MIDTERM COVERAGE
humanitarian reasons, to limit the effects of armed conflict. It
Doctrine of Jus Cogens – Customary international law has the
status of a peremptory norm of international law, accepted and
recognized by the international community of states as a rule
from which no derogation is permitted. Accordingly, a treaty
whose provisions contravene such norms/rules may be
invalidated.
ALTERNATIVE DEFINITION: the emergence of a new
peremptory norm of general international law which renders
void any existing treaty conflicting with such norm.
Ex Aequo et Bono (what is good and just) – Basis for a decision
by an international tribunal on the grounds of justice and
fairness provided that the parties to the dispute agree thereto,
as provided in Art. 38 (1), Statute of the International Court of
Justice.
CABOTAGE – RESTRICTION of the operation of sea, air, or
other transport services within or into a particular country to that
country's own transport services.
“Res Transit Cum suo onere” - The thing passes with its
burden. Where a thing has been incumbered by mortgage, the
incumbrance follows it wherever it goes.
LATERAN TREATY – Was one of the Lateran Pacts of 1929 or
Lateran Accords, agreements made in 1929 between the
Kingdom of Italy and the Holy See, settling the "Roman
Question". This treaty recognized Vatican as a nation state
“Lex posterior derogat priori” - A treaty may repeal a statute,
and a statute may repeal a treaty
SABBATINO AMENDMENT – This is the exception in the Act
of State doctrine “no court in the US should decline because the
act of state doctrine seems to make a determination on the
validity of the confiscation of property by a foreign State in
violation of the principles of international law”
The Rome Statute of the International Criminal Court (ICC)
– The Statute was adopted in July, 1998 by a Conference of
States in Rome. The Court will come into existence once 60
States have ratified the Statute. The Philippines signed the ICC
Statute on 28 December 2000. As of 04 January 2000,124
countries have signed the Statute, although only 25 have
ratified the same.
Dette Odieus – odious debt, also known as illegitimate debt, is
a legal doctrine that holds that the national debt incurred by a
regime for purposes that do not serve the best interests of the
nation, should not be enforceable.
Obligacion erga omnes – refers to specifically determined
obligations that states have towards the international
community as a whole.
PEPPER PIL (ATTY. JAMON)
International humanitarian law – is a set of rules which seek, for
protects persons who are not or are no longer participating in
the hostilities and restricts the means and methods of warfare.
International humanitarian law is also known as the law of war
or the law of armed conflict.
Rebus Sic Stantibus –
“in these circumstance”, in public international law the doctrine
that considers a treaty as
being no longer obligatory if there is a material change in circu
mstances.
Act of State Doctrine – Every sovereign state is bound to
respect the independence of every other state, and the courts
of one country will not sit in judgment on the acts of the
government of another, done within its territory. Redress of
grievances by reason of such acts must be obtained through the
means open to be availed of by sovereign powers as between
themselves [Underhill v. Hernandez, 168 U.S. 250].
Theories on Recognition
Constitutive (Minority view1): Recognition is the act which
constitutes the entity into an international person. Under this
view, recognition is compulsory and legal; it may be compelled
once the elements of a state are established.
Declarative (Majority view): Under the majority view, recognition
merely affirms an existing fact, like the possession by the state
of the essential elements. It is discretionary and political.
BELLIGERENT vs INSURGENT
Belligerent – A term used to designate either of two nations
which are actually in a state of war with each other, as well as
their allies actively cooperating; as distinguished from a nation
which takes no part in the war and maintains a strict indifference
as between the contending parties, called a "neutral." U. S. v.
The Ambrose Light (D. C.) 25 Fed. 412
INSURGENT – One who participates in an insurrection;
one who opposes the execu- tion of law by force of arms, or
who rises in revolt against the constituted authorities.
STATE SUCCESSION vs STATE CONTINUITY
State Succession – May be universal or partial. Consequences
are: political laws are abrogated while municipal laws remain in
force; treaties are discontinued, except those dealing with local
rights and duties, such as those establishing easements and
servitudes; all rights of the predecessor state are inherited, but
successor state can assume and reject liabilities at its discretion.
State Continuity – The state continues as a juristic being
notwithstanding changes in its circumstances, provided only
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that such changes do not result in the loss of any of its essential
elements.
Intertemporal law – can be more broadly defined as the branch
of law which governs the usage of treaties, codifications
and legal acts to the cases which occurred before their creation
or entry into force. It existed in Roman law, which caused the
phrase "lex retro non agit" (law does not work backward) to be
coined.
Tobar/Wilson Doctrine – Precludes recognition of any
government established by revolutionary means until
constitutional reorganization by free election of representatives.
Estrada Doctrine – Since recognition has been construed as
approval (and non-recognition, disapproval) of a government
established through a political upheaval, a state may not issue
a declaration giving recognition to such government, but
merely accept whatever government is in effective control
without raising the issue of recognition. Dealing or not dealing
with the government is not a judgment on the legitimacy of the
said government.
ALTERNATIVE DEFINITION: When a new government is
established in another country by revolutionary means, Mexico
would continue diplomatic relations with the new government
regardless of its legitimacy.
Recognition – The act by which a state acknowledges the
existence of another state, a government or a belligerent
community, and indicates its willingness to deal with the entity
as such under international law.
Kinds of Recognition. May be express or implied: may also be:
DE FACTO – Extended by the recognizing state which believes
that some of the requirements for recognition are absent. The
recognition is generally provisional and limited to certain
juridical relations; it does not bring about full diplomatic
intercourse and does not give title to assets of the state
held/situated abroad.
DE JURE – Extended to a government fulfilling the
requirements for recognition. When there is no specific
indication, recognition is generally considered as de jure. The
recognition is relatively permanent; brings about full diplomatic
intercourse and observance of diplomatic immunities; and
confers title to assets abroad.
DIFFERENCES:
1. De Facto Recognition is provisional and limited to
certain juridical relations WHILE De Jure is relatively
permanent;
2. De Facto does not bring about either full diplomatic
intercourse or conferment of diplomatic immunities
WHILE De Jure brings about full diplomatic
intercourse and conferment of diplomatic immunities;
and
PEPPER PIL (ATTY. JAMON)
3. De Facto does not give title to assets of the State held
or situated abroad WHILE De Jure gives title to assets
of the state held or situated abroad.
De Facto Government: One that is in possession of the powers
of sovereignty although the possession may be wrongful or
precarious.
De Jure Government: A government that ought to possess the
powers of sovereignty though at the time it may be deprived of
them.
Effects of Recognition – Diplomatic relations; right to sue in the
courts of the recognizing state Isee Banco Nacional de Cuba vs.
Sabbatino, 376 U.S. 398, where unfriendly relations or the lack
of reciprocity was held immateriaiy; immunity from jurisdiction;
entitlement to property within the recognizing state; retroactive
validation of the acts of the recognized state/ government, such
as acts of state, and thus, sovereign immunity covers past,
present and future acts [Oetjen vs. Central Leather Co.. 246 U.S.
297].
FUNDAMENTAL RIGHTS OF THE STATES:
1. Existence and Self-Preservation;
2. Right to Sovereignty and Independence;
3. Right of Equality;
4. Right of Territory and Jurisdiction; and
5. Right to delegation and diplomatic relations.
STATES
A state is a group of people, living together in a fixed territory,
organized for political ends under an independent government,
and capable of entering into international relations with other
states.
Elements of a State:
1. People;
2. Territory;
3. Government;
4. Independence or Sovereignty; and
5. Recognition.
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