COMITY, RECIPROCITY & COMITAS GENTIUM IN CONFLICT OF LAWS - 41 PJP 21

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Principles of comity and reciprocity and their importance in private international law

While foreign laws and foreign judgments generally have no force and effect in the Philippines, the Philippine State is bound by its 1987 Constitution to adhere to the policy of peace, equality, justice, freedom, cooperation, and amity with all nations.[1] Included in this policy is the principle of reciprocity.

If the Philippines refuses to recognize foreign laws and foreign judgments pleaded and proved in its courts, foreign states may do the same to Philippine laws and Philippine courts’ judgments. Such a situation will wreak havoc to the right of action of Filipinos who would otherwise have a legal recourse against persons who happen to be situated in or nationals of foreign countries.

Doctrine of comitas gentium and the concept of international reciprocity

The comitas gentium principle in public international law recognizes and requires reciprocal gestures of courtesies among sovereign states concerning one another’s actions.[2] Comity in international law is a principle or practice among political entities such as countries, states, or courts of different jurisdictions, whereby legislative, executive, and judicial acts are mutually recognized.[3]

The doctrine of international comity is a complex and contested concept.[4] It has been variously characterized as a legal principle, a moral obligation, or a diplomatic tool. However, there is no clear consensus on its exact nature or legal status. While its influence is evident in legal decisions, the doctrine has also been subject to significant criticism.[5] Essentially, the term “comity” is often used to describe a range of interactions between nations, but its precise meaning and legal weight remain uncertain.[6]

Comitas gentium, often translated as “comity of nations” or “courtesy among nations,” is also a principle observed in private international law. It essentially refers to the willingness of one state to respect the laws and judicial decisions of another state out of deference and mutual respect. Insofar as the Philippines is concerned, the adoption of international comity is justified under Section 2 of Article II of 1987 Constitution.

The key aspects of comitas gentium can be summarized as follows. First, at its core, comitas gentium is about acknowledging the sovereignty of other nations and respecting their legal systems through a concept of mutual respect. Second, unlike treaties or customary international law, comitas gentium is not a strict legal obligation. Its application is discretionary and based on reciprocal treatment. Third, comitas gentium is not absolute.

Said principle cannot be invoked to violate a state’s public policy or to contravene its own laws. Hence, a state cannot impose its executive regulations, legislative acts, or judicial determinations against another because par in parem non habet imperium. Equals have no authority over another equal.

The analysis that a state cannot impose its executive, legislative, or judicial determinations against another is supported by Article 17(b) of the NCC, thus:

“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.”

This principle of international comity is commonly applied in areas such as recognition and enforcement of foreign judgments, extradition treaties, diplomatic immunity, and international trade. Among these areas, international trade is outside the purview of conflict of laws.

[1] 1987 CONSTITUTION, Article II, Section 2.

[2] Claridades, A., Compilation of Notes, 2006-2011.

[3] Black's Law Dictionary (10th ed. 2014), p. 324.

[4] Paul, Joel (2008). "The Transformation of International Comity". Law and Contemporary Problems. 71 (3): 19–20. JSTOR 27654664 – via JSTOR.

[5] International Human Rights Litigation in U.S. Courts:, 2d rev. ed. (Martinus Nijhoff, 2008: eds. Beth Stephens et al.), p. 355.

[6] Schultz, Thomas. "Comity and International Courts and Tribunals". Cornell International Law Journal. 50 (3): 578–610.