2020 TAKE-HOME FINAL EXAMINATION

PUBLIC INTERNATIONAL LAW (II-A | II-E)

24 June 2020
INSTRUCTIONS

1. This exam contains nine (9) pages including the Instructions page. Save the file as PIL.Finals.20
[Block].doc/x. Hence, if you’re from Block X, your filename should be PIL.Finals.20 X.doc or .docx.

There are four (four) situations. You can choose to tackle either one, two, or four situations only.
(Do not choose three.) The possible points will be divided among the questions you choose to
answer (i.e. you choose to answer one, then that one will be worth 100 pts; if you choose two, then
each would be worth 50 pts, so on.)

No matter how many questions you choose the total word count should not exceed 3,500 words
(excluding footnotes). You have twenty-four (24) hours.

2. Read each question very carefully and type your answers in the document in the same order the
questions are posed. In your answers, use the numbering system in the questionnaire.

3. Answer the Essay questions clearly, and concisely. Citations, syntax, grammar, and flow of your
answers will factor into your grade. There is no required citation format but citations must be
consistent and complete. Start each number on a separate page. (Use a page break.) An answer
to a sub-question under the same number may be written continuously on the same page and the
immediately succeeding pages until completed.

Your answer should demonstrate your ability to analyze the facts presented by the question, to select
the material from the immaterial facts, and to discern the points upon which the question turns. It
should show your knowledge and understanding of the pertinent principles and theories of law
involved and their qualifications and limitations. It should demonstrate your ability to apply the law to
the given facts, and to reason logically in a lawyerlike manner to a sound conclusion from the given
premises.

A mere "Yes" or "No" answer without any corresponding explanation or discussion will not be given
any credit. Remember your six assignments and the kinds of answers that merited higher marks.
You may consult the rubric. Thus, always briefly but fully explain your answers even when the
question does not expressly ask for an explanation. At the same time, remember that a complete
explanation does not require that you volunteer information or discuss legal doctrines that are not
necessary or pertinent to the solution to the problem. You do not need to re-write or repeat the
question in the document.

4. Make sure you do not write any extraneous note/s or distinctive marking/s on your document that
can serve as an identifying mark/s (such as names that are not in the given questions, prayers, or
private notes to the professors).

Writing, leaving or making any distinguishing or identifying mark on the document is considered
cheating and may result in disciplinary action.

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Your answers should present a firm foundation of the legal concepts in Public International Law and not simply
your opinion. You must be able to utilize the appropriate concepts to demonstrate your understanding of the legal
implications of the situation.

I. Pag-Asa Island

“Pag-asa Island residents celebrate Independence Day, while a Chinese Coast Guard ship observes
from a distance.” Source: GMA News (@gmasnews), Twitter (June 12, 2020, 3:01 PM),
https://twitter.com/gmanews/status/1271336782307745792

You are a member of the staff of the either the (1) Philippines’ Secretary of Foreign Affairs, (2) US’
Secretary of State, or (3) PRC’s Minister of State. You receive the above information. Prepare a policy
brief with a recommendation on how to handle the situation including a discussion of the particular
legal mechanisms to be utilized. (Select one perspective, two, or all perspectives.)

II. Independence Day Statements Relating to the COVID-19 Pandemic

On 12 June 2020, in a statement, President Rodrigo Duterte claimed that the Philippines would be
prioritized if China develops a vaccine for COVID-19. This claim was based on his phone conversation
with President Xi Jinping. China had released the following statement the day before.

Interestingly, US Defense Secretary Mark Esper claimed that any vaccines the US would develop would
be immediately shared with its allies in a conversation with Philippine Defense Secretary Maj. Gen.
Delfin Negrillo Lorenzana.

Discuss the weight of these statements and their implications under International Law.

Source: Chinese Embassy Manila, Facebook (June 11, 2020, 8:02 AM),
https://www.facebook.com/ChinaEmbassyManila/posts/1346591498871254

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 #45yearsCNPH
#19thCNPHFriendshipDay
Chinese President Xi Jinping had one telephone conversation with Philippine President Duterte on
the evening of June 11.
Xi Jinping stressed that since the outbreak of COVID-19, the governments and people of China and
the Philippines have helped each other and fought the pandemic together, demonstrating the
brotherly friendship of mutual help.
I am glad to see that under your leadership, the Philippines has introduced a series of strong
prevention and control measures and achieved positive results.
I believe the Filipino people will certainly carry forward the spirit of unity and cooperation,
successfully overcome the pandemic situation as soon as possible and restore production and living
order.
China is willing to continue to provide firm support to the Philippines according to the needs.
China upholds the concept of a community of shared future for mankind, provides funds,
experience and confidence for global prevention and control, and extends a helping hand to
countries in need.
China is willing to work closely with the Philippines to support the international community in
uniting against the epidemic, WHO to better play its leading role and jointly build a human health
community.
Xi Jinping stressed that the pandemic is a crisis, but we should have the courage to seize new
opportunities in the crisis and open an innovation bureau in the changing situation.
Under the condition of normalization of pandemic prevention and control, China and Philippines
should innovate ideas and methods, gradually resume necessary personnel exchanges, promote
practical cooperation in various fields as a whole, and help their respective economic and social
development for the benefit of the two peoples.
I believe that in the process of fighting the pandemic and resuming development, the traditional
friendship and mutual trust between China and the Philippines will deepen over time, and the
comprehensive strategic cooperation between the two countries will usher in a broader
development prospect.
China and the Philippines adhere to friendship, which fully conforms to the fundamental and long-
term interests of the two peoples. History will certainly prove this point.
Duterte said that this year marks the 45th anniversary of the establishment of diplomatic relations
between the Philippines and China, which is an important milestone in the relations between the
two countries.
Under your strong leadership, China has not only successfully controlled the pandemic itself, but
also generously extended a helping hand to partners such as the Philippines.
In particular, President Xi Jinping announced that China's vaccine will be used as a global public
product after its research and development are completed and put into use, which will benefit all
mankind.
The Philippines will always be a friend of the Chinese people and will not allow anyone to use the
Philippines to engage in anti-China activities.
The Philippines is committed to deepening the friendship between the two peoples and hopes to
expand exchanges and cooperation with China in various fields and promote the resumption of
work and production as soon as possible.
The Philippines is willing to continue to strengthen cooperation with China and WHO.

Source: Department of National Defense – Philippines (@DNDPHL), Facebook (June 16, 2020,
3:00 AM),
https://www.facebook.com/DNDPHL/photos/a.177413328982358/3185917501465244/?type=3&t
heater

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 SND and US Secretary of Defense hold telephone conference

Secretary of National Defense Delfin N. Lorenzana and US Secretary of Defense Mark T. Esper
held a conference call on Friday, 12 June 2020, to discuss developments on Philippines-US
bilateral defense relations.

Secretary Esper expressed his appreciation for the DND’s support for the Philippine Government’s
decision to suspend the termination of the Agreement Regarding the Treatment of US Armed
Forces Visiting the Philippines (VFA).

Secretary Lorenzana took the opportunity to share the Philippines’ response to the Coronavirus
Disease (COVID-19) pandemic, and expressed appreciation for the medical assistance and
donations of medical supplies provided by the US government. Secretary Esper mentioned that
developments on vaccines and therapeutics in the US are making very good progress, and
expressed their willingness to share them with US allies and partners once available.

The discussion also covered the security situation in the South China Sea (SCS), counter-terrorism
and logistics cooperation, particularly on the capability upgrades of the Armed Forces of the
Philippines (AFP). Both sides committed to sustain dialogues amidst the pandemic and strengthen
cooperation between the two defense establishments.

#OneDefenseTeamPH

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 III. North and South Korea Tensions

Prepare a policy brief for either (1) the UN Secretary General; (2) the current UN Security Council
President; (3) South Korea’s Foreign Minister; or (4) North Korea’s Foreign Minister tackling the
possible actions following the incident on the 16th of June 2020. Include a discussion of any action
you believe may be taken and the mechanisms available.

North Korea blows up inter-Korean liaison office near border with South
Source: North Korea blows up inter-Korean liaison office near border with South, AGENCE
FRANCE-PRESSE, June 16, 2020, available at https://www.rappler.com/world/regions/asia-
pacific/263963-north-korea-blows-up-liaison-office-with-
south?utm_source=twitter&utm_medium=social&utm_campaign=world

SEOUL, South Korea (4th UPDATE) – North Korea blew up an inter-Korean liaison office on its
side of the border on Tuesday, June 16, after days of increasingly virulent rhetoric from
Pyongyang.

The demolition came after Kim Yo-jong – the powerful sister of North Korean leader Kim Jong-un
– said at the weekend the "useless north-south joint liaison office" would soon be seen "completely
collapsed."

Footage of the explosion released by Seoul's presidential Blue House showed a blast rolling across
several buildings just across the border in Kaesong, with a nearby tower partially collapsing as
clouds of smoke rose into the sky.

Analysts say Pyongyang may be seeking to manufacture a crisis to increase pressure on Seoul
while nuclear negotiations with Washington are at a standstill.

After an emergency meeting, the National Security Council said it would "react strongly" if
Pyongyang "continues to take steps that aggravate the situation."

"All responsibility for repercussions stemming from this action falls squarely on the North," it
added.

The liaison office – in a dormant industrial zone where Southern companies once employed
Northern workers – was opened in September 2018, days before the South's President Moon Jae-in
flew to Pyongyang for his third summit with Kim.

Around 20 officials from each side were stationed at the office during subsequent months.

But inter-Korean relations soured following the collapse of the Hanoi summit between Kim and US
President Donald Trump in February last year over sanctions relief and what the North would be
willing to give up in return.

Operations at the office were suspended in January because of the coronavirus pandemic.

And since early June, North Korea has issued a series of vitriolic condemnations of the South over
activists sending anti-Pyongyang leaflets over the border – something defectors do on a regular
basis.

Pyongyang's official Korean Central News Agency said Tuesday the liaison office's destruction
was in line with "the mindset of the enraged people to surely force human scum and those who
have sheltered the scum to pay dearly for their crimes."

Last week Pyongyang announced it was severing all official communication links with Seoul.

"North Korea has started a provocation cycle with stages of escalation," said Leif-Eric Easley, a
professor at Ewha University in Seoul, calling the destruction of the office "a symbolic blow to
inter-Korean reconciliation and cooperation."

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 "The Kim regime is also signaling the United States won't have the luxury of keeping North Korea
on the back-burner for the remainder of the year," he added.

Relations soured

Since Pyongyang condemned the leaflet launches – usually attached to hot air balloons or floated
in bottles – the Unification ministry has filed a police complaint against two defector groups and
warned of a "thorough crackdown" against activists.

On Monday, June 15, the left-leaning Moon urged the North not to "close the window of dialogue."

The two Koreas remain technically at war after Korean War hostilities ended with an armistice in
1953 that was never replaced with a peace treaty.

Last week the North criticized Trump in a stinging denunciation of the US on the second
anniversary of the Singapore summit, with its foreign minister Ri Son-gwon accusing Washington
of seeking regime change.

US diplomats insist that they believe Kim promised in Singapore to give up his nuclear arsenal,
something Pyongyang has taken no steps to do.

The North is under multiple international sanctions over its banned weapons programs.

It believes it deserves to be rewarded for its moratorium on nuclear and intercontinental ballistic
missile tests and the disabling of its atomic test site, along with the return of jailed US citizens and
remains of soldiers killed in the Korean War.

"Nothing is more hypocritical than an empty promise," Ri said in his statement, carried by the
official KCNA news agency.

Cheong Seong-chang, director of the Sejong Institute's Center for North Korean Studies, said:
"North Korea is frustrated that the South has failed to offer an alternative plan to revive the US-
North talks, let alone create a right atmosphere for the revival.

"It has concluded the South has failed as a mediator in the process.

IV. Superpower v. Multinational Corporation

After US President Donald J. Trump slammed 3M, its stock fell by 2.5% “wiping around $2 billion
from its market capitalization. The decline outpaced a 1.5% drop for the Dow Jones Industrial
Average.”1

Discuss the US’ or 3M’s obligations to other states, or the international community in general, in light
of the pandemic and the worldwide shortage. Determine if any dispute settlement mechanisms are
available to other states. You may take the perspective of a particular state or international
organization or 3M.

Trump Seeks to Block 3M Mask Exports and Grab Masks From Its
Overseas Customers
Source: Ana Swanson and Zolan Kanno-Youngs, and Maggie Haberman, Trump Seeks to Block 3M
Mask Exports and Grab Masks From Its Overseas Customers, N.Y.TIMES, Apr. 3, 2020,
https://www.nytimes.com/2020/04/03/us/politics/coronavirus-trump-3m-masks.html

WASHINGTON — The Trump administration is using a Korean War-era law to redirect to the
United States surgical masks manufactured by 3M in other countries as part of a heated pressure
campaign to force the Minnesota company to cut off sales of surgical masks abroad.

1
Theron Mohamed, 'Big price to pay!': Trump blasts 3M after ordering the N95 mask maker to boost US
production, BUSINESS INSIDER, Apr. 3, 2020, https://markets.businessinsider.com/news/stocks/big-price-pay-
trump-blasts-3m-orders-n95-production-2020-4-1029062021?op=1
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 The policy is a significant expansion of the American government’s reach and a reversal of
President Trump’s hesitant use of the Defense Production Act, which allows the administration to
force a company to prioritize the U.S. government over competing orders.

But in this case, the administration is invoking the law to compel 3M to send to the United States
masks made in factories overseas and to stop exporting masks the company manufactures in the
United States. Those moves, some trade and legal experts fear, could backfire and prompt foreign
governments to clamp down on desperately needed medical necessities destined for the United
States.

On Friday evening, the Trump administration issued an executive order directing federal
emergency management and health officials to use the law’s authority to preserve respirators,
surgical masks and surgical gloves for domestic use.

In an accompanying statement, Mr. Trump criticized “wartime profiteers,” which he said included
speculators, warehouse operators and some well-established distributors with the ability to
“unscrupulously” divert inventory from hospitals and state governments to foreign purchases that
are willing to pay a premium.

“Nothing in this order will interfere with the ability of P.P.E. manufacturers to export when doing
so is consistent with United States policy and in the national interest of the United States,” the
statement added, referring to makers of personal protective equipment.

Peter Navarro, the White House trade adviser who has been put in charge of policy related to the
act, leveled a broadside on Friday against 3M, all but accusing it of disloyalty.

“While hundreds of other large American multinationals are stepping up with pride and patriotism,
3M remains an outlier and its propaganda war must stop,” Mr. Navarro said in an interview, adding
that the company was “operating like a sovereign profit-maximizing nation internationally.”

In a segment on Fox News Thursday night, Jared Moskowitz, the director of the Florida Division
of Emergency Management, said that 3M officials had told him they could not fulfill the state’s
order for protective gear until they satisfied contracts for foreign customers.

In a statement on Friday, 3M defended its actions and said the administration had also asked it to
stop exporting respirators made in the United States to Canada and Latin America — a request it
said carried “significant humanitarian implications” for people in those areas.

Mr. Navarro denied the administration had made that demand, but he said the White House was
using the wartime act to provide “all of the N95 respirators it can possibly muster to prevent
Americans from dying.”

He accused the company of diverting supplies from hospitals and health care providers overseas to
make a profit.

3M said that the administration had used the Defense Production Act to request that the company
increase the number of respirators that it imported into the United States from its overseas
operations, and that it was complying. This week, 3M said, it secured approval from China to
export to the United States 10 million N95 respirators that the company manufactures there.

But the company warned against moves to stop its exports.

“Ceasing all export of respirators produced in the United States would likely cause other countries
to retaliate and do the same, as some have already done,” 3M said. “If that were to occur, the net
number of respirators being made available to the United States would actually decrease. That is
the opposite of what we and the administration, on behalf of the American people, both seek.”

That plea was ignored at the White House on Friday, where the president and Mr. Navarro
appeared determined to wage war on 3M.

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 “All we get from the C.E.O. on down to the head of their P.R. department is lie upon lie, the latest
of which — which is dead wrong — is that we demanded 3M not send production from its U.S.
plants to our friends and allies in Canada and Mexico,” Mr. Navarro said.
ImagePeter Navarro, the White House adviser who has been put in charge of policy related to the
Defense Production Act, said that an executive order the president signed this week was aimed at
directing 3M’s production to the Americans who needed it most.
Peter Navarro, the White House adviser who has been put in charge of policy related to the
Defense Production Act, said that an executive order the president signed this week was aimed at
directing 3M’s production to the Americans who needed it most.Credit...Doug Mills/The New
York Times

The tense fight between the administration and the manufacturing company comes as countries
around the world are scrambling to secure protective gear, the federal government’s national
stockpile has dwindled and states have been left to compete with one another and with the federal
government for a limited supply of medical supplies sold around the globe.

When the Federal Emergency Management Agency finds and procures medical gear overseas, the
administration takes 20 percent of that while 80 percent is issued to the private sector for
distribution, agency officials said. FEMA keeps a small portion of that 20 percent while helping
distribute the rest to places struggling with the outbreak, officials said, adding that the next
shipment would be sent to New York, New Jersey and New Orleans.

When the private sector procures the equipment from abroad, the federal government controls the
distribution of roughly half of the supplies.

Local hospitals and states have accused the federal government of swooping in at the last second to
claim deliveries of protective gear for ambulance drivers, fire fighters, police and hospital workers.

Garren Colvin, the head of the board for the Kentucky Hospital Association, wrote to members of
Congress on Thursday saying four shipments of protective gear were taken by the Federal
Emergency Management Agency before they could be delivered to the local hospitals that had
originally contracted for the supplies.

FEMA officials said the agency was using the routine procurement process and was simply
outbidding local governments and states on certain procurements.

The federal agency has been forced to not only expand its search for medical equipment across the
globe but also be judicious with the lifesaving supplies it distributes to states. FEMA this week
began sending a questionnaire to states seeking ventilators, asking about available resources and
whether hospitals had tried converting anesthesia machines.

The questionnaire also advised that states should not expect a delivery of ventilators unless patients
were at risk of dying within 72 hours without the devices. FEMA has warehouses of supplies
situated strategically around the United States to be able to deliver supplies within 10 hours, an
official said.

And in using the Defense Production Act, Mr. Navarro again cited the scarce availability of
resources.

The act gives the administration expansive powers to secure supplies, including forcing a company
to prioritize the federal government’s contract or even determining the distribution of products
made by a company like 3M. For years, the Defense Department, including under the Trump
administration, has used the law to prioritize thousands of orders.

“While 3M is doing this in the name of preserving their bottom line and international relationships,
Americans are dying and American heath care workers are defenseless,” Mr. Navarro said.

But some administration officials worry that the Defense Production Act is now being weaponized
against specific companies and that it could undermine incentives for other companies to offer
help. Others warned that using the act to control a company’s overseas production would put that
company in the difficult position of being forced to violate its previous obligations to foreign
customers to comply with the demands of the American government.

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 “It’s D.P.A. by impulse,” said Jeffrey Bialos, a former under secretary of defense for industrial
affairs for the Clinton administration.

He said the administration should instead use the law as leverage.

“You have the carrot and the stick,” Mr. Bialos said. “If you were a sophisticated person or group
doing this you would use the carrot and the stick to get more from the industry today to facilitate
production for the future.”

Despite Mr. Navarro’s order, critics say that the administration was encouraging American exports
of masks and other protective gear, even as it should have been preparing medical supplies for the
crisis to come.

Representative Lloyd Doggett, Democrat of Texas, pointed out that the Commerce Department was
still advertising measures to help American businesses export medical products to China as late as
mid-March, even after administration officials told Congress they might face a shortage of face
masks.

In January and February, United States exports of ventilators and oxygenation products to China
were up 138 percent from the previous year, while exports of gas and face masks with filters rose
1315 percent, according to data from the Census Bureau analyzed by Mr. Doggett’s office. Exports
of protective garments were up 493 percent in the same period, while exports of disinfectant
products rose 225 percent, the data show.

“Ignoring the obvious need to prepare for a pandemic, the Trump administration promoted
substantially increased export of face masks, ventilators, and other vital equipment to China rather
than protecting our health care workers,” Mr. Doggett said in a statement. “Many Americans are
now paying with their lives for Trump denial, delay, and deception.”

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