Political Exam 2010 Answers

8/8/2019 Political Exam 2010 Answers

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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 PeoplesArmy. The new government constituted a Truth and Reconciliation Commission to look

into the serious crimes committed under President As 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 internationallaw. 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 ethnicgroup 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 masskilling 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 theprevention, 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 allthose involved in the mass killing of the members of the indigenous group and providing

amnesty to those involved is violative of this obligation.


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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 ofJustice (ICJ) deals with contentious proceedings between States.

As to subject matter jurisdiction (ratione materiae), the jurisdiction of the ICC is limited to themost 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 ofAggression. (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 toit. 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 ofan 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 togive 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 otherorgans 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, andshall be complementary to national criminal jurisdictions. (Art. 1, Rome Statute) On the otherhand, 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 RevisedEdition, p. 185)


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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 victims 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 Stateonly 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 instructionsof, 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 victims family has no appropriateremedy 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 responsiblefor A killing and the filing of an action to recover damages arising from As death.

IV.


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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 responsewithin appreciable limits.

Retorsion consists in retaliation where the acts complained of do not constitute a legal ground ofoffense 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 BarReviewer, 2009 Revised Edition, p. 233)

To be valid in international law, acts of retorsion should not be excessive when compared to theunfriendly acts committed by the offending State. Moreover, they should not violate a States

obligation under Article 2(3) of the U.N. Charter to settle their disputes by peaceful means insuch a manner that international peace and security and justice are not endangered.


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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 asituation of armed conflict.

Article 2(2) of the U.N. Convention Against Torture provides that No exceptionalcircumstances 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 orjus cogens, that is, a norm that enjoys a higher rank in the internationalhierarchy 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 Statesthrough 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)


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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 voluntarilyestablish 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 statesthat 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 becomeindependent 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 Courthad 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)

Political Exam 2010 Answers

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