Recoletos Law Center “HOME OF THE NATION'S TOP Bar REVIEWERS’ PUBLIC INTERNATIONAL LAW, Concepts Obligations Erga omnes 1. The term erga omnes (Latin: in relation to everyone) in international law has been “used as a legal term describing, obligations owed by States towards the community of states as a whole (Vinuya v. Executive Secretary, G.R. No, 162230, April 28, 2010). 2. The concept was recognized by the IC} in Barcelona Traction case [(Belgium v Spain) (Second Phase) IC] Rep 1970 3 at paragrapte 33 *..an_ essential distinction should be drawn between the obligations of a State towards the international community as a whole, and those arising vis-d-2is another State in the field of diplomatic protection, By their very nature, the former are the concern of all States. (In view of the _ importanee of the rights invol ‘can be held to have a legal interest in. ey “Such obligations derive, for example, in contemporary intémational law, from the ‘outlawing, of acts of aggression, and of genocide, as also from the principles and rules concerning the basic rights of the ‘human person, including protection from slavery and racial discrimination. Some of the corresponding rights of protection have entered into the body of general international law others are conferred by international instruments of a universal or quasi-universal character.” 3. The right of peoples to selF-determination, as it evolved from the Charter and from United Nations practice, has an erga ones character (Advisory Opinion Concerning Legal Consequences, of the Construction of a Wall in the Occupied Palestinian Territory, International Court of Justice (ICJ), 9 July 2004, available at http:|ievw.reftoorld.orgidocid/4 L4ad9a719.h¢ ml {accessed 25 Jilly 2014}) 4. Many rules of anitarian law e _in armed conflict are so nero ‘respect of the human person and ‘elementary considerat of humanity’ that they are “to be observed by all States wl or not they have ratified the conventions. that contain’ them, because dl titute intransgressible principles eee Taw’. In the Court's view, these rules incorporate » obligations which are essentially of an orga ~onmnes character (Ibid; C.J. Reports 1996 [I] p. 252, para. 79) =o derogation © permitled % cAV, Jus cogens “tiresome, character. 1. In international lav the term “jus cogens” (literally, “compelling. refers to ‘norms that command basa “authority, superseding conflicting treaties “and custom. —fuus. cogens norms are considered peremptory in the sense that “they are | mandatory, donot admit, “derogation, and_can-be-mnodified only by general international norms alent ‘authority (Vinuya v, Executive Sccretary, supra; See Vienna Convention on the Law of Treaties art 53, opened for signature May 23, 1969, 1. ULN.T.S. 331, 8 LL.M. 679). 2. “Application: a. The prohibition on torture is part of customary international law and has become a peremptory norm (jus cogens) (Questions Concerning the Obligation to Prosecute or Extradite [Belgium v. Senegal, Judgment Jul. 20, 2012), available at Inttpeweo ch + ciforgidocketfites/144/17064 pip. NOTE: However, the obligation to prosecute alleged perpetrators of torture only arises after the Convention has entered into force for that state party (Ibid), b. Duty to prevent genocide separate from: ‘the duty to punish its perpetrators, under the Genocide — Convention (Application of the Convention on the wadived of Wf a SMbcdquent worm hAINdRecoletos Law HOME OF THE NATION'S TOP BAR REVIEWER! niter ABreaches entail there is = es bbe stnentersieta A 2. Incorporation v. Transformation | __abniiiretion,. | se — 2 see ueostge ‘sought to be part fee Jatandoni, 83 Phil. 171; se . Lo Ching v. Archbishop | Lake Development of Manila, 81 Phil 601) | Authority v. Court of | Appeals, 231 SCRA ee (see Sec. 5{2] [a], Art. | Vii, 1987 Constitution; see also | Secretary of Justice v. | Juelge Lantion, GR _ 139465) __ Statute (that which comes last in | time, will usually be | ‘upheld by the municipal, tribunal) (see Ichong @. Hernandez, 101 Phil 115). Nachura, Outline Reviewer in Political Law, 2009 Edt p. 644 Nachura, Outline Reviewer in Political Lavo, 2009 Ed. p. 644 it. 38 [1al, Statute of the’ International Court of eae (Art, 38 [1]lb], Statute of the igen, Court of Justice); CMe ee predelina prthee’) (Art. 38 [ile], Srite af the Tneratnal Cou of iy wstice); (AesweA yank abr en egies Fas cee 121, Starare—of— tational Court of Justice) POLITICAL LAW | 3 of 70it Recoletos Law Center HOME OF THE NATION'S ToP BAR REVIEWERS" Effective occupation means continued isplay of authority which involves 2 elements each of which must be shown to exist: i, the intention and will to act as sovereign (oninnts oceupandi); fi, some actual exercise or display of such authority (Eestern Greenland Case (1931-33) NOTE: Discovery aloe, merely creates an inchoate right; it must be followed within a reasonable time by effective occupation and administration (Nachura, Outline Reviewer in Political Law, 2009 ed, p.662) Inchoate right flowing from the discovery was deemed lost because administration was not undertaken within reasonable time (Palmas Island Arbitration case) Very infrequent administration can be recognized as effective occupation and administration when the territory is a small and desolate island (Clipperton Island case’. In thinly populated and. uninhabited areas, very little actual exercise of sovereignty was needed in the absence of competition (Eastern Greenland Case) Prescription. ‘Territory is acquired through continuous and uninterrupted possession over a long period of time (Nachura, Outline Reviewer in Political Lavo, 2009 ed, p 663), NOTE: Grotius doctrine of _ immemorial prescription requires the uninterrupted possession going beyond memory (Ibid Cession (by treaty). Cession may be: Voluntary, through a treaty of sale or donation; Involuntary or forced (1a). d. Accretion. The increase in the land area of the State, either through natural means, or artificially, through human labor (Id, p 664). © Conquest. This mode is no longer recognized, inasmuch as the UN Charter prohibits resort to threat or use of force against territorial integrity or political independence of any state (Id) NOTE: Even before the UN Charter, the Stimson Doctrine, proscribed recognition Of any government set up through external aggression (Id). 4. 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 (Id, p. 647). Theories of recognition Majority vi Minority view | Recognition is the | act which constitutes the Recognition merely affirms an cxisting fact, like the possession by international | the state of the __person, __| essential elements Recognition is | Recognition is compulsory and | discretionary and | legal. =| _polit Nachuura, Oulline Reviewer in Political Law, 2009 ed, 647 | entity into an | l a. Basic rules on recognition (1d) i, It is political act and mainly a maiter of policy on the part of each state; ii, It is discretionary on the part of the recognizing authority; ii, It is exercised by the political (executive) department of the State; iv. Legality and wisdom of recognition is not subject to judicial review. POLITICAL LAW | 5 0f 70