Suggested Answers to the BAR EXAM Questions on

Public International Law

by Atty. Ralph Sarmiento's Bar Exam Notebooks
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)