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Suggested ANSWERS to the 2010 BAR

EXAM Questions on Public International


Law

I.

The dictatorial regime of President A of the Republic of Gordon was
toppled by a combined force led by Gen. Abe, former royal guards and
the secessionist Gordon Peoples Army. The new government
constituted a Truth and Reconciliation Commission to look into the
serious crimes committed under President As 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 specialis) the said ethnic group as such, in whole or in part,
then the crime of Genocide was committed. The 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 if the mass killing was widespread and systematic
or the War Crime of Intentionally Attacking Civilians if the same took place in
the context of or 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 and contrast the jurisdiction of the International Criminal Court
and International Court of Justice. (3%)

Suggested Answer:

The jurisdiction of the International Criminal Court (ICC) primarily deals with
the prosecution of individuals for core international crimes, while the
jurisdiction of the International Court of Justice (ICJ) deals with contentious
proceedings between 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 crimes; and (d) the Crime of Aggression. (R. Sarmiento,
Public International Law Bar 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 interpretation of a treaty;
(b) any question of international law; (c) the existence of any fact which, if
established, would constitute a breach of an 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 by the
General Assembly or the Security Council or on legal questions arising within
the scope of the activities of other organs and specialized 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 photojournalist, was covering the violent protests of the Thai
Red-Shirts Movement in Bangkok. Despite warnings given by the Thai
Prime Minister to foreigners, specially journalists, A moved 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 state responsibility on the part of Thailand? (2%)

B. What is the appropriate remedy available to the victims family
under international law? (3%)

Suggested Answer:

A. No, there is no state responsibility on the part of Thailand because the
acts of the Thai Red-Shirts 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 Edition, pp. 65-66)

B. Unless the Red-Shirts becomes the new Government of Thailand or
Thailand acknowledges and adopts the conduct of the Red-Shirts as its own,
the victims family has no appropriate remedy under international law. Their
remedy, if any, if only available under the domestic laws of Thailand by the
institution of the appropriate criminal cases against the persons responsible
for A killing and the filing of an action to recover damages arising from As
death.

IV.

Choose the statement which appropriately completes the opening
phrase:

A State which resorts to retorsion in international law

A. must ensure that all states consent to its act.
B. cannot curtail migration from the offending state.
C. can expel the nationals of the offending state.
D. should apply proportionate response within appreciable limit.
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 be valid in international law, acts of retorsion should not be excessive
when compared to the unfriendly acts committed by the offending State.
Moreover, they should not violate a States 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 best completes the following phrase: (1%)

Freedom from torture is a right

A. subject to derogation when national security is threatened.
B. confined only during custodial investigation.
C. which is non-derogable both during peacetime and in a situation of
armed conflict.
D. both (a) and (b)
E. none of the above.

Suggested Answer:

C. Freedom from torture is a right which is non-derogable both during
peacetime and in a situation of armed conflict.

Article 2(2) of the U.N. Convention Against Torture provides that No
exceptional circumstances whatsoever, whether a state of war or a threat of
war, internal political in stability or any other public emergency, may be
invoked as a justification 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 international hierarchy than treaty law and even ordinary
customary rules. The most conspicuous consequence of this higher rank is
that the 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 of association under international law? (2%)

Suggested Answer:

Under international law, an association is formed when two states of unequal
power voluntarily establish durable links. In the basic model, one state, the
associate, 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 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 transitional device of former colonies on their way to full
independence. Examples of states that have passed through the status of
associated states as a transitional phase are Antigua, St. Kitts-Nevis-Anguilla,
Dominica, St. 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 recognized under the 1987 Constitution as it
runs counter to the national 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)

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