Bar Q and A #47

a. The jurisdiction of the International Court of Justice (ICJ) pertains to international responsibility in the concept of civil liability, while that of the International Criminal Court (ICC) pertains to criminal liability.

b. While states are the subject of law in international responsibility under the jurisdiction of the International Court of Justice, the criminal liability within the jurisdiction of the International Criminal Court pertains to individual natural person. [Article 34(i) of the Statute of the International Court of Justice; Articles 25 and 27of the Statute of the International Criminal Court]

a. STATELESS PERSONS are those who are not considered as nationals by any State under the operation of its laws.

b. The consequences of statelessness are the following:

i. No State can intervene or complain in behalf of a stateless person for an international delinquency committed by another State in inflicting injury upon him.
ii. He cannot be expelled by the State if he is lawfully in its territory except on grounds of national security or public order.
iii. He cannot avail himself of the protection and benefits of citizenship like securing for himself a passport or visa and personal documents.

c. NO. Under the Convention in Relation to the Status of Stateless Person, the contracting states agreed to accord to stateless persons within their territories treatment at least as favorable as that accorded to their nationals with respect to freedom of religion, access to the courts, rationing of products in short supply, elementary education, public relief and assistance, labor legislation and social security. They also agreed to accord to them treatment not less favorable than that accorded to aliens generally in the same circumstances. The Convention also provides for the issuance of identity papers and travel documents to stateless person.

d. In the Convention on the Conflict of Nationality Laws of 1930, the contracting states agreed to accord nationality to persons born in their territory who would otherwise be stateless. The Convention on the Reduction of Statelessness of 1961 provides that if the law of the contracting States results in the loss of nationality as a consequence of marriage or termination of marriage, such loss must be conditional upon possession or acquisition of another nationality.

The principle of specialty bars the requesting State from prosecuting the extraditee for any offense other than that for which the extraditee was surrendered. Here, the extraditee cannot be tried for offenses not included in the list of extraditable offenses between states.

On the other hand, the dual criminality principle is a rule which states that the crime for which extradition is requested must be a crime in both the requesting state and state to which the fugitive has fled.

a. YES, France can ask for the extradition of A for an offense committed in France before the effectivity of the Extradition Treaty between France and the Philippines. In Cleugh v. Strakos109 Fed. 330, it was held that an extradition treaty applies to crimes committed before its effectivity unless the extradition treaty expressly exempts them. As Whiteman points out, extradition does not define crimes but merely provides a means by which a State may obtain the return and punishment of persons charged with or convicted of having committed a crime who fled the jurisdiction of the State whose law has been violated. It is therefore immaterial whether at the time of the commission of the crime for which extradition is sought no treaty was in existence. If at the time extradition is requested there is in force between the requesting and the requested State a treaty covering the offense on which the request is based, the treaty is applicable (Whiteman, Digest of International Law, Vol. 6, pp. 753- 754.).

b. NO, A cannot contest his extradition on the ground that it violates the ex post facto provision of the Constitution. As held in Wright
v. Court of Appeals, 235 SCRA 341, the prohibition against ex post facto laws in Section 22, Article III of the Constitution applies to penal laws only and does not apply to extradition treaties.

Republic A can refuse to extradite John, because his offense is a political offense. John was plotting to take over the government and the plan of John to assassinate President Harry was part of such plan. However, if the extradition treaty contains an attentat clause, Republic A can extradite John, because under the attentat clause, the taking of the life or attempt against the life of a head of state or that of the members of his family does not constitute a political offense and is therefore extraditable.

If there was no anti-hacker law in the Philippines when the United States requested the extradition of Lawrence, the Philippines is under no obligation to extradite him. Under the principle of double criminality, extradition is available only when the act is an offense in both countries (Cruz, International Law, 2003 ed., p. 205; Coquia and Santiago, International Law and World Organizations, 2005 ed., 342). Double criminality is intended to ensure each state that it can rely on reciprocal treatment and that no state will use its processes to surrender a person for conduct which it does not characterize as criminal. (Bassiouni, International Extradition, 4th ed., p. 467)

The Philippines will be under obligation to extradite Lawrence. Both the Philippines and the United States have an anti-hacker law. The requirement of double criminality is satisfied even if the act was not criminal in the requested state at the time of its occurrence if it was criminal at the time that the request was made (Bassiouni, International Extradition, 4th ed., p. 469).

The following are the differences between extradition and deportation:

a. EXTRADITION is effected for the benefit of the state to which the person being extradited will be surrendered because he is a fugitive criminal in that state, while DEPORTATION is effected for the protection of the State expelling an alien because his presence is not conducive to the public good.

b. EXTRADITION is effected on the basis of an extradition treaty or upon the request of another state, while DEPORTATION is the unilateral act of the state expelling an alien.

c. In EXTRADITION, the alien will be surrendered to the state asking for his extradition, while in DEPORTATION the undesirable alien may be sent to any state willing to accept him.

The power to deport aliens is an act of State, an act done by or under the authority of the sovereign power. It is a police measure against undesirable aliens whose continued presence in the country is found to be injurious to the public good and the domestic tranquility of the people (Rosas v. Montor, G.R. No. 204105, October 14, 2015)

An act of State is one done by the sovereign power of a country, or by its delegate, within the limits of the power vested in him. An act of State cannot be questioned or made the subject of legal proceedings in a court of law (Black’s Law Dictionary, 4th ed.,  44). With particular reference to Political Law, an act of State is an act done by the political departments of the government and not subject to judicial review.