Nicaragua vs United States (summary) on self-defense and use of force 

Case: Case Concerning the Military and Paramilitary Activities In and Against Nicaragua (Nicaragua vs United States) (Merits: focusing on matters relating to the use of force and self-defence)

Year of Decision: 1986

Court: ICJ

NB: This blog post will discuss matters on the use of force and self-defence. If you would like to read about the impact of the Nicaragua judgement on customary international law and the US multilateral reservation please click here.  

Overview: The case involved military and paramilitary activities conducted by the United States against Nicaragua from 1981 to 1984.  Nicaragua asked the Court to find that these activities violated international law. 

Facts of the Case:

In July 1979 the Government of President Somoza collapsed following an armed opposition led by the Frente Sandinista de Liberacibn Nacional (FSLN) .  The new government – installed by FSLN – began to meet armed opposition from supporters of the former Somoza Government and ex-members of the National Guard. The US – initially supportive of the new government – changed its attitude when, according to the United States, it found that Nicaragua was providing logistical support and weapons to guerrillas in El Salvador.  In April 1981 it terminated United States aid to Nicaragua and in September 1981, according to Nicaragua, the United States “decided to plan and undertake activities directed against Nicaragua”.

The armed opposition to the new Government was conducted mainly by (1)   Fuerza Democratica Nicaragüense (FDN), which operated along the border with Honduras, and (2) Alianza Revolucionaria Democratica (ARDE), which operated along the border with Costa Rica, (see map of the region). Initial US support to these groups fighting against the Nicaraguan Government (called “contras”) was covert. Later, the United States officially acknowledged its support (for example: In 1983 budgetary legislation enacted by the United States Congress made specific provision for funds to be used by United States intelligence agencies for supporting “directly or indirectly military or paramilitary operations in Nicaragua”).

Nicaragua also alleged that the United States is effectively in control of the contras, the United States devised their strategy and directed their tactics and that they were paid for and directly controlled by United States personal. Nicaragua also alleged that some attacks were carried out

by United States military – with the aim to overthrow the Government of Nicaragua. Attacks against Nicaragua included the mining of Nicaraguan ports and attacks on ports, oil installations and a naval base. Nicaragua alleged that aircrafts belonging to the United States flew over Nicaraguan territory to gather intelligence, supply to the contras in the field and to intimidate the population.

The United States did not appear before the ICJ at the merit stages, after refusing to accept the ICJ’s jurisdiction to decide the case. The United States at the jurisdictional phase of the hearing, however, stated that it relied on an inherent right of collective self-defence guaranteed in A. 51 of the UN Charter by “providing, upon request, proportionate and appropriate assistance…” to Costa Rica, Honduras and El Salvador in response to Nicaragua’s alleged acts aggression against those countries (paras. 126, 128). 

Questions before the Court:

Did the United States breach its customary international law obligation – not to intervene in the affairs of another State – when it trained, armed, equipped and financed the contra forces or encouraged, supported and aided the military and paramilitary activities against Nicaragua?

Did the United States breach its customary international law obligation – not to use force against another State – when it directly attacked Nicaragua in 1983 – 1984 and when its activities in bullet point 1 above resulted in the use of force?

 If so, can the military and paramilitary activities that the United States undertook in and against Nicaragua be justified as collective self-defence?

Did the United States breach its customary international law obligation – not to violate the sovereignty of another State – when it directed or authorized its aircrafts to fly over Nicaraguan territory and by acts referred to in bullet point 2 above?

Did the United States breach its customary international law obligations – not to violate the sovereignty of another State, not to intervene in its affairs, not to use force against another State and not to interrupt peaceful maritime commerce – when it laid mines in the internal waters and the territorial sea of Nicaragua?

ICJ decision: The United States violated customary international law in relation to bullet points 1, 2, 4 and 5 above. On bullet point 3, the Court found that the United States could not rely on collective self-defence to justify its use of force against Nicaragua.

Relevant Findings of the Court:

1. The court held that the United States breached its customary international law obligation – not to use force against another State: (1) when it directly attacked Nicaragua in 1983 – 1984; and (2) when its activities with the contra forces resulted in the threat or use of force  (see paras 187 -201). 

The Court held that:

The prohibition on the use of force is found in Article 2(4) of the UN Charter and in customary international law.

In a controversial finding the court sub-classified the use of force as: (1) the “most grave forms of the use of force” (i.e. those that constitute an armed attack) and (2) the “less grave form” (i.e. organizing, instigating, assisting or participating in acts of civil strife and terrorist acts in another State – when the acts referred to involve a threat or use of force not amounting to an armed attack).

The United States violated the customary international law prohibition on the use of force when it laid mines in Nicaraguan ports. It violated this prohibition when it attacked Nicaraguan ports, oil installations and a naval base (see below). The United States could justify its action on collective self-defence, if certain criteria were met – this aspect is discussed below.

The United States violated the customary international law prohibition on the use of force when it assisted the contras by “organizing or encouraging the organization of irregular forces and armed bands… for incursion into the territory of another state” and participated “in acts of civil strife…in another State”  when these acts involved the threat or use of force.

The supply of funds to the contras did not violate the prohibition on the use of force. Nicaragua argued that the timing of the offensives against it was determined by the United States: i.e. an offensive could not be launched until the requisite funds were available. The Court held that “…it does not follow that each provision of funds by the United States was made to set in motion a particular offensive, and that that offensive was planned by the United States.” The Court held further that  while the arming and training of the contras involved  the threat or use of force against Nicaragua, the supply of funds, in it self, only amounted to an  act of intervention in the internal affairs of Nicaragua (para 227) – this aspect is discussed below.

What is an armed attack?

A controversial but interesting aspect of the Court’s judgement was its definition of an armed attack. The Court held that an armed attack included:

(1) action by regular armed forces across an international border; and

(2) “the sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out acts of 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”

NB: The second point somewhat resembles Article 3 (g) of the UNGA Resolution 3314 (XXIX) on the Definition of Aggression .

Mere frontier incidents are not considered as an armed attack – unless because of its scale and effects it would have been classified as an armed attack if it was carried out by regular forces.

Assistance to rebels in the form of provision of weapons or logistical support did not constitute an armed attack – it can be regarded as a threat or use of force, or an intervention in the internal or external affairs of other States (see paras 195, 230).

Under Article 51 of the UN Charter and under CIL – self-defence is only available against a use of force that amounts to an armed attack (para 211). 

NB: In   in the Case Concerning Oil Platforms and the advisory opinion on the Legal Consequences of of the Construction of a Wall in the Occupied Palestinian Territory (hereinafter called the Palestine wall case) the ICJ upheld the definition of  “armed attack” proposed in the Nicaragua case. In the Palestinian wall case, the attacks from which Israel was claiming self defence originated from non-State actors. However, the Court held that Article 51’s inherent right of self defence was  available to one State only against another State (para 139). Judges Higgins, Buergenthal and Kooijmans opposed this narrow view. Articles on State Responsibility, prepared by the International Law Commission, provided significant guidance as to when acts of non-State actors may be attributed to States. These articles, together with recent State practice relating attacks on terrorists operating from other countries (see legal opinions surrounding the United States attack on Afghanistan), may have widened the scope of an armed attack, and consequently, the right of self defence, envisaged by the ICJ. 

2. The Court held that the United States could not justify its military and paramilitary activities on the basis of collective self-defence.

Customary international law allows for exceptions to the prohibition on the use of force – including the right to individual or collective self-defence (for a difference between the two forms of self defence, click here). The United States, at an earlier stage of the proceedings, had asserted that the Charter itself acknowledges the existence of this customary international law right when it talks of the “inherent” right of a State under Article 51 of the Charter (para.193).

When a State claims that it used force in collective self-defence, the Court would look into two aspects:

(1) whether the circumstances required for the exercise of self-defence existed and

(2) whether the steps taken by the State, which was acting in self-defence, corresponds to the requirements of international law (i.e. did it comply with the principles of necessity and proportionality).

Several criteria must be met for a State to exercise the right of individual or collective self-defence:

(1) A State must have been the victim of an armed attack;

(2) This State must declare itself as a victim of an armed attack; [NB: the assessment whether an armed attack took place nor not  is done by the state who was subjected to the attack. A third State cannot exercise a right of collective self-defence based its (the third State’s) own assessment]; and

(3) In the case of collective self-defence – the victim State must request  for assistance (“there is no rule permitting the exercise of collective self-defence in the absence of a request by the State which regards itself as the victim of an armed attack”).

(4) The State 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 happened – but “the absence of a report may be one of the factors indicating whether the State in question was itself convinced that it was acting in self-defence” (see below).

“At this point, the Court may consider whether in customary international law there is any requirement corresponding to that found in the treaty law of the United Nations Charter, by which the State claiming to use the right of individual or collective self-defence must report to an international body, empowered to determine the conformity with  international law of the measures which the State is seeking to justify on that basis. Thus Article 51 of the United Nations Charter requires that measures taken by States in exercise of this right of self-defence must be “immediately reported” to the Security Council. As the Court has observed above (paragraphs 178 and 188), a principle enshrined in a treaty, if reflected in customary international law, may well be so unencumbered with the conditions and modalities surrounding it in the treaty. Whatever influence the Charter may have had on customary international law in these matters, it is clear that in customary international law it is not a condition of  the lawfulness of the use of force in self-defence that a procedure so closely dependent on the content of a treaty commitment and of the institutions established by it, should have been followed. On the other hand, if self-defence is advanced as a justification for measures which would otherwise be in breach both of the principle of customary international law and of that contained in the Charter, it is to be expected that the conditions of the Charter should be respected. Thus for the purpose of enquiry into the customary law position, the absence of a report may be one of the factors indicating whether the State in question was itself convinced that it was acting in self-defence (See paras 200, 232 -236)”. 

The Court looked extensively into the conduct of Nicaragua, El Salvador, Costa Rica and Honduras in determining whether an armed attack was undertaken by Nicaragua against the three countries – which in turn would necessitate self-defence (paras 230  – 236). The Court referred to statements made by El Salvador, Costa Rica, Honduras and the United States before the Security Council. None of the countries who were allegedly subject to an armed attack by Nicaragua (1) declared themselves as a victim of an armed attack or request assistance from the United States in self-defence – at the time when the United

States was allegedly acting in collective self-defence; and (2) the United States did not claim that it was acting under Article 51 of the UN Charter and it did not report that it was so acting to the Security Council. The Court concluded that the United States cannot justify its use of force as collective self-defence.

 The criteria with regard to necessity and proportionality, that is necessary when using force in self-defence – was also not fulfilled (para 237).

 3. The Court held that the United States breached its CIL obligation – not to intervene in the affairs of another State – when it trained, armed, equipped and financed the contra forces or encouraged, supported and aided the military and paramilitary activities against Nicaragua. 

The principle of non- intervention means that every State has a right to conduct its affairs without outside interference – i.e it “…forbids States or groups of States to intervene directly or indirectly in internal or external affairs of other States.” . This is a corollary of the principle of sovereign equality of States.

A prohibited intervention must accordingly be one bearing on matters in which each State is permitted, by the principle of State sovereignty to decide freely. One of these is the choice of a political, economic, social and cultural system, and the formulation of  foreign policy. Intervention is wrongful when it uses methods of coercion in regard to such choices, which must remain  free ones. The element of coercion, which defines, and indeed forms the very essence of, prohibited intervention, is particularly obvious in the case of an intervention which uses force, either in the direct form of military action, or in the indirect form of support for subversive or terrorist armed activities within another State (para 205).

Nicaragua stated that the activities of the United States were aimed to overthrow the government of Nicaragua and to substantially damage the economy and weaken the political system to coerce the Government of Nicaragua to accept various political demands of the United States. The Court held:

 “…first, that the United States intended, by its support of the contras, to coerce the Government of Nicaragua in respect of matters in which each State is permitted, by the principle of State sovereignty, to decide freely (see paragraph 205 above) ; and secondly that the intention of  the contras themselves was to overthrow the present Government of Nicaragua… The Court considers that in international law, if one State, with a view to  the coercion of another State, supports and assists armed bands in that State whose purpose is to overthrow the government of  that State, that amounts to an intervention by the one State in the internal affairs of the other, whether or not the political objective of the State giving such support and assistance  is equally far reaching.”

The financial support, training, supply of weapons, intelligence and logistic support given by the United States to the contras was a breach of the principle of non-interference. “…no such general right of intervention, in support of an opposition within another State,

exists in contemporary international law”, even if such a request for assistance is made by an opposition group of that State (see para 246 for more).

However, in a controversial finding, the Court held that the United States did not devise the strategy, direct the tactics of the contras or exercise control on them in manner so as to make their acts committed in violation of international law imputable to the United States (see in this respect “Determining US responsibility for contra operations under international law” 81 AMJIL 86).T he Court concluded that “a number of military and paramilitary operations of the contras were decided and planned, if not actually by United States advisers, then at least in close collaboration with them, and on the basis of the intelligence and logistic support which the United States was able to offer, particularly the supply aircraft provided to the contras by the United States” but not all contra operations reflected strategy and tactics wholly devised by the United States.

“In sum, the evidence available to the Court indicates that the various forms of assistance provided to the contras by the United States have been crucial to the pursuit of their activities, but is insufficient to demonstrate their complete dependence on United States aid. On the other hand, it indicates that in the initial years of United States assistance the contra force was so dependent. However, whether the United States Government at any stage devised the strategy and directed the tactics of the contras depends on the extent to which the United States made use of the potential for control inherent in that dependence. The Court already indicated that it has insufficient evidence to reach a finding on this point. It is a fortiori unable to determine that the contra force may be equated for legal purposes with the forces of the United States…The Court has taken the view (paragraph 110 above) that United States participation, even if preponderant or decisive, in the financing, organizing, training, supplying and equipping of the contras, the selection of its military or paramilitary targets, and the planning of the whole of its operation, is still insufficient in itself, on the basis of the evidence in the possession of the Court, for the purpose of attributing to the United States the acts committed by the contras in the course of their military or paramilitary operations in Nicaragua. All the forms of United States participation mentioned above, and even the general control by the respondent State over a force with a high degree of dependency on it, would not in themselves mean, without further evidence, that the United States directed or enforced the perpetration of the acts contrary to human rights and humanitarian law alleged by the applicant State. Such acts could well be committed by members of the contras without the control of the United States. For this conduct to give rise to legal responsibility of the United States, it would in principle have to be proved that that State had effective control of the military or paramilitary.”

Interesting, however, the Court also held that providing “…humanitarian aid to persons or forces in another country, whatever their political affiliations or objectives, cannot be regarded as unlawful intervention, or as in any other way contrary to international law” (para 242).

 In the event one State intervenes in the affairs of another State, the victim State has a right to intervene in a manner that is short of an armed attack (210).

“While an armed attack would give rise to an entitlement to collective self-defence, a use of force of a lesser degree of gravity cannot as the Court has already observed (paragraph 21 1 above). produce any entitlement to take collective countermeasures involving the use of force. The acts of which Nicaragua is accused, even assuming them to have been established and imputable to that State, could only have justified proportionate counter-measures on the part of the State which had been the victim of these acts, namely El Salvador, Honduras or Costa Rica. They could not justify counter-measures taken by a third State, the United States, and particularly could not justify intervention involving the use of force.”

4. The United States breached its customary international law obligation – not to violate the sovereignty of another State – when it directed or authorized its aircrafts to fly over Nicaraguan territory and when it laid mines in the internal waters of Nicaragua and its territorial sea.

The  ICJ examined evidence and found that in early 1984 mines were laid in or close to ports of the territorial sea or internal waters of Nicaragua “by persons in the pay or acting ion the instructions” of the United States and acting under its supervision with its logistical support.  The United States did not issue any warning on the location or existence of mines and this resulted in injuries and increases in maritime insurance rates.

The court found that the United States also carried out high-altitude reconnaissance flights over Nicaraguan territory and  certain low-altitude flights, complained of as causing sonic booms.

The basic concept of State sovereignty in customary international law is found in Article 2(1) of the UN Charter. State sovereignty extends to a State’s internal waters, its territorial sea and the air space above its territory. The United States violated customary international law when it laid mines in the territorial sea and internal waters of Nicaragua and when it carried out unauthorised overflights over Nicaraguan airspace by aircrafts that belong to or was under the control of the United States.

The Republic of Nicaragua v. The United States of America (1986) ICJ 1 is a public international law case decided by the International Court of Justice (ICJ). The ICJ ruled in favor of Nicaragua and against the United States and awarded reparations to Nicaragua. The ICJ held that the U.S. had violated international law by supporting the Contras in their rebellion against the Nicaraguan government and by mining Nicaragua's harbors. The United States refused to participate in the proceedings after the Court rejected its argument that the ICJ lacked jurisdiction to hear the case. The U.S. later blocked enforcement of the judgment by the United Nations Security Council and thereby prevented Nicaragua from obtaining any actual compensation.[2] The Nicaraguan government finally withdrew the complaint from the court in September 1992 (under the later, post-FSLN, government of Violeta Chamorro), following a repeal of the law requiring the country to seek compensation.[3]

The Court found in its verdict that the United States was "in breach of its obligations under customary international law not to use force against another State", "not to intervene in its affairs", "not to violate its sovereignty", "not to interrupt peaceful maritime commerce", and "in

breach of its obligations under Article XIX of the Treaty of Friendship, Commerce and Navigation between the Parties signed at Managua on 21 January 1956."

The Court had 16 final decisions upon which it voted. In Statement 9, the Court stated that while the U.S. encouraged human rights violations by the Contras by the manual entitled Psychological Operations in Guerrilla Warfare, this did not, however, make such acts attributable to the U.S.[4]

North Sea Continental Shelf Cases (Summary)Name of the Case: The North Sea Continental Shelf Cases (Germany/Denmark; Germany/Netherlands); Year of Decision: 1969; and Court: ICJ.

NB: This post discussed only aspects of the case related to treaty or customary international law.

Overview: The jurisprudence of the North Sea Continental Shelf Cases sets out the dual requirement for  forming customary international law – State practice (objective element) and opinio juris (subjective element). It elaborated the criteria necessary to establish State practice – widespread and representative participation. The case highlighted that  the State practice of  importance were of those States whose interests were affected by the custom. It also identified the fact that uniform and consistent practice was necessary to show opinio  juris – a belief that the practice amounts to a legal obligation. The North Sea Continental Self Cases also dispelled the myth that duration of the practice (i.e. the number of years) was an essential factor in forming customary international law. 

The case involved the delimitation of the continental shelf areas in the North Sea between Germany and Denmark and Germany and Netherlands beyond the partial boundaries previously agreed upon by these States. The parties requested the ICJ to decide the principles and rules of international law that are applicable to the above delimitation. 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). Germany sought to get a decision in  favour of the notion that the delimitation of the relevant continental shelf is governed by the principle that each coastal state is entitled to a just and equitable share (hereinafter called just and equitable principle/method). Contrary to Denmark and Netherlands, Germany argued that the principle of equidistance was neither a mandatory rule in delimitation of the continental shelf nor a rule of customary international law that was not binding on Germany. The court was not asked to delimit – the parties agreed to delimit the continental shelf as between their countries, by agreement, after the determination of the ICJ on the applicable principles.

Facts of the Case:

Netherlands and Denmark had drawn partial boundary lines based on the equidistance principle (A-B and C-D). An agreement on further prolongation of the boundary proved difficult because Denmark and Netherlands wished this prolongation to take place based on the equidistance principle (B-E and D-E) where as Germany was of the view that, together, these two boundaries would produce an inequitable result for her. Germany stated that due to its concave coastline, such a line would result in her loosing out on her share of the continental shelf based on proportionality to the length of its North Sea coastline. The Court had to decide the principles and rules of international law applicable to this delimitation. In doing so, the court had to decide if the principles espoused by the parties were binding on the parties either through treaty law or customary international law.

Questions before the Court (as relevant to this post):

Is Germany under a legal obligation to accept the equidistance-special circumstances principle, contained in Article 6 of the Geneva Convention, either as a customary international law rule or on the basis of the Geneva Convention?

The Court’s Decision:

The use of the equidistance method had not crystallised into customary law and was is not obligatory for the delimitation of the areas in the North Sea related to the present proceedings.

Relevant Findings of the Court:

Nature of the treaty obligation: Is the 1958 Geneva Convention, and in particular Article 6, binding on Germany?

1. Article 6 of the Geneva Convention on the Continental Shelf states that unless the parties have agreed on a method for delimitation or unless special circumstances exist, the equidistance method would apply (see Article 6). Germany has signed but not ratified the Geneva Convention, while Netherlands and Denmark are parties to the Convention. The latter two States argue that while Germany is not a party to the Convention (not having ratified it), she is still bound by Article 6 of the Convention because:

“…(1)  by conduct, by public statements and proclamations, and in other ways, the Republic has unilaterally assumed the obligations of the Convention; or has manifested its acceptance of the conventional regime; or has recognized it as being generally applicable to the delimitation of continental shelf areas…

(2) the Federal Republic had held itself out as so assuming, accepting or recognizing, in such a manner as to cause other States, and in particular Denmark and the Netherlands, to rely on the attitude thus taken up” (the latter is called the principle of estoppel).

2. The Court rejected the first argument. It stated that only a ‘very definite very consistent course of conduct on the part of a State’ would allow the court to presume that a State had somehow become bound by a treaty (by a means other than in a formal manner: i.e. ratification) when the State was ‘at all times fully able and entitled to…’ accept the treaty commitments in a formal manner. The Court held that Germany had not unilaterally assumed obligations under the Convention. The court also took notice of the fact that even if Germany ratified the treaty, she had the option of entering into a reservation on Article 6 following which that particular article would no longer be applicable to Germany (i.e. even if one were to assume that Germany had intended to become a party to the Convention, it does not presuppose that it would have also undertaken those obligations contained in Article 6).

3. NB: The Vienna Convention on the Law of Treaties of 1969 (VCLT), which came into force in 1980, discusses more fully the obligations of third States to treaties. It clearly stipulates that an obligation arises for a third State from a provision of a treaty only if (1) the parties to the treaty intend the provision to create this obligation for the third States; and (2) the third State expressly accepts that obligation in writing (A. 35 of the VCLT). The VCLT was not in force when the ICJ deliberated on this case. However, as  seen above, the ICJ’s position was consistent the VCLT. (See the relevant provisions of the Vienna Convention on the Law of Treaties).

4. 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 court also held that 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.

5. In conclusion, the court held that Germany had not acted in any way to incur obligations contained in Article 6 of the Geneva Convention. The equidistance – special circumstances rule was not binding on Germany by way of treaty.

Nature of the customary international law obligation: Is Germany bound by the provisions of Article 6 of the Geneva Convention by way of customary international law?

6. Netherlands and Denmark argued that Article 6 also reflected ‘the accepted rule of general international law on the subject of continental shelf delimitation’ and existed independently of the Convention. Therefore, they argued, Germany is bound by it by way of customary international law.

7. To decide if the equidistance principle bound Germany by way of customary international law, the court examined (1) the status of the principle contained in Article 6 as it stood when the Convention was being drawn up (2) and after the latter came into force.

What was the customary law status of Article 6 at the time of drafting the Convention?

8. The court held the principle of equidistance, as contained in Article 6, did not form a part of existing or emerging customary international law at the time of drafting the Convention. The Court supported this finding based on (1) the hesitation expressed by the drafters of the

Convention – International Law Commission – on the inclusion of Article 6 (para. 62) and (2) the fact reservations to Article 6 was permissible under the Convention (Article 12). The court held:

… Article 6 is one of those in respect of which, under the reservations article of the Convention (Article 12) reservations may be made by any State on signing, ratifying or acceding for, speaking generally, it is a characteristic of purely conventional rules and obligations that, in regard to them, some faculty of making unilateral reservations may, within certain limits, be admitted; whereas this cannot be so in the case of general or customary law rules and obligations which, by their very nature, must have equal force for all members of the international community, and cannot therefore be the subject of any right of unilateral exclusion exercisable at will by any one of them in its own favor…. The normal inference would therefore be that any articles that do not figure among those excluded from the faculty of reservation under Article 12, were not regarded as declaratory of previously existing or emergent rules of law (see para 65 for a counter argument and the court’s careful differentiation)…”

Did the provisions in Article 6 on the equidistance principle attain the customary law status after the Convention came into force?

9. The court then examined whether the rule contained in Article 6 had become customary international law after the Convention entered into force – either due the convention itself (i.e., if enough States had ratified the Convention in a manner to fulfil the criteria specified below), or because of subsequent State practice (i.e. even if adequate number of States had not ratified the Convention one could find sufficient State practice to meet the criteria below). The court held that Article 6 of the Convention had not attained a customary law status (compare the 1958 Geneva Convention with the four Geneva Conventions on 1949 in the field of international humanitarian law in terms of its authority as a pronouncement of customary international law).

10. For a customary rule to emerge the court held that it needed: (1) very widespread and representative participation in the convention, including States whose interests were specially affected (i.e. generality); and (2) virtually uniform practice (i.e. consistent and uniform usage) undertaken in a manner that demonstrates (3) a general recognition of the rule of law or legal obligation (i.e. opinio juries). In the North Sea Continental Shelf cases the court held that the passage of a considerable period of time was unnecessary (i.e. duration) for the formation of a customary law.

Widespread and representative participation

11. The court held that the first criteria was not met. The number of ratifications and accessions to the convention (39 States) were not adequately representative (including of coastal States – i.e. those States whose rights are affected) or widespread.

Duration

12. The court held that duration taken for the customary law rule to emerge is not as important as widespread and representative participation, uniform usage and the existence of an opinio juris.

“Although the passage of only a short period of time (in this case, 3 – 5 years) is not necessarily, or of itself, a bar to the formation of a new rule of customary international law on the basis of what was originally a purely conventional rule, an indispensable requirement would be that within the period in question, short though it might be, State practice, including that of States whose interests are specially affected, should have been both extensive and virtually uniform in the sense of the provision invoked and should moreover have occurred in such a way as to show a general recognition that a rule of law or legal obligation is involved (text in brackets added).”

Opinio juris

13. Opinio juris  is reflected in acts of States (Nicaragua Case) or in omissions (Lotus case) in so far as those acts or omissions are done following a belief that the said State is obligated by law to act or refrain from acting in a particular way. (For more on opinio juris click here).

14. The Court examined 15 cases where States had delimited their boundaries using the equidistance method, after the Convention came into force (paras. 75 -77). The court concluded, even if there were some State practice in favour of the equidistance principle the court could not deduct the necessary opinio juris from this State practice. The North Sea Continental Shelf Cases confirmed that both State practice (the objective element) and opinio juris (the subjective element) are essential pre-requisites for the formation of a customary law rule. This is consistent with Article 38 (1) (b) of the Statute of the ICJ. The following explains the concept of opinio juris and the difference between customs (i.e. habits) and customary law:

Not only must the acts concerned amount to a settled practice, but they must also be such, or be carried out in such a way, as to be evidence of a belief that this practice is rendered obligatory by the existence of a rule of law requiring it. The need for such a belief, i.e, the existence of a subjective element, is implicit in the very notion of the opinio juris sive necessitatis. The States concerned must therefore feel that they are conforming to what amounts to a legal obligation. The frequency, or even habitual character of the acts is not in itself enough. There are many international acts, e.g., in the field of ceremonial and protocol, which are performed almost invariably, but which are motivated only by considerations of courtesy, convenience or tradition, and not by any sense of legal duty.

15.  The court concluded that the equidistance principle was not binding on Germany by way of treaty or customary international law because, in the case of the latter, the principle had not attained a customary international law status at the time of the entry into force of the Geneva Convention or thereafter. 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.

G.R. No. L-2529          December 31, 1949

J. A. SISON, petitioner, vs.THE BOARD OF ACCOUNTANCY and ROBERT ORR FERGUZON, respondents.

Quijano, Rosete and Tizon for petitioner.Perkins, Ponce Enrile, Contreras and Gomez for respondent.Claro M. Recto as amicus curiae.

 

TORRES, J.:

In his petition for certiorari against the Board of Accountancy and Robert Orr Ferguson, J. A. Sison prays that this Court render judgment "ordering the respondent Board of Accountancy to revoke the certificate issued to Robert Orr Ferguson, a British subject admitted without examination because there does not exist any reciprocity between the Philippines and the United Kingdom regarding the practice of accountancy."

Upon perusal of the pleadings and for a clear understanding of the issue raised by petitioner the following facts, which we believe are not disputed, shall be stated:

Pursuant to the provisions of Act No. 342, several persons, British subjects, and the possessors of certificates as chartered accountants issued by various incorporated private accountant's societies in England and other parts of the British Empire, were, without examination, granted by the respondents Board of Accountancy, certificates as public accountants to practice their profession in this jurisdiction. The respondent Robert Orr Ferguson was granted certificate No. 713-W on January 14, 1939 pursuant to resolution No. 24 of the Board of Accountancy, series of 1938.

Subsequently, the Board of Accountancy, upon the examination of the case of those British accountants without examination, came to the conclusion that , there being no law which regulates the practice of accountancy in England, and that the practice of accountancy in England, and that the practice of accountancy in said country being limited only to the members of incorporated private accountant's societies, the certificates issued by the Institutes of chartered accountants and other similar societies in England and Wales cannot be considered on a par with the public accountant's certificates issued by the Philippine Board of Accountancy, which is government entity. In view thereof, the respondent Board of Accountancy "resolved to suspend, . . . the validity of the C.P.A. certificates of the above-mentioned candidates pending the final revocation thereof should they fail to prove to the satisfaction of the Board within sixty days' notice that : (a) Filipinos are allowed to take the professional accountant examination given by

the British government, if any, and (b) Filipino certified public accountants can, upon application, be registered as chartered accountants or granted similar degrees by the British Government." (Annex B.)lawphi1.net

Such action of the Board of Accountancy was based on an opinion rendered by the Secretary of Justice, on October 1, 1946 (Annex A), to the Chartered Accountants in England and Wales does not meet the requirement of section 41 of Rule 123 of the Rules of Court and that the negative statement therein, as quoted above, does not establish the existence of reciprocity, which induced the board to hold that the registration, without examination, of those British subjects as certified public accountants, is in accordance with the provision of section 122 of Act No. 3105 as amended by Commonwealth Act No. 342.

However, the Secretary of justice, answering a query from the Secretary of Finance, in an opinion rendered on February 10, 1947 "on the legality of the suspension or revocation " of the certificates issued to those British subjects as contemplated in resolution No. 5, series of 1946 of the Board of Accountancy, was of the opinion that "the board may not suspend or revoke the certificates previously granted to the ten British accountants herein involved, including respondent Robert Orr Ferguson, because such action is in contravention of section 13 of Act No. 3105 as amended which explicitly provides that the suspension or revocation of the certificate issued under the said Act may be done by the board for unprofessional conduct of the holder or other sufficient cause. The Secretary of Justice further said that he believes that "the change in administrative interpretation with respect to the existence of reciprocity between the Philippines and Great Britain as to the practice of accountancy," does not constitute sufficient cause for the suspension or revocation of the certificates in question within the meaning of said provision. The opinion of the Secretary of Justice further said that if those certificates were issued to those British persons on the assumption that there is "reciprocity between Great Britain and the Philippines as to the practice of certified public accountancy in the Philippines" a change of administrative interpretation is not favored (42 Am. Jur., 412).While in the instant case the public policy with respect to the practice of foreign accountants in this country remains unchanged, the action intended by the Board of Accountancy, to suspend or revoke the certificates already issued to such persons must be based on some other grounds, such ignorance, incapacity, deception or fraud on the part of the holder of the certificates.

In the light of the above, the petitioner brought this action mainly on the ground that there is no reciprocity "between the Philippines and the United Kingdom" as regards the practice of the profession of certified public accountant, because the certificate submitted by the respondent. Robert Orr Ferguson "is not a public or financial record, and does not meet the requirements of section 41, rule 21 [123] of the Rules of the Court." And that the furthermore, the negative statement that "there is nothing in the laws of the United Kingdom to restrict the right of the Filipino certified public accountant to practice as professional accountant therein, " does not established the existence of reciprocity.

Section 12 of Act No. 3105, as amended, reads:

Section 12. Any person who has been engaged in the professional accountancy work in the Philippine Islands for a period of five years or more prior to the date of his

application, and who holds certificates as certified public accountant, or as chartered accountant, or other similar certificates or degrees in the country of nationality, shall be entitled to registration as certified public accountant and to receive a certificate of registration as such certified public accountant from the Board, Provided such country or state does not restrict the right of the Filipino certified public accountants to practice therein or grants reciprocal rights to Filipino certified public accountants to practice therein or grants reciprocal rights to Filipinos, and provided that the application for their registration shall be filed with the Board not later than December 31,1938.

From the text of the above-quoted section 12 of the Accountancy Law, it is inferred that the registration as certified public accountant and the issuance of the corresponding certificate as such certified public accountant, to a person who for five years has been engaged in professional accountancy work in the Philippines and is a holder of a certificate as certified public accountant, or as a chartered accountant, or other similar degrees in the country of his origin, is predicated on the fact that the country of origin of such foreign applicant (a) "does not restrict the right of the Filipino certified public accountant to practice therein," (b) "grants reciprocal rights to the Filipinos," and (c) the application for registration "be filed with the Board not later than December 31, 1938."

In the case at bar, while the profession of certified public accountant is not controlled or regulated by the Government of Great Britain, the country of origin of respondent Robert Orr Ferguson, according to the record, said respondent had been admitted in this country to the practice of his profession as certified public accountant on the strength of his membership of the Institute of Accountants and Actuaries in Glasgow (England), incorporated by the Royal Charter of 1855. The question of his entitlement to admission to the practice of his profession in this jurisdiction, does not , therefore, come under reciprocity, as this principle is known in International Law, but it is included in the meaning of comity, as expressed in the alternative condition of the proviso of the above-quoted section 12 which says: such country or state does not restrict the right of Filipino certified public accountants to practice therein.

Mutuality, reciprocity, and comity as bases or elements. — 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; it is the recognition which one nation allows within its territory to the acts of foreign governments and tribunals, having due regard both to the international duty and convenience and the rights of its own citizens or of other persons who are under the protection of its laws. The fact of reciprocity does not necessarily influence the application of the doctrine of comity, although it may do so and has been given consideration in some instances. (30 Am. Jur., 178; Hilton vs. Guyot, 159 U. S., 113, 40 Law. ed., 95; 16 S. Ct., 139.)

In Hilton vs. Guyot (supra), the highest court of the United States said 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. " Again, in Bank of Augusta vs. Earle, 38 U.S., 13 Pet. 519, 589, Chief Justice Taney, speaking for the court

while Mr. Justice Story — well-known author of the treatise on Conflict of Laws — was a member of it, and largely adopting his words, said:

. . . It is needless to enumerate here the instances in which by the general practice of civilized countries, the laws of the one will, by the comity of nations, be recognized and executed in another, where the rights of individuals are concerned . . . The comity thus extended to other nations is no impeachment of sovereignty. It is the voluntary act of the nation by which it is offered, and is inadmissible when contrary to its policy, or prejudicial to its interest. But it contributes so largely to promote justice between individuals, and to produce a friendly intercourse between the sovereignties to which they belong, that courts, but the comity of the nation, which is administered and ascertained in the same way, and guided by the same reasoning, by which all other principles of municipal law are ascertained and guided.

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:

. . . there is no governmental control of the accounting profession in the United Kingdom and any resident of the United Kingdom, of whatever nationality, may engage in the profession of accounting without formality; and . . . that the high standards of the accounting profession in the United Kingdom are maintained by a number of private societies whose membership is restricted to persons who have passed a different professional examination but impose no restriction whatsoever on membership with respect of nationality. (Night of November 5, 1946.)

Again , the British Minister, in his note of April 15, 1947, further said:

Your Excellency will recall that doubt had been expressed by the Philippine authorities concerned as to whether qualified public accountants would be allowed to practice income tax accounting in the United Kingdom. Accordingly, I requested a ruling on this point, and I am happy to inform Your Excellency that I have been authorized by His Majesty Principal Secretary of State for Foreign Affairs to state, for the information of the Government of the Philippines, 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.

It appearing that the record fails to show that the suspension of this respondent is . . . based on any of the cause provided by the Accountancy Law, we find no reason why Robert Orr Ferguson, who had previously been registered as certified public accountants and issued the corresponding certificate public accountant in the Philippine Islands, should be suspended from the practice of his profession in these Islands. The petition is denied, with cost.

Moran, C.J., Paras, Pablo, Bengzon, Padilla, Tuason, Montemayor and Reyes, JJ., concur.

Bank of America vs American Realty CorporationGR 133876 December 29, 1999

Facts:

Petitioner granted loans to 3 foreign corporations. As security, the latter mortgaged a property located in the Philippines owned by herein respondent ARC. ARC is a third party mortgagor who pledged its own property in favor of the 3 debtor-foreign corporations.

The debtors failed to pay. Thus, petitioner filed collection suits in foreign courts to enforce the loan. Subsequently, it filed a petition in the Sheriff to extra-judicially foreclose the said mortgage, which was granted.

On 12 February 1993, private respondent filed before the Pasig RTC, Branch 159, an action for damages against the petitioner, for the latter’s act of foreclosing extra-judicially the real estate mortgages despite the pendency of civil suits before foreign courts for the collection of the principal loan.

Issue:

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.

Held: Yes.

1. Loan; Mortgage; remedies:

In the absence of express statutory provisions, a mortgage creditor may institute against the mortgage debtor either a personal action or debt or a real action to foreclose the mortgage. In other words, he may pursue either of the two remedies, but not both. By such election, his cause of action can by no means be impaired, for each of the two remedies is complete in itself.

In our jurisdiction, the remedies available to the mortgage creditor are deemed alternative and not cumulative. Notably, an election of one remedy operates as a waiver of the other. For this purpose, a remedy is deemed chosen upon the filing of the suit for collection or upon the filing of the complaint in an action for foreclosure of mortgage. As to extrajudicial foreclosure, such remedy is deemed elected by the mortgage creditor upon filing of the petition not with any court of justice but with the Office of the Sheriff of the province where the sale is to be made.

In the case at bar, petitioner only has one cause of action which is non-payment of the debt. Nevertheless, alternative remedies are available for its enjoyment and exercise. Petitioner then may opt to exercise only one of two remedies so as not to violate the rule against splitting a cause of action.

Accordingly, applying the foregoing rules, we hold that petitioner, by the expediency of filing four civil suits before foreign courts, necessarily abandoned the remedy to foreclose the real estate mortgages constituted over the properties of third-party mortgagor and herein private respondent ARC. Moreover, by filing the four civil actions and by eventually foreclosing extra-judicially the mortgages, petitioner in effect transgressed the rules against splitting a cause of action well-enshrined in jurisprudence and our statute books.

2. Conflicts of Law

Incidentally, petitioner alleges that under English Law, which according to petitioner is the governing law with regard to the principal agreements, the mortgagee does not lose its security interest by simply filing civil actions for sums of money.

We rule in the negative.

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 internallaw. 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 in 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.

Additionally, prohibitive laws concerning persons, their acts or property, and those which have for their object public order, public policy and good customs shall not be rendered ineffective by laws or judgments promulgated, or by determinations or conventions agreed upon in a foreign country.

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.

Clearly then, English Law is not applicable.

CLIPPERTON ISLAND CASE

Clipperton Island is an uninhabited island coral atoll in the eastern Pacific Ocean, southwest of Mexico, west of Costa Rica and northwest of Galapagos Islands, Equador. It was named after John Clipperon, an English pirate who fought the Spanish during the 18th century who is said to have passed by the island. It was discovered by French discovers Martin de Chassiron and Michel du Bocade in 1711, commanding the French ships La Princesse and La Découverte. They drew up the first map and annexed it to France. The first scientific expedition took place in 1725 under Frenchman M. Bocage, who lived on the island for several months.

Other claimants included the United States, whose American Guano Mining Company claimed it under Guano Islands Act of 1856. Mexico also claimed it due to activities undertaken therein as early as 1848-1849. On November 17, 1858, Emperor Napoleon III annexed it as part of the French colony of Tahiti. This did not settle the ownership question. After which, there were no apparent acts of sovereignty on the part of France. The island remained without population. On November 24, 1897, French naval authorities found three Americans working for the American Guano Company, who had raised the American flag. U.S. authorities denounced their act, assuring the French that they did not intend to assert American sovereignty.

Mexico reasserted its claim late in the 19th century, and on December 13, 1897 sent the gunboat La Democrata to occupy and annex it. A colony was established, and a series of military governors was posted, the last one being Ramón Arnaud (1906–1916). France insisted on its ownership, and a lengthy diplomatic correspondence between the two nations led to the conclusion of a treaty on March 2, 1909, to seek the arbitration of King Victor Emmanuel III of Italy, with each nation promising to abide by his determination. All the inhabitants of the island sent by Mexico died in 1917.

On January 28, 1931, King Victor Emmanuel of Italy declared Clipperton to be a French possession. It was ruled that Mexico was not able to prove historic right over the Island. Part of the decision says:

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 the animus occupandi, the actual, and not the nominal, taking of possession is a necessary condition of occupation. This taking of possession consists in the act, or series of acts, by which the occupying state reduces to its possession the territory in question and takes steps to exercise exclusive authority there. Strictly speaking, and in ordinary cases, that only takes place when the state establishes in the territory itself an organization capable of making its laws respected. But this step is, properly speaking, but a means of procedure to the taking of possession, and, therefore, is not identical with the latter. There may also be cases where it is unnecessary to have recourse to this method. 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 state, from that moment the taking of possession must be considered as accomplished, and the occupation is thereby completed.