PIL - Case law | Quizlet

Reparation for Injuries

Week 1

- "[S]ubjects of law in any legal system are not necessarily identical in their nature or in the extent of their rights, and their nature depends upon the needs of the community"

- "Organization must be deemed to have [...] powers which, though not expressly provided in the Charter, are conferred upon it by necessary implication [...]" = implied powers

Blaskic (ICTY)

Week 1

- Under CIL, States, as a matter of principle, cannot be 'ordered' either by other States or by international bodies

Western Sahara

Week 1

- UNGA policy on decolonization: Art. 1(2) UN Charter, UNGA Resolution 1514, UNGA Resolution 1541, UNGA Resolution 262

Reference re Secession of Quebec (Supreme Court of Canada)

Week 1

- Right to secession only arises under the principle of self-determination of people at international law where 'a peopel' is governed as part of a colonial empire (subject to alien subjugation, domination or exploitation)

- Quebec does not meet the threshold of a colonial people or an oppressed people -> no enjoyment of right to unilateral secession of Quebec from Canada

- Unconstitutional de facto secession would be dependent on recognition by the international community

Kosovo

Week 1

- General international law contains no applicable prohibition of declarations of independence; declaration of independence by Kosovo did not violate general international law

- State practice points to no general prohibition of declarations of independence in international law

- Security Council practice points to no general prohibition of declarations of independence in international law

WHO Nuclear Weapons

Week 1

- International organizations are invested by States with limited powers which are a function of the common interests whose promotion those States entrust to them = principle of speciality

- "[P]owers conferred on international organizations are normally subject of an express statement in their constitutent instruments" = express powers

- "[N]eed for organizations [...] to possess subsidiary powers which are not expressly provided for in the basic instruments = implied powers

Week 6

- The scope of the advisory opinion was not "within the scope of [the WHO's] activities" (Art. 96 UN Charter)

Nicaragua

Week 1

- "This opinio juris may [...] be deduced from, inter alia, the attitude of the Parties and the attitude of States towards certain [UNGA] resolutions [...]"

Week 2

- "[i]nstances of State conduct inconsistent with a given rule should generally have been treated as breaches of that rule, not as indications of the recognition of a new rule"

- Opinio juris as the subjective element of CIL

- Parties agree that use of force is a rule of CIL next to its treaty sources

Week 4

- State responsibility arises when the State had effective control of the military or paramilitary operations in the course of which the alleged violations were committed -> USA did not have effective control over the contras

Week 6

- Right to self-defence is a rule of CIL, no requirement to report to the UNSC

- State must declare itself to be under attack

- To invoke collective self-defence, the State must explicitly request assistance after declaring itself to be under attack

- Distinguishing between less and more grave uses of force

- Recognition of Art. 3(g) UNGA Resolution 3314 as CIL

UNGA Nuclear Weapons

Week 1

- "The Court notes that [UNGA] resolutions, even if they are non binding, may sometimes have normative value. They can [...] provide evidene important for establishing the existence of a rule or the emergence of an opinio juris"; necessary to look at its content and conditions of adoption

Week 2

- Emergence, as lex lata, of a rule of CIL prohibiting nuclear weapons is hampered by continuing tensions between nascent opinio juris and (strong adherence to the) practice of deterrence

Week 4

- Right to no arbitrary deprivation of life applies in hostilities, arbitrary deprivation however must be defined by lex specialis (IHL)

Week 5

- Prohibition of weapons that are indiscriminate

- Prohibition of weapons that cause unecessary suffering or superfluous injury

Week 6

- Whether a threat of force is illegal depends whether the use of force on the same grounds would be illegal

Nuclear Tests

Week 2

- Unilateral declarations may have the effect of creating legal obligation -> interested States may take cognizance of unilateral declarations and place confidence in them, and are entitled to require that the obligation thus created be respected

Fisheries Case

Week 2

- States adopted different limits, hence 10-mile rule is not a rule of general international law -> "the ten-mile run would appear to be inapplicable as against Norway inasmuch as she always opposed any attempt to apply it to the Norwegian coast" = peristent objector

Frontier Dispute (Burkina Faso v. Mali)

Week 2

- New States become bound by CIL, whether they like it or not (automatic application of CIL rules to new States, argument to preserve stability of international law)

Border and Transborder Armed Action (Nicaragua v. Honduras)

Week 2

- General principles (good faith specifically) cannot function as a self-standing source of obligation (contrasted with Draft Conclusion 10 of the ILC)

SS Lotus (PCIJ)

Weeks 2 & 4

- "Restrictions upon the independence of States cannot therefore be presumed" = whatever is not forbidden by international law is allow (Lotus principle)

North Sea Continental Shelf

Week 2

- State practice = extensive/widespread, virtually uniform (+ representative and constant/consistent)

- "Acts [must be] carried out in a 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 [...] States [...] must therefore feel that they are conforming to what amounts to a legal obligation"

Qatar v. Bahrain

Week 2

- Minutes enumerate commitments to which the Parties have consented -> create right and obligations under international law = international agreement; same case holds for exchanged letters

Belilos v. Switzerland (ECtHR)

Week 2

- Reservations v. interpretative declarations; interpretative declaration did not satisfy the requirements of Art. 64 ECHR, hence it cannot be considered a reservation

Gabcikovo-Nagymaros

Week 2

- Hungary's arguments: state of necessity; impossibility of performance; FCCs; material breach by Czechoslovakia (para. 92)

- Necessity: not a ground for termination of a treaty, may only exonerate from its responsibility a State which failed to implement a treaty (para. 101)

- Impossibility of performance: may not be invoked for termination by a party to the treaty when it results from that party's own breach of an obligation flowing from that treaty (para. 103)

- FCCs: political conditions not prevalently linked to objectives of treaty, incl. development of environmental law "have [not] been completely unforeseen" (para. 104)

- Material breach: no evidence that Czechoslovakia has refused to consult with Hungary about the necessity of measures for the preservation of the environment -> Hungary's halt on the project did not contribute to fruitful negotiations (para. 107); Hungary's termination of the treaty was premature (para. 109) -> its own conduct prejudiced its right to terminate the treaty (para. 110)

Week 4

- Potential environmental damage if dam was to be built, argument rejected

- The diversion of the Danube carried out by Czechoslovakia was not a valid countermeasure as it was not proportionate (para. 87)

Certain Navigational Rights (Costa Rica v. Nicaragua)

Week 2

- Example of evolutive interpretation -> 'con objetos de comercio' referring solely to goods in the 19th century, now (21st century) also referring to tourism

Croatia v. Slovenia

Week 2

- Procedural treaty (arbitration agreement) breached, Croatia claimed material breach -> material breach also applies to procedural treaties, not only those governing substantive obligations

Islands of Palmas (PCA)

Week 3

- "[A]n inchoate title could not prevail over the continuous and peaceful display of authority by another State, for such display may previal even over a prior, definitive title put forward by another State"

Maritime Delimitation in the Black Sea (Romania v. Ukraine) / Sea Serpents Island Dispute

Week 3

- Three steps to delimitation:

1) Draw a provisional equidistance line from the chosen base points (half-way between two States)

2) Adjust this provisional line in light of the relevant circumstances

3) Ensure that this adjusted line is equitable and/or not disproportionate

Libya/Malta Delimitation

Week 3

- Adjusted line was moved North from equidistance line due to Libya's larger coastline compared to Malta's (argument taken into account by the Court)

Nottebohm (Liechtenstein v. Guatemala)

Week 3

- Genuine link between the individual and the State granting its nationality is required to assert nationality, in e.g. jursdiction based on the active nationality principle

Obligation to Prosecute or Extradite (Belgium v. Senegal)

Week 3

- Senegal failed its international obligations under the CAT to prosecute or extradite Habré

- It did not adopt legislation (early enough) to allow for the prosecution of Habré (failure to prosecute)

- It did not extradite Habré upon request submitted by Belgium

Immunities and Criminal Proceedings (Equatorial Guinea v. France) (Pending)

Week 3

- Were the apartments used as part of the diplomatic mission?

- Whether apartments have immunity under acta jure imperii or no immunity under acta jure gestionis, no provisional measures set by the ICJ

Jurisdictional Immunities

Week 3

- Laws of armed conflict (war crimes) v. State immunity?

- No such conflict exists, rules of State immunity are procedural in nature, used to determine whether or not courts may exercise jurisdiction in respect of another State

- Judgement makes jus cogens prohibitions non-effective?

Arrest Warrant

Week 3

- Head of State, Head of Government and Minister of Foreign Affairs enjoy State immunities = ratione personae (in private and public capacity)

- Immunity does not mean the enjoyment of impunity; exceptions:

1) No criminal immunity in own countries

2) State may waive their immunity

3) When official ceases to hold office

4) Incumbent officials may be subject to proceedings of international criminal courts and tribunals

Tehran Hostages

Week 3

- Iran did not fulfil its obligations under the VCDR (incl, arrest and detention of diplomatic agents and absolute inviolability of diplomatic premises and documents

- Any form of criminal trial for hostages would constitute a grave breach of international law (VCDR specifically)

- Iran did not have recourse to the normal and efficacious means at its disposal, resorted to coercive measures only

Week 4

- Key elements of internationally wrongful acts discussed (para. 56)

- Art. 11 ARSIWA: adoption and acknowledgement of conduct with seal of government approval

Wall Opinion

Week 4

- Protection offered by human rights conventions does not cease in times of conflict (except derogation)

- Court confirms HRCtee's interpretation of Art. 2 ICCPR: jurisdiction or territory -> extraterritorial application of ICCPR possible

- Israel is also bound by ICESCR in the Occupied Palestinian Territories (OPTs)

Week 6

- Confirmed that the UNGA is authorised to ask a legal question to the ICJ to form an advisory opinion

Al Skeini v. UK (ECtHR)

Week 4

- Occupying States should in principle be held accountable under the Convention for breaches of human rights within the occupied territory

- UK assumed in Iraq the exercise of public authority/powers -> its soldiers exercised authority and control over individuals killed during its operations = jurisdictional link, ECHR has extraterritorial application

- Mix model approach (personal + spatial jurisdiction)

Salvador Commercial Company (1902) (Arbitration)

Week 4

- "[A] State is responsible for the acts of its rulers, whether they belong to the legislative, executive, or judicial department of the Government, so far as the acts are done in their official capacity"

Certain German Interests in Polish Upper Silesia (1926) (PCIJ)

Week 4

- No difference between executive and legislative when it comes to State responsibility

Heirs of the Duc de Guise

Week 4

- No difference between central and regional authorities when it comes to State responsibility

La Grand

Week 4

- Death penalty was imposed by one state of the USA -> the act is attributable to the USA as a whole

Caire

Week 4

- Despite acting ultra vires, police officers acted under cover of their status (i.e. in uniform) and as such have involved the responsibility of the State

Tadic (ICTY)

Week 4

- State exercises 'overall' control over individuals, degree of control may vary according to the factual circumstances of each case

Week 5

- "Armed conflict exists whenever there is a resort to armed force between States"

Genocide case (Bosnia v. Serbia and Montenegro)

Week 4

- Overall control defies State responsibility, State is only responsible for its own conduct, that is to say the conduct of persons acting, on whatever basis, on its behalf -> 'overall control' test is unsuitable (critique of Tadic)

Week 5

- Dolus specialis required to establish genocide: "It is not enough that the members of the group are targeted because they belong to that group (discriminatory intent) [...] acts must be done with intent to destroy the group as such in whole or in part"

- Speech by Applicant "does not necessarily involve the intent to destroy in whole or in part the Muslim population in the enclaves" -> 1992 Strategic Goals do not establish dolus specialis

Bolívar Railway Company; French Company of Venezuelan Railroads; Georges Pinson

Week 4

- Examples of insurrectional or other movements under Art. 10 ARSIWA

Rainbow Warrior

Week 4

- CPWs exonerate from responsibility, but are with a view of resumption of performance

- In cases of extreme urgency involving elementary humanitarian considerations (serious health risks) -> existence of exceptional circumstances, reestablishment of the original situation, existence of good faith effort to obtain consent of affected State

Savarkar

Week 4

- Arrest did not violate French sovereignty as the British offcers were aided by the French gendarmerie; critical element is if the other State believes in good faith that the other State has consented = Art. 20 ARSIWA

Cysne

Week 4

- Countermeasures can only be taken against the provoking State: "only reprisals taken against the provoking State are permissible"

Russian Indemnity

Week 4

- Turkey cannot invoke force majeure as a CPW when it is merely difficult or cumbersome (cannot pay all money because it would affect the existence of the Ottoman Empire itself, tribunal disagreed)

Lighthouses

Week 4

- Principle of force majeure as a CPW has been acknowledged, but most of the times it has been rejected on the facts of the case (incl. Russian Indemnity, Serbian Loans, Brazilian Loans)

Barcelona Traction

Week 4

- Distinction between obligations of a bilateral nature and obligations erga omnes

- All States can be held to have a legal interest in their (obligations) protection

Hostages (WWII)

Week 5

- "Military necessity permits a belligerent, subject to the laws of war, to apply any amount and kind of force to compel the complete submission of the enemy with the least possible expenditure of time, life, and money" = principle of military necessity

- Destruction as an end itself violates international law

Martic (ICTY)

Week 5

- M-87 Orkan is an indiscriminate weapon (in the siege of Zagreb) -> 1.5 million sub-munitions (cluster munitions) in 12 rockets launched

Mavrommatis Palestine Concessions (1924) (PCIJ)

Week 6

- "A dispute is a disagreement on a point of law or fact, a conflict of legal views or of interests between two persons"

Nuclear Disarmament

Week 6

- Parties must be aware of the existence of a dispute for it to be classified as such

Relocation of the United States Embassy to Jerusalem (Palestine v. USA) (pending)

Week 6

- Palestine not a member of the UN hence not a party to the ICJ Statute, nevetheless ratified the VCDR and Optional Protocol -> allows Palestine to bring a case before the ICJ (Art. 35(2) ICJ Statute)

- US withdraws from Optional Protocol after case filing -> US is not in a treaty relationship with Palestine because Palestine is not a State

Certain Norwegian Loans (France v. Norway)

Week 6

- France's declaration: "This declaration does not apply to differences relating to matters which are essentially within the national jurisdiction as understood by the Government of the French Republic" -> including condition of reciprocity

- Norway invokes Frances declaration and applies it mutatis mutandis, ICJ finds that it does not have jurisdiction

- SO Judge Lauterpacht: such OCDs are an issue of kompetenz-kompetenz (Court cannot decide on jurisdiction)

Djibouti v. France

Week 6

- Example of forum prorogatum: Djibouti submitted a case against France; despite not consenting to the Court's jurisdiction, France appeared infront of the Court to argue the merits of the dispute = Court has jurisdiction

Interpretation of Peace Treaties with Bulgaria, Hungary and Romania Advisory Opinion

Week 6

- Despite tackling legal issues in treaties binding together Bulgaria, Hungary and Romania, the advisory opinion has no binding force -> consent of the parties is immaterial

Land, Island & Maritime Frontier Dispute (Judgement on Intervention)

Week 6

- States seeking to intervene (Art. 62 UN Charter) has to "demonstrate convincingly what it asserts, and thus to bear the burden of proof [and] it has only to show that its interest "may" be affected, not that it will or must be affected"

- Chamber did not "consider that an interest of a third State in the general legal rules and principles likely to be applied by the decision can justify an intervention"

- A "valid link of jurisdiction between the would-be intervener and the parties is not a requirement for the success of the application" -> States intervening are not parties to the case, rather they are there because they have an interest of a legal nature

Tunisia v. Libya (Judgement on Intervention)

Week 6

- States wanting to intervene must "base its request on quite specific elements"

Armed Activities (DRC v. Uganda)

Week 5

- When is a territory occupied? Reference to Art. 42 Hague Regulations

- Important to establish whether the Ugandan armed forces substituted their own authority for that of the Congolese Government

- Uganda was at all times responsible "for all actions and omissions of its own military forces in the territory of the DRC"

Week 6

- To legitimize the claim of self-defence, the State must declare that it has been subjected to an armed attack

- No sending by or on behalf of DRC, no involvement of DRC, no need to determine the question of self-defence against large-scale attacks by irregular forces

Oil Platforms (Iran v. USA)

Week 6

- USA has to show that the attacks on it by Iran are 1) attributable to Iran and 2) whether they qualify as 'armed attacks' to invoke self-defence (Art. 51 UN Charter, CIL)

- USA's response must be 1) necessary and proportional to the armed attack on itself, and 2) must constitute the attack on a legitimate military target

- Court did not exclude that the mining of a single vessel might be sufficient to invoke self-defence, but the attacks on the oil platforms were not a justifiable response

- USA evidence (burden of proof) not sufficient to establish that missile attack (on the Sea Isle City) was done by Iran