case law: public international law

reparation for injuries ICJ

(1) subjects of law in any legal system are not identical in their nature and the extent of their rights (legal personality)

(2) powers not expressly provided in the Charter are conferred upon by necessary implication (implied powers)

blaskic ICTY

'exceptional power; granted through SC resolution allows the ICTY tribunal to issue binding orders to sovereign states

kosovo opinion ICJ

a declaration of independence by itself does not violate international law, but the effects of the independence are a separate question not decided by the court

secession of quebec (supreme court of canada)

(1) quebec cannot make a unilateral secession from canada as the exercise of self-determination of peoples must respect and balance the territorial integrity of States (friendly relations)

(2) definition of 'peoples': somewhat uncertain, but usually a portion of a state that have their own language and culture

(3) internal vs external self-determination

(4) external self-determination only in special circucmstances: (occupied) people subject to alien subjugation, domination, and exploitation

nuclear weapons opinion ICJ (principles)

(1) principle of speciality: 'IO's are invested by the states which create them with powers, the limits of which are a function of the common interests whose promotion those states entrust to them'

(2) principle of the attribution of powers: 'normally the subject of an express statement in their constituent instruments' + 'implied' subsidiary powers

(3) GA declarations may lead or contribute to the development of opinio juris of states

nuclear weapons opinion ICJ (warfare)

(1) IHL is the lex specialis to IHRL in times of war, so IHL applies

(2) indiscriminate weapons or weapons causing unnecessary suffering or superfluous injury are prohibited (IHL) but nuclear weapons can be allowed in cases of extreme threat

(3) whether a threat of the use of force (art.2(4)) is illegal depends on whether the eventual use of force on the same grounds is illegal

nuclear tests ICJ

unilateral declarations and/or statements by states can be used as sources of international law if the state has an intention to be bound (good faith principle)

frontier dispute (burkina faso/republic of mali) ICJ

CIL automatically applies to new states joining the UN for the purpose of stability + legal certainty

north sea shelf continental cases ICJ

(1) a short period of time is not necessarily a bar to the creation of a new rule of CIL

(2) for CIL to exist there also needs to be a belief by states that the practice is rendered obligatory or legally binding (opinio juris)

(3) separate opinion of judge ammoun criticing the definition of general principles in ICJ Statute for the use of the word 'civilised nations'

nicaragua ICJ (principles)

(1) no hierarchical relationship between general principles of law and treaties/CIL, they exist parallel to each other

(2) GA declarations (soft law) may contribute to the development of opinio juris of States

(3) 'effective control' test for attributable acts under the state (art.8 ARSIWA) containing a very high threshold for control in order for armed bands to be attributable to the US

(4) state practice for CIL does not need to be perfect and states do not need to be in 'absolute rigorous conformity' with the law

(5) a state can introduce a new, modified rule of customary law, but the same criteria apply (state practice + opinio juris)

nicaragua ICJ (self-defence)

(1) if a state does not report to SC regarding self-defence, it does not make its act of self defence automatically unlawful but it might make the court question it

(2) in the case of collective self-defence there must be a request for assistance (el salvador, honduras, and costa rica did not request for assistance from the US)

(3) self-defence against non-state actors might be allowed if substantial involvement by state can be proven in regards to armed bands

nicaragua ICJ (armed attack)

(1) the most grave uses of force are considered armed attacks qualifying for the act of self-defence (art.51)

(2) regular armed forces sent by the state constitute an armed attack, armed bands sent on behalf of the state or with substantial involvement of the state can also if they reach a certain scale

(3) a frontier incident is not an armed attack, neither is assistance to rebels or logistical support by the state

border and transborder armed action (nicaragua v honduras) ICJ

general principles of intl. law are not a self-standing source of obligations, they must be taken into combination with a separate intl. law obligation (but ILC draft conclusion 10 states otherwise)

application of the convention of genocide (bosnia v serbia and montenegro) ICJ

(1) judicial decisions can be used as a subsidiary source of intl. law as the ICJ referred back to its own previous jurisprudence such as the PCIJ or other tribunals

(2) all states party to the genocide convention were notified of the case - if they intervened the decision would become binding upon them

(3) while the court found that the act of genocide itself (committed by FRY) was not attributable to serbia and montenegro, they still violated their positive obligation to prevent genocide (taking appropriate measures)

case law on treaty interpretation

(1) aguas del tunari v bolivia: progressive encirclement

(2) ILC 1966: elements of interpretation form a crucible

(3) land, island, and maritime frontier dispute, judge torres bernandez: the fact that art.31/32 VCLT are two different articles on interpretation does not mean they are two different processes (there is no hierarchy)

case law on evolutive treaty interpretation

(1) fitzmaurice: principle of contemporaneity

(2) thirlway: if the intention of the parties was evolutive, then it is evolutive

(3) certain navigational rights (costa rica v nicaragua): interpretation of the word 'con objetos de comercio' was interpreted to include tourist activities

(4) shrimp turtle case WTO: turtles were interpreted as 'living' exhaustible natural resources so they can be protected from shrimp nets

croatia v slovenia (material breach as grounds for treaty suspension/termination)

breach of a procedural treaty (arbitration agreement) but court determined it is not about how much you breach the treaty, but how important the breach is (substansive treaties are easier for material breach)

gabickovo-nagymaros project (hungary v slovakia) ICJ

(1) state of necessity (ARSIWA): not a ground for termination, there were less intrusive means + state contributed to the situation

(2) impossibility of performance: no, because it resulted from hungary's own contribution

(3) fundamental change of circumstances: must be only in exceptional circumstances, NOT due to country's inner economics/politics (contribution, also see fisheries case)

(4) material breach: no, due to hungary's prior wrongful conduct

(5) good faith principle 'pacta sunt servanda' meaning states must do their best to comply w treaties

racke v hauptzollamnt mainz ECJ

termination of treaty is valid because of a fundamental change of circumstance, being the dissolution of yugoslavia

belilos v switzerland ECHR

interpretative declarations shall be treated as reservations if their purpose is to exclude or modify the legal effect of a treaty

maritime delimitation in the black sea (romania v ukraine) ICJ

romania and ukraine claimed different maritime zones based on serpents island, court decided on three stages based on the principle of equity:

(1) draw a provisional equidistance line from the chosen base point

(2) adjust this provisional line in light of the relevant circumstances (any fact may be relevant)

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

other case: libya/malta changed line because malta is small

s.s lotus ICJ

(1) regarding territorial jurisdiction: 'restrictions upon the independence of states cannot therefore be presumed' - if it is not prohibited, it is permitted

(although some argue this was just an argument regarding burden of proof and was not meant to be used as a general ruling)

(2) if a state consciously abstains from a rule of CIL it could be analysed as practice (silence)

nottebohm

genuine link: nationality is determined based on the genuine link between the individual and the state, e.g where you were born, where you live/work, where your friends/family are, etc.

equatorial guinea v france

for immunity of buildings considered as premises of a diplomatic mission, it needs to actually be demonstrated that it is used for a diplomatic mission (in this case the court was not convinced)

jurisdictional immunities (germany v italy) ICJ

(1) immunities function at a procedural level while rules of jus cogens function at a substansive level, therefore there is no conflict since procedural law comes before substansive

(2) italy has to take appropriate steps to ensure the decisions infringing the immunity of germany under intl law cease to have effect (remedy and compliance)

arrest warrant ICJ

immunities 'ratione personae' applies to serving heads of state and other high ranking governmental figures, but it is a non-exhaustive list

case of jamal khashoggi

alleged murder of a saudi journalist in a saudi embassy in turkey, violating the inviolability of embassies (diplomatic immunities)

wall opinion ICJ

(1) in certain cases, both IHRL and IHL apply and the court has to analyze it in context

(2) ICCPR is applicable in respect of acts done by a state in the exercise of its jurisdiction outside of its own territory (israel constructing wall in palestine)

(3) self-defence can only be invoked if the acts can be attributed to the foreign state, and since israel was acting within occupied territory there was no foreign state involved

(4) SC and GA can generally always refer questions for advisory opinions

al skeini v uk

(1) personal jurisdiction: exercise of physical power and control over the person in question

(2) spatial jurisdiction: effective control over an area or territory

(3) usually they only apply to areas within the council of europe, but for exceptional circumstances where both jurisdictions are exercised, the court can use a mix-model approach whereby a jurisdictional link is established (such was the case for UK officers in Iraq, but it has a high threshold)

conduct of state organs (art.4 ARSIWA) case law:

principle: the unity of state organisations

(1) salvador commercial company: irrespective of which branch (legislative, executive, and judiciary)

(2) certain german interests: no difference between legislative and executive acts

(3) la grand: irrespective of whether it comes from regional or central authorities

caire and velasquez rodriguez

individuals were able to violate their obligations because they were given these powers by the state, therefore it is still attributable to the state

tadic ICTY

(1) 'overall control' test, lower threshold than nicaragua

(2) what qualifies as an armed conflict? an armed conflict exists whenever there is a resort to armed force between states (iac)

(3) an armed conflict exists also when there is protracted armed violence between governmental authorities and organised armed forces within a state (niac)

insurrectional movements case law (art.10 ARSIWA)

new government = still attributable to the state

new state = attributable to the new state

cases: bolivar railway company, french company of venezuelan railroads, georges pinson

tehran hostages

(1) first wrongful act was an omission (act) under art.4 ARSIWA to protect the inviolobility of embassies which is a positive conduct obligation under CIL (violation) which can be attributed to iran through police officers not doing their best to protect the embassy (attribution)

(2) second wrongful act was art.11 ARSIWA when iran started adopting the conduct of the continued capture of US embassy (act) as their own (attribution)

savarkar case

arrest of savarkar did not violate french sovereignty because british officers were aided by the french police (consent was given)

armed activities (DRC v uganda) ICJ (consent)

(1) consent (as a circumstance precluding wrongfulness) must be clearly established rather than merely presumed

(2) implicit/tacit consent could potentially suffice

(3) crucial is the good faith principle, that the state believes in good faith that the other state consented

(4) consent must be freely given typically by an organ of the state (if not, then good faith principle again)

(5) other state cannot violate the limits of consent

armed activities (DRC v uganda) ICJ (uses of force)

preventive military action is generally not allowed: art.51 UN charter 'does not allow the state to protect perceived security interests beyond these parameters (listed in art.51)'

countermeasures (art.22 ARSIWA) case law

cysne: countermeasures can only be targeted against the state violating the obligation

air service agreement: countermeasures should be retractable (e.g trade obligations)

force majeure (art.23 ARSIWA) case law

russian indemnity: difficult or cumbersome circumstances do not count

french ship case: accidental or unintentional acts (negligence) do not count

rainbow warrior case

serious health risks can satisfy duress (and therefore be a circumstance precluding wrongfulness) but the following conditions need to be fulfilled:

(1) existence of exceptional circumstances

(2) re-establishment of the original situation

(3) existence of good faith effort to obtain consent of the affected state

milan martic ICTY

controversial use of cluster munitions, 46-69% of which did not explode on impact (failing the indiscriminate test for prohibited weapons)

al bashir controversy (art.27 vs art.98 rome statute)

argument 1: there is no conflict of provisions, as art.27 creates a vertical obligation (ICC v state) and art.98 creates a horizontal obligation (state v state)

argument 2: case was referred by SC, implying a waiver of immunity - but the SC should not be able to waive immunity as this is a state power, and also this would mean the rome statute would become binding on third states

mavrommatis palestine concessions

definition of a dispute: a disagreement on a point of law or fact, a conflict of legal views or of interests between two persons/states

nuclear disarmament cases

in order for a dispute to exists, both states need to be aware of the existence of the dispute - the accused state needs to become aware of the dispute at any point before the accusing state submits the document to the ICJ proclaiming that there is a dispute

the red crusader (denmark v UK)

example of fact-finding method of diplomatic dispute settlement as there was an establishment of a fact finding commission (found UK not guilty)

beagle channel dispute

example of good offices/mediation method of diplomatic dispute settlement as the pope acted as a mediator (symbol + status, and impartial)

certain norwegian loans case (france v norway) dissenting opinion of hersch lauterpacht

test for whether optional clause declarations are admissible:

(1) is the OCD permissible?

(2) what are the effect of the OCD?

(3) what is the intention of the state in regards to the OCD? (would state accept jurisdiction if it was told it cannot make a particular reservation of the OCD?)

oil platforms

(1) mining of a single military vessel could be qualified as an armed attack, but it has to be assessed together with the specifics of the case

(2) armed activities by non-state actors: US could not prove that certain missiles came from iran (burden of proof issue)

land, island, and maritime frontier dispute (el salvador v honduras) ICJ

(1) nicaragua was allowed to intervene because the legal interest was specific

(2) but it does not have the status of state party, the court does not decide its obligations - it simply informs the court

continental shelf (libya v tunisia) ICJ

(1) malta attempted to intervene based on art.62 ICJ statute, but court said simply engaging because of an interest to see how the court develops general principles of law is not enough

(2) interest has to be specific, of a legal nature, and liable to effect the state intervening

(3) also cannot lead to a new dispute: this is why there was a separate case (malta v libya)

land and maritime boundary case (cameroon v nigeria) ICJ

(1) equitorial guinea tried to intervene but was told no

(2) intervention cannot have the effect of transforming the proceedings into a different dispute than the one originally submitted to the court

western sahara ICJ

historical connections do not eliminate the right to self-determination, especially in the context of colonisation

al-adsani v uk

(1) al-adsani was tortured by kuwait officials and brought a case against the government of kuwait, but UK said no because of state immunity

(2) state immunity (a general rule of international law) in civil proceedings is a legitimate and proportionate limitation to art.6(1) ECHR right of access to court

(3) even though it was on torture claims, international law has not yet made a jus cogens exception to state immunity

barcelona traction case ICJ (diplomatic protection)

(1) diplomatic protection (by belgium) of belgian shareholders in a company incorporated in canada (but claim was against spain)

(2) only canada can exercise diplomatic protection because it is about a company (legal person) which functions differently than a natural person

(3) only in exceptional circumstances: company has ceased to exist, state of incorporation cannot act, company is effectively controlled elsewhere

barcelona traction case (general principle)

distinction between obligations owed to one state (bilateral) and obligations owed to the international community as a whole (erga omnes, mainly jus cogens) where every state has a legal interest whether or not it is specially affected (diplomatic protection is not erga omnes)

general comment 31

both spheres of law (IHL + IHRL) are complementary, not mutually exclusive