PIL Terms and Definitions Midterm Exam PDF

ROBERT LORENZ MARCOS Public International Law University of Southeastern Philippines — School of Law Days of grace - refers to a scenario where Natural accretion - takes place when the a merch...

ROBERT LORENZ MARCOS Public International Law University of Southeastern Philippines — School of Law Days of grace - refers to a scenario where Natural accretion - takes place when the a merchant ship of one of the conflicting gradual addition of land to existing territory powers finds itself in an enemy port at the occurs where there is already sovereignty commencement of hostilities. It is desirable capable of extending to the new land. (but not mandatory) for the said ship to be allowed to depart freely, either immediately Discovery - is an initial act that might or after a sufficient term of grace. It also create an inchoate or incomplete title of refers to an extended period granted to a sovereignty over a territory. Nevertheless, state or entity, allowing them to comply with discovery alone is insufficient to establish a a legal obligation or resolve a dispute definitive claim to territorial sovereignty in without facing immediate enforcement modern international law. It must be actions or penalties. accompanied by occupation or control over the territory within a period. Safe-conducts or laissez-passer - provides for the safety of the vessel and Inter-temporal - is the principle that the cargo en route under certain reasonable legal system applicable at the time of regulations and restrictions. creating a right is different from the system governing the continued existence of that Independence - is the right of a state to right. Simply put, the act of creating a right exercise its functions within a portion of the is subject to the law in force at the time the globe, to the exclusion of any other state. right arises. Territorial sovereignty - the legal condition Critical date - is used to signify a specific necessary for the inclusion of a portion of point in time that is relevant for assessing the globe within the territory of a particular historical claims and treaties. It refers to the state. Sovereignty in connection to territorial moment at which the evidence of sovereignty, signifies a state's possession or sovereignty must be independence and its exclusive right to evaluated to determine the validity of exercise the functions of a state within that territorial claims. It serves as the reference territory, to the exclusion of any other state. point for assessing the existence and validity of claims to sovereignty. Modes of acquiring territory in international law - acts of control such as Argument from contiguity - is the principle occupation or conquest, wherein a state that suggests that geographical proximity or takes possession or control of a territory. contiguity to a state's territory can justify claims of sovereignty over an island or Cession - is a mode of transferring territory region. Islands or territories relatively close between powers, with at least one power to a state's landmass should belong to that capable of disposing of the territory. Another state by virtue of their geographic situation. Definition of Terms based on the Lecture of Atty. Romel Regalado Bagares  ROBERT LORENZ MARCOS Public International Law University of Southeastern Philippines — School of Law involve a state's direct or indirect Effective occupation - is a legal doctrine in involvement. international law, where a state must demonstrate actual administration and Scale and effect test is a principle in governance over a territory to claim international law used to determine whether sovereignty. This involves a continuous and an act of violence qualifies as an armed peaceful display of state authority, to ensure attack, which would trigger the right to that no other state can assert a superior self-defense under Article 51 of the UN claim. Charter. This test looks at: Effective control test - it is a test based on 1. Scale. The magnitude or intensity of customary international law to consider the the use of force. Minor incidents, like issue of state responsibility and the level of isolated border skirmishes or minor control required for a state to be held liable incursions, typically do not meet this for the actions of non-state actors under threshold, whereas large-scale international law. military actions, such as invasions or significant bombings, would. Principle of non-intervention - means that 2. Effect. The consequences or impact no country should interfere in the internal or of the act. If the attack causes external affairs of another sovereign state. severe destruction, loss of life, or This principle is based on the respect for the significant damage to a state’s sovereignty, political independence, and infrastructure or military capability, it territorial integrity of nations. is more likely to be considered an armed attack. Armed attack - refers to the use of force by one state against another, triggering the Causal nexus test - a test which refers to right of self-defense under Article 51 of the sufficient, direct and certain causal nexus UN Charter. It Involves large-scale and between damages incurred and the breach significant military actions such as an of obligation. In international law, this test invasion, bombardment, or significant use of often applies to determine whether a state's force against another state's territory or conduct directly caused a breach of an forces. Small-scale or isolated incidents, like international obligation or led to a violation minor border skirmishes, may not rise to the of rights. level of an armed attack. The International Court of Justice has emphasized that only Fait accompli - means gaining ownership grave forms of the use of force constitute through prescription and prolonged armed attacks. Acts carried out by non-state possession. actors can also be considered armed attacks if they are of sufficient scale and Definition of Terms based on the Lecture of Atty. Romel Regalado Bagares  ROBERT LORENZ MARCOS Public International Law University of Southeastern Philippines — School of Law Philippine referendum - it is the 1599 any one time. For each State at each Philippine Referendum that holds a notable particular moment there exists one ideal event in Philippine history as this underlines course of action, one ideal raison d’état. the consultation between Spaniards and Philippine Indigenous Leaders to legitimize Frontier system - in the context of the the Spanish Colonial Rule over the Philippines refers to Spain's decentralized Philippines. and flexible colonial administration, primarily due to resource constraints. Coined by The colonial state - the designation of a Herbert Bolton, this term describes how political rationality whose task it was to Spain managed its vast and distant transform the absence of organized territories with a governance approach that resistance to Spanish rule into relations of allowed for significant autonomy and local manifest consent: a consent that could be adaptation. targeted, procured, channeled, and ramified— in a word, governed—by means State of exception - exists where normal of measurement, calculation, and legal frameworks were suspended to investment, that is, knowledge. address extraordinary circumstances. Political rationality - refers to a process "Se acata pero no se cumple" - (It is by which decision making under colonial obeyed but not carried out) or "Obedezco rule is ascribed to an ostensibly pre existing pero no cumplo" (I obey but do not execute) criterion, structure, or principle, a criterion refers to the flexible and often contradictory that remains inseparable from the specific nature of Spanish colonial governance. It instances of its invocation or utterance. reflected a legal and administrative practice where orders from the Spanish crown were Raison d’état - literally means “reason of formally acknowledged but not necessarily the state” is the fundamental principle of implemented if local conditions deemed national conduct, the State’s first Law of them impractical or unjust. Motion. It tells the statesman what he must do to preserve the health and strength of Monist tendency - embodied in Article II, the State. The State is an organic structure Section 2 of the Constitution, in the Chapter whose full power can only be maintained by dealing with its Declaration of Principles and allowing it in some way to continue growing; State Policies, to wit: and raison d’état indicates both the path and the goal for such a growth.... The “[t]he Philippines renounces war as an choice of path to the goal is restricted by the instrument of national policy, adopts the particular nature of the State and its generally accepted principles of environment. Strictly speaking, only one international law as part of the law of the path to the goal... has to be considered at land and adheres to the policy of peace, Definition of Terms based on the Lecture of Atty. Romel Regalado Bagares  ROBERT LORENZ MARCOS Public International Law University of Southeastern Philippines — School of Law equality, justice, freedom, cooperation, and Direct effect - implies that international amity with all nations.” treaties, agreements, or norms have immediate legal force, or can be invoked Dualist tendency - in the Philippine and applied by domestic courts and practice of international law, it is found in authorities. Article VII, Section 21 of the Constitution, which encapsulates what has been called Constitutionalization - refers to the the Doctrine of Transformation, 5 which process by which international laws are states that: formally integrated into a country’s Constitution, thereby granting a higher “[n]o treaty or international agreement shall status and priority within the national legal be valid and effective unless concurred in framework. by at least two-thirds of all the Members of the Senate.” Statutorification - occurs when international treaties, conventions, or laws Textbook tradition [on the teaching of the are directly referenced and incorporated into internalization of international law in national statutes. Philippine law] - is a two-step process via the Incorporation Clause as embodied in Direct effect of Judicial Notice - Article II, Section 2 of the Constitution and references the way international laws can the Treaty Clause which is found in Article be recognized and applied in the Philippine VII, Section 21 of the Constitution, the first courts without the need for formal evidence. being “comprised of the power of judicial Judicial notice is a procedural mechanism review by which courts may determine the where courts recognize facts or norms as constitutionality” of such “generally self-evident or established based on their accepted principles of international law,” general acceptance and relevance. and the second being that the clause functions as a gateway for international law Direct effect in the state of exception - through legislative fiat, principally by Senate speaks of the application of international concurrence. laws during extraordinary circumstances when the constitution is temporarily Traditional definition of direct effect [as suspended or where there is no functioning discussed in International law and the constitution. International law provides Philippine legal system] - refers to the protection and guidance. In the landmark ability of international legal norms to have case of Republic v. Sandiganbayan, after immediate and binding application within a the overthrow of the Marcos government, local or domestic legal system without the President Corazon Aquino suspended the need for further legislative act. 1973 constitution, which led to a legal vacuum. The Supreme Court declared that Definition of Terms based on the Lecture of Atty. Romel Regalado Bagares  ROBERT LORENZ MARCOS Public International Law University of Southeastern Philippines — School of Law despite the lack of a constitution, the issued by a responsible official of the Universal Declaration of Human Rights and Philippine government. the International Covenant on Civil and Political Rights provided binding Presidential Ratification - The President's international laws that were applicable ratification of treaties can directly affect during the revolutionary government. Even domestic law, subject to the required in the absence of a constitution, these Senate concurrence. documents were accepted principles that should be respected and enforced. Signature of a Philippine Representative on an ASEAN legal instrument - In the Direct Effect of UN Security Council context of ASEAN legal instruments, the Chapter VII Resolutions through signature of a Philippine representative Executive Orders - This mode of direct signifies the country's initial commitment to effect of international law emanates from the terms outlined in the agreement, serving the Office of the President. However, this as a formal declaration of intent to comply does not refer to the process of presidential with ASEAN standards. This signature ratification of a treaty. Executive Orders are marks the process where the Philippines tagged or defined in the Philippine laws as signals its willingness to adhere to regional “acts of the President that provide for rules frameworks and obligations. of a general or permanent character in implementation or execution of Ratification of ASEAN legal instruments - constitutional or statutory powers.” While many ASEAN legal instruments require both presidential ratification and Direct Effect of UN Security Council senate concurrence under the Treaty Chapter VII Resolutions by Clause, there are some that require only Administrative Regulations of a presidential “ratification” to bind the Statutory Body. This means that if the UN Philippines. Security Council issues a resolution under Chapter VII, a country must follow it right The effect of a Philippine away. National agencies might create rules Representative’s signature in an ASEAN to manage how the resolution is applied Legal Instrument - A certain class of within their country. ASEAN agreements become effective after a stated date and after they have been Direct Effect of UN Security Council VII signed by the Member-States’ Resolutions by Press Statement - This representatives. These agreements address mode of direct effect of international law, in a wide variety of categories, most of which this case, in relation to Philippine obligations revolve around economic activities in the involving UN Security Council Chapter VII jurisdiction of Member-States as well as Resolution is through press statements those that address social or cultural Definition of Terms based on the Lecture of Atty. Romel Regalado Bagares  ROBERT LORENZ MARCOS Public International Law University of Southeastern Philippines — School of Law cooperation. Whatever the case, these reflexive ‘material interconnectedness’ agreements provide certain entitlements or among functional fields’. Moreover, this even obligations on the part of the composite question arises from ‘the signatories—provided there is a overlapping among regimes and orders’, representative who signs them, binding their which are also self-referential and coherent principal as a result. in themselves. Outcasting - is used as a nonviolent Enkapsis - refers to the embedding or method to enforce the law through threat of incorporation of norms from one legal exclusion—that is, denying those who system into another, which reflect the disobey the law the benefits of social interactions between different legal cooperation and membership. It is premised frameworks. In particular, it deals with how on the idea that enforcing the law does not international norms are absorbed into require the use of force. domestic legal systems and vice versa. Prof. Bagares, in his work "Enkapsis and State Practice - refers to consistent and the Development of Customary International general practice by states. Law," posits that enkapsis highlights the interplay and amalgamation of diverse legal Opinio Juris - refers to the belief by states and normative components, such as state that such practice is legally obligatory. practices, opinio juris, and the roles of non-state actors, culminating in a cohesive interpretation of customary international law. inter-legality is an important aspect of the Restitution - refers to the principle of development and application of customary restoring the situation to what it was before international law (CIL). This refers to the the negative and wrongful action happened. interrelation and interaction between Restitution is also a remedy for international different legal systems, specifically between disputes wherein a party seeks to restore domestic and international law. It what was taken or lost due to an illegal act. emphasizes these systems shaping and influencing one another, instead of just Reparation - is a principle of international existing in isolation. law which a wrong may consist in an indemnity corresponding to the damage which the nationals of the injured State have Inter-legality - refers to the ‘plurality of suffered as a result of the act which is legalities’ even if embodied in a single contrary to international law. specimen of law. Here, ‘the law surfaces as Restitutio in integrum - is a legal principle the composite legal nature of the issue which means a remedy of restoring a party under scrutiny’ demonstrating resilient and Definition of Terms based on the Lecture of Atty. Romel Regalado Bagares  ROBERT LORENZ MARCOS Public International Law University of Southeastern Philippines — School of Law to the position it would have been in had a independence. This principle, crucial in the wrongful act not occurred. It is translated as context of decolonization, aims to preserve “restoration to the original condition” or “full the status quo of territorial boundaries restoration.” Also, this legal concept is established by colonial powers. based on the idea of justice and fairness. It seeks to provide a full remedy to the harm Restitutio in integrum - pertains to the caused by a breach through reversing the principle of reinstating the aggrieved party result of the wrongful act. to the condition it would have occupied had the wrongful act not taken place. The Erga omnes obligation - pertains to duties principle aims to entirely reverse the that states owe to the entirety of the consequences of the breach and restore the international community. These obligations circumstances to their state prior to the are deemed essential to the framework of violation. international law and are obligatory for all states, irrespective of their direct or specific Jus cogens - is referred to as a compelling interests in the issue at hand. The violation law which means that it is superior of such obligations is viewed as having compared to other International customary repercussions not only for the state that norms and principles. These norms are suffers direct harm but also for the global peremptory and non-derogable, meaning community at large. that states cannot deviate from them, even through a treaty or mutual agreement. A jus Opinio juris - or the belief that a practice is cogens norm, also as a peremptory norm of legally obligatory, over strict conformity to general international law, is a “norm state practice. accepted and recognized by the international community of States as a Overall control test, - used to determine whole as a norm from which no derogation whether or not an armed conflict is is permitted and which can be modified only international. It is equally applicable under by a subsequent norm of general the law of State responsibility for the international law having the same character. purpose of determining when a State is responsible for acts committed by Public international law - is a body of paramilitary units, armed forces which are principles, norms and processes which not among its official organs. regulate the relations of States and other international persons, and governs their Uti possidetis juris, - a Latin term meaning conduct affecting the interests of the "as you possess under law," is a principle in international community of States as a international law that dictates that newly whole independent states should retain the boundaries that existed at the time of their Definition of Terms based on the Lecture of Atty. Romel Regalado Bagares  ROBERT LORENZ MARCOS Public International Law University of Southeastern Philippines — School of Law Treaty - is an international agreement Ex aequo et bono - a standard of “what is “concluded between states in written form equitable and good,” which the Court may and governed by international law, whether apply (in place of the sources of embodied in a single instrument or in two or international law) to decide a case when the more related instruments and whatever its parties to the dispute so agree particular designation Occupation - refers not to mere discovery, Customary International Law - evidence but to effective exercise of sovereignty over of a general practice accepted as law. It a territory that is terra nullius (i.e., not results from a general and consistent subject to the sovereignty of any other practice of states followed by them from a state). sense of legal obligation Effective occupation means continued State Practice (Objective Element) - For display of authority. It involves: (1) the custom to exist, the customary practice intention and will to act as sovereign or must be both: animus occupandi; and (2) some actual exercise or display of such authority a. Consistent: Consistency requires [Eastern Greenland Case (PCIJ, 1933)]. substantial uniformity and not necessarily Animus occupandi must be demonstrated complete uniformity in practice [See Asylum and evidenced by some administrative or Case (ICJ, 1950)]. political acts in relation to the territory in question and such acts must be under titre b. General: The relevant practice must be de souverain (title of sovereignty general, meaning that it must be sufficiently widespread and representative, as well as Prescription is a mode of acquisition of title consistent. Provided that the practice is over a territory through continuous and general, no particular duration is required. undisturbed exercise of sovereignty over a period of time. Opinio Juris Sive Necessitates (Subjective Element) - This refers to the belief on the part of states that a particular practice is required by law, and not simply by courtesy or political expediency. Principle of Persistent Objector - takes place when a State has continuously objected to a customary norm when it is yet in the process of formation, by such persistent objection, the norm will not be applicable as against that state Definition of Terms based on the Lecture of Atty. Romel Regalado Bagares