MIDTERM COVERAGE
nation, should not be enforceable.
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
“Lex specialis derogat generali” – means that specific law
prevails over general law. This test is applied when both
customary and treaty sources of law exist and the two sources
cannot be construed consistently.
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
PEPPER PIL (ATTY. JAMON)
a regime for purposes that do not serve the best interests of the
Obligacion erga omnes – refers to specifically determined
obligations that states have towards the international
community as a whole.
International humanitarian law – is a set of rules which seek, for
humanitarian reasons, to limit the effects of armed conflict. It
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.
Pacta Sunt Servanda – Aggreements should be kept. It is the
principle in international law which says that international
treaties should be upheld by all the signatories.
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.
Compromis d’ Arbritrage - Agreements between states to
submit disputes between them to an arbitration tribunal.
Opinio juris - a sense of legal obligation.
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 view): 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
1
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
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.
PEPPER PIL (ATTY. JAMON)
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
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.
Kelloqq-Briand Pact of 1928 – also known as the General Treaty
for the Renunciation of War, ratified by 62 States, which forbade
war as “an instrument of national policy”.
Alternative Definition: Signatory states promised not to use war
to resolve "disputes or conflicts of whatever nature or of
whatever origin they may be, which may arise among them"
Effects of Recognition –
1. Diplomatic relations;
2. 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;
3. immunity from jurisdiction;
4. entitlement to property within the recognizing state;
5. 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.
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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.
commercial matters concerning British subjects. The new Costa
Rican government objected, amongst other things, on the
ground that since the UK did not recognize the Tinoco
government, it could not bring an action for claims due under
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

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