Suggested ANSWERS to the 2010 BAR EXAM Questions on

Public International Law

September 7, 2010 at 7:18pm

Copyright © 2010 by Atty. Ralph A. Sarmiento. All Rights Reserved.

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 People’s Army. The
new government constituted a Truth and Reconciliation 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 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 victim’s 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 victim’s 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 A’s 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 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 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)