Suggested ANSWERS to the 2010 BAR EXAM Questions on Public International Law by Atty. Ralph Sarmiento's Bar Exam Notebooks on Tuesday, September 7, 2010 at 6:28am Copyright © 2010 by Atty. Ralph A. Sarmiento. All Rights Reserved. I. The dictatorial regime regime of President President A of the Republic of Gordon Gordon was toppled by a combined force led by Gen. Abe, former royal guards and the secessionist Gordon Peopl People’s e’s Army Army.. The new gover governme nment nt consti constitut tuted ed a Truth ruth and Reconci econcilia liatio tion n Commission to look into the serious crimes committed under President A’s regime. After the hearings, the Commission recommended that an amnesty law be passed to cover even those involved in mass killings of members of indigenous groups who opposed President A. International human rights groups argued that the proposed amnesty law is contrary to international law. Decide with reasons. (4%) Suggested Answer: The proposed amnesty law is contrary to international law. The indigenous group may constitute an ethnic group which is protected by the law on Genocide. If the mass killing was committed with the intent to destroy (dolus specia specialis lis)) the said ethnic ethnic group group as such, such, in whole whole or in part, part, then then the crime crime of Genocide was committed. The international international norm for the prevention, prosecution and punishment of Genocide is a peremptory (just cogens) norm of international law and, therefore, non-derogable. (Prosecutor v. Blagojevic and Jokic, ICTY, January 17, 2005) Even if the mass killing was not committed with the dolus specialis to destroy the ethnic group as such, the same may still constitute the Crime Against Humanity of Extermination Extermination if the mass killing was widespread widespread and systematic or the War Crime of Intent Intention ionall ally y Attac Attackin king g Civili Civilians ans if the same took took place place in the conte context xt of or was was associated with an armed conflict. The norm for the prevention, prosecution and punishment of crimes against humanity and war crimes are also customary norms of international and therefore binding on all States. (Prosecutor v. Stakic, ICTY, July 31, 2003) Thus, Republic of Gordon has the obligation under international law to prosecute and punish all those involved in the mass killing of the members of the indigenous group and providing amnesty to those involved is violative of this obligation. II. Compare Compare and contrast contrast the jurisdictio jurisdiction n of the Internati International onal Criminal Criminal Court Court and International International Court of Justice. (3%) Suggested Answer: The jurisdic jurisdiction tion of the Internati International onal Criminal Criminal Court (ICC) primaril primarily y deals deals with the prosecution of individuals for core international crimes, while the jurisdiction of the Inter Internat nation ional al Court Court of Justic Justice e (ICJ) (ICJ) deals deals with with conten contentio tious us proce proceedi edings ngs betwe between en States. As to subject matter jurisdiction (ratione materiae), the jurisdiction of the ICC is limited to the most serious crimes of concern to the international community as a whole, particularly: (a) the Crime of Genocide; (b) Crimes against Humanity; (c) War
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crimes; and (d) the Crime of Aggression. (R. Sarmiento, Public International Law Bar Reviewer, Reviewer, 2009 Revised Edition, p. 308). On the other hand, the jurisdiction of the ICJ covers legal disputes which the States refer to it. This includes disputes concerning: (a) the interp interpre retat tation ion of a treat treaty; y; (b) any any questi question on of inter internat nation ional al law; law; (c) the exis existe tenc nce e of any any fact fact whic which, h, if esta establ blis ishe hed, d, woul would d cons consti titu tute te a brea breach ch of an international international obligation; and (d) the nature or extent of the reparation to be made for the breach of an international obligation. (Article 36, ICJ Statute) The ICJ also has jurisdiction to give an advisory opinion on any legal question as may be requested requested by the General Assembly or the Security Council or on legal questions arising within the scope of the activities of other ot her organs and specialized agencies agencies of the U.N. upon their request and when so authorized by the General Assembly. (Article 96, U.N. Charter) As to jurisdiction over the persons or parties (ratione personae), the ICC shall have the power to exercise its jurisdiction over persons for the most serious crimes of international concern, and shall be complementary to national criminal jurisdictions. (Art. 1, Rome Statute) On the other hand, only States may be parties in cases before the ICJ and their consent is needed for the ICJ to acquire jurisdiction. (R. Sarmiento, Public International Law Bar Reviewer, 2009 Revised Edition, p. 185) III. A, a British photojourn photojournalis alist, t, was covering covering the violent protests protests of the Thai RedShirts Movement in Bangkok. Despite warnings given by the Thai Prime Minister to foreigners, foreigners, specially journalists, journalists, A moved mo ved 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 Thai authorities but was refused assistance. A. Is there there state responsibility responsibility on the part part of Thailand? (2%) B. What What is the appro appropri priate ate remed remedy y avail availabl able e to the victim victim’s ’s family family under under international international law? (3%) Suggested Answer: A. No, there there is no no state responsibility responsibility on the part part of Thailand because the acts acts of the Thai Red-Shirts were were not the acts of Thailand. Under the Principle of Attribution or Imputation, a State only incurs liability for individual acts or omission which can be attributed to it. The Thai Red-Shirts are not its officials, agents, or representatives and they were not acting on the instructions of, or under the direction or control of, the Thai Government. (R. Sarmiento, Public International Law Bar Reviewer, 2009 Revised Revised Edition, pp. 65-66) B. Unless the Red-Shirts Red-Shirts becomes the new Government Government of Thailand or Thailand acknowled acknowledges ges and adopts adopts the conduct of the Red-Shirt Red-Shirts s as its own, the victim’s victim’s family has no appropriate remedy under international law. Their remedy, if any, if only only avai availa labl ble e unde underr the the domes domesti tic c laws laws of Thai Thaila land nd by the the inst instit itut utio ion n of the the appropriate appropriate criminal cases against the persons responsible responsible for A’ killing and the filing of an action to recover damages arising from A’s death. IV. IV. Choose the statement which appropriately completes the opening phrase: “A State which resorts to retorsion in international law
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E. None of the above. Explain your answer. (2%) Suggested Answer: D. “A State which resorts to retorsion in international law should apply proportionate response within appreciable limits.” Retorsion consists in retaliation where the acts complained of do not constitute a legal ground of offense but are rather in the nature of unfriendly acts done primarily in pursuance of legitimate State interests but indirectly hurtful to other States. (R. Sarmiento, Public International Law Bar Reviewer, 2009 Revised Edition, p. 233) To To be valid valid in interna internationa tionall law, acts of retorsion retorsion should not be excess excessive ive when compared to the unfriendly acts committed by the offending State. Moreover, they should not violate a State’s obligation under Article 2(3) of the U.N. Charter to settle their disputes by peaceful means in such a manner that international peace and security and justice are not endangered. XI. Which statement statement best completes the following following phrase: (1%) “Freedom from torture is a right A. subject to derogation derogation when national security security is threatened.” threatened.” B. confined only during custodial custodial investigation.” investigation.” C. which which is non-de non-dero rogab gable le both during during peacetim peacetime e and in a situat situation ion of armed armed conflict.” D. both (a) (a) and and (b) (b) E. none of the the above. above. Suggested Answer: C. “Freedom “Freedom from torture torture is a right which is non-derogable non-derogable both during peacetime and in a situation of armed conflict.” Article Article 2(2) of the U.N. Convention Convention Against Against Torture orture provides provides that “No excepti exceptional onal circumstances whatsoever, whether a state of war or a threat of war, internal political in stabil stability ity or any other public public emerg emergenc ency, y, may be invok invoked ed as a jus justif tifica icatio tion n of torture.” Because of the importance of the values it protects, the prohibition of torture has evolved into a peremptory norm or jus cogens, that is, a norm that enjoys a higher rank in the interna internationa tionall hierar hierarchy chy than treaty treaty law and even ordinary ordinary customary customary rules. rules. The most most conspi conspicuo cuous us conseq consequen uence ce of this this higher higher rank rank is that that the norm norm prohibiting torture cannot be derogated from by States through international treaties or local or special customs or even general customary rules not endowed with the same normative force. (Prosecutor v. Furundzija, ICTY, December 10, 1998) XXVII. What is the concept concept of association under international international law? law? (2%)
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delegates certain responsibilities to the other, the principal, while maintaining its international status as a state. Free associations represent a middle ground between integration and independence. (C.I. Keitner and W.M. Reisman, Free Free Association: The United States Experience, 39 Tex. Int'l L.J. 1 (2003)). In international practice, the "associated state" arrangement has usually been used as a transi transitio tional nal device device of former former coloni colonies es on their their way to full full indepe independ ndenc ence. e. Examples of states that have passed through the status of associated states as a transition transitional al phase phase are Antigua, Antigua, St. Kitts-Ne Kitts-Nevisvis-Angu Anguilla illa,, Dominica, Dominica, St. Lucia, Lucia, St. Vincent and Grenada. All have since become independent states. (Henkin, et al., International Law: Cases and Materials, 2nd ed., 274 (1987)) In deciding the constitutionality of the Memorandum of Agreement on the Ancestral Domain (MOA-AD) Aspect of the GRP-MILF Tripoli Agreement on Peace of 2001, the Supreme Court had ruled that the concept of association under international law is not recog recogniz nized ed under under the 1987 1987 Consti Constitut tution ion as it runs runs counte counterr to the nation national al sovereignty and territorial integrity of the Republic. (Province of North Cotabato v. GRP Peace Panel on Ancestral Domain, G.R. No. 183591, Oct. 14, 2008)
