Sie sind auf Seite 1von 3

MIDTERM COVERAGE a regime for purposes that do not serve the best interests of the

nation, should not be enforceable.


Doctrine of Jus Cogens – Customary international law has the
status of a peremptory norm of international law, accepted and Obligacion erga omnes – refers to specifically determined
recognized by the international community of states as a rule obligations that states have towards the international
from which no derogation is permitted. Accordingly, a treaty community as a whole.
whose provisions contravene such norms/rules may be
invalidated. International humanitarian law – is a set of rules which seek, for
ALTERNATIVE DEFINITION: the emergence of a new humanitarian reasons, to limit the effects of armed conflict. It
peremptory norm of general international law which renders protects persons who are not or are no longer participating in
void any existing treaty conflicting with such norm. the hostilities and restricts the means and methods of warfare.
International humanitarian law is also known as the law of war
Ex Aequo et Bono (what is good and just) – Basis for a decision or the law of armed conflict.
by an international tribunal on the grounds of justice and
fairness provided that the parties to the dispute agree thereto, Pacta Sunt Servanda – Aggreements should be kept. It is the
as provided in Art. 38 (1), Statute of the International Court of principle in international law which says that international
Justice. treaties should be upheld by all the signatories.

CABOTAGE – RESTRICTION of the operation of sea, air, or Rebus Sic Stantibus –


other transport services within or into a particular country to that “in these circumstance”, in public international law the doctrine
country's own transport services. that considers a treaty as
being no longer obligatory if there is a material change in circu
“Res Transit Cum suo onere” - The thing passes with its mstances.
burden. Where a thing has been incumbered by mortgage, the
incumbrance follows it wherever it goes. Compromis d’ Arbritrage - Agreements between states to
submit disputes between them to an arbitration tribunal.
LATERAN TREATY – Was one of the Lateran Pacts of 1929 or
Lateran Accords, agreements made in 1929 between the Opinio juris - a sense of legal obligation.
Kingdom of Italy and the Holy See, settling the "Roman
Question". This treaty recognized Vatican as a nation state Act of State Doctrine – Every sovereign state is bound to
respect the independence of every other state, and the courts
“Lex posterior derogat priori” - A treaty may repeal a statute, of one country will not sit in judgment on the acts of the
and a statute may repeal a treaty government of another, done within its territory. Redress of
grievances by reason of such acts must be obtained through the
“Lex specialis derogat generali” – means that specific law means open to be availed of by sovereign powers as between
prevails over general law. This test is applied when both themselves [Underhill v. Hernandez, 168 U.S. 250].
customary and treaty sources of law exist and the two sources
cannot be construed consistently. Theories on Recognition

Constitutive (Minority view): Recognition is the act which


SABBATINO AMENDMENT – This is the exception in the Act constitutes the entity into an international person. Under this
of State doctrine “no court in the US should decline because the view, recognition is compulsory and legal; it may be compelled
act of state doctrine seems to make a determination on the once the elements of a state are established.
validity of the confiscation of property by a foreign State in
violation of the principles of international law” Declarative (Majority view): Under the majority view, recognition
merely affirms an existing fact, like the possession by the state
The Rome Statute of the International Criminal Court (ICC) of the essential elements. It is discretionary and political.
– The Statute was adopted in July, 1998 by a Conference of
States in Rome. The Court will come into existence once 60 BELLIGERENT vs INSURGENT
States have ratified the Statute. The Philippines signed the ICC
Statute on 28 December 2000. As of 04 January 2000,124 Belligerent – A term used to designate either of two nations
countries have signed the Statute, although only 25 have which are actually in a state of war with each other, as well as
ratified the same. their allies actively cooperating; as distinguished from a nation
which takes no part in the war and maintains a strict indifference
Dette Odieus – odious debt, also known as illegitimate debt, as between the contending parties, called a "neutral." U. S. v.
is a legal doctrine that holds that the national debt incurred by The Ambrose Light (D. C.) 25 Fed. 412

PEPPER PIL (ATTY. JAMON) 1


INSURGENT – One who participates in an insurrection; DE JURE – Extended to a government fulfilling the
one who opposes the execu- tion of law by force of arms, or requirements for recognition. When there is no specific
who rises in revolt against the constituted authorities. indication, recognition is generally considered as de jure. The
recognition is relatively permanent; brings about full diplomatic
STATE SUCCESSION vs STATE CONTINUITY intercourse and observance of diplomatic immunities; and
confers title to assets abroad.
State Succession – May be universal or partial. Consequences
are: political laws are abrogated while municipal laws remain in DIFFERENCES:
force; treaties are discontinued, except those dealing with local 1. De Facto Recognition is provisional and limited to
rights and duties, such as those establishing easements and certain juridical relations WHILE De Jure is relatively
servitudes; all rights of the predecessor state are inherited, but permanent;
successor state can assume and reject liabilities at its discretion. 2. De Facto does not bring about either full diplomatic
intercourse or conferment of diplomatic immunities
State Continuity – The state continues as a juristic being WHILE De Jure brings about full diplomatic
notwithstanding changes in its circumstances, provided only intercourse and conferment of diplomatic immunities;
that such changes do not result in the loss of any of its essential and
elements. 3. De Facto does not give title to assets of the State held
or situated abroad WHILE De Jure gives title to assets
Intertemporal law – can be more broadly defined as the of the state held or situated abroad.
branch of law which governs the usage of treaties, codifications
and legal acts to the cases which occurred before their creation De Facto Government: One that is in possession of the powers
or entry into force. It existed in Roman law, which caused the of sovereignty although the possession may be wrongful or
phrase "lex retro non agit" (law does not work backward) to be precarious.
coined.
De Jure Government: A government that ought to possess the
Tobar/Wilson Doctrine – Precludes recognition of any powers of sovereignty though at the time it may be deprived of
government established by revolutionary means until them.
constitutional reorganization by free election of representatives.
Kelloqq-Briand Pact of 1928 – also known as the General Treaty
Estrada Doctrine – Since recognition has been construed as for the Renunciation of War, ratified by 62 States, which forbade
approval (and non-recognition, disapproval) of a government war as “an instrument of national policy”.
established through a political upheaval, a state may not issue
a declaration giving recognition to such government, but Alternative Definition: Signatory states promised not to use war
merely accept whatever government is in effective control to resolve "disputes or conflicts of whatever nature or of
without raising the issue of recognition. Dealing or not dealing whatever origin they may be, which may arise among them"
with the government is not a judgment on the legitimacy of the
said government. Effects of Recognition –
ALTERNATIVE DEFINITION: When a new government is 1. Diplomatic relations;
established in another country by revolutionary means, Mexico 2. right to sue in the courts of the recognizing state Isee
would continue diplomatic relations with the new government Banco Nacional de Cuba vs. Sabbatino, 376 U.S. 398,
regardless of its legitimacy. where unfriendly relations or the lack of reciprocity was
held immateriaiy;
Recognition – The act by which a state acknowledges the 3. immunity from jurisdiction;
existence of another state, a government or a belligerent 4. entitlement to property within the recognizing state;
community, and indicates its willingness to deal with the entity 5. retroactive validation of the acts of the recognized
as such under international law. state/ government, such as acts of state, and thus,
sovereign immunity covers past, present and future
Kinds of Recognition. May be express or implied: may also be: acts [Oetjen vs. Central Leather Co.. 246 U.S. 297].

DE FACTO – Extended by the recognizing state which believes FUNDAMENTAL RIGHTS OF THE STATES:
that some of the requirements for recognition are absent. The 1. Existence and Self-Preservation;
recognition is generally provisional and limited to certain 2. Right to Sovereignty and Independence;
juridical relations; it does not bring about full diplomatic 3. Right of Equality;
intercourse and does not give title to assets of the state 4. Right of Territory and Jurisdiction; and
held/situated abroad. 5. Right to delegation and diplomatic relations.

PEPPER PIL (ATTY. JAMON) 2


STATES commercial matters concerning British subjects. The new Costa
A state is a group of people, living together in a fixed territory, Rican government objected, amongst other things, on the
organized for political ends under an independent government, ground that since the UK did not recognize the Tinoco
and capable of entering into international relations with other government, it could not bring an action for claims due under
states. that government.

Elements of a State: Arbitrator Taft disagree. He stated(at 382) that:


1. People; Here the executive of Great Britain takes the position that the
2. Territory; Tinoco government which it did not recognize, was
3. Government; nevertheless a de facto government that could create rights in
4. Independence or Sovereignty; and British subjects which it now seeks to protect. Of course, as
5. Recognition. already emphasized, its failure to recognize the de facto
government can be used against it as evidence to disprove the
GUARANTY TRUST CO v US character it now attributes to that government, but this does not
The Imperial Russian Government opened an account bar it from changing its position. Should a case arise in one of
in a NY bank, the Guaranty trust co., in 1916, but the its own courts after it has changed its position, doubtless that
government was overthrown on July 5, 1917 and replaced by court would feel it incumberent upon it to note the change its
the Provisional Government of Russia, which was recognized by further rulings.
the USA on July 12, 1917. On November 1917, the Provisional
Government of Russia was overthrown and replaced by the In effect, the UK’s non- recognition of the Tinoco government,
Union of the Soviet Socialist Republics (USSR). The USA although evidence show that the government did not meet
recognized the USSR in 1933, in which year the USSR universal approval, did not prevent it from bringin claim against
government assigned all monies due to it from Guaranty Trust the government.
and American nationals to the US government. The USA
brought an action against the bank to recover the money. The
bank brought the current action to dismiss the by the USA. The
USA argued that its recognition of the USSR in 1933 operated
retroactively and that it nullified rights acquired in the USA in
consequence of its prior recognition of the Provisional
Government. In effect, it would mean that the rights acquired
by American nationals from their transactions with the Russian
Provisional Government were invalid, since the proper
government recognized from 1917 would have been the USSR
by the operation of retroactivity.

The US Supreme Court rejected this argument. It stated that to


treat the recognition of the USSR as operating to invalidate all
of the legal consequences of the prior recognition by the USA
of the Provisional Government and its representatives, as
though such recognition had never been accorded:

“ignores the distinction between the effect of our recognition of


a foreign government with respect to its acts within its own
territory prior to recognition, and the effect upon previous
transactions consummated here between its predecessor and
our own nationals. The one operates only to validate to a limited
extent acts of a de facto government which, by virtue of the
recognition, has become a government de jure. But is does not
follow that recognition renders of no effect transactions here with
a prior recognized government in conformity to the declared
policy of our own Government.”

GREAT BRITAIN VS COSTA RICA (The Tinoco Arbitration)


The dispute arose from the nullification of acts of the
Tinoco government by a government that overthrew Tinoco’s
administration in 1919. The UK, which did not recognize the de
facto government of Tinoco while it was in power, made a claim
against the new government in Costa Rica regarding

PEPPER PIL (ATTY. JAMON) 3