You are on page 1of 7

GENERAL 1.

Barcelona Traction, Light and Power Company Case, ICJ Reports, 1970 FACTS: The Barcelona Traction, Light and Power Company, was incorporated in Toronto Canada for the purpose of creating and developing an electric power production and distribution system in Catalonia (Spain). It formed a number of subsidiary companies, of which some had their registered offices in Canada and others in Spain. Some years after the First World War, Barcelona Traction share capital came to be very largely held by Belgian Nationals. The servicing of the Barcelona Traction Bonds was suspended on the account of the Spanish civil war. After that war, the Spanish exchange control authorities refused to authorize the transfer of the foreign currency necessary for the resumption of the servicing of the Sterling Bonds. Eventually the company was declared bankrupt. Belgium filed an application with the ICJ against the Spanish government seeking reparation of damages claimed to have been caused to the Belgian National shareholders of the Company. ISSUE: Does the state of the shareholders of a company have a right of diplomatic protection if the state whose responsibility is invoked is not the national state of the company? RULING: No. In order for a state to bring a claim in respect of the breach of an obligation owed to it, it must first establish its right to do so. This right is predicated on a showing that the defendant state has broken an obligation toward the national state in respect of its nationals. In the present case it is therefore essential to establish whether the losses allegedly suffered by Belgian shareholders in Barcelona Traction were the consequence of the violation of obligations of which they are beneficiaries. In the present state of the law, the protection of shareholders requires that recourse be had to treaty stipulations or special agreements directly concluded between the private investor and the state in which the investment is placed. Barring such agreements, the obligation owed is to the corporation, and only the state of incorporation has standing to bring an action for violations of such an obligation. Nonetheless, for reasons of equity a theory has been developed to the effect that the state of the shareholders has a right of diplomatic protection when the state whose responsibility is invoked is the national state of the company. This theory, however, is not applicable to the present case, since Spain is not the national state of Barcelona Traction.

Barcelona Traction could have approached its national state, Canada, to ask for its diplomatic protection. -For the above reasons, the Court is of the opinion that Belgium lacks standing to bring this action. 2. Reparations for Injuries Suffered in the Service of the UN, ICJ Reports, 1949 Questions raised before the ICJ by the General Assembly of the United Nations: In the event of an agent of the United Nations in the performance of his duties suffering injury in circumstances involving the responsibility of a State; 1. Has the United Nations, as an Organization, the capacity to bring an international claim against the responsible de jure or de facto government with a view to obtaining the reparation due in respect of the damage caused (a) to the United Nations (b) to the victim or to persons entitled through him? (b.1) And If so, how is action by the United Nations to be reconciled with such rights as may be possessed by the State of which the victim is a national? (a) the Organization has the capacity to bring an international claim against a State (whether a Member or non-member) for damage resulting from a breach by that State of its obligations towards the Organization. This is to prevent a conflict between the action of the United Nations and such rights as the agent's national State may possess. (b) Only the Organization has the capacity to present a claim, inasmuch as at the basis of any international claim there must be a breach by the Defendant State of an obligation towards the Organization. (b.1) The Members of the United Nations created an entity possessing objective international personality and not merely personality recognized by them alone. What is involved is possible competition between the rights of diplomatic protection on the one hand and functional protection on the other. The Court does not state here which of these two categories of protection should have priority and in the case of Member States it stresses their duty to render assistance provided by Article 2 of the Charter. It adds that the risk of competition between the Organization and the national State can be reduced or eliminated either by a general convention or by agreements entered into in each particular case, and it refers further to cases that have already arisen in which a practical solution has already been found.

3. Mavrommatis Case, PCIJ, Ser. A, No. 2, 1924 FACTS: Mavrommatis, a Greek national, was in 1914 granted concessions by the Ottoman authorities for certain public works in what later became the British mandated territory of Palestine. Greece alleged that Great Britain, through the Palestine Government, had refused fully to recognize the concessions in Jerusalem and Jaffa, principally by having granted to a Mr. Rutenberg concessions partially overlapping those enjoyed by Mavrommatis, and accordingly sought compensation. At first, the dispute was between private person (Mavrommatis) and a state (Britain). But Greece took up Mavrommatis case as it is a Greek subject. ISSUE: Whether or not Greece has the right to claim on behalf of Mavrommatis against Britain? RULING: Yes. It is an elementary principle of international law that a State is entitled to protect its subjects, when injured by acts contrary to international law committed by another State, from whom they have been unable to obtain satisfaction through the ordinary channels. By taking up the case of one of its subjects and by resorting to diplomatic action or international judicial proceedings on his behalf, a State is in reality asserting its own rightsits right to ensure, in the person of its subjects, respect for the rules of international law. The question, therefore, whether the present dispute originates in an injury to a private interest, which in point of fact is the case in many international disputes, is irrelevant from this standpoint. Once a State has taken up a case on behalf of one of its subjects before an international tribunal, in the eyes of the latter the State is sole claimant. 4. Certain Expenses of the UN, ICJ Reports, 1962 FACTS: Two United Nations programs, UNOC (United Nations Operations in Congo) and UNEF (United Nation Emergency Force in the Middle East), were challenged as improper expenditures of United Nations funds on the ground that they were performed by the wrong organs of the United Nations, or that they did not further a required purpose of the organization. Opponents of the programs argued that they were coercive in nature and should be performed by the United Nations Security Council, rather than the General Assembly which was carrying them out. ISSUE: Whether or Not UNOC and UNEF are improper expenditures of the UN as they were performed by the wrong organs of the UN.

RULING: No. It is apparent that the operations of the programs were undertaken to fulfill a prime purpose of the UN that is, to promote and to maintain a peaceful settlement of the situation. As both the Programs are gazed toward the goal of the UN, it was agreed that the programs in question are within the scope of the functions of the organization, although it was alleged that it has been carried out in a manner not in the conformity with the division of functions among the several organs of the charter, it is simply irregular as a matter of internal structure but this would not necessarily mean that the expense incurred was not an expense of the Organization.

VI. Other Subjects of International Law The UN Charter & the Use of Force 5. Arts. 2(3), 2(4), 24(1), 25, 23(1), 27(3), UN Charter Art2: The Organization and its Members, in pursuit of the Purposes stated in Article 1, shall act in accordance with the following Principles. (3) All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered. (4) All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations. Art24 (1): In order to ensure prompt and effective action by the United Nations, its Members confer on the Security Council primary responsibility for the maintenance of international peace and security, and agree that in carrying out its duties under this responsibility the Security Council acts on their behalf. Art25: The Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter. Art23 (1): The Security Council shall consist of fifteen Members of the United Nations. The Republic of China, France, the Union of Soviet Socialist Republics, the United Kingdom of Great Britain and Northern Ireland, and the United States of America shall be permanent members of the Security Council. The General Assembly shall elect ten other Members of the United Nations to be non-permanent members of the Security Council, due regard being specially paid, in the first instance to the contribution of Members of the United Nations to the maintenance of international peace and security and to the other purposes of the Organization, and also to equitable geographical distribution.

Art27 (3): Decisions of the Security Council on all other matters shall be made by an affirmative vote of nine members including the concurring votes of the permanent members; provided that, in decisions under Chapter VI, and under paragraph 3 of Article 52, a party to a dispute shall abstain from voting.

6. Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. US), ICJ Reports, 1986 FACTS: In July 1979 the Government of President Somoza collapsed following an armed opposition led by the Frente Sandinista de Liberacion Nacional (FSLN) . The new government installed by FSLN began to encounter 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 US, it found that Nicaragua was providing logistical support and weapons to guerrillas in El Salvador. In April 1981 it terminated US aid to Nicaragua and in September 1981, according to Nicaragua, the US decided to plan and undertake activities directed against Nicaragua. The armed opposition to the new Government was conducted mainly by (1) Fuerza Democratica Nicaragense (FDN), which operated along the border with Honduras, and (2) Alianza Revolucionaria Democratica (ARDE), which operated along the border with Costa Rica. Initial support to these groups fighting against the Nicaraguan Government (called contras) was covert. Later, the US 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 US is effectively in control of the contras, the US devised their strategy and directed their tactics and that they were paid for and directly controlled by US personal and some attacks were carried out by US 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 US aircrafts flew over Nicaraguan territory to gather intelligence, supply to the contras in the field and to intimidate the population. The US claimed collective self-defense in behalf of El Salvador as justification for its actions. ISSUES:

1. Did the US 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? 2. Did the US 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? 3. Can the military and paramilitary activities that the US undertook in and against Nicaragua be justified as collective self-defense? RULING: 1. Yes. The US 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. 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; 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. And The financial support, training, supply of weapons, intelligence and logistic support given by the US to the contras was a breach of the principle of non-interference. 2. Yes. The US 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 thecontra forces resulted in the threat or use of force. The US violated the CIL prohibition on the use of force when it laid mines in Nicaraguan ports and attacked its ports, oil installations and a naval base, and 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 participating in acts of civil strifein another State and when these acts involved the threat or use of force. 3. No. The US cannot justify the military and paramilitary activities that it undertook in and against Nicaragua as collective self-defense. When a State claims that it used force in collective self-defense, the Court will look into two aspects : (1) whether the circumstances required for the exercise of self-defense existed and (2) whether the steps taken by the State, which was acting in self-defense, corresponds to the requirements of international law (i.e. necessity and proportionality). Several criteria must be met for a State to exercise the right of individual or collective selfdefense: (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-defense based its (the third States) own assessment]; and (3) in the case of collective self-defense the victim State must request for assistance (there is no rule permitting the exercise of collective self-defense 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 CIL, 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-defense 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-defense. The Court referred to statements made by El Salvador, Costa Rica, Honduras and the US 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 US in self-defense at the time when the US was allegedly acting in collective self-defense; and (2) the US 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. US cannot justify its use of force as collective self-defense. The criteria with regard to necessity and proportionality, that is necessary when using force in self-defense was also not fulfilled.