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Suggested ANSWERS to the 2010 BAR EXAM Questions on Public International a!

b" Att"# Ral$h Sar%iento&s Bar E'a% Noteboo(s on )uesda"* Se$te%ber +* 2010 at ,-2.a% Copyright 2010 by Atty. Ralph A. Sarmiento. All Rights Reserved. I. The dictatorial regime of resident A of the Rep!blic of "ordon #as toppled by a combined force led by "en. Abe$ former royal g!ards and the secessionist "ordon eople%s Army. The ne# government constit!ted a Tr!th and Reconciliation Commission to loo& into the serio!s crimes committed !nder resident A%s regime. After the hearings$ the Commission recommended that an amnesty la# be passed to cover even those involved in mass &illings of members of indigeno!s gro!ps #ho opposed resident A. International h!man rights gro!ps arg!ed that the proposed amnesty la# is contrary to international la#. 'ecide #ith reasons. ()*+ Suggested Ans!erThe proposed amnesty la# is contrary to international la#. The indigeno!s gro!p may constit!te an ethnic gro!p #hich is protected by the la# on "enocide. If the mass &illing #as committed #ith the intent to destroy (dol!s specialis+ the said ethnic gro!p as s!ch$ in #hole or in part$ then the crime of "enocide #as committed. The international norm for the prevention$ prosec!tion and p!nishment of "enocide is a peremptory (,!st cogens+ norm of international la# and$ therefore$ non-derogable. ( rosec!tor v. .lago,evic and /o&ic$ ICT0$ /an!ary 11$ 2002+ 3ven if the mass &illing #as not committed #ith the dol!s specialis to destroy the ethnic gro!p as s!ch$ the same may still constit!te the Crime Against 4!manity of 35termination if the mass &illing #as #idespread and systematic or the 6ar Crime of Intentionally Attac&ing Civilians if the same too& place in the conte5t of or #as associated #ith an armed conflict. The norm for the prevention$ prosec!tion and p!nishment of crimes against h!manity and #ar crimes are also c!stomary norms of international and therefore binding on all States. ( rosec!tor v. Sta&ic$ ICT0$ /!ly 71$ 2007+ Th!s$ Rep!blic of "ordon has the obligation !nder international la# to prosec!te and p!nish all those involved in the mass &illing of the members of the indigeno!s gro!p and providing amnesty to those involved is violative of this obligation. II. Compare and contrast the ,!risdiction of the International Criminal Co!rt and International Co!rt of /!stice. (7*+ Suggested Ans!erThe ,!risdiction of the International Criminal Co!rt (ICC+ primarily deals #ith the prosec!tion of individ!als for core international crimes$ #hile the ,!risdiction of the International Co!rt of /!stice (IC/+ deals #ith contentio!s proceedings bet#een States. As to s!b,ect matter ,!risdiction (ratione materiae+$ the ,!risdiction of the ICC is limited to the most serio!s crimes of concern to the international comm!nity as a #hole$ partic!larly8 (a+ the Crime of "enocide9 (b+ Crimes against 4!manity9 (c+ 6ar crimes9 and (d+ the Crime of Aggression. (R. Sarmiento$ !blic International :a# .ar Revie#er$ 200; Revised 3dition$ p. 70<+. =n the other hand$ the ,!risdiction of the IC/ covers legal disp!tes #hich the States refer to it. This incl!des disp!tes concerning8 (a+ the interpretation of a treaty9 (b+ any >!estion of international la#9 (c+ the e5istence of any

fact #hich$ if established$ #o!ld constit!te a breach of an international obligation9 and (d+ the nat!re or e5tent of the reparation to be made for the breach of an international obligation. (Article 7?$ IC/ Stat!te+ The IC/ also has ,!risdiction to give an advisory opinion on any legal >!estion as may be re>!ested by the "eneral Assembly or the Sec!rity Co!ncil or on legal >!estions arising #ithin the scope of the activities of other organs and speciali@ed agencies of the A.B. !pon their re>!est and #hen so a!thori@ed by the "eneral Assembly. (Article ;?$ A.B. Charter+ As to ,!risdiction over the persons or parties (ratione personae+$ the ICC shall have the po#er to e5ercise its ,!risdiction over persons for the most serio!s crimes of international concern$ and shall be complementary to national criminal ,!risdictions. (Art. 1$ Rome Stat!te+ =n the other hand$ only States may be parties in cases before the IC/ and their consent is needed for the IC/ to ac>!ire ,!risdiction. (R. Sarmiento$ !blic International :a# .ar Revie#er$ 200; Revised 3dition$ p. 1<2+ III. A$ a .ritish photo,o!rnalist$ #as covering the violent protests of the Thai Red-Shirts Covement in .ang&o&. 'espite #arnings given by the Thai rime Cinister to foreigners$ specially ,o!rnalists$ A moved aro!nd the Thai capital. In the co!rse of his coverage$ he #as &illed #ith a stray b!llet #hich #as later identified as having come from the ran&s of the Red-Shirts. The #ife of A so!ght relief from Thai a!thorities b!t #as ref!sed assistance. A. Is there state responsibility on the part of ThailandD (2*+ .. 6hat is the appropriate remedy available to the victim%s family !nder international la#D (7*+ Suggested Ans!erA. Bo$ there is no state responsibility on the part of Thailand beca!se the acts of the Thai Red-Shirts #ere not the acts of Thailand. Ander the rinciple of Attrib!tion or Imp!tation$ a State only inc!rs liability for individ!al acts or omission #hich can be attrib!ted to it. The Thai Red-Shirts are not its officials$ agents$ or representatives and they #ere not acting on the instr!ctions of$ or !nder the direction or control of$ the Thai "overnment. (R. Sarmiento$ !blic International :a# .ar Revie#er$ 200; Revised 3dition$ pp. ?2-??+ .. Anless the Red-Shirts becomes the ne# "overnment of Thailand or Thailand ac&no#ledges and adopts the cond!ct of the Red-Shirts as its o#n$ the victim%s family has no appropriate remedy !nder international la#. Their remedy$ if any$ if only available !nder the domestic la#s of Thailand by the instit!tion of the appropriate criminal cases against the persons responsible for A% &illing and the filing of an action to recover damages arising from A%s death. IE. Choose the statement #hich appropriately completes the opening phrase8 FA State #hich resorts to retorsion in international la# A. m!st ens!re that all states consent to its act.G .. cannot c!rtail migration from the offending state.G C. can e5pel the nationals of the offending state.G '. sho!ld apply proportionate response #ithin appreciable limit.G 3. Bone of the above. 35plain yo!r ans#er. (2*+ Suggested Ans!er'. FA State #hich resorts to retorsion in international la#

sho!ld apply proportionate response #ithin appreciable limits.G Retorsion consists in retaliation #here the acts complained of do not constit!te a legal gro!nd of offense b!t are rather in the nat!re of !nfriendly acts done primarily in p!rs!ance of legitimate State interests b!t indirectly h!rtf!l to other States. (R. Sarmiento$ !blic International :a# .ar Revie#er$ 200; Revised 3dition$ p. 277+ To be valid in international la#$ acts of retorsion sho!ld not be e5cessive #hen compared to the !nfriendly acts committed by the offending State. Coreover$ they sho!ld not violate a State%s obligation !nder Article 2(7+ of the A.B. Charter to settle their disp!tes by peacef!l means in s!ch a manner that international peace and sec!rity and ,!stice are not endangered. HI. 6hich statement best completes the follo#ing phrase8 (1*+ FIreedom from tort!re is a right A. s!b,ect to derogation #hen national sec!rity is threatened.G .. confined only d!ring c!stodial investigation.G C. #hich is non-derogable both d!ring peacetime and in a sit!ation of armed conflict.G '. both (a+ and (b+ 3. none of the above. Suggested Ans!erC. FIreedom from tort!re is a right #hich is non-derogable both d!ring peacetime and in a sit!ation of armed conflict.G Article 2(2+ of the A.B. Convention Against Tort!re provides that FBo e5ceptional circ!mstances #hatsoever$ #hether a state of #ar or a threat of #ar$ internal political in stability or any other p!blic emergency$ may be invo&ed as a ,!stification of tort!re.G .eca!se of the importance of the val!es it protects$ the prohibition of tort!re has evolved into a peremptory norm or ,!s cogens$ that is$ a norm that en,oys a higher ran& in the international hierarchy than treaty la# and even ordinary c!stomary r!les. The most conspic!o!s conse>!ence of this higher ran& is that the norm prohibiting tort!re cannot be derogated from by States thro!gh international treaties or local or special c!stoms or even general c!stomary r!les not endo#ed #ith the same normative force. ( rosec!tor v. I!r!nd@i,a$ ICT0$ 'ecember 10$ 1;;<+ HHEII. 6hat is the concept of association !nder international la#D (2*+ Suggested Ans!erAnder international la#$ an association is formed #hen t#o states of !ne>!al po#er vol!ntarily establish d!rable lin&s. In the basic model$ one state$ the associate$ delegates certain responsibilities to the other$ the principal$ #hile maintaining its international stat!s as a state. Iree associations represent a middle gro!nd bet#een integration and independence. (C.I. Jeitner and 6.C. Reisman$ Iree Association8 The Anited States 35perience$ 7; Te5. IntKl :./. 1 (2007++. In international practice$ the Lassociated stateL arrangement has !s!ally been !sed as a transitional device of former colonies on their #ay to f!ll independence. 35amples of states that have passed thro!gh the stat!s of associated states as a transitional phase are Antig!a$ St. Jitts-Bevis-Ang!illa$ 'ominica$ St. :!cia$ St. Eincent and "renada. All have since

become independent states. (4en&in$ et al.$ International :a#8 Cases and Caterials$ 2nd ed.$ 21) (1;<1++ In deciding the constit!tionality of the Cemorand!m of Agreement on the Ancestral 'omain (C=A-A'+ Aspect of the "R -CI:I Tripoli Agreement on eace of 2001$ the S!preme Co!rt had r!led that the concept of association !nder international la# is not recogni@ed !nder the 1;<1 Constit!tion as it r!ns co!nter to the national sovereignty and territorial integrity of the Rep!blic. ( rovince of Borth Cotabato v. "R eace anel on Ancestral 'omain$ ".R. Bo. 1<72;1$ =ct. 1)$ 200<+