1. NICARAGUA VS US (1986)
The Court held that the United States violated its customary international law obligation not to use force against another State.
“ Under Article 2(4) of the Charter of the United Nations (UN Charter) and in customary international law, generally, there is prohibition on the use of force by one state against another state, except if it involves individual or collective self-defense (Art.51). “
Under international law, several requirements must be met for a State to exercise the right of individual or collective self-defense.
(1) A State must have been the victim of an armed attack;
o The Court held that an armed attack included:
(a) action by regular armed forces across an international border; and
(b) “the sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out acts of (sic) armed force against another State of such gravity as to amount to (inter alia) an actual armed attack conducted by regular forces, or its (the State’s) substantial involvement therein”.
(2) That State must declare itself as a victim of an armed attack. The assessment on whether an armed attack had taken place or not, is done by the State who was subjected to the attack. A third State cannot exercise a right of collective self-defense based that third State’s own assessment;
(3) In the case of collective self-defense, the victim State must request for assistance. The Court held that “there is no rule permitting the exercise of collective self-defense in the absence of a request by the State which regards itself as the victim of an armed attack”;
(4) A State that is attacked, does not, under customary international law, have the same obligation as under Article 51 of the UN Charter to report to the Security Council that an armed attack
2. NORTH SEA CONTINENTAL SHEL CASES (1969) ICJ
FACTS: The parties requested the Court to decide the principles and rules of international law that are applicable to the above delimitation because the parties disagreed on the applicable principles or rules of delimitation. Netherlands and Denmark relied on the principle of equidistance (the method of determining the boundaries in such a way that every point in the boundary is equidistant from the nearest points of the baselines from which the breath of the territorial sea of each State is measured).
Issues: Is Germany under a legal obligation to accept the equidistance – special circumstances principle, contained in Article 6 of the Geneva Convention on the Continental Shelf of 1958, either as a customary international law rule or on the basis of the Geneva Convention.
Held: No. The use of the equidistance method had not crystallized into customary law and the method was not obligatory for the delimitation of the areas in the North Sea related to the present proceedings.
First, the Geneva Convention is not binding on Germany. Article 6 of the Geneva Convention stated that unless the parties had already agreed on a method for delimitation or unless special circumstances exist, the equidistance method would apply. Germany had signed, but not ratified, the Geneva Convention, while Netherlands and Denmark were parties to the Convention.
The Court held that the existence of a situation of estoppel would have allowed Article 6 to become binding on Germany – but held that Germany’s action did not support an argument for estoppel. The mere fact that Germany may not have specifically objected to the equidistance principle as contained in Article 6, is not sufficient to state that the principle is now binding upon it.
Second, for a customary rule to emerge, the court held that: the dual requirement for the formation of customary international law must be met:
(1) State practice (the objective element) and
(2) opinio juris (the subjective element).
In this case, the Court explained the criteria necessary to establish State practice is – widespread and representative participation.
While in opinion juris, uniform and consistent practice was necessary. Opinio juris is the belief that State practice amounts to a legal obligation.
The concept of opinion juris, the state must therefore feel that they are conforming to what amounts to legal obligation. THE FREQUENCY, DURATION OR HABITUALITY OF AN ACT IS NOT ENOUGH.
The principle had not attained a customary international law at the time of the entry into force of the Geneva Convention. As such, the Court held that the use of the equidistance method is not obligatory for the delimitation of the areas concerned in the present proceedings.
3. SISON VS BOARD OF ACCOUNATNCY
ISSUE: WON an accountant from the United Kingdom, granted with certificates to practice, may practice the profession of certified public accountant in the Philippines.
HELD: Yes. International Law is founded largely upon mutuality, reciprocity, and the principle of comity of nations. Comity, in this connection, is neither a matter of absolute obligation on the one hand, nor of mere courtesy and good will on the other. As in one case, the court noted that comity is the recognition which one nation allows within its territory to the legislative, executive, or judicial acts of another nation, having due regard both to International duty and convenience, and to the rights of its own citizens or of other persons who are under the protection of its laws.
In this case, the UK accountants were not granted with the opportunity to practice accountancy in the Philippines by virtue of the principle of reciprocity but by comity.
The record shows that the British Minister accredited to the Philippine Republic in two notes concerning this question, addressed to the President of the Philippines in his capacity as Head of the Department of Foreign Affairs, said:
that qualified Philippine citizen are allowed to practice the profession of accountancy including income tax accounting, in the United Kingdom.
We are bound to take notice of the fact that fact that the Philippine and the United Kingdom, are bound by a treaty of friendship and commerce, and each nation is represented in the other by corresponding diplomatic envoy. There is no reason whatsoever to doubt the statement and assurance made by the diplomatic representative of the British Government in the Philippines, regarding the practice of the accountancy profession in the United Kingdom and the fact that Filipino certified public accountant will be admitted to practice their profession in the United Kingdom should they choose to do so.
Under such circumstances, and without necessarily construing that such attitude of the British Government in the premises, as represented by the British Minister, amounts to reciprocity, we may at least state that it comes within the realm of comity, as contemplated in our law.
4. BANK OF AMERICA, NT and SA, petitioner, vs. AMERICAN REALTY CORPORATION and COURT OF APPEALS, respondents.
321 SCRA 659 (1999)
WON petitioner’s act of filing a collection suit against the principal debtors for the recovery of the loan before foreign courts constituted a waiver of the remedy of foreclosure.
In a long line of decisions, this Court adopted the well-imbedded principle in our jurisdiction that there is no judicial notice of any foreign law. A foreign law must be properly pleaded and proved as a fact.
Thus, if the foreign law involved is not properly pleaded and proved, our courts will presume that the foreign law is the same as our local or domestic or internal law. This is what we refer to as the doctrine of processual presumption.
In the instant case, assuming arguendo that the English Law on the matter were properly pleaded and proved, said foreign law would still not find applicability.
Thus, when the foreign law, judgment or contract is contrary to a sound and established public policy of the forum, the said foreign law, judgment or order shall not be applied.
The public policy sought to be protected in the instant case is the principle imbedded in our jurisdiction proscribing the splitting up of a single cause of action. Moreover, foreign law should not be applied when its application would work undeniable injustice to the citizens or residents of the forum. To give justice is the most important function of law; hence, a law, or judgment or contract that is obviously unjust negates the fundamental principles of Conflict of Laws.
5. HILTON V. GUYOT, 159 U.S. 113 (1895)
Do laws have any effect, of their own force, beyond the limits of the sovereignty from which its authority is derived?
No. No law has any effect, of its own force, beyond the limits of the sovereignty from which its authority is derived. No sovereign is bound, unless by special compact, to execute within his dominions a judgment rendered by the tribunals of another state, and if execution be sought by suit upon the judgment or otherwise, the tribunal in which the suit is brought, or from which execution is sought, is, on principle, at liberty to examine into the merits of such judgment, and to give effect to it or not, as may be found just and equitable.
However, the general comity, utility and convenience of nations have established a usage among most civilized states, by which the final judgments of foreign courts of competent jurisdiction are reciprocally carried into execution, under certain regulations and restrictions, which differ in different countries. Additionally, judgments rendered in France, or in any foreign country, by the laws of which our own judgments are reviewable upon the merits, are not entitled to full credit and conclusive effect when sued upon in this country, but are prima facie evidence only of the justice of the plaintiffs’ claim. Reversed
6. CLIPPERTON ISLAND CASE (FRANCE VS. MEXICO)
Overview: France claimed to have occupied an island, but Mexico also claimed that Spain discovered it and that it was the successor.
ISSUE: Who between France and Mexico has sovereignty over Clipperton Island?
Under international law, mere discovery gave a State an ‘inchoate title’: an option to occupy the territory within a reasonable time, during which time other States were not allowed to occupy the territory. Also, to have effective occupation, there should be:
a) intention and will to act as sovereign and
b) adequate exercise or display of sovereignty
In this case, As ruled by King Victor Emmanuel III of Italy, the Arbitrator, the discovery by Spain had not been proved , and that France had not abandoned her claim and so had title to the Island.
When France proclaimed her sovereignty over Clipperton, the Island was in a legal situation of terra nullius, and therefore susceptible to occupation
By the regularity of the act of France, it is clear that it had the intention to consider the island as his territory.
It is beyond doubt that by immemorial usage, having the force of law, besides animus occupandi, the ACTUAL and not the normal taking of possession is a necessary condition of occupation.
Thus, if a territory, by virtue of the fact that it was completely uninhabited, is, from the first moment when the occupying State makes its appearance there, at the absolute and undisputed disposition of that place, from that moment, the taking of possession must be considered as accomplished, and the occupation is thereby completed.
In this case, it follows from these premises that Clipperton Island was legitimately acquired by France on November 17, 1858. There is no reason that France lost her right by derelict, since she never had the animus of abandoning the island, and the fact that she has not exercised her authority there in a positive manner does not imply forfeiture of an acquisition already definitely perfected.
7. FRONTIER DISPUTE CASE (BURKINA FASO V. REPUBLIC OF MALI)
ISSUE: Does there exist an obligation to respect pre-existing international frontiers in the event of a state succession?
Held: Yes. There exists an obligation to respect pre-existing international frontiers in the event of a state succession, whether or not the rule is expressed in the form of uti possidetis. The fact that the principle did not exist when the states declared such independence in 1960 does not foreclose its present application.
As regards the applicable law, the Parties had stated in the preamble to the Special Agreement that the settlement of the dispute should be “based in particular on the respect for the principle of the intangibility of frontiers inherited from colonization”. Thus, the Chamber could not disregard the principle of uti possidetis juris which it declared to be a firmly established principle of international law where decolonization is concerned.
Its obvious purpose was to prevent the independence and stability of new States being endangered by the challenging of frontiers subsequent to the withdrawal of the administering power by upgrading former administrative frontiers to international frontiers. This principle, therefore, might represent the wisest course to preserve stability.
THE PRINCIPLE OF UTI POSSIDETIS:
which it declared to be a firmly established principle of international law where decolonization is concerned. Its obvious purpose was to prevent the independence and stability of new States being endangered by the challenging of frontiers subsequent to the withdrawal of the administering power by upgrading former administrative frontiers to international frontiers.
This principle, therefore, might represent the wisest course to preserve stability.
the Court described the principle as follows: “The general principle offered the advantage of establishing an absolute rule that there was not in law in the old Spanish America any terra nullius; while there might exist many regions that had never been occupied by the Spaniards, the regions were reputed to belonging in law to whichever of the republics succeeded to the Spanish province to which these territories attached by virtue of the old Royal ordinances of the Spanish mother country.”
8. BANCO NACIONAL DE CUBA V. SABBATINO 376 U.S. 398 (1964)
Issue. Does the judiciary have the authority to examine the validity of a taking of property within its own territory by a foreign sovereign even if the taking violated international law?
Held. No. The judiciary, in line with the Act of State Doctrine will not examine the validity of a taking of property within its own territory by a foreign sovereign government recognized by this country in the absence of international agreements to the contrary, even if the taking violates customary international law.
OTHER IMPORTANT POINT:
Q: WON a non-recognized state may be allowed to file suit in the courts of the non-recognizing state. US and Cuban had severance of diplomatic relations although Cuban was recognized by US.
Under the principles of comity, sovereign states are allowed to sue in the courts of US.
The US Supreme Court ruled that the absence of recognition of the government, being a political question, did not preclude the filing of a suit by a foreign state, under the principle of separation of powers.
There is a distinction between recognition of a state and recognition of a government of that state.
The recognition of a state is an acknowledgement that the state has complied with all the requirements of a state, and it continues to be a state even though its form of government has been changed. Thus, even if the government of the state has not been recognized by another, that government cannot sue in the recognizing state, but the state or its instrumentality may be allowed to sue.
The privilege to sue is denied only to:
1. Governments at war with the other state
2. To those which are not recognized by the latter.
9. GUARANTY TRUST CO. OF NEW YORK V. U.S
RECOGNITION OF STATEDHOOD
WON the the statute of limitation starts to run during the Provisional Government of Russia.
HELD: In conformity to generally accepted principles, the Soviet Government could not maintain a suit in our courts before its recognition by the political department of the government.
For this reason access to the federal and state courts was denied to the Soviet government before recognition.
It is not true that the judgment in suits maintained here by the diplomatic representatives of the Provisional Government valid when rendered, and became invalid upon the recognition of the Soviet Government.
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 it 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, otherwise recognition would be an idle ceremony.
The very purpose of the recognition by our government is that our nationals may be conclusively advised with what government they may safely carry on business transactions and who its representatives are.
Thus, the the judgment in suits maintained by the representative of the Provisional Government would be conclusive upon all successor governments.
10. ACCORDANCE WITH INTERNATIONAL LAW OF THE UNILATERAL DECLARATION OF INDEPENDENCE IN RESPECT OF KOSOVO (2010)
ISSUE: “Is the unilateral declaration of independence by the Provisional Institutions of Self Government of Kosovo in accordance with international law?”
As to right to self-determination:
• During the second half of the twentieth century, the international law of self-determination developed in such a way as to create a right to independence for the peoples of non-self-governing territories and peoples subject to alien subjugation, domination and exploitation.
A number of participants in the present proceedings have claimed, although in almost every instance only as a secondary argument, that the population of Kosovo has the right to create an independent State either as a manifestation of a right to self-determination or pursuant to what they described as a right of “remedial secession” in the face of the situation in Kosovo.
11. WESTERN SAHARA (ICJ ADVISORY OPINION, 1975)
Self-determination: denotes the legal right of people to decide their own destiny in the international order.
Self-determination is a core principle of international law, arising from customary international law, but also recognized as a general principle of law, and enshrined in a number of international treaties such as United Nations Charter and the International Covenant on Civil and Political Rights as a right of “all peoples.”
ISSUE: WON there were the legal ties between Western Sahara and the Kingdom of Morocco and the Mauritian entity.
Western Sahara at the time of colonization by Spain was not terra nullius.
[There are] legal ties of allegiance between the Sultan of Morocco and some of the tribes living in the territory of Western Sahara. [There are also] legal ties between the Mauritanian entity … and the territory of Western Sahara. [However, such] do not establish any tie of territorial sovereignty between the territory of Western Sahara and the Kingdom of Morocco or the Mauritanian entity.
Thus the Court, being mindful of the purpose for which
the Advisory Opinion was sought, held in its penultimate paragraph: “The materials and information presented to the Court show the existence, at the time of Spanish colonization, of legal ties of allegiance between the Sultan of Morocco and some of the tribes living in the territory of Western Sahara. They equally show the existence of rights, including some rights relating to the land, which constituted legal ties between the Mauritanian entity, as understood by the Court, and the territory of Western Sahara. On the other hand, the Court’s conclusion is that the materials and information presented to it do not establish any tie of territorial sovereignty between the territory of Western Sahara and the Kingdom of Morocco or the Mauritanian entity.
Thus the Court has not found legal ties of such a nature as might affect the application of resolution 1514 (XV) in the decolonization of Western Sahara and, in particular, of the principle of self-determination through the free and genuine expression of the will of the peoples of the Territory.
12. MINGTAI FIRE & MARINE INSURANCE CO., LTD. V. UNITED PARCEL SERVICE, MAY 25, 1999
Binding Effect of the Executive’s position in foreign relations to the courts
ISSUE: WON the executive’s position in foreign relations binds the court.
HELD: Yes. The Supreme Court has repeatedly held that the Constitution commits to the Executive Branch alone the authority to recognize, and to withdraw recognition from, foreign regimes. Similarly, “governmental action must be regarded as of controlling importance” in determining the status of treaties.
The Warsaw convention in this case does not apply to Taiwan hence the Dc properly upheld the limitation of liability in the airway bill.
The Convention only applies to shipments between territories of signatories, otherwise referred to as “High Contracting Parties.” The parties do not dispute that Taiwan is not a High Contracting Party, nor that China is a High Contracting Party.