Bar Q and A #48

On the assumption that Dr. Mengele is a foreigner, his torture violates the International Covenant on Civil and Political Rights, to which the Philippine has acceded. Article 7 of the Covenant on Civil and Political Rights provides: “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment."

In accordance with Article 2 of the Covenant on Civil and Political Rights, it is the obligation of the Philippines to ensure that Dr. Mengele has an effective remedy, that he shall have his right to such a remedy determined by competent authority, and to ensure the enforcement of such remedy when granted.

Country Y may exercise the right of self-defense, as provided under Article 51 of the UN Charter “until the Security Council has taken measure necessary to maintain international peace and security”. Self-defense enables Country Y to use force against Country X as well as against the Ali Baba organization.

It may bring the matter to the Security Council which may authorize sanctions against Country X, including measure invoking the use of force. Under Article 4 of the UN Charter, Country Y may use force against Country X as well as against the Ali Baba organization by authority of the UN Security Council.

The United States and its allied forces cannot justify their invasion of Iraq on the basis of self-defense under Article 51 attack by Iraq, and there was no necessity for anticipatory self-defense which may be justified under customary international law. Neither can they justify their invasion on the ground that Article 42 of the Charter of the United Nations permits the use of force against a State if it is sanctioned by the Security Council. Resolution 1441, which gave Iraq a final opportunity to disarm or face serious consequences, did not authorize the use of armed force.

a. The Philippine action cannot be justified as self-defense. Self-defense is an act of State by reason of an armed attack by another State. The acts of terrorism in this case were acts of private group and cannot be attributed to Asyaland, which does not support the Emerald brigade. Article 51 of the Charter of the United Nations has no applicability, because self- defense in Article 51 contemplates a response to a legitimate armed attack by a State against another State. The attack by the Emerald Brigade is an attack by a private group without authority or as an organ of Asyaland.

b. The contention of Asyaland is correct. The Philippines violated Article 2(4) of the Charter of the United Nations, which prohibits States from the threat or use of force against the territorial integrity of any State.

c. The terrorist should be tried in the Philippines. Section 58 of RA 9372, the Human Security Act, provides for its extraterritorial application to individual persons who, although outside the territorial limits of the Philippines, commits an act of terrorism directly against Filipino citizens where their citizenship was a factor in the commission of the crime.

The defense is not valid. Under the preamble of the San Francisco Treaty, Japan undertook to conform to the protection and observance of human rights. Article 103 of the United Nations Charter provides that the obligations of the member-State prevail over any other international agreement. The waiver in Article 14(a) of the San Francisco Treaty is qualified by Article 14(b), which stated that Japan had  no resources presently sufficient to make complete reparation for all such damages and sufferings and meet its other obligations. Thus, the waiver was operative only while Japan had inadequate resources.

The Filipina “comfort women” cannot sue Japan for damages, because a foreign State may not be sued before Philippine courts as a consequence of the principles of independence and equality of States (Republic of Indonesia v. Vinzon, 405 SCRA 126).

a. Reden, Jolan and Andy are not combatants and are not entitled to treatment as prisoners of war, because they are mercenaries. Article 47 of the Protocol I to the Geneva Conventions of 1949 provides: "A Mercenary shall not have the right to be combatant or a prisoner of war." Pursuant to Article 47 of Protocol I of the Geneva Conventions of 1949, Reden Jolan, and Andy are mercenaries, because they were recruited to fight in an armed conflict, they in fact took direct part in the hostilities, they were motivated to take part in the hostilities essentially by the desire for private gain and in fact was promised a handsome salary by the Moslems, they were neither nationals of a party to the conflict nor residents of territory controlled by a party to the conflict, they are not members of the armed forces of a party to the conflict, and they were not sent by a state which is not a party to the conflict on official duty as members of its armed forces.

b. The captured civilians are prisoners of war. Under Article 4 of the Geneva Convention relative to the Treatment of Prisoners of War, inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed forces, provided they carry arms openly and respect the laws and customs of war, are considered prisoners of war if they fall into the power of the enemy.

a. Whether simple or composite, a State is said to be neutralized where its independence and integrity are guaranteed by an international convention on the condition that such State obligates itself never to take up arms against any other State, except for self-defense, or enter into such international obligations as would indirectly involve it in war. A State seeks neutralization where it is weak and does not wish to take an active part in international politics. The power that guarantee its neutralization may be motivated either by balance of power considerations or by the desire to make the weak state a buffer between the territories of the great powers (J. Salonga &
P. Yap, Public International Law, pp. 76 (1966)).

b. Firstly, neutrality obtains only during war, whereas neutralization is a condition that applies in peace or in war. Secondly, neutralization is a status created by means of treaty, whereas neutrality is a status created under international law, by means of a stand on the part of a state not to side with any of the parties at war. Thirdly, neutrality is brought about by a unilateral declaration by the neutral State, while neutralization cannot be effected by unilateral act, but must be recognized by other States. (Id.)

a. The Contiguous Zone is an intermediary zone between the territorial sea and the high seas extending enforcement jurisdiction of the coastal state to a maximum of 24 nautical miles from baselines for the purposes of preventing or punishing violations of customs, fiscal, immigration or sanitary (and thus residual national security) legislation.

b. Under the EEZ, the coastal state retains exclusive sovereignty over exploring, exploiting and conserving all natural resources. Under Article 60 of the United Nations Convention on the Law of the Sea (UNCLOS). It also has the right to construct and authorize and regulate the construction, operation and use of artificial islands, installations and structures for the purposes provided for in Article 56 and other economic purposes, installations and structures which may interfere with the exercise of the rights of the coastal State in the zone; it shall also have the exclusive jurisdiction over such artificial islands, installations, and structures, including jurisdiction with regard to customs, fiscal, health, safety, and immigration laws and regulations.