Bar Q and A #43

YES, a treaty may violate international law (understood as general international law) if it conflicts with a peremptory norm or jus cogens of international law. Jus cogens norm is defined as a norm of general international law accepted and recognized by the international community of states as a whole “as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.” Article 53 of the Vienna Convention on the Law of Treaties (1969) provides that (a) treaty is void if the at the time of its conclusion, it conflicts with jus cogens norm. Moreover, under Article 54 of this Convention if a new peremptory norm of general international law emerges, any existing treaty which is in conflict with that norm becomes void and terminates.

The Court of Appeals should dismiss the petition insofar as it seeks to annul the order denying the motion of the Government of Indonesia to dismiss the counterclaim. The counterclaim in this case is a compulsory counterclaim since it arises from the same contract involved in the complaint. As such it must be set up otherwise it will be barred. Above all, as held in Froilan v. Pan Oriental Shipping Co., 95 Phil. 905, by filing a complaint, the State of Indonesia waived its immunity from suit. It is not right that it can sue in the courts but it cannot be sued. The defendant therefore acquires the right to set up a compulsory counterclaim against it.

However, the Court of Appeals should grant the petition of the Indonesian government insofar as it sought to annul the garnishment of the funds of Indonesia which were deposited in the Philippine National Bank and Far East Bank. Consent to the exercise of jurisdiction of a foreign court does not include waiver of the separate immunity from execution (Brownlie, Principles of Public International Law, 4th ed., p. 344).Thus, in Dexter v. Carpenter vs. Kunglig Jarnvagsstyrelsen, 43 Fed. 705, it was held the consent to be sued does not give consent to the attachment of the property of a sovereign government.

a. By virtue of the principle of sovereign immunity, no sovereign state can be made a party to a proceeding before the International Court of Justice unless it has given its consent. If Ameria has not accepted the Jurisdiction of the International Court of Justice, Ameria can invoke the defense of lack of jurisdiction. Even if Ameria has accepted the jurisdiction of the court but the acceptance is limited and the limitation applies to the case, it may invoke such limitation its consent as a bar to the assumption of jurisdiction. If jurisdiction has been accepted, Ameria can invoke the principle of anticipatory self-defense, recognized under customary international law, because Nova is planning to launch an attack against Ameria by using the arms it bought from Bresia.

b. If jurisdiction over Ameria is established, the case should be decided in favor of Nova, because Ameria violated the principle against the use of force and the principle of nonintervention. The defense of anticipatory self-defense cannot be sustained, because there is no showing that Nova had mobilized to such an extent that if Ameria were to wait for Nova to strike first it would not be able to retaliate. However, if jurisdiction over Ameria is not established, the case should be decided in favor of Ameria because of the principle of sovereign immunity.

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.

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.

I shall take the proposition for Team C. International Law and municipal laws are supreme in their own respective fields. Neither has hegemony over the other (Brownlie, Principles of Public International Law, 4th ed. p. 157). Under Article II, Section 2 of the 1987 Constitution, the generally accepted principles of international law form part of the law of the land. Since they merely have the force of law, if it is Philippine courts that will decide the case, they will uphold the Constitution over international law. If it is an international tribunal that will decide the case, it will uphold international law over municipal law. As held by the Permanent International Court of Justice in the case of the Polish Nationals in Danzig, a State cannot invoke its own Constitution to evade obligations incumbent upon it under international law.

Under the principle of auto-limitation, any state may by its consent, express or implied, submit to a restriction of its sovereign rights. There may thus be a curtailment of what otherwise is a plenary power (Reagan v. CIR, G.R. L-26379, [1969]).

By reciprocity, States grants to one another rights or concessions, in exchange for identical or comparable duties, thus acquiring a right as an extension of its sovereignty and at the same time accepting an obligation as a limitation to its sovereign will, hence, a complementation of reciprocity and auto-limitation.

The proposed amnesty law is contrary to international law. The mass killings of member of indigenous groups constitute genocide under Article II (a), Convention for the Prevention and Punishment of the crime of Genocide. The proposed amnesty law is against international law because it is incompatible with, or in violation of the international obligation under Article IV of this Convention that “Persons committing genocide… shall be punished, whether they are constitutionally responsible rulers, public officials or private individuals.”

The Contracting Parties confirm that genocide, whether committed in time of peace of in time of war, is a crime under international law which they undertake to prevent and to punish.

An association is formed when two states of unequal power voluntarily establish durable links. The associate delegates certain responsibilities to the other, the principal, while maintaining its status as a state. It is an association between sovereigns. The associated state arrangement has usually been used as a transitional device of former colonies on their way to full independence. (Province of North Cotabato v. GRP Peace Panel on Ancestral Domain, 568 SCRA 402 [2008].)

Association, under international law, is a formal arrangement between a non-self-governing territory and an independent State whereby such territory becomes an associated State with internal self- government, but the independent state is responsible for foreign relations and defense.

For an association to be lawful, it must comply with the general conditions prescribed in UN General Assembly Resolution 1541 (XV) of 14 December 160:
(1) the population must consent to the association; and (2) the association must promote the development and well-being of the dependent state (the non-self-governing territory). Association is subject to UN approval.