. Aquino III ratified the Madrid Protocol through an
instrument of accession. The instrument of accession was deposited with the Director General of the
World Intellectual Property Organization (WIPO) on April 25, 2012. 8 The Madrid Protocol entered into
force in the Philippines on July 25, 2012.9

Petitioner IP AP, an association of more than 100 law firms and individual practitioners in
Intellectual Property Law has commenced special civil action for certiorari and prohibition to challenge
the validity of the President's accession to the Madrid Protocol without the concurrence of the Senate.
IPAP has averred that the Madrid Protocol is a treaty, not an executive agreement; hence, respondent
DFA Secretary Albert Del Rosario acted with grave abuse of discretion in determining the Madrid
Protocol as an executive agreement.

In the Philippines, the DFA, by virtue of Section 9, Executive Order No. 459, is
initially given the power to determine whether an agreement is to be treated as a treaty or as an
executive agreement.

International agreements involving political issues or changes of national policy and

those involving international arrangements of a permanent character usually take the form of
treaties. But international agreements embodying adjustments of detail carrying out well-
established national policies and traditions and those involving arrangements of a more or less
temporary nature usually take the form of executive agreements.

It then becomes relevant to examine our state policy on intellectual property in general, as
reflected in Section 2 of our IP Code, to wit:

Section 2. Declaration of State Policy. - The State recognizes that an effective intellectual and
industrial property system is vital to the development of domestic and creative activity, facilitates
transfer of technology, attracts foreign investments, and ensures market access for our products. It
shall protect and secure the exclusive rights of scientists, inventors, artists and other gifted citizens
to their intellectual property and creations, particularly when beneficial to the people, for such
periods as provided in this Act.

It is also the policy of the State to streamline administrative procedures of registering

patents, trademarks and copyright, to liberalize the registration on the transfer of technology; and to
enhance the enforcement of intellectual property rights in the Philippines.

In view of the expression of state policy having been made by the Congress itself, the IPAP is
plainly mistaken in asserting that "there was no Congressional act that authorized the accession of the
Philippines to the Madrid Protocol."34

Accordingly, DFA Secretary Del Rosario’s determination and treatment of the Madrid
Protocol as an executive agreement; being in apparent contemplation of the express state policies
on intellectual property as well as within his power under Executive Order No. 459, are upheld.
2016 Bar Examinations Related to International Law #2

The USS Liberty, a warship of the United States, entered Philippine archipelagic waters on
its way to Australia. Because of the negligence of the naval officials on board, the vessel ran
aground off the island of Palawan, damaging coral reefs and other marine resources in the
area. Officials of Palawan filed a suit for damages against the naval officials for their
negligence, and against the U.S., based on Articles 30 and 31 of the United Nations
Convention on the Law of the Sea (UNCLOS). Article 31 provides that the Flag State shall
bear international responsibility for any loss or damage to the Coastal State resulting from
noncompliance by a warship with the laws and regulations of the coastal State concerning
passage through the territorial sea. The U.S. Government raised the defenses that:

(a) The Philippine courts cannot exercise jurisdiction over another sovereign State,
including its warship and naval officials. (2.5%)

(b) The United States is not a signatory to UNCLOS and thus cannot be bound by
its provisions (2.5%)

Rule on the validity of the defenses raised by the U.S., with reasons.

Suggested Answer:

The defenses raised are not valid.

(a) This defense relies on sovereign immunity from suit as advance by the U.S.

But the suit filed by the Officials of Palawan draws its strength from Articles 30 and 31
of the UNCLOS.

The U.S. defense is defeated by Art. 31, UNCLOS which provides:

“With such exceptions as are contained in sub-section A and in Articles 30 and 31,
nothing in this Convention affects the immunities of warships and other governments ships
operated for non-commercial purposes.

In reality, the supreme relevance of Article 31 quoted above is actualized by quoting an

existing U.S. government document sourced from Dispatch Supplement, Law of the Sea
Convention: Letter of Transmittal and Submittal and Commentary, as follows:
“Article 31 provides, in effect that the only rules in the Convention derogating from the
immunities of warships and government ships operated for non-government purposes are those
found in Articles 17-26, 30 and 31.

(b) The U.S. Government turns to the defense that it is not bound by the UNCLOS for the
reason that it is not a State Party or a signatory.

However, to be bound by the principle, it does not have to be a party to a treaty or

convention. If it has the normative status of a customary norm of international law, it is binding
on all states. This appears to be the holding of the principle of immunity of warship in question,
as upheld by the U.S. Government in the document cited above.

It states from the UNCLOS, thus:

The Convention protects and strengthens the key principle of sovereign immunity for
warships. Although not a new concept, sovereign immunity is a principle of vital importance to
the United States. The Convention provides for a universally recognized formulation of this

Article 32 provides that, with such exceptions as are contained in Subsection A and in
Articles 30 and 31, nothing in the Convention affects and immunities of warships.

MOST REV. PEDRO D. ARIGO, Vicar Apostolic of Puerto Princesa D.D. vs.

SCOTT H. SWIFT in his capacity as Commander of the US. 7th Fleet

G.R. No. 206510. September 16, 2014

The USS Guardian is an Avenger-class mine countermeasures ship of the US Navy. In December
2012, the US Embassy in the Philippines requested diplomatic clearance for the said vessel "to enter and
exit the territorial waters of the Philippines and to arrive at the port of Subic Bay for the purpose of
routine ship replenishment, maintenance, and crew liberty." On January 6, 2013, the ship left Sasebo,
Japan for Subic Bay, arriving on January 13, 2013 after a brief stop for fuel in Okinawa, Japan.

On January 15, 2013, the USS Guardian departed Subic Bay for its next port of call in Makassar,
Indonesia. On January 17, 2013 at 2:20 a.m. while transiting the Sulu Sea, the ship ran aground on the
northwest side of South Shoal of the Tubbataha Reefs, about 80 miles east-southeast of Palawan. No cine
was injured in the incident, and there have been no reports of leaking fuel or oil.

On January 20, 2013, U.S. 7th Fleet Commander, Vice Admiral Scott Swift, expressed regret for
the incident in a press statement.5 Likewise, US Ambassador to the Philippines Harry K. Thomas, Jr., in a
meeting at the Department of Foreign Affairs (DFA) on February 4, "reiterated his regrets over the
grounding incident and assured Foreign Affairs Secretazy Albert F. del Rosario that the United States will
provide appropriate compensation for damage to the reef caused by the ship." By March 30, 2013, the US
Navy-led salvage team had finished removing the last piece of the grounded ship from the coral reef.

Petitioners claim that the grounding, salvaging and post-salvaging operations of the USS
Guardian cause and continue to cause environmental damage of such magnitude as to affect the provinces
of Palawan, Antique, Aklan, Guimaras, Iloilo, Negros Occidental, Negros Oriental, Zamboanga del Norte,
Basilan, Sulu, and Tawi-Tawi, which events violate their constitutional rights to a balanced and healthful
ecology. They also seek a directive from this Court for the institution of civil, administrative and criminal
suits for acts committed in violation of environmental laws and regulations in connection with the
grounding incident. Specifically, petitioners cite the following violations committed by US respondents
under R.A. No. 10067: unauthorized entry (Section 19); non-payment of conservation fees (Section 21);
obstruction of law enforcement officer (Section 30); damages to the reef (Section 20); and destroying and
disturbing resources (Section 26[g]).


(a) During the deliberations, Senior Associate Justice Antonio T. Carpio took the position that the
conduct of the US in this case, when its warship entered a restricted area in violation of R.A. No. 10067
and caused damage to the TRNP reef system, brings the matter within the ambit of Article 31 of the
United Nations Convention on the Law of the Sea (UNCLOS). He explained that while historically,
warships enjoy sovereign immunity from suit as extensions of their flag State, Art. 31 of the UNCLOS
creates an exception to this rule in cases where they fail to comply with the rules and regulations of the
coastal State regarding passage through the latter's internal waters and the territorial sea.

According to Justice Carpio, although the US to date has not ratified the UNCLOS, as a matter of
long-standing policy the US considers itself bound by customary international rules on the "traditional
uses of the oceans" as codified in UNCLOS, as can be gleaned from previous declarations by former
Presidents Reagan and Clinton, and the US judiciary in the case of United States v. Royal Caribbean
Cruise Lines, Ltd.

In the case of warships,33 as pointed out by Justice Carpio, they continue to enjoy sovereign
immunity subject to the following exceptions:

Article 30

Non-compliance by warships with the laws and regulations of the coastal State

If any warship does not comply with the laws and regulations of the coastal State concerning passage
through the territorial sea and disregards any request for compliance therewith which is made to it, the
coastal State may require it to leave the territorial sea immediately.

Article 31

Responsibility of the flag State for damage caused by a warship or other government ship operated
for non-commercial purposes

The flag State shall bear international responsibility for any loss or damage to the coastal State resulting
from the non-compliance by a warship or other government ship operated for non-commercial purposes
with the laws and regulations of the coastal State concerning passage through the territorial sea or with
the provisions of this Convention or other rules of international law.

Article 32

Immunities of warships and other government ships operated for non-commercial purposes

With such exceptions as are contained in subsection A and in articles 30 and 31, nothing in this
Convention affects the immunities of warships and other government ships operated for non-commercial
purposes. (Emphasis supplied.) A foreign warship's unauthorized entry into our internal waters with
resulting damage to marine resources is one situation in which the above provisions may apply.

(b) As to the non-ratification by the US, Justice Carpio emphasizes that "the US' refusal to join the
UN CLOS was centered on its disagreement with UN CLOS' regime of deep seabed mining (Part XI)
which considers the oceans and deep seabed commonly owned by mankind," pointing out that such "has
nothing to do with its [the US'] acceptance of customary international rules on navigation."

It may be mentioned that even the US Navy Judge Advocate General's Corps publicly endorses
the ratification of the UNCLOS, as shown by the following statement posted on its official website:

The Convention is in the national interest of the United States because it establishes stable
maritime zones, including a maximum outer limit for territorial seas; codifies innocent passage, transit
passage, and archipelagic sea lanes passage rights; works against "jurisdictional creep" by preventing
coastal nations from expanding their own maritime zones; and reaffirms sovereign immunity of warships,
auxiliaries and government aircraft.
2017 Bar Exam Questions

State A and State B, two sovereign states, enter into a 10-year mutual defense treaty. After five years,
State A finds that the more progressive State B did not go to the aid of State A when it was threatened by
its strong neighbor State C. State B reasoned that it had to be prudent and deliberate in reacting to State C
because of their existing trade treaties.

a) May State A now unilaterally withdraw from its mutual defense treaty with State B? Explain your
answer. (2.5%)

b) What is the difference between the principles of pacta sunt servanda and rebus sic stantibus in
international law? (2.5%)

c) Are the principles of pacta sunt servanda and rebus sic stantibus relevant in the treaty relations between
State A and State B? What about in the treaty relations between State B and State C? Explain your
answer. (2.5%)

Suggested Answer:

a) State A cannot unilaterally withdraw from its treaty obligations under the principle of pacta sunt
servanda upon which signatory States who entered in treaty must comply with its obligation in
good faith. However, in invoking the principle of rebus sic stantibus, State A can unilaterally
withdraw from its treaty obligation with State B, on the ground that in such withdrawal from the
treaty, State A is protecting its existence from harm.
b) Pacta sunt servanda as generally accepted principle of international law, requires compliance of
treaty obligations of signatory states in good faith irrespective of constrains in its enforcement,
while rebus sic stantibus demands the unitary withdrawal or severance in the enforcement of
state's treaty obligations, when impossibility to comply intervenes. Under this principle of
international law, if the change in fundamental circumstance affects a signatory state, and to
comply with the treaty provisions would seriously jeopardize its own existence, a withdrawal is
allowed because its fundamental right to exist is stronger than its duty to comply with the treaty.

c) Yes. State A and B who are both signatories to the Mutual Defense Treaty must comply with their
treaty agreements as it is a norm in International law applying the principle of pacta sunt
servanda. State B is also correct in invoking the principle of rebus sic stantibus in his relationship
with State A. The principle of rebus sic stantibus can be invoked by a signatory state in a treaty
when there is a vital change in the fundamental circumstance, and said change and circumstance
will affect the signatory state that for it to continue to comply with his treaty obligation would
seriously jeopardize its own existence. Also the change in the fundamental circumstance has not
been foreseen by state B during the time it entered into a treaty agreement with state A. As to the
relations between State B and State C, both as signatories to their trade treaties must comply with
their treaty obligations under the principle of pacta sunt servanda. However both states cannot
invoke the principle of Rebus sic stantibus since there is no fundamental change or circumstances
present that could affect or jeopardize their existence as a sovereign state

Related News:

North Korea Missile Tests of 2017

“North Korea has fired 23 missiles during 16 tests since February 2017, further perfecting its technology
with each launch.

Its most recent -- during the early hours of November 29 -- flew higher and farther than any other
previous tests. The missile launch, which landed in Japan's exclusive economic zone, came after a break
of almost two months in testing.”

The U.S. can invoke the 1951 RP-US Mutual Defense Treaty that states:

“ARTICLE IV. Each Party recognizes that an armed attack in the Pacific area on either of the Parties
would be dangerous to its own peace and safety and declares that it would act to meet the common
dangers in accordance with its constitutional processes.”

The Philippines has no warships or warplanes to add to the armada of battleships that the U.S. Pacific
Command is starting to position off the Korean Peninsula. But U.S. warships and warplanes can refuel in
the Philippines in military bases where the U.S. was allowed to set up facilities under the Enhanced
Defense Cooperation Agreement (EDCA) signed in 2014.

In line with this, a news on September 2017:

“The Philippines has suspended trade relations with North Korea to comply with a U.N. Security Council
resolution over its repeated missile tests, Manila’s foreign minister said on Friday.

The United States and other Western countries have asked the United Nations to consider tough new
sanctions on North Korea after its test last week that it said was of an advanced hydrogen bomb.

“We can say we have suspended trade relations with North Korea,” Foreign Minister Alan Peter Cayetano
told reporters after a meeting with the U.S. ambassador on cooperation on an anti-drugs program.

“We will fully comply with UNSC resolution including the economic sanctions.”

a) What is the right of legation, and how is it undertaken between states? Explain your answer. (2%)
b) Under this right, may a country like Malaysia insist that the Philippines establishes a consulate in
Sabah to look after the welfare of the Filipino migrants in the area? Explain your answer. (2%)

Suggested Answer:

a) Right of legation, also known as the right of diplomatic intercourse, refers to the right of the State
to send and receive diplomatic missions, which enables States to carry on friendly intercourse. It
is not a natural or inherent right, but exists only by common consent.

No legal liability is incurred by the State for refusing to send or receive diplomatic
representatives. Governed by the Vienna Convention on Diplomatic Relations (1961), the
exercise of the right of legation is one of the most effective ways of facilitating and promoting
intercourse among nations. Through the active right of sending diplomatic representatives and the
passive right of receiving them, States are able to deal more directly and closely with each other
in the improvement of their mutual intercourse.

b) No. Malaysia cannot insist as it is not a natural or inherent right. The right of legation is purely
consensual. The Philippines should give its consent. No legal liability is incurred by refusing to
send or to receive a diplomatic representative.

Related News:

Bilateral Meeting of PH President Rodrigo Duterte and Malaysian Prime Minister Najib Razak in
Putrajaya, November 2016

Malaysian Prime Minister Najib Razak welcomed Philippine President Rodrigo Duterte at the
Prime Minister's Office in Putrajaya, Malaysia on November 10, 2016.

“The Philippines and Malaysia have agreed on the gradual repatriation of Filipinos in Sabah.

The two governments forged the agreement during the bilateral meeting of Philippine President
Rodrigo Duterte and Malaysian Prime Minister Najib Razak in Putrajaya on Thursday, November

The two leaders also discussed the possibility of setting up a Philippine consular office in Kota
Kinabalu in Sabah, a territory that is being claimed by the Philippines.”

a) Ambassador Robert of State Alpha committed a very serious crime while he headed his foreign
mission in the Philippines. Is he subject to arrest by Philippine authorities? Explain your answer.

b) Extradition is the process pursuant to a treaty between two State parties for the surrender by the
requested State to the custody of the requesting State of a fugitive criminal residing in the former.
However, extradition depends on the application of two principles - the principle of specialty and
the dual criminality principle. Explain these principles. (4%)

c) The President signs an agreement with his counterpart in another country involving reciprocity in
the treatment of each country's nationals residing in the other's territory. However, he does not
submit the agreement to the Senate for concurrence. Sec. 21, Art. VII of the Constitution provides
that no treaty or international agreement shall be valid and effective without such concurrence. Is
the agreement signed by the President effective despite the lack of Senate concurrence? Explain
your answer. (4%)

Suggested Answers:

a) As a general rule, he is not subject to arrest. Being an Ambassador of a foreign State he is

immune from arrest and exempted from criminal prosecution by virtue of their diplomatic
immunity, which is also absolute in nature. Through their diplomatic immunity, they are
exempted from criminal prosecutions except when the very serious crime relates to crimes against
international law.

b) In principle of specialty, a person extradited to the requesting state may be tried and punished
only for the offense for which extradition had been sought and granted. While in principle of dual
criminality, the crime subject of request for extradition must be punishable in both the requesting
state and the requested state.
c) Yes. The agreement entered into by the President is executive agreement which needs no
concurrence of the Senate, not a treaty or international agreement as provided in Sec. 21, Art. VII
of the Constitution.

Related News:

Taipei asks PH to arrest, extradite most-wanted fugitive

“Taiwan has asked Philippine authorities to arrest and extradite one of its most-wanted fugitives after
learning that he is planning a major investment project in the Philippines.
At the same time, it warned the Philippines against accepting the $369 billion (around P18 trillion)
investment project by Chen Yu-hao by informing several government departments, including the
judiciary and the Philippine Economic Zone Authority (PEZA), of the background and reputation of the
former chair of conglomerate Tuntex Group.”

According to Taiwanese Ministry of Foreign Affairs (MOFA) spokesperson Eleanor Wang, they have
made repeated requests to the Philippines to extradite Chen to Taiwan.

However, the Philippines denied the request, saying Chen had entered the country from China thus it
could only repatriate him to China.

The Taiwanese Ministry of Justice said it has already asked Beijing to repatriate Chen in accordance with
the Cross-Strait Joint Crime-Fighting and Judicial Mutual Assistance Agreement. It added that the
ministry would continue its efforts to secure his extradition from the Philippines.”


Question XI
Under Section 6 of Article V (on Criminal Jurisdiction) of the Visiting Forces Agreement
(VFA), the custody of a United States (US) personnel who becomes subject to criminal
prosecution before a Philippine court shall be with the US military authorities, if the latter so
requests. The custody shall begin from the commission of the offense until the completion of all
judicial proceedings. However, when requested, the US military authorities shall make the US
personnel available to Philippine authorities for any investigative or judicial proceeding relating
to the offense with which the person has been charged. In the event that the Philippine judicial
proceedings are not completed within one year, the US shall be relieved of any obligation under
Section 6.
The constitutionality of Section 6, Article V of the VFA is challenged on two grounds:
(1) it nullifies the exclusive power of the Supreme Court to adopt rules of procedure for all
courts in the Philippines; and (2) it violates the equal protection clause to the extent that it allows
the transfer of the custody of an accused to a foreign power as providing a different rule of
procedure for that accused.
Rule on the challenge. (5%)
Suggested Answer
I will rule in favor of constitutionality of Visiting Forces Agreement. As one of the
exception of generality of criminal law, the agreement entered into between the two states must
be complied in good faith under the rule on pacta sunc servanda. Besides, under incorporation
clause of the constitution which “adopts the generally accepted principles of international law as
part of the law of the land and adheres to the policy of peace, equality, justice, freedom,
cooperation, and amity with all nations”
Related News/Events
● In 2018, a former US Army sniper and two other ex-American soldiers were convicted on
Wednesday in the contract killing of a real estate agent in the Philippines for an
international crime boss who thought the woman had cheated him on a land deal. Joseph
Hunter, a former Special Forces sergeant from Kentucky, Adam Samia and Carl David
Stillwell were found guilty of murder-for hire and other charges.
● Jennifer Laude Case (2014)
● Subic Rape Case (2005)
Question XVI
Five foreign nationals arrived at the NAIA from Hong Kong. After retrieving their
checked-in luggage, they placed all their bags in one pushcart and proceeded to Express Lane 5.
They were instructed to place their luggage on the examiner's table for inspection.
The examiner found brown-colored boxes, similar in size to powdered milk boxes,
underneath the clothes inside the foreigners' bags. The examiner discovered white crystalline
substances inside the boxes that he inspected and proceeded to bundle all of the boxes by putting
masking tape around them. He thereafter handed the boxes over to Bureau of Customs agents.
The agents called out the names of the foreigners one by one and ordered them to sign their
names on the masking tape placed on the boxes recovered from their respective bags. The
contents of the boxes were thereafter subjected to tests which confirmed that the substance was
Can the shabu found inside the boxes be admitted in evidence against the five foreigners
for the charge of illegal possession of drugs in violation of the Comprehensive Dangerous Drugs
Act of 2002? (2.5%)
Suggested Answer
Custom search is an exception to the general rule. Further, RA 9372 provides that
searches may be conducted in all ports all over the country as a matter of procedure. It is an
exception for a legal search and seizure without warrant. Hence, the evidence seized are
Related Events/News
In 2018, the Bureau of Customs (BOC) seized at least P15 million worth of illegal drugs
in five parcels at the Ninoy Aquino International Airport (NAIA), officials said yesterday.
The parcels, which arrived at the Central Mail Exchange Center and the Fedex warehouse on
separate dates, held 2.21 kilos of methamphetamine hydrochloride or shabu, with a street value
of P14 million, and P1.496 million worth of marijuana and anti-anxiety drugs Valium
(diazepam) and Mogadon (nitrazepam).
One kilo of shabu was hidden in the frame of an image of Mother Mary. The parcel was
sent from Wanda, South Africa and consigned to Joseph Mañalac of Angeles City, BOC
Commissioner Isidro Lapeña said in a press conference.

In 2016, The Philippine Customs Department has detained three foreign nationals who
originally arrived from Brazil and travelled to Manila via Dubai and tried to slip through with
nearly 28 kilograms of suspected cocaine in their luggage.

Question XX
Andreas and Aristotle are foreign nationals working with the Asian Development Bank
(ADS) in its headquarters in Manila. Both were charged with criminal acts before the local trial
Andreas was caught importing illegal drugs into the country as part of his "personal
effects" and was thus charged with violation of Comprehensive Dangerous Drugs Act of 2002.
Before the criminal proceedings could commence, the President had him deported as an
undesirable alien. Aristotle was charged with grave oral defamation for uttering defamatory
words against a colleague at work. In his defense, Aristotle claimed diplomatic immunity. He
presented as proof a communication from the Department of Foreign Affairs stating that,
pursuant to the Agreement between the Philippine Government and the ADS, the bank's officers
and staff are immune from legal processes with respect to acts performed by them in their
official capacity.
(a) Can the President's act of deporting an undesirable alien be subject to judicial review?
(b) Is Aristotle's claim of diplomatic immunity proper? (2.5%)

Suggested Answer
a) Yes. The act of the President is subject to judicial review on the basis of grave abuse of
discretion amounting to lack or excess of jurisdiction on his part. In this case, the two aliens are
currently facing criminal charges which must be resolved by the court before the president can
act on their deportation. One of the characteristic of our criminal law is generality which is
applicable to all regardless of race as long as under the Philippine jurisdiction with exception to
international agreement. Our criminal law will be meaningless if the aliens violating our criminal
law set them free of criminal charges.
b) No. Diplomatic immunity applies only on the performance related to their function as
officer of the ADB. In case of Aristotle, the act of oral defamation is not within the function of
being a representative of the ADB.

Related Case
Jeffrey Liang vs. People of the Philippines
Petitioner Jeffrey Liang, an economist working with the Asian Development Bank
(ADB) , was charged before the MeTC of Mandaluyong with two counts of grave oral
defamation for allegedly uttering defamatory words against a fellow ADB worker. Liang was
arrested but later released. The next day, the judge received an "office of protocol" from the
Department of Foreign Affairs (DFA) stating that Liang is covered by immunity from legal
process under Section 45 of the Agreement between the ADB and the Philippine Government.
Based on the said protocol communication, the judge, without notice to the prosecution,
dismissed the two criminal cases. The RTC set aside the MeTC ruling and ordered the latter
court to enforce the warrant of arrest it earlier issued. Liang appealed arguing that he is covered
by immunity under the Agreement.

Is Liang covered with immunity from legal process under Section 45 of the Agreement
between the ADB and the Philippine Government?


No. Under Section 45 of the Agreement which provides:

"Officers and staff of the Bank including for the purpose of this Article experts and consultants
performing missions for the Bank shall enjoy the following privileges and immunities:

a.)....... immunity from legal process with respect to acts performed by them in their official
capacity except when the Bank waives the immunity."the immunity mentioned therein is not
absolute, but subject to the exception that the act was done in "official capacity." It is therefore
necessary to determine if petitioners case falls within the ambit of Section 45(a). Thus, the
prosecution should have been given the chance to rebut the DFA protocol and it must be
accorded the opportunity to present its controverting evidence, should it so desire.
Likewise, slandering a person could not possibly be covered by the immunity agreement
because our laws do not allow the commission of a crime, such as defamation, in the name of
official duty. It is well-settled principle of law that a public official may be liable in his personal
private capacity for whatever damage he may have caused by his act done with malice or in bad
faith or beyond the scope of his authority or jurisdiction.
Moreover, under the Vienna Convention on Diplomatic Relations, a diplomatic agent,
assuming petitioner is such, enjoys immunity from criminal jurisdiction of the receiving state
except in the case of an action relating to any professional or commercial activity exercised by
the diplomatic agent in the receiving state outside his official functions. As already mentioned
above, the commission of a crime is not part of official duty. (Liang vs People, G.R. No. 125865,
January 28, 2000)