CASE/PARTIES/YEAR SUMMARY
LOTUS CASE Collision between 2 steamers, Turkish steamer sunk with 8
FRANCE V TURKEY (1927) sailors. France alleged whether Turkey by exercising criminal
jurisdiction was acting contrary to Int. Law
ARREST WARRANT OF 11
APRIL 2000
CONGO V BELGIUM (2002)
ATTORNEY GENERAL OF The accused was responsible for the planning of the Jewish
ISRAEL V EICHMANN Holocaust by the Nazis. He was abducted by Israeli agents in
Argentina and stood trial in Israel. The Israeli SC held that even
though Israel was not in existence when the Holocaust took
place it was in its national interests (as an extension of the
interests of Jewish people) for all offenders to be prosecuted.
JOYCE V DIRECTOR OF Joyce had fraudulently acquired British nationality and during
PUBLIC PROSECUTORS WWII broadcasted pro-Nazi propaganda in Germany. The
House of Lords held that despite the fraudulent acquisition of
nationality he had a duty of loyalty to the Crown and was liable
for the crime of treason.
CUTTING CASE Mr. Cutting, a U.S. citizen made a defamatory publication
MEXICO V USA (1887) against a Mexican citizen in Texas. Mr. Cutting was arrested
while in Mexico and convicted of an offence under Mexican
law with Mexico maintaining its right to jurisdiction upon the
basis of the passive personality principle. The United States
strongly opposed this but there was an inconclusive end to this
incident as the affected party withdrew the charges.
UNITED STATES V YUNIS Acceptance of passive personality principle both under
domestic and international laws. Lebanese citizen, lured by a
US agent from Cyprus into a fishing boat that was in
international waters. He was then arrested and transported to
the US, where he was charged with hostage taking and piracy
in connection with the hijacking in 1985 of an aircraft. No part
of the offences were committed in the US but 2 passengers were
US citizens.
LEGAL RELEVANCE
TERRITORIAL JURISDICTION + PASSIVE
PERSONALITY (dissenting opinion)- Once it is
admitted that the effects of the offence were produced
on the turkish vessel, it becomes impossible to hold that
there is a rule of international law which prohibits turkey
from prosecuting LD because of the fact that the author
of the offence was on board the French ship. France
could also have jurisdiction = concurrent jurisdiction.
Foreign Ministers are entitled to immunity ratione
personae and it subsists even when its alleged that he
has committed an international crime (crimes against
humanity) and applies even when he’s abroad.
PROTECTIVE PRINCIPLE. His crimes were very
severe, Israel court applied protective principle.
Extension of passive personality principle and
protective principle. He was abducted in Argentina and
brought to trial in Israel. Argentina did not complain.
Ideally you must have been brought legally but it
depends on the country (USA).
NATIONALITY-BASED JURISDICTION
PASSIVE PERSONALITY PRINCIPLE
PASSIVE PERSONALITY PRINCIPLE +
UNIVERSALITY PRINCIPLE. The USA brought
him legally, he was in Cyprus and that boat had an
American flag and once the boat was in high seas he
could be arrested.
PINOCHET CASE (2000) Senator Pinochet, the ex-Head of State of Chile was accused of The immunity of a former Head of State exists in respect
various violations of the human rights of both Chilean and of acts done while he or she was in office if those acts
foreign nationals. A Spanish court had issued an arrest warrant were ‘official’--> THE IMPLEMENTATION OF
in respect of alleged acts against Spanish nationals. While TORTURE CANNOT BE A STATE FUNCTION
visiting London, Senator Pinochet was arrested on an
extradition warrant pending extradition to Spain.
GERMANY V ITALY Italian nationals were suing Germany- Germany took Italy to Jus cogens does not waive immunity
the ICJ and said that Italian courts violated sovereign immunity.
These people were tortured and those were violations of jus
cogens.
USE OF FORCE
CASE/PARTIES/YEAR SUMMARY
CAROLINE The Caroline was an American ship being used
DOCTRINE by Canadian rebels to harass the British
(1837) colonial administration in Canada in 1837.
While it was moored in an American port close
to the border, it was attacked by the British
military and destroyed. The legality of the
action was raised when Britain sought the
release of one of the men involved in the attack.
NICARAGUA CASE Nicaragua alleged that the USA was
responsible for certain military operations in
Nicaraguan territory that were directed at the
legitimate government. These included the
mining of Nicaraguan ports and support for the
Contra rebels. These actions were said to
violate art 2(4) and CIL. Court determined it
lacked jurisdiction to try issues based on the
Charter because USA had legitimately refused
consent to the Court having jurisdiction in
cases concerning multilateral treaties.
However, the Court had jurisdiction over
questions of CIL and so it was crucial to
determine whether 2(4) was CIL.
OIL PLATFORMS Iran instituted proceedings against USA
CASE following the destruction by US naval forces of
ISLAMIC REPUBLIC commercial oil platforms owned by Iran. Iran
OF IRAN V USA alleged that the attacks on the platforms were
(2003) in contravention of both a bilateral treaty
between the two states and CIL. The US argued
it was acting in self-defense in response to an
attack against a US-flagged commercial vessel.
LEGAL RELEVANCE
Self-defense – NECESSITY
The letter of the US Secretary of State Daniel Webster to the British authorities is
the locus classicus for customary self-defense>> there had to exist a necessity of
self-defense, instant, overwhelming, leaving no choice of means and no moment for
deliberation.
Self-defense- would only warrant measures which are proportional to the armed
attack and necessary to respond to it- CIL
Collective self-defense- the right to collective self-defense was established in CIL
and it depends upon both a prior declaration by the state concerned that it was the
victim of an armed attack and a request by the victim state for assistance.
Non-intervention- prohibits to intervene, directly or indirectly with or without
armed force in support of an internal opposition in another state. If these acts
indirectly involve use of force it will also constitute a breach of this principle.
Confirmed validity of CIL because they decided the merits on this.
Armed attack concept (see Dixon summary)- ONLY MOST GRAVE FORMS
OF ATTACK WILL QUALIFY
-Failure to report self-defense to UNSC will imply that the state didn’t
considered it to be self-defense.
Self-defense.
1) whether USA demonstrated that it was victim of an ‘armed-attack’ by Iran to
justify use of force as self-defense- acts attributable to Iran was not justified in this
case.
Court might be willing to accept the accumulation of incidents in the future.
ICJ – IDS
CASE/PARTIES/YEAR SUMMARY
NICARAGUA CASE The case concerns a dispute between the
(1984) Government of the Republic of Nicaragua
and the Government of the United States of
America arising out of military and
paramilitary activities in Nicaragua and in
the waters of its coasts, responsibility for
which is attributed by Nicaragua
to the United States
MARSHALL Marshall Islands filed an application against
ISLANDS V. UK UK in which it claimed that the United
CASE Kingdom breached treaty and customary
(2016) international law obligations concerning
negotiations relating to cessation of the
nuclear arms race and to nuclear
disarmament.
EAST TIMOR CASE Portugal instituted proceedings against
(PORTUGAL V. Australia concerning "certain activities of
AUSTRALIA) Australia with respect to East Timor".
(1995) According to the Application Australia had,
by its conduct, "failed to observe the
obligation to respect the duties and powers
of [Portugal as] the administering Power [of
East Timor] and the right of the people of
East Timor to self-determination and the
related rights".
LEGAL RELEVANCE
ARTICLES 36 (2)(5) ICJ STATUTE
1) On 14 August 1946, the USA made a declaration containing reservations: “this
declaration shall remain in force for a period of 5 years and thereafter until the expiration
of six months after notice may be given to terminate this declaration”.
On 06 April 1984, USA deposited notification stating “ the aforesaid declaration shall
not apply to disputes with any Central American State or arising out of related to events
in Central America, any of which disputes shall be settled in such manner as the parties
to them may agree.”, “this proviso shall take effect immediately and shall remain in force
for 2 years...”> notification cannot therefore override the obligation of the United
States to submit to the jurisdiction of the Court vis-á-vis Nicaragua.
2) Nicaragua never ratified ICJ STATUTE- Conduct of Nicaragua showed a
constant acquiescence that constitutes a valid mode of manifestation to recognize
compulsory jurisdiction of the Court- reciprocity Art. 36(2)
3) US Multilateral treaty reservation- does not have a preliminary character, if a
party wants to join later on its free to do so
AWARENESS TEST- Absence of a dispute between the parties- Existence of a
dispute between the parties is a condition of its jurisdiction- parties must hold clearly
opposite views> If the Court had jurisdiction with regard to disputes resulting from
exchanges in the proceedings before it, a respondent would be deprived of the opportunity
to react before the institution of proceedings to the claim made against its own conduct
ICJ could not settle the dispute because legal interests of another party would be the
very subject-matter of the decision>> MONETARY GOLD REMOVED FROM
ROME 1943.
THE LAW-MAKING PROCESS & THE SOURCES OF INTERNATIONAL LAW
CASE/PARTIES/YEAR SUMMARY
NICARAGUA CASE Nicaragua brought a claim against the USA
(1984) alleging certain unlawful military and
paramilitary activities against Nicaraguan
territory, including the mining of
Nicaraguan ports and support for
Nicaraguan rebels, the Contras. The US
claimed that the Court had no jurisdiction
because, inter alia, they had entered a
reservation to the jurisdiction of the ICJ
excluding a matter from the Court if the
dispute concerned the application of a
multilateral treaty.
NORTH SEA Germany v Denmark and Germany v The
CONTINENTAL Netherlands submitted a dispute over the
SHELF CASES delimitation of their shared Continental
(1963) Shelf to the ICJ
ANGLO- The UK objected to the delimitation of the
NORGWEGIAN territorial sea carried out by Norway by two
FISHERIES CASE Royal Decrees. Part of the UK’s objection
(1951) rested on the fact that there was a customary
rule of international law that ‘closing lines’
along the months of bays could be no longer
than 10 nautical miles.
THE NAMIBIA
OPINION (1971)
LEGALITY OF THE
THREAT OR USE OF
NUCLEAR
WEAPONS
LEGAL RELEVANCE
Relevant treaty: UN CHARTER – 2(4)
1) The Court had jurisdiction because its claim against the US was also based on rules of
customary international law, which although similar in content to the law of the UN
Charter, had not been suspended by it. These norms retain a separate existence.
2) Creation of CIL by 2 elements (State practice & opinio juris)- The Court does not
consider that for a rule to be established as customary, the corresponding practice must be
in absolutely rigorous conformity with the rule. In order to deduce the existence of
customary rules, the Court deems it sufficient that the conduct of States should, in general,
be consistent with such rules, and that instances 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.
CIL->para. 77- Not only must the acts concerned amount to a settled practice, but they
must also be such, or be carried out in 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.
STATE PRACTICE + OPINIO JURIS
PERSISTENT OBJECTOR- ‘In any event the ten mile rule would appear to be
inapplicable as against Norway as she has always opposed any attempt to apply it to the
Norwegian coast’.
It would be impossible to be a persistent objector to a rule of jus cogens.
General assembly resolutions, even if they are not binding, may sometimes have
normative value, they can in certain circumstances, provide evidence important for
establishing the existence of a rule or the emergence of an opinio juris.
THE LAW OF THE TREATIES
CASE/PARTIES/YEAR SUMMARY LEGAL RELEVANCE
QATAR AND The dispute related to competing claims of THE EXCHANGE OF LETTERS BETWEEN HEADS OF EACH STATE WERE
BAHRAIN (1994) sovereignty over islands, shoals and ‘TREATIES’ AND SO BINDING IN INTL LAW. --> 2(1) VCLT.
maritime areas situated between 2 States. It is the effect of an agreement rather than the nomenclature attributed to it, that is relevant.
The first aspect of the dispute was whether
the Court had jurisdiction to decide the case.
CAMEROON V A joint communiqué issued at the end of a summit meeting, which had been signed by the
NIGERIA (2002) Heads of State of the two States, constituted an international agreement that had entered
into force immediately.
LETTER TO THE UN ‘UNSIGNING’ TREATY
SECRETARY- 18(a)VCLT--> This is to inform you, in connection with the Rome Statute of the ICC that
GENERAL FROM the US does not intend to become a party to the treaty. The US has no legal obligations
USA (2002) arising from its signature on December 2000.
BELILOS V She had not been given a fair trial in CH in INTERPRETATIVE DECLARATIONS AND RESERVATIONS
SWITZERLAND contravention of Art. 6 ECHR. CH objected The Court held that the Swiss ‘interpretative declaration’ was in reality a reservation. It
claiming that when it ratified the was not a valid reservation being too broad in scope within the requirements of Art 64
Convention, it had made an ‘interpretative ECHR.
declaration’ ECtHR- If its effect is to make the State’s consent to the treaty conditional upon the
acceptance of the content of the declaration, rather than merely offering an interpretation
of the treaty, the declaration will be treated as a reservation.
CASE CONCERNING A STATE CANNOT INVOKE ITS INTERNAL LAW AS A JUSTIFICATION FOR
THE TERRITORIAL A FAILURE TO COMPLY WITH A TREATY UNLESS IT WAS OBJECTIVELY
AND MARITIME MANIFESTLY OBVIOUS TO ANY STATE THAT THE FIRST STATE’S
DISPUTE CONSENT TO BE BOUND WAS CONTRATY TO AN INTERNAL LAW OF
(NICARAGUA V FUNDAMENTAL IMPORTANCE TO THAT STATE
COLOMBIA) (2007)
EAST TIMOR CASE CLAIM OF TREATY BEING VOID ON GROUND OF BEING CONTRARY TO
(PORTUGAL V JUS COGENS.
AUSTRALIA)
DANUBE DAM CASE In 1997, Hungary and Czechoslovakia STATE OF NECESSITY (not a ground for terminating: ground recognized by CIL that
(HUNGARY V concluded a treaty to facilitate the can only be accepted on an exceptional basis para. 51), IMPOSSIBILITY OF
SLOVAKIA) (1997) construction of dams on the Danube River. PERFORMANCE (61(2) VCLT- may not be invoked when it results from that party’s
Hungary later suspended works due to own breach of an obligation), FUNDAMENTAL CHANGE OF CIRCUMSTANCES
environmental concerns in response to (changes of political nature, reduced economic viability, progress of environmental
which Czechoslovakia carried out unilateral knowledge and intl. environmental law are not unforeseen and must be essential basis of
measures. Hungary claimed the right to the consent of the parties), MATERIAL BREACH OF THE TREATY (the violation
terminate the treaty. of other treaty rules + rules of intl. law is not enough)- VERY HIGH THRESHOLDS
INTERNATIONAL PERSONALITY AND INTERNATIONAL RESPONSIBILITY
CASE/PARTIES/YEAR SUMMARY
KOSOVO Largely autonomous region of Serbia until
the early 1990. Its autonomy was gradually
revoked, and its population increasingly
discriminated against pro-Serbian elements.
This discrimination and violence escalated
in late 1998, leading to an armed
intervention by the NATO.
QUEBEC CASE
SOUTHERN
RHODESIA (1965)
NAMIBIA CASE
(1971)
TURKISH
REPUBLIC OF
NORTHERN
CYPRUS (1983)
NICARAGUA CASE Nicaragua brought a claim against the USA
(1984) alleging certain unlawful military and
paramilitary activities against Nicaraguan
territory, including the mining of
Nicaraguan ports and support for
Nicaraguan rebels, the Contras. The US
claimed that the Court had no jurisdiction
because, inter alia, they had entered a
reservation to the jurisdiction of the ICJ
LEGAL RELEVANCE
SC authorized the establishment of an international civil administration and NATO
presence in KOSOVO, did not address the substance of the long-term legal status of
Kosovo, although it did reaffirm the territorial sovereignty of the Federal Republic of
Yugoslavia.
81. NO PROHIBITION ABOUT UNILATERAL DECLARATIONS OF
INDEPENDENCE- RATHER NEUTRAL POSITION.
155. RECOGNITION MAY HAVE A CONSTITUTIVE EFFECT WHEN
THERE’S UNILATERAL DECLARATION OF INDEPENDENCE. Although there
is no right, under the Constitution or at international law, to unilateral secession, that is
secession without negotiation on the basis just discussed, this does not rule out the
possibility of an unconstitutional declaration of secession leading to a de facto secession.
The ultimate success of such a secession would be dependent on recognition by the
international community, which is likely to consider the legality and legitimacy of
secession having regard to, amongst other facts, the conduct of Quebec and Canada, in
determining whether to grant or withhold recognition. Such recognition, even if granted,
would not, however, provide any retroactive justification for the act of secession, either
under the Constitution of Canada or at international law.
Self-determination applies to people. It’s not individual it is collective. It is not an
absolute Human Right. It applies to oppressed people.
ICJ IMPOSED A DUTY NOT TO RECOGNIZE – UNLAWFUL USE OF FORCE – 41
ARSIWA
115. US participation even if preponderant or decisive, in the financing, organizing,
training, supplying and equipping of the contras, the selection of its military or
paramilitary targets, and the planning of the whole of its operation, is still insufficient in
itself. For this conduct to give rise to legal responsibility of the US, it would in principle
have to be proved that that State had effective control of the military or paramilitary
operations in the course of which the alleged violations were committed.
2 STEP-TEST: COMPLETE CONTROL (4 ARSIWA): whether the acts committed
were perpetrated by organs of the state OF EFFECTIVE CONTROL (8 ARSIWA):
whether the acts in question were committed by persons who, while not organs of the
 excluding a matter from the Court if the
dispute concerned the application of a
multilateral treaty.
BOSNIAN The Court was faced with the question of
GENOCIDE CASE whether the conduct of members of the
(2007) Bosnian Serb troops as well as the actions of
various paramilitary Serb groups in relation
to the massacre at Srebrenica and other
atrocities committed within the territory of
Bosnia and Herzegovina, were attributable
to the Federal Republic of Yugoslavia (later
Serbia and Montenegro)
TADIC CASE (1999)
WALL ADVISORY Based on a request from the UNGA on the
OPINION (2004) ‘legal consequences arising from the
construction of the wall being built by Israel,
the occupying power, in the occupied
Palestinian Territory, including in and
around East Jerusalem.
state, did nevertheless act on the instructions of or under the direction or control of the
state.
400. Reaffirmed “effective control” and reject of “overall control”--> the application of
the overall control test to other entities as (de jure or de facto) organs goes beyond the
principles governing the law on State responsibility as recognized under CIL.
432 ACTION AND OMISSION DO NOT VIOLATE THE SAME OBLIGATION
Complicity always requires that some positive action has been taken to furnish aid or
assistance to the perpetrators of the genocide, while a violation of the obligation to prevent
results from mere failure to adopt and implement suitable measures to prevent genocide
from being committed. While complicity results from commission, violation of the
obligation to prevent results from omission.
The ICTY did not follow the jurisprudence of the ICJ in the Nicaragua case. It held that
the appropriate criterion was that of the ‘overall control’ exercised over Bosnian Serbs by
the FRY, which went beyond the mere financing and equipping of such forces and
involving also participation in the planning and supervision of military operations
STATEHOOD
CASE/PARTIES/YEAR SUMMARY LEGAL RELEVANCE
NICARAGUA CASE The case concerns a dispute between the
(1984) Government of the Republic of Nicaragua
and the Government of the United States of
America arising out of military and
paramilitary activities in Nicaragua and in
the waters of its coasts, responsibility for
which is attributed by Nicaragua
to the United States