YEAR 1989 Sovereignty of States Natural Use of Territory
YEAR 1989 Sovereignty of States Natural Use of Territory
75 provides that
YEAR 1989 any writ or process issued by any court in the Philippines for the attachment of the goods or chattels of
Sovereignty of States; Natural Use of Territory the ambassador of a foreign State to the Philippines shall be void.
QUESTION: (3) No, E cannot ask the court to stop the departure of the Ambassador of the Kingdom of Nepal from
The Republic of China (Taiwan), in its bid to develop a hydrogen bomb and defend itself against threats the Philippines. Article 29 of the Vienna Convention on Diplomatic Relations provides: "The person of a
of invasion coming from the People's Republic of China, conducted a series of secret nuclear weapons diplomatic agent shall be inviolable. He shall not be liable to any form of arrest or detention."
tests in its own atmosphere. The tests resulted in radioactive fallouts which contaminated the rivers in
and around Aparri and other bodies of water within the territorial jurisdiction of the Philippines, Can the
Philippines complain against the Republic of China for violation of its sovereignty?
Diplomatic Immunity; Ambassadors (1990) (a) No, State Z did not violate its obligations under the United Nations Charter. It complied with the
QUESTION resolution calling for enforcement action against State X, because it sent a medical team.
D, the Ambassador of the Kingdom of Nepal to the Philippines, leased a house in Baguio City as his
personal vacation home. On account of military disturbance in Nepal, D did not receive his salary and
(b) No sanctions may be taken against State Z. because it did not violate its obligation under the United
allowances from his government and so he failed to pay his rentals for more than one year. E, the
Nations Charter.
lessor, filed an action for recovery of his property with the Regional Trial Court of Baguio City.
1) Can the action against D prosper?
2) Can E ask for the attachment of the furniture and other personal properties of D after getting (c) Compliance with the resolution calling for enforcement action against Slate X does not necessarily
hold of evidence that D is about to leave the country? call for the sending of fighting troops. Under Art 43 of the United Nations Charter, compliance with the
3) Can E ask for the court to stop D's departure from the Philippines? call for enforcement action against State X has to be made in accordance with a special agreement with
the Security Council and such agreement shall govern the numbers and types of forces, their degree of
readiness and general locations, and the nature of the facilities and assistance to be supplied by
SUGGESTED ANSWER:
members of the United Nations.
RELATED EVENTS/ INTERNATIONAL ISSUES
(1) Yes, the action can prosper. Article 31 of the Vienna Convention on Diplomatic Relations provides:
"1. A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State. He shall
When Iraq invaded Kuwait August 2, 1990 the United Nations Security Council immediately
also enjoy immunity from its civil and administrative jurisdiction, except in the case of: (a) A real action
took action. That same day, Resolution 660 of the UN Security Council observed that "there exists a
relating to private immovable property situated in the territory of the receiving State, unless he holds it
breach of international peace and security as regards the Iraqi invasion of Kuwait". The Council
on behalf of the sending State for the purposes of the mission;" The action against the Ambassador is a
condemned the invasion, demanded that Iraq withdraw immediately and that negotiations be started
real action involving private immovable property situated within the territory of the Philippines as the
with Kuwait to settle the long-standing border dispute which the Iraqi Head of State, Saddam Hussein,
receiving state. The action falls within the exception to the grant of immunity from the civil and
had used as a pretext for the invasion.
administrative jurisdiction of the Philippines.
Due to his refusal, Resolution no. 661 was issued which ordered that:
(2) No, E cannot ask for the attachment of the personal properties of the Ambassador. Arts. 30 and 31
of the Vienna Convention on Diplomatic Relations provides that the papers, correspondence and the
property of diplomat agents shall be inviolable. Therefore, a writ of attachment cannot be issued against
his furniture and any personal properties. Moreover, on the assumption that the Kingdom of Nepal
“All States were to avoid importing any basic commodities or products from Iraq and Kuwait, prevent to settle claims of its nationals against foreign countries has repeatedly been recognized. This may be
any transactions involving nationals from these countries, and prohibit all transfer of funds for trade with made without the consent of the nationals or even without consultation with them. Since the continued
these states. They also were to prohibit all exports, except medical supplies and foodstuff.” amity between a State and other countries may require a satisfactory compromise of mutual claims, the
necessary power to make such compromises has been recognized. The settlement of such claims may
be made by executive agreement.
2) The captured civilians are prisoners of war. Under Article 4 of the Geneva Convention relative to the 2) Under Article 53 of the Statutes of the International Court of Justice, whenever one of the parties
does not appear before the court or fails to defend its case, the other party may ask the court to decide
Treatment of Prisoners of War, inhabitants of a non-occupied territory, who on the approach of the
enemy spontaneously take up arms to resist the invading forces, without having had time to form in favor of its claim. However, the court must, before doing so, satisfy itself it has Jurisdiction and that
themselves into regular armed forces, provided they carry arms openly and respect the laws and the claim is well founded in fact and law.
customs of war, are considered prisoners of war if they fall into the power of the enemy.
YEAR 1994
Int’l Court of Justice; Jurisdiction Over States (1994); Use of Force; Principle of Non-Intervention (1994)
Int’l Court of Justice; Jurisdiction Over States
QUESTION
QUESTION
The State of Nova, controlled by an authoritarian government, had unfriendly relations with its
The sovereignty over certain islands is disputed between State A and State B. These two states agreed neighboring state, Ameria. Bresla, another neighboring state, had been shipping arms and ammunitions
to Nova for use in attacking Ameria. To forestall an attack, Ameria placed floating mines on the
to submit their disputes to the International Court of Justice [ICJ].
territorial waters surrounding Nova. Ameria supported a group of rebels organized to overthrow the
government of Nova and to replace it with a friendly government. Nova decided to file a case against
1) Does the ICJ have jurisdiction to take cognizance of the case? Ameria in the International Court of Justice
2) Who shall represent the parties before the Court? 1) On what grounds may Nova's causes of action against Ameria be based?
SUGGESTED ANSWER: 2) On what grounds may Ameria move to dismiss the case with the ICJ?
1) The International Court of Justice has jurisdiction over the case, because the parties have jointly 3) Decide the case.
submitted the case to it and have thus indicated their consent to its jurisdiction.
SUGGESTED ANSWER:
2) Parties to a case may appoint agents to appear before the International Court of Justice in their
behalf, and these agents need not be their own nationals. However, under Article 16 of the Statutes of
the International Court of Justice, no member of the court may appear as agent in any case. 1) If Nova and Ameria are members of the United Nations, Nova can premise its cause of action on a
violation of Article 2(4) of the United Nations Charter, which requires members to refrain from the threat
or use of force against the territorial integrity or political independence of any state. If either or both
Int’l Court of Justice; Parties; Pleadings and Oral Argument (1994) Nova or Ameria are not members of the United Nations, Nova may premise its cause of action on a
violation of the non-use of force principle in customary international law which exists parallel to Article
2(4) of the United Nations Charter. In the Case Concerning Military and Paramilitary Activities in and
QUESTION:
Against Nicaragua (1986 ICJ Rep. 14), the International Court of Justice considered the planting of
mines by one state within the territorial waters of another as a violation of Article 2(4) of the United
The sovereignty over certain islands is disputed between State A and State B. These two states agreed Nations Charter. If the support provided by Ameria to the rebels of Nova goes beyond the mere giving
to submit their disputes to the International Court of Justice [ICJ]. of monetary or psychological support but consists in the provision of arms and training, the acts of
Ameria can be considered as indirect aggression amounting to another violation of Article 2(4). In
addition, even if the provision of support is not enough to consider the act a violation of the non-use of
1) What language shall be used in the pleadings and oral argument?
force principle, this is a violation of the principle of non-intervention in customary International law.
Aggression is the use of armed force by a state against the sovereignty, territorial integrity or political QUESTION NO. 2
independence of another state or in any other manner inconsistent with the United Nations Charter. State Liabilities
In a raid conducted by rebels in a Cambodian town, an American businessman who has been a long-
2) By virtue of the principle of sovereign immunity, no sovereign state can be made a party to a
time resident of the place was caught by the rebels and robbed of his cash and other valuable personal
proceeding before the International Court of Justice unless it has given its consent.
belongings. Within minutes, two truckloads of government troops arrived prompting the rebels to
withdraw. Before fleeing they shot the American causing him physical injuries. Government troopers
3) If jurisdiction over Ameria is established, the case should be decided in favor of Nova, because immediately launched pursuit operations and killed several rebels. No cash or other valuable property
Ameria violated the principle against the use of force and the principle of nonIntervention. The defense taken from the American businessman was recovered.
of anticipatory selfdefense cannot be sustained, because there is no showing that Nova had mobilized
to such an extent that if Ameria were to wait for Nova to strike first it would not be able to retaliate. In an action for indemnity filed by the US Government in behalf of the businessman for injuries and
However, if jurisdiction over Ameria is not established, the case should be decided in favor of Ameria losses in cash and property, the Cambodian government contended that under International Law it was
because of the principle of sovereign immunity. not responsible for the acts of the rebels.
b. Can A contest his extradition on the ground that it violates ex post facto provision of the Philippine Examples of political rights are the right to suffrage, the right of assembly, and the right to petition for
Constitution? Explain. redress of grievances.
SUGGESTED ANSWER: 2. Human rights are broader in scope than civil and political rights. They also include social, economic,
and cultural rights. Human rights are inherent in persons from the fact of their humanity. Every man
1. a. Yes, France can ask for the extradition of A for an offense committed before the effectivity of the possesses them everywhere and at all times simply because he is a human being. On the other hand,
Extradition Treaty between France and the Philippines. In Cleugh vs. Strakosh, it was held that some civil and political rights are not natural rights. They exist because they are protected by a
extradition treaty applies to crimes committed before its effectivity unless the extradition treaty Constitution or granted by law.
expressly exempts them. As Whiteman points out, extradition does not define crimes but merely
provides a means by which a State may obtain the return and punishment of persons charged with or For example, the liberty to enter into contracts is not a human right but a civil right.
convicted of having committed a crime who fled the jurisdiction of the State whose law has been
violated. It is therefore immaterial whether at the time of the commission of the crime for which
extradition is sought no treaty was in existence. If at the time the extradition is requested there is in
force between the requesting and the requested States a treaty covering the offense on which the
request is based, the treaty is applicable.
b. No. A cannot contest his extradition on the ground that it violates ex post facto provision of the
Constitution. As held in Wright vs. Court of Appeals, the prohibition against ex post facto laws in Sec.
22, Article III of the Constitution applies to penal laws only and does not apply to extradition treaties.
YEAR 1997 QUESTION
Diplomatic Immunity; Diplomatic Envoy and Consular Officers (1997) At the Nuremberg trial of the Nazi war criminals at the end of the World War II. the defense argued on
behalf of the German defendants that although a nation could not wage aggressive war without
QUESTION transgressing International law, it could use war as an Instrument of self-defense, and that the nation
X, a Secretary and Consul in the American Embassy in Manila, bought from B a diamond ring in the itself must be the sole judge of whether its actions were in self-defense. How would you meet the
amount of P50,000.00 which he later gave as a birthday present to his Filipino girlfriend. argument if you were a member of the Tribunal trying the case?
The purchase price was paid in check drawn upon the Citibank.
Upon presentment for payment, the check was dishonored for insufficiency of funds. SUGGESTED ANSWER:
Because of X's failure to make good the dishonored check, B filed a complaint against X in the Office of No rule of International law gives a state resorting to war allegedly in self-defense the right to determine
the City Prosecutor of Manila for violation of Batas Pambansa Big. 22. with a legally conclusive effect the legality of such action.
After preliminary investigation, the information was filed against X in the City Court of Manila. The Judgment of the Nuremberg International Military Tribunal rejected the defense of the Nazi war
X filed a motion to dismiss the case against him on the ground that he is a Secretary and Consul in the criminals:
American Embassy enjoying diplomatic immunity from criminal prosecution in the Philippines. "But whether action taken under the claim of self-defense was in fact aggressive or defensive must
If you were the Judge, how would you resolve the motion to dismiss? ultimately be subject to investigation and adjudication if international law is ever to be enforced."
SUGGESTED ANSWER:
If I were the Judge, I would grant the motion to dismiss. As consul, X is not immune from criminal ALTERNATIVE ANSWER:
prosecution. Under Paragraph 3 of Article 41 of the Vienna Convention on Consular Relations, a International law on self-defense cannot assume the nature of war. War requires "a declaration of war
consular officer is not immune from the criminal jurisdiction of the receiving state. In Schneckenburger giving reasons" under the Hague Convention II of 1907. Precisely, the Nazi war criminal were indicted
vs. Moron, 63 Phil. 249, it was held that a consul is not exempt from criminal prosecution in the country before the Nuremberg Tribunal for violating this Convention and were found guilty.
where he is assigned. However, as secretary in the American Embassy, X enjoys diplomatic immunity Since the Nazi war criminal argued that war as self-defense is understood by them as meaning "that the
from criminal prosecution As secretary, he is a diplomatic agent. Under Paragraph 1 of Article 31 of the nation itself must be the sole Judge of whether its action were in self- defense", it is clear that what they
Vienna Convention on Diplomatic Relations, a diplomatic agent enjoys immunity from the criminal had in mind in fact is "war as an instrument of national policy", not self-defense as an objective right
jurisdiction of the receiving State under International law.
Waging was as an instrument of national law is prohibited by the Pact of Paris of 1928 (Kellog - Braid
YEAR 1998 Part) of which Germany was already a state party before the Second World War. Precisely, the German
Sovereign Immunity of States; Absolute vs. Restrictive (1998) Reich was indicted before the Nuremberg Tribunal for violation of the Pact of Paris and the Nazi war
QUESTION criminals were found guilty of this as a war crime.
What is the doctrine of Sovereign immunity in international Law? [5%] Hence, the argument is itself an admission of violation of international law.
SUGGESTED ANSWER:
By the doctrine of sovereign immunity, a State, its agents and property are immune from the judicial
process of another State, except with its consent. Thus, immunity may be waived and a State may
permit itself to be sued in the courts of another State,
Sovereign immunity has developed into two schools of thought, namely, absolute immunity and
restrictive immunity. By absolute immunity, all acts of a State are covered or protected by immunity. On
the other hand, restrictive immunity makes a distinction between governmental or sovereign acts (acta
jure imperii) and nongovernmental, propriety or commercial acts (acta jure gestiones). Only the first
category of acts is covered by sovereign immunity.
The Philippine adheres to the restrictive immunity school of thought.
ALTERNATIVE ANSWER;
In United States vs. Ruiz, 136 SCRA 487. 490- 491. the Supreme Court explained the doctrine of
sovereign immunity in international law;
"The traditional rule of State immunity exempts a State from being sued in the courts of another State
without its consent or waiver, this rule is a necessary consequence of the principles of independence
and equality of states. However, the rules of International Law are not petrified, they are constantly
developing and evolving. And because the activities of states have multiplied. It has been necessary to
distinguish them — between sovereign and government acts [jure imperii] and private, commercial and
proprietary acts (jure gestionis), The result is that State immunity now extends only to acts jure
imperii."