No, William is not correct.
While Article 22 of the Vienna Convention
SPECIAL ISSUES IN INTERNATIONAL LAW
2009 - 2019
International law Bar Questions & Suggested Answers and
International Issues
Year 2009
QUESTION
Principle of Auto-Limitation
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
on Diplomatic Relations provides that the premises of a diplomatic
mission shall be inviolable, and may not be entered by the police or
by any other agent of the receiving State, except with the consent of
the Ambassador or the head of the mission, it does not alter the fact,
however, that such premises are still part of Philippine territory. The
concept of “exterritoriality,” under which diplomatic premises are
deemed to be part of the sovereign territory of the sending State, has
not been adopted in the Vienna Convention. Hence, a crime
committed on or within such premises by a private person like
Williams who enjoys no diplomatic immunity falls within the
jurisdiction of Philippine courts.
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]).
QUESTION
Use of Force; Self-Defense
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.
QUESTION
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 “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.”
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
QUESTION
information under the Constitution does not exclude contracts of
Compare and contrast the jurisdiction of the International
public interest and are not privileged (Section 7, Article III of the
Criminal Court and International Court of Justice. (3%)
Constitution; Valmonte vs. Belmonte, 170 SCRA 256 [1989])
SUGGESTED ANSWER
The jurisdiction of the International Court of Justice pertains
to international responsibility in the concept of civil liability, while that
YEAR 2010
of the International Criminal Court pertains to criminal liability.

QUESTION While States are the subject of law in international

responsibility under the jurisdiction of the International Court of
The dictatorial regime of President A of the Republic of Justice, the criminal liability within the jurisdiction of the International
Criminal Court pertains to individual natural person. (Article 34(i) of
Gordon was toppled by a combined force led by Gen. Abe, former the Statute of the International Court of Justice; Articles 25 and 27 of
royal guards and the secessionist Gordon People’s Army. The new the Statute of the International Criminal Court.)
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 QUESTION
law be passed to cover even those involved in mass killings of
members of indigenous groups who opposed President A. A British photojournalist, was covering the violent protests of
the Thai Red-Shirts Movement in Bangkok, Despite warnings given
International human rights groups argued that the proposed amnesty by the Thai Prime Minister to foreigners, specially journalists, A
law is contrary to international law. Decide with reasons. (4%) 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
SUGGESTED ANSWER Thai authorities but was refused assistance.
The proposed amnesty law is contrary to international law. Is there state responsibility on the part of Thailand? (2%)
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.”
SUGGESTED ANSWER MULTIPLE CHOICE

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.

QUESTION

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, Suggested Answer:
Principles of Public International Law, 7th ed. p.492.)
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.)

QUESTION

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 Covenant in time of public emergency. But this derogation clause
reasons. (4%) 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.
SUGGESTED ANSWER

The argument of the chancellor of Central Luzon State QUESTION

University is not valid. Since an alien has no right to enter the
Philppines, preventing Prof. Sing Kui from entering the Philippines is What is the concept of association under international law?
not a violation of his rights. (Lee and Quigley, Consular Law and (2%)
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].) SUGGESTED ANSWER

An association is formed when two states of unequal power

voluntarily establish durable links. The associate delegates certain
QUESTION responsibilities to the other, the principal, while maintaining its status
as a state. It is an association between sovereigns. The associated
Which statement best completes the following phrase: (1%) state arrangement has usually been used as a transitional device of
former colonies on their way to full independence. (Province of North
“Freedom from torture is a right Cotabato v. Government of the Republic of the Philippines Peace
Panel on Ancestral Domain, 568 SCRA 402 [2008]-)
A. subject to derogation when national security is threatened.”
Association, under international law. is a formal arrangement
B. confined only during custodial investigation.” between a non-self-governing territory and an independent State
whereby such territory becomes an associated State with internal
C. which is non-derogable both during peacetime and in a situation self-government, but the independent state is responsible for foreign
of armed conflict.” relations and defense.
D. both (a) and (b) For an association to be lawful, it must comply with the
general conditions prescribed in UN General Assembly Resolution
E. none of the above. 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.
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
 YEAR 2011 then wrote the United Nations informing that it was withdrawing from
the Optional Protocol on Vienna Convention and was not bound by
QUESTION the ICJ decision. What principle of international law did State X
violate?
The President forged an executive agreement with Vietnam
for a year supply of animal feeds to the Philippines not to exceed (A) Pacta Sunt Servanda
40,000 tons. The Association of Animal Feed Sellers of the (B) Act of State Doctrine
Philippines questioned the executive agreement for being contrary to (C) Protective Principle
R.A. 462 which prohibits the importation of animal feeds from Asian (D) Jus Cogens
countries. Is the challenge correct?

(A) Yes, the executive agreement is contrary to our existing domestic

law. YEAR 2012
(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. QUESTION
(C) No, international agreements are sui generis which must stand Under Article 38(1) of the Statute of the International Court of
independently of our domestic laws. Justice, which one of the following is not considered a source of
(D) Yes, the executive agreement is actually a treaty which does not international law?
take effect without ratification by the Senate.
A.) international conventions;
B.) international custom;
C.) international humanitarian law;
QUESTION D.) general principles of law.

Carlos, a foreign national was charged with and convicted of

a serious crime in State X and sentenced to life imprisonment. His QUESTION
country applied for relief with the International Court of Justice (ICJ), In international law, it is a norm which states cannot derogate or
arguing that State X did not inform Carlos of his right under Article 36 deviate from their agreements:
of the Vienna Convention to be accorded legal assistance by his
government. State X, as signatory to the Vienna Convention, agreed a.) terra nullius;
to ICJ's compulsory jurisdiction over all disputes regarding the b.) opinion juris;
interpretation or application of the Vienna Convention. ICJ ruled that c.) jus cogens;
State X violated its obligation to provide consular notification to the d.) jus cogentus.
foreign national's country. ICJ also required State X to review and
reconsider the life sentence imposed on the foreign national. State X
QUESTION Under the United Nations Conference of the Law of the Sea
In international law, the status of an entity as a State is accepted by (UNCLOS), the extent of the contiguous zone is:
other States through this act. It is the “act by which another State
acknowledges that the political entity recognized possesses the a.) 3 nautical miles from the lowest water mark;
attributes of statehood.” b.) 12 miles from the outer limits;
c.) 12 miles from the lowest watermark;
a.) accession; d.) 200 miles from the outer limits.
b.) recognition;
c.) acknowledgment; QUESTION
d.) attribution. It is a line from which the breadth of the territorial sea and other
maritime zones is measured:
QUESTION
An act or process by which a State, in compliance with a formal a.) contiguous line;
demand or request, surrenders to another State an alleged offender b.) economic line;
or fugitive criminal who has sought refuge in the territory of the First c.) baseline;
State, in order to stand trial or complete his prison term: d.) archipelagic line.

a.) extramediation; QUESTION

b.) exterrertioriality; It is the maritime zone adjacent to the territorial seas where the
c.) extradition; coastal state may exercise protective jurisdiction:
d.) extraterritoriality.
a.) baseline zone;
QUESTION b.) contiguous zone;
This doctrine considers the general and customary norms of c.) transit zone;
international law as a part of municipal law and are to be enforced as d.) appurtenant zone.
such, without regard as to whether they are enacted as statutory or
legislative rules or not:

a.) accession; QUESTIONS

b.) incorporation;
c.) accretion; President Black of the Republic of Pasensya (RP) had a
d.) adoption. telephone conversation with President Blue of the People's Republic
of Conquerors (PRC). In that conversation, both leaders agreed that
QUESTION 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 ANSWERS
a.) 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.) 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.) International Conventions, whether general or particular,
establishing rules expressly recognized by the contesting states;
International custom as evidence of a general practice
accepted as Law;
The General Principles of law recognized by civilized
nations.
d.) 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 it.
 YEAR 2013
QUESTION
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).
QUESTION
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.”
QUESTION
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 measured
(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 measured.”
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
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
Letter 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. The ruling is 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.
YEAR 2014
QUESTION
Alien mae 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?
SUGGESTED ANSWER
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.”
QUESTION
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?
SUGGESTED ANSWER
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 territory.
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.
YEAR 2015
QUESTION
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 (4%)
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 claims.
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 treaty.
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.
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.
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)
c.
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,
UNCLOS).
YEAR 2016
QUESTION
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.
QUESTION
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. Government. 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 principle.
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.
YEAR 2017
QUESTION
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
QUESTIONS
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.
QUESTIONS
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. (3%)
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.
YEAR 2018
QUESTION
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”
QUESTION
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 (a) Can the President's act of deporting an undesirable alien be
names of the foreigners one by one and ordered them to sign their subject to judicial review? (2.5%)
names on the masking tape placed on the boxes recovered from (b) Is Aristotle's claim of diplomatic immunity proper? (2.5%)
their respective bags. The contents of the boxes were thereafter
subjected to tests which confirmed that the substance was shabu.
Can the shabu found inside the boxes be admitted in SUGGESTED ANSWER
evidence against the five foreigners for the charge of illegal
possession of drugs in violation of the Comprehensive Dangerous a) Yes. The act of the President is subject to judicial review on the
Drugs Act of 2002? (2.5%) 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
SUGGESTED ANSWER
the president can act on their deportation. One of the characteristic
Custom search is an exception to the general rule. Further, of our criminal law is generality which is applicable to all regardless
RA 9372 provides that searches may be conducted in all ports all of race as long as under the Philippine jurisdiction with exception to
over the country as a matter of procedure. It is an exception for a international agreement. Our criminal law will be meaningless if the
legal search and seizure without warrant. Hence, the evidence aliens violating our criminal law set them free of criminal charges.
seized are admissible
b) No. Diplomatic immunity applies only on the performance related
QUESTION to their function as officer of the ADB. In case of Aristotle, the act of
Andreas and Aristotle are foreign nationals working with the Asian oral defamation is not within the function of being a representative of
Development Bank (ADS) in its headquarters in Manila. Both were the ADB.
charged with criminal acts before the local trial courts.
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.