1. NEW ZEALAND VS.

FRANCE
I.C.J. 1974 I.C.J. 254, 457

Public International Law; The Law of Treaties; Unilateral Declaration – It is well recognized
that declarations made by way of unilateral acts concerning legal or factual situations, may
have the effect of creating legal obligations. Declarations of this kind may be, and often are,
very specific. When it is the intention of the State making the declaration that it should become
bound according to its terms, that intention confers on the declaration the character of a legal
undertaking, the State being thenceforth legally required to follow a course of conduct consistent
with the declaration. An undertaking of this kind, if given publicly, and with the intent to be
bound, even though not made within the context of international negotiations, is binding.

Facts:

The Ambassador of New Zealand, by a letter, transmitted to the Registry of the Court an
Applications instituting proceedings against France in respect of a dispute concerning: the
legality of atmospheric nuclear tests conducted by the French Government in the South Pacific
Region. This application was communicated to the French Government. The Ambassador of
France, by a letter, claimed that: a.) the Court is not competent in the case; b.) it could not accept
the Court’s jurisdiction; c.) it requested the Court to remove the case from the list. The Agent of
New Zealand filed in the Registry Court a request for the indication of Interim measures of
Protection under Article 33 of 1928 General Act for the Pacific Settlement of International
Disputes; Article 41 and 48 of the Statute; Article 66 of the Rules of Court. However, the French
Government declined to express an opinion in which public hearings were held. Prior to the
filing of the Application, the French government carried out atmospheric tests of nuclear devices
at its Centre d’experimentations du Pacifique in the territory of French Polynesia in the years
1966, 1967, 1968, 1970, 1971 and 1972. The main firing site was in Muturoa atoll which is
2,500 miles from the nearest point of the North island of New Zealand. It created prohibited and
dangerous zones for aircraft and shipping to exclude from the are of the tests center. Even the
signatory to Nuclear Ban Treaty it continued to conduct its tests.

The UN Scientific Committee, on the effects of Atomic Radiation, has recorded that the
testing has successive reports to the General Assembly that the testing has released measurable
quantities of radioactive matter. New Zealand asserted that it caused some fall-out to be
deposited on the NZ territory. France maintained that is only small quantities thus negligible and
never involves any danger to the health of the population of NZ. The Government of NZ
informed the Court that subsequent to the Court’s Order of June 22, 1973 indicating as interim
measures under Article 41 of the Statute, the French Government should avoid nuclear tests
causing deposit of radioactive fall out on NZ territory. However, 2 further series of atmospheric
tests were carried out which constitutes as a clear breach by the French Government of the 1973
Court Order in violation of the NZ’s rights under the international law. These rights will be
violated by any such further acts.

The number of authoritative statements have been made on behalf of the French
Government such as intentions as to future nuclear testing in the South Pacific region. The
diplomatic correspondence between the NZ and France over 10 years made the Prime Minister of
NZ to request to France its earnest desire and hope to bring the tests to an end taking in to
consideration their excellent relationship. Unfortunately, the discussions did not lead to
agreement. In the course of the oral proceedings, Atty. General of NZ commented on the
documents such as the diplomatic correspondence and communique, as evidence that would
develop the controversy. The French statements supplies assurance that the atmospheric testing
is finished, bringing the dispute to an end by 1973. The French government did not feel to give
the Prime Minister of NZ the assurance he sought. It stated that it did not accept NZ’s view that
the tests are unlawful and that the NZ sees no other alternative to its proceeding than the
submission of its dispute with France to the ICJ. The case was taken off the Court’s list without
decision when France announced those unilateral statements that it would not conduct tests after
1973.

Issue:
Whether or not the declaration made through unilateral act has effect creating legal
obligations.

Held:
AFFIRMATIVE. Declarations by way of unilateral acts concerning legal and factual
situations may have the effect of creating legal obligations. The declarations of this kind are very
specific as in the case at bar. When the intention of the State making the declaration that it
should be bound by its terms, that intention declares the character of legal undertaking.
Announcing that the 1974 series of atmospheric tests would be the last, the French government
conveyed to the world at large the intention to terminate those tests and they are bound to assume
that other states might take note of these statements and rely on its effectiveness. The statement
by the French government, most essentially its President, is no doubt of his functions as the Head
of the State, that his public communications or statements are internationally related acts of the
French State. Its statement and those of its members under his authority like the Prime Minister
constitutes as a whole an engagement of the State having regard to the intention which they are
made.

2. GREAT BRITAIN VS. COSTA RICA (THE TINOCO CASE)

1 U.N. Rep. Int’l Arb. Awards 369 (1923)
Public International Law; Subjects of International Law: States; Recognition – Closely related
to recognition of States is recognition of Governments. It means the act of acknowledging the
capacity of an entity to exercise powers of government of a state. If a change in government in
an existing state comes about through ordinary constitutional procedure, recognition by others
comes as a matter of course.

Public International Law; Subjects of International Law: De Facto Government – is that

government that gets possession and control of, or usurps, by force, or by voice of the majority,
the rightful legal government and maintains itself against the will of the latter.

Public International Law; Estoppel -- Estoppel was not found by the arbitrator. The evidence of
the de facto status of the Tinoco’s regime was not outweighed by the evidence of non-
recognition. This implies that valid contracts may be formed by unrecognized government.

Facts:

In January 1917, the Government of Costa Rica under President Alfredo Gonzales was
overthrown by Frederico Tinoco who is the Secretary of War. As Gonzales filed, Tinoco
assumed power, called an election and established a new Constitution in June 1917. His
government continued in August 1919 for 2 years and fell in September 1919 without having
been recognized by some nations including Great Britain and US. When Tinoco retired and left
the country, the old constitution was restored, The restored government passed a law known as
Law of Nullities No. 41 which invalidated all contracts entered into by the Tinoco government
such as: a.) Oil concessions granted by the Aguilar Amory contract which the Central Costa Rica
Petroleum company is the owner granting the right to explore and exploit oil reserves within the
Costa Rica to a British owned petroleum company – concession annulled without right by the
Law of Nullities; b.) Funded debt with the Royal Bank of Canada of 998,000 colones under the
Tinoco government – Banco International of Costa Rica and Government of Costa Rica are both
indebted to Royal bank. It claims that it should be excepted from the operation.

The Government of Costa Rica denies its liability for the acts or obligation of the Tinoco
government on the ground that the Law of Nullities is a legislative exercise of its legislative
governing power. The Great Britain contested the validity of the law alleging that the Tinoco
government was the only government of Costa Rica, de facto and de jure for 2 years. And that
during that time, no other government is disputing its sovereignty. There had been peaceful
administration with acquiescence of its people. Also, it claims that the succeeding government
could not by legislative decree avoid respondent for acts of the government affecting British
subject or confiscate rights and property. It maintains that the Law of Nullities is a nullity and
should be disregarded. The contracts validly made of the Tinoco government must be performed
by the present Costa Rican government and the property and rights must be restored.
 Costa Rica claimed that the Tinoco government is not a de facto/ de jure government
according to the rules of International Law. And that the contracts and obligations of Tinoco
government set up by Great Britain on behalf of its subject are void because the Tinoco
government and its acts are in violation of the 1871 Constitution of Costa Rica. Also, it claims
that the Great Britain is estopped that it did not recognize the Tinoco government during its
incumbency. William Taft, the sole arbitrator, settled the conflict through arbitration and decided
ultimately in favor of Costa Rica. He presented 3 arguments in favor of UK.

Issue:
Whether or not Great Britain is estopped from pursuing its claims because it never
recognized the Tinoco government either de jure/de facto.

Held:
NEGATIVE. Taft correctly decided the case in favor of Great Britain. The Great Britain
is not estopped from its claims of its subject dependent on acts of Tinoco regime. Although it did
not recognize the Tinoco government, it is a de facto government that could create rights in
British subjects which the British government now wanted to protect. The failure to recognize
the de facto government did not lead the succeeding government to come into power but the
claims of the Great Britain that its a de facto existence of the previous government does not work
an injury to the succeeding government in fraud or breach of good faith.

The non recognition of the Tinoco government by other nations such as the US and UK
could not outweigh the evidence presented as to the de facto character of the Tinoco Government
determined by inquiry such as to its de facto sovereignty and complete government control but
its illegitimacy or irregularity of origin. Their non recognition loses something of evidential
right. It cannot outweigh the evidence disclosed by the records as to the de facto character of the
Tinoco Government.

The de facto regimes are able to bind the subsequent governments irrespective of the way
they gained power. Tinoco government was a de facto government as it is in actual and
peaceable administration without resistance or conflict. The argument of Costa Rica that the
Tinoco government was not established according to its old constitution could not change its de
facto character. Recognition by other Powers are proof of existence of government.

3. TIMBERLANE LUMBER CO. VS. BANK OF AMERICA

549 F.2d 597 (1976), United States Court of Appeals for the Ninth Circuit
Public International Law; Jurisdiction of States; Conflicts of Jurisdiction – Since there are
various accepted principles for assuming jurisdiction, more than one state may have a valid
claim to jurisdiction. U.S. Courts have attempted to develop more sophisticated modes of
resolving conflict of jurisdiction. The three modes are the following: a.) the Balancing Test; b.)
International Comity; and c.) Forum non conveniens. In Timberlane Lumber Co. v. Bank of
America, the question was whether to assumer jurisdiction in a Sherman Acts case involving
acts emanating from Honduras. The Court employed a tripartite analysis to determine whether
to assume jurisdiction or not. First, was there an actual or intended effect on American foreign
commerce. Second, is the effect sufficiently large to present cognizable injury to plaintiffs, and
therefore, a civil violation of the anti-trust laws. Third, are the interests of, and link to, the
United States…including effects on American foreign commerce sufficiently strong, vis-à-vis
those of other nations, to justify an assertion of extraordinary authority. If the answer is yes to
all these, then the court will assume jurisdiction.

Facts:

Timberlane is a business involved in the purchase and distribution of lumber in the

United States. was preparing to enter the lumber export business in Honduras. It formed an
Oregon partnership with two Honduran corporations, Danli Industrial, S.A. and Maya Lumber
Company, S. de R.L. The partnership sought to purchase lumber and conduct milling operations
from Honduras in which it made to acquire plant facilities of a former milling business owned by
Lima family. However, before the purchase of Timberlane, the ownership of the Lima enterprise
had been transferred to a group of Lima employees, Bank of America, and a competing lumber
mill, Cassanova. The Bank of America held the property due to mortgage issues and in the
alleged illegal anti trust conduct. It was also held by Cassanova. Timberlane attempted to
purchase these claims without success. Instead, they were conveyed to the Caminals. The
Caminals tried to foreclose the mortgages under the Honduran law by placing an embargo on all
property owned by the Lima enterprise. Further, a judicial officer called an "intervenor" was
appointed by the Honduran Court to prevent the diminution of the assets of Timberlane. Thus,
Timberlane conspired with the bank to prevent it from exporting lumber from Honduras to the
United States and to insure that a monopoly in the Honduran lumber export business remained in
the hands of its two major competitors.

However, Timberlane claims that the Caminals were able to obtain those embargoes from
the partners of Timberlane and that the milling operations were shut down through the
appointment of the intervenor by the Honduran Court. With this claim, the employees of
Timberlane alleged that they were falsely imprisoned.

The claims to the mortgage foreclosure were resolved in the Honduran court system. An
anti-trust action was filed by Timberlane against Bank of America and its Honduran subsidiaries
under sections 1 and 2 of the Sherman Acts and section 73 of the Wilson Tariff Act since
defendants were citizens of the United States, Honduras, and Canada.

The complaint was dismissed by the Court on the ground that the Intervenor, which is an
involvement of the Honduran judiciary, was the act of a sovereign state which could not be
reviewed by the US District court having without jurisdiction. Moreover, there is no direct effect
on US foreign commerce.

The Ninth Circuit reversed stating that the act of state doctrine did not bar the plaintiffs'
claim for relief and that there was a sufficient basis for exercising subject matter jurisdiction.'

Issue:
Whether or not the US District Court can assume jurisdiction over the case?

Held:
NEGATIVE. The Court affirmed dismissal on grounds of the modes of resolving
conflicts of jurisdiction which includes the balancing test, international comity, and forum non
coveniens.

In the Balancing Test, the court utilized a tripartite analysis to whether or not it should
assume jurisdiction. The Timberlane case asks three inquiries for such test: a.) was there an
actual or intended effect on American foreign commerce; b.) is the effect sufficiently large to
present cognizable injury to the plaintiffs and result to civil violation of anti-trust laws; and c.)
are the interest and link of United States sufficiently strong to justify an assertion of
extraordinary authority.

Pursuant to the tripartite analysis, the court determined first, that the allegation of a
restraint on the export of lumber from Honduras to the United States provided a basis for the
exercise of subject matter jurisdiction; second, that the magnitude of the alleged restraint was
sufficient to raise a claim under the Sherman Act; and third, that on the record before it, there
was no reason to refrain from exercising jurisdiction. The effects test resulted as inadequate. The
Court should rather apply a “jurisdictional rule of reason.”

Since the effect tests are inadequate, the US District Court cannot assume jurisdiction.
The Court may decline to exercise jurisdiction where it appears that the damage to foreign
interests which would be caused by adjudication of the claim outweighs the need to redress the
injury to the commerce.

Also, the court affirmed the dismissal on grounds of forum non conveniens, because the
parties and deeds were all Honduran in which it would require to apply the Honduran laws
instead of the US Anti-trust law. The Court declined to apply the anti-trust law to a case filed by
the Oregon plaintiffs on the basis that the enforcement would lead to a significant conflict with
the Honduran law and policy. The forum non conveniens aims to settle local controversies at
home and having the case tried in a forum at home with applicable law.

Lastly, in the mode of resolving conflicts of jurisdiction through international comity, the
act of declining to apply the anti-trust law to the conduct in Honduras is to avoid potential
conflict, with the efforts of the government of Honduras to maintain a particular type of business
climate. Applying the anti-trust laws would violate the principles of international comity
embodied in the third part of tripartite analysis. The material facts show extra-territorial
application of the anti-trust laws is inappropriate to this case. The US District Court must refrain
from exercising its jurisdiction since its exercise would only be unreasonable in the absence of
link of the United States to justify an assertion of extraordinary authority.

4. SIERRA CLUB VS. MORTON

Sec. Int. No. 70-34 Supreme Court of the United States, 405 U.S. 727 (1972)

Public International Law; International Environment Law; Sustainable Development – It is a

concept adopted by the World Commission on Environment and Development in recognition of
competing claims of states in the areas of the preservation of the environment and the right to
development. The concept encourages development in a manner and according to methods
which do not compromise the ability of future generations and other states to meet their needs.
The eloquent words of Justice Douglas in Sierra Club v. Morton are quoted: “The voice of the
inanimate object, therefore, should not be stilled. That does nit mean that judiciary takes over
the management functions from the federal agency. It merely means that before these priceless
bits of Americana (such as valley, an alpine meadow, a river or a lake) are forever lost or are so
transformed as to be reduced to the eventual rubble of our urban environment, the voice of the
existing beneficiaries of these environmental wonders should be heard.

Facts:

Walt Disney obtained a permit from the United States Forest Service to lease the property
in the Mineral King Valley, inside the Sequoia National Forest, California, United States. The
petitioner Sierra Club of California filed a petition for preliminary and permanent injunction
restraining the respondent Walt Disney in proceeding with the construction of a ski resort in
Mineral King Valley. Petitioner attempted to get the US Forest Services and the Department of
Interior to hold public hearings on the proposed development in the Sequoia National Forest
however, the latter failed that resulted to issuance for an injunction. The Sierra Club objected to
the Disney’s plan and argued that it would contravene the federal laws and regulations governing
the preservation of national parks, forests and game refuges. As a corporation with special
interest in the conservation of national parks in the country, Sierra Club invokes the judicial
review provisions of the Administrative Procedure Act, Section 10. The provision states that "A
person suffering legal wrong because of agency action, or adversely affected or aggrieved by
agency action within the meaning of a relevant statute, is entitled to judicial review thereof." The
complaint also alleged that the development would destroy or adversely affect the scenery,
natural and historic objects and wildlife of the park and impair the enjoyment of the park for
future generations.

Sierra Club maintains that it has sufficient standing as a “representative of the public” on
the theory that their complaint is a public action involving questions as to the use of natural
resources. The Trial Court granted the injunction on the ground that petitioner has raised
questions concerning possible excess of statutory authority that is serious and sufficient enough
to justify a preliminary injunction. Walt Disney appealed in granting the injunction. Appellate
Court reversed and was appealed by petitioner Sierra Club. The Court of Appeals denied the
action of petitioner in holding that the Sierra Club lacked standing to maintain its action. It found
that there was no allegation in the complaint and serious enough to justify a preliminary
injunction.

Issue:

Whether or not petitioner Sierra Club is entitled for judicial review under Section 10 of
the Administrative Procedure Act?

Held:

NEGATIVE. The Sierra Club lacked standing to maintain an action against Walt Disney.
The injury claimed by the petitioner Sierra Club does not amount to an “injury to a cognizable
interest under Section 10 of the APA. It requires that the party seeking review be himself among
the injured. Sierra Club is known as an organization with a historic commitment to the cause of
protecting the Nation’s natural heritage from human depredations. But a mere “interest in a
problem” is not sufficient to render the Club as “adversely affected” or “aggrieved” within the
meaning of the APA.

The impact of the proposed changes in the environment of Mineral King will not fall
indiscriminately upon every citizen but only to those who directly use Mineral King and Sequoia
National Park. Petitioner Sierra Club failed to allege that its member would be affected in any of
their activities by the Disney development.

In order to have a standing and to be entitled for judicial review under Section 10 of the
Administrative Procedure Act, Sierra Club would have to show that its members used the
National Forest, and that those uses would be specifically damaged by the construction of the ski
resort.