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Q: What is the basis of the Philippines’ claim to a.

What do you understand by state immunity


a part of the Spratly Islands? (2000 BAR) from suit? Explain.
b. How may consent of the state to be sued be
A: The basis of the Philippine claim is effective given? Explain. (1999, 2017 BAR)
occupation of a territory not subject to the A:
sovereignty of another state. The Japanese forces a. STATE IMMUNITY FROM SUIT means that the
occupied the Spratly Island group during the State cannot be sued without its consent. A
Second World War. However, under the San corollary of such principle is that properties used
Francisco Peace Treaty of 1951 Japan formally by the State in the performance of its
renounced all right and claim to the Spratlys. The governmental functions cannot be subject to
San Francisco Treaty or any other international judicial execution.
agreement, however, did not designate any b. Consent of the State to be sued may be made
beneficiary state following the Japanese expressly as in the case of a specific, express
renunciation of right. Subsequently, the Spratlys provision of law as waiver of State immunity from
became terra nullius and was occupied by the suit is not inferred lightly (e.g. C.A. 327 as
Philippines in the title of sovereignty. Philippine amended by PD 1445) or impliedly as when the
sovereignty was displayed by open and public State engages in proprietary functions (U.S. v.
occupation of a number of islands by stationing of Ruiz, U.S. v. Guinto) or when it files a suit in which
military forces. By organizing a local government case the adverse party may file a counterclaim
unit, and by awarding petroleum drilling rights, (Froilan v. Pan Oriental Shipping) or when the
among other political and administrative acts. In doctrine would in effect be used to perpetuate an
1978, it confirmed its sovereign title by the injustice (Amigable v. Cuenca, 43 SCRA 360).
promulgation of Presidential Decree No. 1596,
which declared the Kalayaan Island Group part of Q: MBC, an alien businessman dealing in
Philippine territory. carpets and caviar, filed a suit against
policemen and YZ, an attaché of XX Embassy,
Q. Congress passed Republic Act No. 7711 to for damages because of malicious prosecution.
comply with the United Nations Convention on MBC alleged that YZ concocted false and
the Law of the Sea. In a petition filed with the malicious charges that he was engaged in drug
Supreme Court, Anak Ti Ilocos, an association of trafficking, whereupon narcotics policemen
Ilocano professionals, argued that Republic Act conducted a “buy-bust" operation and without
No. 7711 discarded the definition of the warrant arrested him, searched his house, and
Philippine territory under the Treaty of Paris seize his money and jewelry, then detained and
and in related treaties; excluded the Kalayaan tortured him in violation of his civil and human
Islands and the Scarborough Shoals from the rights as well as causing him, his family and
Philippine Archipelagic baselines; and business serious damages amounting to two
converted internal waters into archipelagic million pesos. MBC added that the trial court
waters. Is the petition meritorious? (2013 BAR) acquitted him of the drug charges.
A: NO, the petition is not meritorious. The United Assailing the court’s jurisdiction, YZ now moves
Nations Convention on the law of the Sea plays no to dismiss the complaint, on the ground that (1)
role in the acquisition, enlargement or, as he is an embassy officer entitled to diplomatic
petitioners claim, diminution of territory. Under immunity; and that (2) the suit is really a suit
traditional international law typology, States against his home state without its consent. He
acquire (or conversely, lose) territory through presents diplomatic notes from XX Embassy
occupation, accretion, cession and prescription, not certifying that he is an accredited embassy
by executing multilateral treaties on the officer recognized by the Philippine
regulations of sea-use rights or enacting statutes to government. He performs official duties, he
comply with the treatys terms to delimit maritime says, on a mission to conduct surveillance of
zones and continental shelves. Territorial claims to drug experts and then inform local police
land features are outside UNCLOS III, and are officers who make the actual arrest of suspects.
instead governed by the rules on general Are the two grounds cited by YZ to dismiss the
international law. suit tenable? (2004 BAR)
The Kalayaan Islands and the Scarborough Shoals A: The claim of diplomatic immunity of YZ is not
are located at an appreciable distance from the tenable, because he does not possess an acknowledged
nearest shoreline of the Philippine Archipelago. A diplomatic title and is not performing
straight baseline loped around them from the duties of a diplomatic nature.
nearest baseline will violate Article 47(3) and However, the suit against him is a suit against XX
Article 47(2) of the United Nations Convention on without its consent. YZ was acting as an agent of XX
the law of the Sea III. Whether the bodies of water and was performing his officialfunctions when he
lying landward of the baselines of the Philippines conducted surveillance on drug exporters and
are internal waters or archipelagic waters, the informed the local police officerswho arrested MBC.
Philippines retains jurisdiction over them He was performing such duties with the consent of the
(Magallona v. Ermita, 655 SCRA 476). Philippine government,therefore, the suit against YZ is
a suit against XX without its consent. (Minucher v.
Q: It is said that "waiver of immunity by the State CA,397 SCRA 244, 1992)
does not mean a concession of its liability". What Q: Adams and Baker are American citizens
are the implications of this phrase? (1997 BAR) residing in the Philippines. Adams befriended
A: The phrase that waiver of immunity by the State Baker and became a frequent visitor at his
does not mean a concession of liability means that by house.
consenting to be sued, the State does not necessarily One day, Adams arrived with 30 members of the
admit it is liable. As stated in Philippine Rock Philippine National Police, armed with a Search
Industries, Inc. v. Board of Liquidators, 180 SCRA 171, Warrant authorizing the search of Baker’s house
in such a case the State is merely giving the plaintiff a and its premises for dangerous drugs being
chance to prove that the State is liable but the State trafficked to the United States of America.
retains the right to raise all lawful defenses. The search purportedly yielded positive results,
and Baker was charged with violation of the
Dangerous Drugs Act. Adams was the as provided in the annexed Agreements." This
prosecution’s principal witness. However, for is assailed as unconstitutional because this
failure to prove his guilt beyond reasonable undertaking unduly limits, restricts and
doubt, impairs Philippine sovereignty and means
Baker was acquitted. among others that Congress could not pass
Baker then sued Adams for damages for filing legislation that will be good for our national
trumped-up charges against him. Among the interest and general welfare if such legislation
defenses raised by Adams is that he has will not conform with the WTO Agreements.
diplomatic Refute this argument. (2000 BAR)
immunity, conformably with the Vienna A: According to Tanada v. Angara, the sovereignty
Convention on Diplomatic Relations. He of the Philippines is subject to restriction by its
presented membership in the family of nations and the
Diplomatic Notes from the American Embassy limitations imposed of treaty limitations. Section 2,
stating that he is an agent of the United States Article II of the Constitution adopts the generally
Drug accepted principles of international law as part of
Enforcement Agency tasked with “conducting the law of the land. One of such principles is pacta
surveillance operations’’ on suspected drug sunt servanda. The Constitution did not envision a
dealers in the Philippines believed to be the hermit-like isolation of the country from the rest of
source of prohibited drugs being shipped to the the world.
U.S. It was also stated that after having
ascertained Q: The Philippines and the Republic of Kroi Sha
the target, Adams would then inform the established diplomatic relations and
Philippine narcotic agents to make the actual immediately
arrest. their respective Presidents signed the following:
a. As counsel of plaintiff Baker, argue why his (1) Executive Agreement allowing the
complaint should not be dismissed on the Republic of Kroi Sha to establish its embassy and
ground of defendant Adams’ diplomatic consular offices within Metro Manila; and (2)
immunity from suit. Executive Agreement allowing the Republic of
b. As counsel of defendant Adams, argue for the Kroi
dismissal of the complaint. (2005 BAR) Sha to bring to the Philippines its military
A: complement, warships, and armaments from
a. As counsel of Baker, I shall argue that Baker has no time
diplomatic immunity, because he is not performing to time for a period not exceeding one month for
diplomatic functions. the purpose of training exercises with the
ALTERNATIVE ANSWER: As counsel for Baker, I Philippine military forces and exempting from
will Philippine criminal jurisdiction acts committed
argue that Adam's diplomatic immunity cannot be in
accepted as the sole basis for dismissal of the damage the line of duty by foreign military personnel,
suit, by mere presentation of Diplomatic Notes stating and
that he is an agent of the US Drug Enforcement Agency. from paying custom duties on all the goods
His diplomatic status was a matter of serious doubt on brought by said foreign forces into Philippine
account of his failure to disclose it when he appeared as territory in connection with the holding of the
principal witness in the earlier criminal(drug) activities authorized under the said Executive
case against Baker, considering that as a matter of Agreement. Senator Maagap questioned the
diplomatic practice a diplomatic agent maybe constitutionality of the said Executive
allowed or authorized to give evidence as a witness Agreements
by the sending state. Thus, his diplomatic status and demanded that the Executive Agreements be
was not sufficiently established. submitted to the Senate for ratification pursuant
b. As counsel of Adams, I shall argue that since he to the Philippine Constitution. Is Senator
was acting within his assigned functions with the Maagap
consent of the Philippines, the suit against him is a correct? Explain. (2015 BAR)
suit against the United States without its consent A: Senator Maagap is partly correct. The Executive
and is barred by state immunity from suit. Agreement allowing the Republic of Kroi Sha to
(Minucher v. CA, 397 SCRA244, 2003) establish its embassy and consular offices within
Metro Manila is valid without the need of submitting it
Q: Ambassador Robert of State Alpha committed to the Senate for ratification as differed from a treaty.
a However, the second Executive Agreement which
very serious crime while he headed his foreign allows the Republic of Kroi Sha to bring to the
mission in the Philippines. Is he subject to arrest Philippines its military complement, warships, and
by Philippine authorities? Explain your answer armaments for a certain period is subject to the
(2017 BAR) provisions of Section 25 of Article XVIII of the
A: NO, he is not subject to arrest by Philippines Constitution, which provides that “foreign bases,
authorities. Under the Vienna Convention on troops or facilities shall not be allowed in the
Diplomatic Relations (VCDR), a diplomatic agent shall Philippines except under a treaty duly concurred in by
enjoy immunity from the criminal jurisdiction of the the Senate and, when the Congress so requires, ratified
receiving State. As a consequence, Article 29 of the by a majority of the votes cast by the people in a
Vienna Convention on Diplomatic Relations provides: national referendum held for that purpose, and
“The person of a diplomatic agent shall be inviolable. recognized as a treaty by the of the contracting state.”
He shall not be liable to any form of arrest or Under the same provision, a treaty duly concurred in
Detention by the Senate is required even for the temporary
presence of foreign troops.
Q: The Philippines has become a member of the
World Trade Organization (WTO) and Q: State A and State B, two sovereign states,
resultantly agreed that it "shall ensure the enter
conformity of its laws, regulations and into a 10-year mutual defense treaty. After five
administrative procedures with its obligations
years, State A finds that the more progressive has no branch office and no assets in Indonesia,
State submitted a bid to supply 500,000 pairs of
B did not go to the aid of State A when it was combat boots at U.S. $30 per pair delivered in
threatened by its strong neighbor State C. State B Jakarta on or before 30 October 1990.
reasoned that it had to be prudent and deliberate The contract was awarded by the Ministry of the
in reacting to State C because of their existing Army to Marikina Shoe Corporation and was
trade treaties. signed by the parties in Jakarta. Marikina Shoe
What is the difference between the principles of Corporation was able to deliver only 200,000
pacta sunt servanda and rebus sic stantibus in pairs
international law? (2017 BAR) of combat boots in Jakarta by 30 October 1990
A: Pacta sunt servanda means that every treaty in and
force is binding upon the States who are parties to it it received payment for 100,000 pairs or a total
and States must perform their obligation in good faith of
(Deutsche Bank AG Manila Branch v. Commissioner of U.S. $3,000,000.00. The Ministry of the Army
Internal Revenue, G.R. No. 188550, August 19, 2013, promised to pay for the other 100,000 pairs
704 already delivered as soon as the remaining
SCRA 216). 300,000 pairs of combat boots are delivered, at
Rebus sic stantibus means that a fundamental change which time the said 300,000 pairs will also be
of circumstances, which occurred with regard to those paid
existing at the time of the conclusion of a treaty and for. Marikina Shoe Corporation failed to deliver
which was not foreseen by the parties may not be any more combat boots.
invoked for withdrawing from a treaty unless their On 1 June 1991, the Republic of Indonesia filed
existence constituted an essential basis of the consent an
of the parties and their effect is to radically transform action before the Regional Trial Court of Pasig,
the extent of the obligations still to be performed (Article Rizal to compel Marikina Shoe Corporation to
62 of the Vienna Convention on the Law of perform the balance of its obligations under the
Treaties). contract and for damages. In its answer,
Marikina
Q: How is state sovereignty defined in Shoe Corporation sets up a counterclaim for U.S.
International Law? (2006 BAR) $
A: Sovereignty signifies the right to exercise the 3,000,000.00 representing the payment for the
functions of a State in regard to a portion of the 100,000 pairs of combat boots already delivered
globe to the exclusion of any other State. It is the but unpaid.
principle of exclusive competence of a State in Indonesia moved to dismiss the counterclaim,
regard to its own territory (The Island of Las asserting that it is entitled to sovereign
Palmas Case, 2 Report of International Arbitration immunity
Awards 839 [1928]). from suit. The trial court denied the motion to
ALTERNATIVE ANSWER: State sovereignty is the dismiss and issued two writs of garnishment
ability of a state to act without external controls on upon
the conduct of its affairs (Fox, Dictionary of Indonesian Government funds deposited in the
International and Comparative Law, p. 294). Philippine National Bank and Far East Bank.
Indonesia went to the Court of Appeals on a
Q: Is state sovereignty absolute? (2006 BAR) petition for certiorari under Rule 65 of the Rules
A: State sovereignty is not absolute. It is subject to of
limitations imposed by membership in the family Court. How would the Court of Appeals decide
of nations and limitations imposed by treaty the
stipulations (Tanada v Angara, 272 SCRA 18, 1997) case? (1991 BAR)
A: The Court of Appeals should dismiss the petition
Jus cogens insofar as it seeks to annul the order denying the
Q: May a treaty violate international law? If motion of the Government of Indonesia to dismiss the
your answer is in the affirmative, explain when counterclaim. The counterclaim in this case is a
such may happen. If your answer is in the compulsory counterclaim since it arises from the same
negative, explain why. (2008 BAR) contract involved in the complaint. As such it must be
A: YES, a treaty may violate international law set up otherwise it will be barred. Above all, as held in
(understood as general international law) if it Froilan v. Pan Oriental Shipping Co., 95 Phil. 905, by
conflicts with a peremptory norm or jus cogens of filing a complaint, the State of Indonesia waived its
international law. Jus cogens norm is defined as a immunity from suit. It is not right that it can sue in the
norm of general international law accepted and courts but it cannot be sued. The defendant therefore
recognized by the international community of acquires the right to set up a compulsory counterclaim
states as a whole “as a norm from which no against it.
derogation is permitted and which can be modified However, the Court of Appeals should grant the
only by a subsequent norm of general international petition of the Indonesian government insofar as it
law having the same character.” Article 53 of the sought to annul the garnishment of the funds of
Vienna Convention on the Law of Treaties (1969) Indonesia which were deposited in the Philippine
provides that (a) treaty is void if the at the time of National Bank and Far East Bank. Consent to the
its conclusion, it conflicts with jus cogens norm. exercise of jurisdiction of a foreign court does not
Moreover, under Article 54 of this Convention if a include waiver of the separate immunity from
new peremptory norm of general international law execution (Brownlie, Principles of Public International
emerges, any existing treaty which is in conflict Law, 4th ed., p. 344).Thus, in Dexter v. Carpenter vs.
with that norm becomes void and terminates. Kunglig Jarnvagsstyrelsen, 43 Fed. 705, it was held the
consent to be sued does not give consent to the
Q: In February 1990, the Ministry of the Army attachment of the property of a sovereign government.
Republic of Indonesia, invited bids for the
supply of 500,000 pairs of combat boots for the Q: The State of Nova, controlled by an
use of the Indonesian Army. The Marikina Shoe authoritarian government, had unfriendly
Corporation, a Philippine corporation, which relations with its neighboring State, Ameria.
Bresia, another neighboring State, had been ALTERNATIVE ANSWER: In United States vs. Ruiz,
shipping arms and ammunitions to Nova for use 128 SCRA 487, 490-491, the Supreme Court explained
in attacking Ameria. the doctrine of sovereign Immunity in international
To forestall an attack, Ameria placed floating law; “The traditional rule of State immunity exempts a
mines on the territorial waters surrounding State from being sued in the courts of another State
Nova. Ameria supported a group of rebels without its consent or waiver, this rule is a necessary
organized to overthrow the government of consequence of the principles of independence and
Nova and to replace it with a friendly equality of states. However, the rules of International
government. Law are not petrified, they are constantly developing
Nova decided to file a case against Ameria in the and evolving. Arid because the activities of states have
International Court of Justice. multiplied, it has been necessary to distinguish them
a. On what grounds may Ameria move to — between sovereign and government acts (jure
dismiss the case with the ICJ? imperii) and private, commercial and proprietary acts
b. Decide the case. (1994 BAR) (jure gestionis). The result is that State immunity now
A: extends only to acts jure imperii.”
a. By virtue of the principle of sovereign
immunity, no sovereign state can be made a Q: An organization of law students sponsored an
party to a proceeding before the International inter-school debate among three teams with the
Court of Justice unless it has given its consent. following assignments and propositions for each
If Ameria has not accepted the Jurisdiction of team to defend:
the International Court of Justice, Ameria can Team "A" - International law prevails over
invoke the defense of lack of jurisdiction. Even municipal law.
if Ameria has accepted the jurisdiction of the Team "B" - Municipal law prevails over
court but the acceptance is limited and the international law.
limitation applies to the case, it may invoke Team "C" – A country's Constitution prevails
such limitation its consent as a bar to the over
assumption of jurisdiction. If jurisdiction has international law but international law prevails
been accepted, Ameria can invoke the over municipal statutes.
principle of anticipatory self- defense, If you were given a chance to choose the correct
recognized under customary international proposition, which would you take and why?
law, because Nova is planning to launch an (2003 BAR)
attack against Ameria by using the arms it A: I shall take the proposition for Team C.
bought from Bresia. International Law and municipal laws are supreme in
b. If jurisdiction over Ameria is established, the their own respective fields. Neither has hegemony
case should be decided in favor of Nova, over the other (Brownlie, Principles of Public
because Ameria violated the principle against International Law, 4th ed. p. 157). Under Article II,
the use of force and the principle of Section 2 of the 1987 Constitution, the generally
nonintervention. The defense of anticipatory accepted principles of international law form part of
self-defense cannot be sustained, because the law of the land. Since they merely have the force of
there is no showing that Nova had mobilized law, if it is Philippine courts that will decide the case,
to such an extent that if Ameria were to wait they will uphold the Constitution over international
for Nova to strike first it would not be able to law. If it is an international tribunal that will decide
retaliate. However, if jurisdiction over Ameria the case, it will uphold international law over
is not established, the case should be decided
in favor of Ameria because of the principle of
sovereign immunity.

Q: What do you understand by the "Doctrine of


Incorporation" in Constitutional Law? (1997
BAR)
A: The DOCTRINE OF INCORPORATION means that
the rules of International law form part of the law
of the land and no legislative action is required to
make them applicable to a country. The Philippines
follows this doctrine, because Section 2, Article II of
the Constitution states that the Philippines adopts
the generally accepted principles of international
law as part of the law of the land.

Q: What is the doctrine of sovereign immunity in


International Law? (1998 BAR)
A: By the doctrine of sovereign immunity, a State, its
agents and property are immune from the judicial
process of another State, except with its consent. Thus,
immunity may be waived and a State may permit itself
to be sued in the courts of another State.
Sovereign immunity has developed into two schools of
thought, namely, absolute immunity and restrictive
immunity. By absolute immunity, all acts of a State are
covered or protected by Immunity. On the other hand,
restrictive immunity makes a distinction between
governmental or sovereign acts (acta jure imperii) and
nongovernmental, propriety or commercial acts (acta
jure gestiones). Only the first category of acts is
covered by sovereign immunity. The Philippine
adheres to the restrictive immunity school of thought.

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