COMPILED ESSAY QUESTIONS FOR MIDTERM PIL 2013-2014

1. CantheHouseofRepresentativestake
activepartintheconductofforeignrelations,
particularlyinenteringintotreatiesandinter
national agreements?
A: No.
It isthePresident alonewhocanact asreprese
ntativeof thenationintheconduct of foreign
affairs. AlthoughtheSenatehasthepower to
concur intreaties, thePresident alonecanneg
otiatetreatiesandCongressispowerlesstoint
rudeintothis.
However, if thematter involvesatreatyor ane
xecutiveagreement, theHRmaypassaresolut
ion expressingitsviewsonthematter.
2. How is state sovereignty defined in
international law?
Answer:
Sovereignty is defined the right to exercise in a
definite portion of the globe the functions of a
State to the exclusion of another State.
Sovereignty in the relations between States
signifies independence. Independence in
regard to a portion of the globe is the right to
exercise therein to the exclusion of any other
State, the functions of a State. (Island of
Palmas case: USA v. the Netherlands).
3. Q: What is the difference between
International Law and Municipal Law?
A: (from Cruz):
1. Municipal Law is a law of a sovereign over
those subjected to its sway, while International
Law is a law, not above, but between sovereign
states.
2. Municipal Law consists mainly of
enactments from the lawmaking authority of
each state, whereas International Law is
derived not from a particular legislation but
from sources such as international customs,
international conventions and the general
principles of law.
3. Municipal Law regulates the relations of
individuals among themselves or with their
own states while International Law applies to
relations inter se of states and other
international persons.
4. Violations of Municipal Laware redressed
through local administrative and judicial
processes whereas questions of international
law are resolved through state-to-state
transactions ranging from peaceful methods
like negotiations and arbitration to the hostile
acts of force like reprisals and even war.
4. Differentiate the Protective Principle and
the Universality Principle.
Answer:
The Protective Principlebases the jurisdiction
of a state on the interest of security of the
state itself and its people. Jurisprudence has
set limitations to such principle, in that the
threat to security be direct and specific to the
concerned state claiming jurisdiction.
The Universality Principleon the other hand,
bases the jurisdiction of a state on the nature
of the crime itself. Thisis without regard to the
nationalities of the parties and the place
where the crime was committed so long as the
crime is within what the international
community would consider a heinous crime or
a crime against humanity. Even when there is
no direct link betweenthe crime and the state,
what stands is the nature of the crime itself.
5. Is bail available in extradition cases?
Answer:
Yes. Jurisprudence has provided that it is
available in extradition cases because the rules
donot prohibit it. It is a not a criminal trial but
rather asui generis. Also, if bail can be granted
COMPILED ESSAY QUESTIONS FOR MIDTERM PIL 2013-2014
in deportation cases, there is no reason why it
should not be allowed in extradition cases.
6. B, an Egyptian and leader of a terrorist
group, hijacked a vessel in Philippine waters
and subsequently killed D, a Japanese citizen.
The Government of Japan then issued a
warrant of arrest against B charging him with
hostage taking, conspiracy and piracy. Bs
counsel argued, however, that Japanese
government has no jurisdiction to try him
because he is not its national. Is Bs
contention tenable? Decide.
Answer:
No, its untenable. One of the acknowledged
principles of jurisdiction in international law is
the Passive Personality Principle. It authorizes
states to assert jurisdiction over offenses
committed against their citizens abroad; that
they have interest to protect their citizens
although they are abroad. In this case, while it
is true that B is not Japanese, but based on the
abovementioned principle, still Japanese
government has the jurisdiction to try him
because the victim, D, was its national. The link
therefore is the nationality of the victim, D.
Therefore, Japanese courts validly acquired
jurisdiction over B.
Source: Bernas book, p. 172; Klinghoffer vs.
Achille Lauro
7. Under International Law, The Sea is
subject to the Right of Innocent Passage.
What does that mean? Enumerate at least 5
acts that are not considered Innocent
passage.
Answer:
Innocent passage is the Right of foreign vessels
to pass through the territorial waters,
especially those connecting two open seas,
provided the passage is innocent and not
prejudicial to the peace, good order or security
of the coastal state. The rule applies to ships
and aircrafts, as well.
In addition, Coastal states have the
unilateral right to verify the Innocent character
of passage and it may take the necessary steps
to prevent passage that it determines to be
not innocent. The passage of a foreign
vessel shall be considered to be prejudicial to
the peace, good order or security of the
coastal state if in the territorial seas, it engages
in any of the following activities:
(THE ENUMERATION IS FROM A TO L FOUND
IN PAGE 123 OF THE BERNAS BOOK.., atleast 5
lang ibutang.hehe. Thanks.)
8. How is international law and municipal law
treated in dualism?
Answer:
In dualism, international and municipal law are
treated as two different spheres of law which
is distinct from each other and differ in several
ways.
As to source, municipal law arises from custom
grown up within the boundaries of the State
and statutes enacted by law-making authority
while in international law it arises from custom
grown up among States and treaties entered
into by them.
As to the relations they regulate, municipal law
is a state- person relations and person- person
relations while in international law it is a state-
state relations.
As to substance, in municipal law is the law of
the sovereign is over individuals while in
international law the law is not over but
between states and therefore is the weaker
law.
Dualists put strong emphasis on state
sovereignty and treat the municipal/ domestic
law as the stronger law while international law
COMPILED ESSAY QUESTIONS FOR MIDTERM PIL 2013-2014
as the weaker law.
9. Differentiate an extradition proceeding
from a criminal proceeding:
Answer: An extradition proceeding is summary
in nature. The rules of evidence applied on it
are less stringent. In here, the quantum of
evidence required is only prima facie. In an
extradition proceeding furthermore, courts
may adjuge an individual extraditable but the
President has the final discretion to extradite
him.
On the other hand, a criminal proceeding
involves a full-blown trial. In here, the
quantum of evidence required is proof beyond
reasonable doubt. Judgment of a court
regarding this proceeding becomes executors
upon being rendered final.
10. On 1985, airline 114 a registerd plane and
flew under Jordanian flag was scheduled to
depart in kuya lumpur Malaysia . It never had
any flight nor flew under the Philippine
airspace. On board were several Filipinos ,
but before it's departure , 5 Arab nationals
hijacked it for almost 12 hours in the air
spaces of different country. Then it landed
back to Malaysia were the Arab guys made tv
conference and the blew the plane after. Mr.
X was among the highjackers who was
charged in the Philippine court. He then
contended that Philippines have no
jurisdiction to prosecute him since he was a
foreign national committed a crime in foreign
soil. Is he's contention meritorious.?
Answer:
No, it is unmeritorous . According to the case
of us v. Fawez yunis case, the universal
principle provides that certain offenses. That
are so heinous and so widely condemned , that
any state if it captures may punish and
prosecute the person on behalf of the world
community regardless of the nationality.
Aircraft piracy and hostage taking are heinous
crimes for the purpose of asserting universal
jurisdiction. Furthermore, under the passive
personality principle, it authorizes the state to
assert jurisdiction over offenses against their
citizen abroad. Also, in the hostage taking
convention it gives each signatory country the
discretion to exercise extraterritorial
jurisdiction with respect to the hostage victims
which is applicable in the case at bar. At the
same time , Philippine is a signatory of the
convention on May 2,1980 and ratified latest.
14, 1980which means it is obligatory and have
the discretion to take cognizance of the case.
11. The Martens Clause says:Until a more
complete code of laws of war has been issued,
the High Contracting parties deem it
expedient to declare that, in cases not
included in the Regulations adopted by them,
the inhabitants and belligerents remain under
the protection and the rule of the principles
of law of nations as they result from the
usages established among civilized peoples,
from the laws of humanity, and the dictates
of public conscience. (1899 Hague Peace
Convention)Discuss the relevance of this
clause in settling international disputes.
SuggestedAnswer:
It practically states that Laws of
HumanityandDictates of public
conscienceare principles of law which are
recognized as part of the protection
whichinternational lawprovides, even without
an actual written law specificallyprohibitingan
act. To quote Bernas:What the clause does is
to put laws of humanity and the dictates of
public conscience on the same level as
usages of states or usus thus suggesting
that even without practice or usus or at least
without consistent practice there can emerge
a principle of law based on laws of humanity
and the dictates of public conscience. In other
words, one need not wait for thousands of
civilians to be killed before a ban becomes
COMPILED ESSAY QUESTIONS FOR MIDTERM PIL 2013-2014
effective. (Emphasis supplied)
12. Myanmar ousted Thailand's government
and occupied the latter's territory for 20 years
from1992-2012. From1992-2009, Thailand
constantly held uprising against Myanmar's
established government. In 2013, Myanmar,
ceded Thailand to Veitnam through a treaty
and the latter successfully took over. Thailand
questioned said treaty holding that Myanmar
never had legal sovereignty over it as it had
constantly oppugned its occupation.
Myanmar on the other hand, argued that it
had legally obtained sovereignty over
Thailand by Conquest which is a recognized
mode of acquisition of sovereignty over a
territory. Is Myanmar correct?
ANSWER:
No, because conquest as a mode of acquisition
of sovereignty is no longer legal in
international law.
13. Discuss the kinds of Succession of states
and its effects to the properties, obligation,
and treaties to the territories.
Answer:
- Part of a territory becomes territory of
another state--- The properties in that
absorbed territory will belong to the absorbing
state. The obligations of the absorbed state as
to that territory will belong to the absorbing
state. The treaties entered in that territory will
cease and the treaties of the absorbing state
will come into force to that territory.
- One state is absorbed by another state---
Absorbing state acquires the properties, and
obligations of the absorbed state. Treaties
entered terminates. Absorbed state adheres to
absorbing states treaties.
- part of territory of one state becomes a
separate state--- properties, rights and
obligations of the territrory passes to new
state. New state does not succeed treaties
unless expressly or impliedly accepts such.
14. What are the modes of acquiring
territorial sovereignty?
Answer:
Acquisition of Territorial Sovereignty
International law generally recognizes five
modes of acquiring territorial sovereignty by a
state, they are
(1) Occupation: When a particular territory is
not under the authority of any other state, a
state can establish its sovereignty over such
territory by occupation. The territory may
never have belonged to any state, or it may
have been abandoned by the previous
sovereign.
The PCIJ( permanent court of international
justice) held that the occupation to be
effective must consist of the following two
elements
(i) intention to occupy. Such intention must be
formally expressed and it must be permanent.
(ii) occupation should be peaceful, continuous.
There mere act of discovery by one state
is not enough to confer a title by occupation.
There are two requirements (i) the territory
subject to claim must not be under the
sovereignty of nay state ( terra nullius) (ii) the
state must have effectively occupied the
territory.
(2) Annexation: Annexation means to
incorporate (territory) into the domain of a
country. Annexation is a unilateral act where
territory is seized by one state. It can also
imply a certain measure of coercion,
expansionism or unilateralism. e.g 1961
COMPILED ESSAY QUESTIONS FOR MIDTERM PIL 2013-2014
annexation of Goa. Annexation of Golan
Heights by Israel in 1967.
(3) Accretion: Where a new territory is added
mainly through natural causes to territory
already under the sovereignty of a state,
acquisition by accretion takes place. Accretion
refers to the physical expansion of an existing
territory through geographical process.
(4) Cession: When a state transfers its territory
to another state, acquisition by cession takes
place in favour of such later state. The cession
of territory maybe voluntary or maybe under
compulsion as a result of war. The act of
cession maybe even in the nature of a gift, sale,
exchange or lease. Cession is the transfer of
territory usually by treaty from one state to
another. e.g France cession of Louisiana to U.S
in 1803. cession of Alaska. Purchases of Alaska
by U.S (from Russia in 1867).
(5) Prescription: It means continued
occupation over a long period of time by one
state of territory actually and originally
belonging to another state. Requirements of
prescription (i) the possession must be
peaceful (b) the possession must be public (iii)
the possession must be for a long period of
time.
Prescription is the acquisition of territory
which belonged to another state, where as
occupation is acquisition of terra nullius.
However, international law doesnot prescribe
any fixed period for prescription.
The acquisition of territory by force was
historically recognized as a lawful method for
acquiring sovereignty, but has been illegal in
international law since the U.N charter came
into force.
15. Define the Hot Pursuit.
Answer:
Right of hot pursuit is available to a coastal
state to pursue into the high seas a foreign
vessel for infraction of its laws and regulations.
16. A cargo ship, registered in the United
Sates, sailing bound to United Arab Emirates
was abducted by pirates while in the Arabian
Sea but eventually apprehended by the
Yemen officials. Where can the case be tried?
Suggested answer:
Any of the mentioned States. Piracy is an
international crime. Applying the universality
principle, certain activities that is universally
dangerous to the state and their subjects,
require authority in all community members to
punish such acts wherever they may occur.
This crime which struck at the whole of the
mankind and shocked the conscience of nation
is against the law on nations. The jurisdiction
to try this crime under the international law
is universal.
17. What are the two rules in determining
jurisdiction over foreign vessels in Philippine
territory? Define & explain.
Answer:
The 2 fundamental rules are the French rule &
English rule.French rule- crimes committed
aboard a foreign merchant vessel should not
be prosecuted in the courts of the country
within whose territory jurisdiction they were
committed.English rule- crimes perpetrated
under such circumstance are in general triable
in the courts of the country within whose
territory they were committed. Philippines
follow the English rule.
18. Define the clean slate rule. What is its
exception?
COMPILED ESSAY QUESTIONS FOR MIDTERM PIL 2013-2014
Answer:
It means that a newly independent State is not
bound to maintain in force, or to become a
party to, any treaty by reason only of the fact
that at the date of the succession of States the
treaty was in force in respect of the territory
which the succession of States relates.
This rule does not apply to boundary regimes.
19. MV Chonghua, a Chinese-registered ship,
carrying an opium traversed the Philippine
port while on its way to Indonesian
port. The Philippine coast guard sought to
penalize the crew of MV Chonghua for
possession of opium since the Philippine law
punishes mere possession and transportation
of such dangerous drug under Sections 5 and
11 of RA 6125 . MV Chonghua crew opposed
and argued that the Philippine courts has no
jurisdiction over their ship since it is not a
Philippine-registered ship and that mere
possession and transportation of opium did
not produce any pernicious effect on
Philippine public order. Is the contention of
MV Chonghua crew tenable. Decide.
Answer:
No. The contention of MV Chonghua crew are
untenable and lacks merit. According to the
Philippine law, in case of foreign merchant
vessel traversing within Philippine territory, its
jurisdiction is limited only to offenses on board
which compromises the peace of the port. In
this case, mere possession of opium has no
pernicious effect within the territory of the
Philippines. Therefore, Philippine court has no
jurisdiction.
20. Is custom binding in all states?
Answer:
Generally, states are bound by custom.
Exception when the state, from the beginning,
has expressly objected to the applicability of
the said customary behavior to its own state.
This is called the principle of persistent
objector.
21. What is the difference between an
International organization and an
International Non-governmental
Organization?
Answer:
An international organization is an
organization that is set up by treaty between
and among two or more states. NGO is set up
by private persons.
22. Is a treaty superior to customary law?
Answer: Generally, NO, because they are equal
in the hierarchy of international law. Treaties
and Customary law are usually taken as
complementary with each other. A treaty is
generally entered upon into for reasons of
establishing a customary law. But a later treaty
may be taken as superior in repealing a prior
customary law.
23. Is there Stare Decisis in International Law?
Explain your answer.
Answer:
No, there is no Stare Decisis in International
Law becausefirst, the ICJ only derives its
jurisdiction from the consent of the
Stateparties coming before it, and submitting
themselves to the jurisdiction of the Court.
Without this consent, the ICJ has no
jurisdiction at all to determine the rights and
obligations of States. Second, Article 59 of the
Statute expressly provides so. Therefore, the
effect of this would be that State-parties
cannot oblige the court to decide on their case
in the same manner that the Court decided in
previous similar cases. At most, these
decisions are highly persuasive but not binding
upon the Courts.
24. What do you understand with the term
COMPILED ESSAY QUESTIONS FOR MIDTERM PIL 2013-2014
jus cogens? Explain.
Answer:
Those principles that form the norms of
international law that cannot be set aside.
or;-Refers to certain fundamental, overriding
principles of international law, from which no
derogation is ever permitted.
25. Distinguish protective principle from
universality principle (p
156-157)
Answer:
The protective principle says that a state may
exercise jurisdiction over conduct outside its
territory that threatens its security, as long as
that conduct is generally recognized as
criminal by states in the international
community. This conditional clause excludes
acts committed in exercise of the liberty
guaranteed an alien by the law of the place
where the act was committed. The examples
given of acts covered by the protective
principle are plots to overthrow the
government, forging its currency, and plot to
break its immigration regulations. Furthermore,
because this principle gives states wide
latitude in defining the parameters of their
jurisdiction, the international community has
strictly construed the reach of this doctrine to
those offenses posing a direct, specific threat
to national security.
Whereas the universality principle recognizes
that certain activities, universally dangerous to
states and their subjects, require authority in
all community members to punish such acts
wherever they may occur, even absent a link
between the state and the parties or the acts
in question. This principle started with piracy.
Piracy in international law means any illegal
act of violence or depredation committed for
private ends on the high seas or outside the
territorial control of any state. Now the
principle covers not just piracy but also
genocide, crimes against humanity, war crimes,
aircraft piracy and terrorism. There is also a
growing support for universal jurisdiction over
crimes against human rights.
26. Since stateless persons are not protected
by any state, who protects them & how are
they protectedagainst human rights
violations?
The host state is under the obligation to
protect. The state where such stateless
persons are currently in. In Mejoff v. Director
of Prisons, they are protected under the
generally accepted principles of international
law including the Universal Declaration of
Human Rights. Theyshall be placed under the
surveillance of the immigration authorities or
their agents in such form and manner as may
be deemed adequate.
27. In a conflict between two states, State
A sent its Minister of Foreign Affairs to
negotiate with State B for the purpose of
reaching an agreement to divide a contested
territory and its resources into half excluding
minerals and oil. For the subsequent days, an
agreement seems far to reach. However, the
public was just shocked one day that an
agreement has been concluded. An
assemblyman signed a treaty which provides
that only of the island and its resources
belong to such state including minerals and
oil. Decide on the validity of the conclusion of
the agreement.
Suggested Answer:
The treaty produces no legal effect. For a
treaty to have effect, the one signing it must
have full powers. In the facts of the case, it has
not been shown that the assemblyman has
been given full powers. He is not even among
those exempted from providing full powers by
virtue of their function.
28. May a treaty violate international law? If
COMPILED ESSAY QUESTIONS FOR MIDTERM PIL 2013-2014
your answer is in the affirmative, explain
when suchmay happen. If your answer is in
the negative, explain why.
Answer:
Yes, a treaty may violate international law
when at the time of its conclusion, it conflicts
with aperemptory norm of general
international law (jus cogens) or if its
conclusion has been procured by the threat or
use of forcein violation of the principles of
international law embodied in the
Charter of the United Nations. (Vienna
Convention onthe Law of Treaties, Arts. 52 &
53)
29. What is the effect of the growing
importance of the individual person in public
international law with regard to Extradition?
(From Leah - no answer included, can't wait for
her update kay late nah)
30. Elaborate the concept of peaceful
co-existence.
Answer:
To live together without hostility or conflict
despite differences in political system.
31. Distinguish between dejure recognition
and defacto recognition.
Answer:
De-facto recognition is the provisional
recognition of another country. De jure
recognition is the official and full length
recognition to a state.