MIDTERM COVERAGE
Constitutive (Minority view): Recognition is the act which
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.
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.
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.
Rebus Sic Stantibus – diplomatic relations with the new government regardless of its
“in these circumstance”, in public international law the doctrinethat
considers a treaty as
being no longer obligatory if there is a material change in circumsta
nces.
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
PEPPER PIL (ATTY. JAMON)
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 execution 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.
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
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.
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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.

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 immaterially; 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.

PEPPER PIL (ATTY. JAMON) 2