The Philippine claim to parts of the Spratly Islands is based on effective occupation of a territory not under the sovereignty of another state. After Japan renounced its claims to the Spratlys following WWII, the islands became terra nullius and were subsequently occupied by the Philippines through stationing of military forces, organizing local government, awarding drilling rights, and other political and administrative acts establishing sovereignty. The Philippines further confirmed its claim through a 1978 presidential decree declaring the islands part of Philippine territory.
The Philippine claim to parts of the Spratly Islands is based on effective occupation of a territory not under the sovereignty of another state. After Japan renounced its claims to the Spratlys following WWII, the islands became terra nullius and were subsequently occupied by the Philippines through stationing of military forces, organizing local government, awarding drilling rights, and other political and administrative acts establishing sovereignty. The Philippines further confirmed its claim through a 1978 presidential decree declaring the islands part of Philippine territory.
The Philippine claim to parts of the Spratly Islands is based on effective occupation of a territory not under the sovereignty of another state. After Japan renounced its claims to the Spratlys following WWII, the islands became terra nullius and were subsequently occupied by the Philippines through stationing of military forces, organizing local government, awarding drilling rights, and other political and administrative acts establishing sovereignty. The Philippines further confirmed its claim through a 1978 presidential decree declaring the islands part of Philippine territory.
The Philippine claim to parts of the Spratly Islands is based on effective occupation of a territory not under the sovereignty of another state. After Japan renounced its claims to the Spratlys following WWII, the islands became terra nullius and were subsequently occupied by the Philippines through stationing of military forces, organizing local government, awarding drilling rights, and other political and administrative acts establishing sovereignty. The Philippines further confirmed its claim through a 1978 presidential decree declaring the islands part of Philippine territory.
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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.