Researcher Test -Nalsar PIL

The ICJ is the successor of the Permanent Court of International Justice (PCIJ), which was
established by the League of Nations in 1920.
ICJ comprises of 15 judges elected by the general assembly and security council for nine year
term. The court is seated in the Peace Palace in The Hague, Netherlands, making it the only
principal U.N. organ not located in New York City. Its official language is English and
French .

After the court ruled that the United States's covert war against Nicaragua was in violation of
international law (Nicaragua v. United States), the United States withdrew from compulsory
jurisdiction in 1986 to accept the court's jurisdiction only on a discretionary basis.[9] Chapter
14 of the United Nations Charter authorizes the UN Security Council to enforce Court
rulings. However, such enforcement is subject to the veto power of the five permanent
members of the Council, which the United States used in the Nicaragua case.

Judges may deliver joint judgments or give their own separate opinions. Decisions and advisory
opinions are by majority, and, in the event of an equal division, the President's vote becomes
decisive, which occurred in the Legality of the Use by a State of Nuclear Weapons in Armed
Conflict

Article 31 of the statute sets out a procedure whereby ad hoc judges sit on contentious cases
before the court. The system allows any party to a contentious case (if it otherwise does not have
one of that party's nationals sitting on the court) to select one additional person to sit as a judge
on that case only. It is thus possible that as many as seventeen judges may sit on one case.

Generally, the court sits as full bench, but in the last fifteen years, it has on occasion sat as a
chamber. Articles 26–29 of the statute allow the court to form smaller chambers, usually 3 or 5
judges, to hear cases. Two types of chambers are contemplated by Article 26: firstly, chambers
for special categories of cases, and second, the formation of ad hoc chambers to hear particular
disputes. In 1993, a special chamber was established, under Article 26(1) of the ICJ statute, to
deal specifically with environmental matters 

Current president abdulqawiahmed Yusuf (Somalia) and Indian member is

dalveerbhandariHe received 183 of the 193 votes in the General Assembly and secured all 15
votes in the Security Council to fill the final vacancy on the ICJBhandari is the fourth Indian
judge to be elected to the ICJ after B.N. Rau, Nagendra Singh and R.S. Pathak.and first
president was jose Gustavo guerrroof El Salvador (1946-1949) and first Indian president was
Nagendra singh ( 1985-1988) .

India went to ICJ for 6 time , in which 4 time is against Pakistan first case was Right of
Passage over Indian Territory (Portugal Vs India, 1955) , recent case is Jadhav(india v.
Pakistan) india won the case by 15-1 The sole judge that voted against the verdict was ad hoc
judge Tassaduq Hussain Jillani of Pakistan.

As stated in article 93 of the un charter , all 193 UN member are automatically parties to the
court statute . Non-UN members may also become parties to the court's statute under the Article
93(2) procedure. he issue of jurisdiction is considered in the three types of ICJ cases:
contentious issues, incidental jurisdiction, and advisory opinions
Hugo Grotius -  De Jure Belli Ac Pacis Libri Tres , on the law of war and peace

Cornelius van bynkershoek- a treaties of law of war

Georg Friedrich von Martens - Recueil des traites

Cornelis van Bijnkershoek  -Jus Gentium Methodo Scientifica Pertractum (The Law of Nations
According to the Scientific Method

Emerich Vattel – laws of nation

Treaty of Westphalia – 1648 - after 30 year war -  Three treaties were signed to end each of the
overlapping wars: the Peace of Münster, the Treaty of Münster, and the Treaty of Osnabrück.
These treaties ended the Thirty Years' War (1618–1648) in the Holy Roman Empire, . The
treaties also ended the Eighty Years' War (1568–1648) between Spain and the Dutch Republic,
with Spain formally recognising the independence of the Dutch.  the Treaty of Hamburg

League of nation- Geneva Switzerland , 1920 – paris peace conference

1928 - The Kellogg–Briand Pact (or Pact of Paris, officially General Treaty for Renunciation

of War as an Instrument of National Policy[1]) is a 1928 international agreement in which
signatory states promised not to use war to resolve "disputes or conflicts of whatever nature or of
whatever origin they may be, which may arise among them

1) Corfu channel case – ( United Kingdom v. Albania,) – Also the first case of ICJ.

“ one of which resulted in damage to two Royal Navy ships and significant loss of life”. After
an initial ruling on jurisdiction in 1948, the ICJ issued separate merits and compensation
judgments in 1949. The Court awarded the United Kingdom £843,947.

State sovereignty word was used

Bethlam report –

38 (1) d – arsiwa is not a customary law .

Gauina case –

2) DRC v. Uganda – ( Congo case ) - In 1997, President Kabila came into power in the DRC,
with the help of Uganda and Rwanda. Initially, Ugandan and Rwandan forces were present in the
DRC following DRC’s invitation and consent. Then, the DRC’s relations with Uganda and
Rwanda deteriorated, and on 28 July 1998, President Kabila announced the withdrawal of the
DRC’s consent to Rwandan military presence in the DRC.

Article 2(4) of the UN charter prohibits States from “the threat or use of force against the
territorial integrity or political independence of any state.

3) Nicaragua V. United states 1984 - Nicaragua (P) brought a suit against the
United States (D) on the ground that the United States (D) was responsible for
illegal military and paramilitary activities in and against Nicaragua. The
jurisdiction of the International Court of Justice to entertain the case as well as
 the admissibility of Nicaragua’s (P) application to the I.C.J. was challenged by
the United States (D)

In Nicaragua case, an act of non-State actors is attributable to a State when the

State has “effective control” over their acts,

4) Iran v US, Oil Platforms - Three Iranian offshore oil platforms and a United States
Navy warship, USS  Samuel B. Roberts, were destroyed when the ship struck
a mine in international waters near Bahrain.

The court repeated that self-defense is only allowed in response to an armed

attack.

The UN Charter adopts a clear-cut approach to force by distinguishing three types: armed,
economic and political.

Aggression is defined in un resolution in ( 3314) 1974 in article 1 and under article 3 it is

defined .

states to refrain from ‘military…..or any other form of coercion aimed against the political
independence or territorial integrity of any state’ as reaffirmed in the 1970 Declaration on
Principles of International Law GA RES 2625( 1970) .

5) Netherlands v. U.S.A (Island of Palmas Case) - 1928

Territorial dispute over the Island of Palmas (or Miangas) between the Netherlands and
the United States which was heard by the Permanent Court of
Arbitration. Palmas (Indonesian: Pulau Miangas) was declared to be a part of the Netherlands
East Indies and is now part of Indonesia.

four limitations to self-defense, namely, immediacy, necessity, proportionality, and

temporality.

6) Bosnia and Herzegovina v Serbia and Montenegro- 2007

Serbia was alleged to have attempted to exterminate the Bosniak (Bosnian Muslim) population

of Bosnia and Herzegovina. The claim was filed by Dr. Francis Boyle, an adviser
to AlijaIzetbegović during the Bosnian War. 

Under art. 11 of GA Resolution 56/83, an initially private conduct becomes an act of the State
only if, and to the extend, that the State acknowledges and adopts the conduct as its own.

According to Israel, Security council resolutions 1368 (2001) and 1373 (2001) ‘had clearly
recognized the right of States to use force in self defence against terrorist attacks, and
therefore surely recognize the right to use non-forcible measures to that end.
 7) Congo v. Uganda- the ICJ held that there is no actual right to use military force
triggered by a state, which is unwilling or unable to control militant groups based
in their country.

Jus cogens - The principles which form the norms of international law that cannot be
set aside.

Guyana v. Suriname- This case concerned the delimitation of Guyana’s

maritime boundary with Suriname and the alleged breaches of
international law by Suriname in disputed maritime territory. The
dispute arose in relation to the activities of holders of oil concessions
granted by Guyana in the maritime area claimed by both countries.
An oil rig and drill ship were ordered to leave and escorted from the
area by the Surinamese navy in June 2000 and a similar incident
followed in September 2000.

ErgaOmnes - Rights or obligations are owed toward al

Barcelona Traction case -

VCLT - Vienna Convention on the law of treaties

The Legal Consequences of the Construction of a Wall in the Occupied Palestinian

Territory (commonly known as the Israeli Wall advisory opinion) 2004 - The court responded
to a request from the United Nations General Assembly on the legal question under international
law of the Israeli West Bank barrier built by Israel that partially follows the Green Line boundary
between Israel and the West Bank and partially enters into the Israeli-occupied West Bank. The
barrier has been a controversial subject and a cause of heightened tensions in the Israeli-
Palestinian Conflict.

UN GA Res. 2131-Declaration on the Inadmissibility of Intervention1 which forbids all forms

of intervention in the internal or external affairs of other states.

1
UN GA Res. 2131 (XX), Declaration on the Inadmissibility of Intervention in the Domestic Affairs of States
and the Protection of their Independence and Sovereignty, 1965, A/48/535
The International Criminal Tribunal for the former Yugoslavia - ICTY

UN GA Res. 60/1- In this summit, the world leaders reaffirmed to support all efforts to
uphold the sovereign equality of all states, and respect their territorial integrity and political
independence

Declaration on the Enhancement of the Effectiveness of the Principle of Refraining from the
Threat or Use of Force in International Relations, UN GA Res.42/22 (1987)- Every State has
the duty to refrain from the threat or use of force against the territorial integrity or political
independence of any State

UN GA Res.37/10, Manila Declaration on the Peaceful Settlement of International Disputes,

November 15, 1982 - All States shall refrain in their international relations from the threat or
use of force against the territorial integrity or political independence of any State.

ICCPR- The International Covenant on Civil and Political Rights - United Nations
General Assembly. Resolution 2200A - Article 9 provides for the right against arbitrary
arrest or detention

Art. 6 of ICCPR protects the right to life, which has been described by the Human Rights
Committee (HRC) as ‘the supreme right’ from which no derogation is permissible2 and
measures should be taken by states to prevent arbitrary killing by their security forces

Additional protocol 1– Article 50(1) - defines population as a civilian under the meaning of
International Law. It is made evidently clear that in case of conjecture, a person is to be
considered as civilian and nothing else

Article 48 Additional protocol 1 - In order to ensure respect for and protection of the civilian
population and civilian objects the Parties to the conflict shall at all times distinguish between
the civilian population and combatants and between civilian objects and military objectives
and accordingly shall direct their operations only against military objectives

art. 75 of AP I provides for list of ‘fundamental guarantees’ that protect all persons who fall
into the hands of a party to an armed conflict

The SC resolutions 14563(20 January 2003) and 1624 UNSC resolution (14 September
2005) , stress that any measure taken to combat terrorism must comply with IHRL

The conflict falls within the ambit of article 1(4) of the Additional Protocol 1 of 1977 Article
1(4) provides that armed conflicts in which peoples are fighting against colonial domination,
alien occupation or racist regimes are to be considered international conflicts

Beyond attribution, there are four limitations to self-defence, namely, immediacy, necessity,
proportionality, and temporality

2
General Comment 6, ¶ 1.
3
UNSC resolution 1456 (20 January 2003)
1. The language of Article 51 is silent on who could mount an armed attack. At no point does it
suggest that self-defence is available only against states

Arsiwa - Commission Articles on Responsibility of States for Internationally Wrongful Acts,

2001

UNSC Resolution 2178 (2014) - stated that states have an obligation to take necessary actions
against terrorist groups operating in their territory and harming other states.

The Caroline v. USA 1813 -The Caroline affair (also known as the Caroline case) was a

diplomatic crisis beginning in 1837 involving the United States, Britain, and the Canadian
independence movement. It began in 1837 when William Lyon Mackenzie and other Canadian
rebels commanding the ship Caroline fled to an island in the Niagara River, with support from
nearby American citizens. British forces rowed across the Niagara River, boarding the vessel
where it was moored at Schlosser's Landing on the American shore, shots were fired from both
sides and an American watchman died in the fighting, the British fired the ship and set it adrift in
the Niagara River, about 2 miles above Niagara Falls. The "affair" was sensationalized by
contemporary newspapers.

Caroline formulation, the principle of proportionality was stated to require “nothing

unreasonable or excessive, since the act, justified by the necessity of self-defence, must be
limited by that necessity, and kept clearly within it

Military objective as defined in Protocol I4, is part of customary international law for armed
conflict whether on land, at sea or in the air,5 and is also binding on the non-parties to the
Protocol.6 The legitimate military objective must meet the two stage test: firstly, its nature,
location, purpose or use makes it an effective contribution to military action; and secondly,
it’s total or partial destruction, capture or neutralization, in the ongoing circumstances, offers
a definite military advantage

Legality of the Threat or Use of Nuclear Weapons [1996] ICJ 2 is a landmark international

law case, where the International Court of Justicegave an advisory opinion stating that there
is no source of law, customary or treaty, that explicitly prohibits the possession or even use of
nuclear weapons. The only requirement being that their use must be in conformity with the
law on self-defence and principles of international humanitarian law.

1. Advisory Opinions of the International Court of Justice can be sought by the General
Assembly under which Article of the Charter? Ans: Art. 96

4
AP I, art 52(1) (1977)
5
Y Dinstein, “Legitimate military objectives under the current Jus in Bello” in colloquium: legal and ethical
lessons of Nato’s Kosovo Campaign”, p 1, (2001)
6
W.J Fenrick, “The law applicable to targeting and proportionality after operation allied force: a view from
outside” 3 YIHL 53[2002]; Y Dinstein, “Comment on Protocol I” 37 IRRC 515 [1997]; C. GREENWOOD,
CUSTOMARY INTERNATIONAL LAW AND THE FIRST GENEVA PROTOCOL OF 1997 IN THE GULF
CONFLICT, LONDON p 75, 88, (1993)
 2. Apart from Human Rights treaties, Article ______ of the Charter of the United
Nations guarantee the right to self-determination of peoples. Ans: Art. 1(2)
3. Article ________ of the Charter makes the provisions of the treaty peremptory in
international law, i.e. any provision coming in conflict with the provisions of the
Charter, the provisions of the Charter shall prevail. Ans: Art. 103
4. Article 2(7) of the Charter of the United Nations recognises that the United Nations
shall _____________________________, which is subject to the provisions of
Chapter VII of the Charter. Ans: not intervene in matters which are essentially within
the domestic jurisdiction of any state
5. Article 53 of the Charter empowers states to use force in self-defence. However, this
is subject to a particular procedural requirement. What is it? Ans: authorization of the
SecurityCouncil
6. If a party does not perform the obligations incumbent upon it under a judgment
rendered by the International Court of Justice, the other party has recourse to go to
which organ of the United Nations? Which Article of the United Nations mandates
this? Ans: Security Council, Article 94
7. The General Assembly is empowered to discuss any issue relating to maintenance of
international peace and security under Article ______ of the Charter.Ans: 11(2)
8. Under Article 102, no treaty can be invoked before any organ of the United Nations
unless it is ___________. Ans: registered in accordance with article 102 para 1
9. Under Article 44 of Chapter VII of the Charter, the Security Council ensures that
before employing any kind of _________ on any member State(s), the member
State(s) shall be allowed to participate in the decision making of such ___________.
(The blanks have the same answer) Ans: armed forces
10. Which article of the Charter binds all member states to abide by the decisions of the
Security Council, effectively making Security Council resolutions binding on member
States? Ans: Article 25

Part II: Statute of the International Court of Justice

1. The International Court of Justice was preceded by the
_____________________________ which also had its primary seat at The Hague,
The Netherlands. Ans: PCIJ
2. The Compromis or the factsheet in a Jessup Moot Court Competition is basically a
Special Agreement between parties. This Special Agreement is notified to the
 Registrar of the Court under Article _______ which is also an additional jurisdictional
clause read with Article 36(1). Ans: Article 40(1)
3. Parties to a dispute before the International Court of Justice are represented by agents
and assisted by counsels. This is contained in Article ____ of the Statute of the Court.
Ans: Article 42
4. In _____________ case, the Court held that the nationality of a person who is closely
tied to two or more States can only be resolved by viewing the connection that the
person has to the States, hereby establishing a customary rule of the “closest
connection test” which is by far the earliest evidence of the Court’s power to establish
custom. Ans: Nottebohmcase (Liechtenstein v. Guatemala) 1955.
5. Article 38(2) of the Statute states that the Court can decide a case __________, if the
parties agree to it. This basically means that if the parties agree, the sources of law
contained in Article 38(1) can be overlooked in the dispute and the case can be
decided based on the Court’s good judgment. Ans: ex aequo et bono
6. Article 36(6) gives power to the Court to decide its _____________ in a particular
matter. Ans: jurisdiction
7. Article _____ states that only states can be a party before the International Court of
Justice. Ans: Article 34(1)
8. Article ____ of the Statute of the International Court of Justice states that the Court
shall remain permanently in session. Ans: 23(1)
9. “The decision of the Court has no binding force except between the parties and in
respect of that particular case.” – this is the text of which Article of the Statute? Ans:
Article 59
10. __________________ was the President of the Court in the Military and
Paramilitary Activities Against Nicaragua (Nicaragua v. USA) case, who was also the
only President of the Court who was an Indian national. Ans: Justice Nagendra Singh

Part III: Vienna Convention on the Law of Treaties, 1969

1. “Ratification”, “Approval”, “Acceptance” and “Accession” are all defined
synonymously in Article 2(1)(b) of the Vienna Convention on the Law of Treaties as
when a State establishes on the international plane that ______________________.
Ans: Consent
 2. A norm jus cogens, or the peremptory norms of public international law have been
defined under Article 53 of the Vienna Convention on the Law of Treaties.
(True/False) Ans: True
3. Article 26 of the Vienna Convention on the Law of Treaties incorporates the good
faith doctrine of performance of the treaty, otherwise known as
____________________.
Ans: Pacta sunt servanda
4. Article _____of the Vienna Convention lays down the general rule of the binding
effect on third States, viz. a third State is not bound by the provisions of the treaty
unless by its express consent. Ans: Article 34
5. Article 50 of the Vienna Convention provides for invalidation of a treaty on the basis
of the corruption of a representative of a State. (True/False) Ans: True
6. If the consent of a State to a treaty has been established by the threat or use of force
by another State, then such treaty shall be void/voidable. (Choose the correct option)
Ans: void
7. Subsidiary means of interpretation of a treaty includes the reading of the preparatory
work of the treaty also referred to as the _______________ of the treaty. Ans:
Travaux Preparatoires
8. The effect of the consent of a State expressed by __________ is contained in Article
12 of the Vienna Convention on the Law of Treaties. Ans: signature
9. The effect of the formulation of a ________________ in cases of signature,
ratification, accession, approval or acceptance of a treaty is given by Article 19 of the
Vienna Convention on the Law of Treaties. Ans: reservation
10. The general rule of interpretation of a treaty is that its construction should be read in
good faith. Which provision of the Vienna Convention talks about the general rule of
interpretation of a treaty? Ans: Article 26
Part IV: State Responsibility for Internationally Wrongful Acts (Articles of Responsibility
of States for Internationally Wrongful Acts, U.N. General Assembly Resolution 56/83,
hereinafter “ARSIWA”)
1. A continuing act of wrongfulness may be prayed for to be ceased and not repeated
under international law, as per Article 29 of the ARSIWA. (True/False) Ans: False
2. A State may be precluded of wrongfulness under international law if the State can
show that a State official has utilised excess of authority or has contravened
instructions. (True/False) Ans: False
 3. Article 36 of the ARSIWA constitutes ______________ as a form of reparation as a
consequence of the obligation of a wrongful State. Ans: compensation
4. Article 51 of the ARSIWA incorporates the notion of necessity/proportionality of
countermeasures. (Choose the correct answer) Ans: proportionality
5. Article 55 of the ARSIWA states that the special rules of international law shall
prevail over the ARSIWA in case of any contradiction. This is known as the
customary international law doctrine of ______________.Ans: Lex specialis
6. Complicity of a State in an internationally wrongful act by aid or assistance makes the
accomplice State equally liable as the wrongful State. This has been encoded by the
General Assembly in the ARSIWA under Article ______. Ans: 16
7. The _____________ doctrine has been incorporated under Article 45 of the
ARSIWA. Ans: waiver &aquiescence
8. The conduct of _______________ can be attributed to a State by the “control
doctrine” incorporated under Article 8 of the ARSIWA. Ans: private person
9. The elements of an internationally wrongful act of a State are given under Article ___
of the ARSIWA. Ans: Article 2
10. Under Article 23 of the ARSIWA, in certain situations, the wrongfulness of a State
may be precluded if it is shown that the obligation was impossible to perform. What is
this doctrine better known as? Ans: Force Majeure

Part V (CHOOSE ANY 2 QUESTIONS): Subjective Questions

1. How would you distinguish between a humanitarian violation and a human rights
violation in International Law? How are they related to jus in bello and jus ad bellum?
Ans:
a. Humanitarian Violation – Violation of the laws of war and Human Rights violation is
the violation of the laws of peacetime.
b. Human Rights is a wide umbrella term which may also be applicable during wartime
– for instance the right to life of civilians, right to healthcare of prisoners of war, etc.
c. Certain Human Rights are suspended during wartime where the lexspecialis of
Humanitarian Law applies, eg. Right to life of a combatant, targeted attack on
combatants, etc.
d. In war, Human Rights law and Humanitarian Law applies simultaneously, but in
conflict the special law (lexspecialis), ie. Humanitarian Law shall apply. (Legality of
Construction of Wall on Palestinian Territory case, 2005 ICJ)
e. Source of Human Rights law – Human Rights treaties like the ICCPR, ICESCR,
CEDAW, CRC, etc. Source of Humanitarian Law – Geneva Conventions of 1949,
Common Article 3 of the same Conventions and The Hague Conventions of 1909.
f. Jus ad Bellum is the legality of the use of force, ie. Whether in peacetime it is legal to
use force on another state in a particular situation and jus in bello is the legality of the
means of using force, ie. The legality of how a war is waged and whether the actions
of the troops in a war violate any humanitarian principles. Therefore, jus ad bellum is
applied till just before a war is waged, during peacetime to find out whether it is legal
or not and jus in bello is after the war is waged, where the actions in the war is legal
or not. Similar to Human Rights and Humanitarian law, the two are respectively
applied during peacetime and wartime.

2. The jurisprudence of the International Court has expanded comprehensively since the
Military and Paramilitary Activities Against Nicaragua (Nicaragua v. USA) case. The
Court recognised responsibility of a state based on the exercise of control over private
parties. Analyse the Court’s transgression from the “strict control” doctrine to the
“effective control” doctrine and how the International community reflected the
decision of the Court by taking steps of their own.
Ans:
a. There is no real recognised hierarchy. However, there is a confusion between Article
38(1)(a) (treaties and conventions) and 38(1)(b) (customary international law) of the
Statute of the ICJ. These two articles are generally believed to be above in hierarchy
that 38(1)(c) (general principles of international law) which is also above 38(1)(d)
which is a subsidiary source, used only to evidence the upper three primary sources.
b. To resolve this confusion, states have generally recognised that in cases of conflict
between a treaty obligation and an custom obligation, the treaty obligation shall
prevail if the state is party to such treaty. If not, then the customary obligation shall
prevail.
c. Therefore, 38(1)(a) and (b) enjoy the same pedestal, and only in circumstances is
there a clear demarcation between the two sources.
d. There are other sources which can be put above these four sources. A norm jus cogens
would be of the highest hierarchy followed by a norm obligation ergaomnes.
e. Norm jus cogens – defined in Article 53 of the VCLT as a peremptory norm of
international law which cannot be violated by any treaty or custom. Therefore, this
 norm is highest in the hierarchy of sources. Eg. The Non-use of Force, the right of
self-determination, prevention of genocide, prevention of racial abuse.
Obligatioergaomnes – is an obligation incumbent on the entire international
community. If such an obligation is violated, then the entire international community
has a right to take action against the violating state. Not widely recognised, but first
recognised by the ICJ in the Barcelona Traction, Light and Power Company case.
This takes lesser precedence that jus cogens however is higher than the other sources.
Eg.The prevention of genocide, humanitarian violations and the right of collective
humanitarian intervention.
3. What is the hierarchy of the sources of law, if any? Where in this hierarchy do
obligatioergaomnes and a norm jus cogens lie? What source(s) of law do we derive
the former two norms from, and what is the distinction between the two?
Ans:
a. The doctrine of strict control was all that was being followed till the Nicaragua case.
First developed in the Lake Lanoux arbitration, it is basically state responsibility for
the all the acts of the organs of a state. A state cannot be held responsible for acts of
private parties.
b. However, in the Nicaragua judgment the doctrine of effective control was developed
by the ICJ where the acts of Honduras contras were attributed to the USA for the
force used by them in Nicaragua. It was established by evidence that the USA
exercised a greater degree of control over the contras, from financing to directing
them, therefore the use of force was attributed to the USA. However, the humanitarian
violations were not attributed to the USA, as the Court could not succinctly prove that
USA exercised the requisite degree of control over the contras in the alleged jus in
bello violations of humanitarian law.
c. This has been further diluted by the international decision of the ICTY in 2008 in the
Prosecutor v. Dusko Tadic judgment where the trial chamber held that it is suffice to
show that the controlling state exercised overall control over the troops in question,
when it came to humanitarian violations. This degree of control does not include the
directing of troops, however overall command over them, which further diluted the
control concept of state responsibility.
d. The international community has expressed its willingness to accept this doctrine of
control over private parties where the International Law Commission (ILC) codified
its Draft Articles of Responsibility of States for Internationally Wrongful Acts. Article
 8 of the same document embodies the control doctrine as envisaged by Nicaragua.
The General Assembly further passed these Draft Articles to become a legally binding
instrument in 2001.
Therefore, the control of private parties can also hold a state internationally liable,
depending on the test of control employed. The ICJ and other international courts and
instruments have ensured that the control doctrine changes with time. And all such
changes have been with regards to relaxing the necessary essentials of the control
exercised by the alleged wrongful state.
Objective Questions
1. Article ____ of the ______________ says that the states in a dispute before the
International Court of Justice have to be represented by agents in the Court.
Ans. Article 42 of the Statute of the International Court of Justice.
2. Article 8 of the Vienna Statute of the International Criminal Court gives jurisdiction
to the ICC to try cases involving individual criminal responsibility. (Correct the
mistake(s) in the statement and rewrite)
Ans.Article 8 of the Rome Statute of the International Criminal Court gives
jurisdiction to the ICC to try cases involving individual criminal responsibility.
3. The Vienna Convention on the Law of Treaties incorporates the principle of
__________________ in Article 26 of the Convention which is also called the “good
faith” doctrine.
Ans.Pacta suntaservanda

What is the authority of newspaper reports in ICJ?

Article 49 of ICJ Statute- Allowed but criticized and mostly refused to rely upon as in DRC
v. Uganda Case.

Are the judgements of icty binding on icj?

No, persuasive.

validity of SC resolutions ?

As we have seen, both the 1986 Nicaragua decision and the 1996 Nuclear Weapons opinion
expressly link GA resolutions to opinio juris. According to the former, ‘opinio juris may,
though with all due caution, be deduced from, inter alia, the attitude of the parties and the
attitude of states towards certain General Assembly resolutions’. 7 The latter found ‘that
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’. 8 As per many authors, it do form a
part of state practice.9 Please refer to the Research Paper for more clarity.

validity of commentary on iccpr

Same as a source of International Law under judicial publicists within Article 38 of ICJ
Statute.

Additional protocol 1 – 1949 - RELATING TO THE PROTECTION OF VICTIMS OF

INTERNATIONAL ARMED CONFLICTS

Total article – 102

Article 43- Armed forces

Art 44- Combatants and prisoners of war

Any combatant, as defined in Article 43, who falls into the power of an adverse Party shall be a prisoner of war.

Part 4 – Civillian population

Article 48 — basic rule

In order to ensure respect for and protection of the civilian population and civilian objects, the Parties to the
conflict shall at all times distinguish be- tween the civilian population and combatants and between civilian
objects and military objectives and accordingly shall direct their operations only against military objectives.

Art 49 – definition of attack and scope of it .

Chapter 2-

Art 50- Definition of civilians and civilian population

Art 51- protection of them .

Chapter 4- Precautionary measures

Art 57 - Precautions in attack- In the conduct of military operations, constant care shall be taken to spare the
civilian population, civilians and civilian objects

7
Nuclear Weapons, supra note 106, at 254–255, para. 70
8
See the analysis by Franck, supra note 103, at 118–119.
9
Akehurst, supra note 100, at 361–362; Charlesworth, ‘Customary International Law and the Nicaragua Case’,
11 Australian Year Book of Int’l L (1984–87) 1, at 24; Mendelson, ‘The Nicaragua Case and Customary
International Law’, in W.E. Butler (ed.), The Non-Use of Force in International Law (1994), at 93–94;
Donaghue, ‘Normative Habits, Genuine Beliefs and Evolving Law: Nicaragua and the Theory of Customary
International Law’, 16 Australian Year Book of Int’l L (1995) 327, at 339. Pellet, supra note 10, at 416, para.
20, is more nuanced.
PROTECTION OF VICTIMS OF NON-INTERNATIONAL ARMED CONFLICTS
(PROTOCOL II), OF 8 JUNE 1977

Total article -28

Part 2 – Human Treatment

Article 4- Fundamental guarantees - All persons who do not take a direct part or who have ceased to take
part in hostilities, whether or not their liberty has been restricted, are entitled to respect for their person, honour
and convictions and reli- gious practices. They shall in all circumstances be treated humanely, without any
adverse distinction. It is prohibited to order that there shall be no survivors.

PART IV -CIVILIAN POPULATION

Article 13 — Protection of the civilian population

Vienna convention on the law of treaties -23 may 1969 force 27 jan 1980

Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or

Punishment- 10 December 1984entry into force 26 June 1987

Article 1- torture" means any act by which severe pain or suffering, whether physical or
mental

International Covenant on Economic, Social and Cultural Rights - 16 December

1966 entry into force 3 January 1976,

Total article -31

Article 1

PART I

1. All peoples have the right of self-determination. By virtue of that right they freely
determine their political status and freely pursue their economic, social and cultural
development.
International Covenant on Civil and Political Rights

General Assembly resolution 2200A (XXI) of 16 December 1966, entry into force 23 March 1976

Article 6

Every human being has the inherent right to life. This right shall be protected by law. No one shall be
arbitrarily deprived of his life.

Article 17

1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or
correspondence, nor to unlawful attacks on his honour and reputation.

2. Everyone has the right to the protection of the law against such interference or attacks.

Article 18

1. Everyone shall have the right to freedom of thought, conscience and religion. This right shall
include freedom to have or to adopt a religion or belief of his choice, and freedom, either
individually or in community with others and in public or private, to manifest his religion or belief in
worship, observance, practice and teaching.

Un charter – san Francisco – 1945 – branches of olive tree

Oliver Lincoln Lundquist, a talented architect and industrial designer, worked for the Office
of Strategic Services (OSS), CIA’s predecessor, during World War II and led the team that
designed the official United Nations emblem

Article 1- To maintain international peace and security, and to that end

Article 7- There are established as the principal or- gans of the United Nations: a General
Assembly, a Security Council, an Economic and Social Council, a Trusteeship Council, an
International Court of Justice, and a Secretariat. ( 6)

International court of justice – Article 92 –96

Total article – 111 ( Ratify upto article 110 ( According article 103)

Article 25

The Members of the United Nations agree to accept and carry out the decisions of the
Security Council in accordance with the present Charter. ( sc resolution value)
Statute of the International court of justice

Article 2 –should follow international law

Article 3 – 15 member

Article 10 - Those candidates who obtain an absolute majority of votes in the General
Assembly and in the Security Council shall be considered as elected.

Article 13- elected for 9 year

Article 34- Only states may be parties in cases before the Court.

Article 39 – official language –

Article 43- The procedure shall consist of two parts: written and oral.

Article 55- 1. Allquestionsshallbedecidedbyamajority of the judges present.

2. Intheeventofanequalityofvotes,thePresident or the judge who acts in his place shall have a

casting vote.

Article 65 – TheCourtmaygiveanadvisoryopinionon any legal question at the request of

whatever body may be authorized by or in accordance with the Charter of the United Nations
to make such a request.

Geneva convention - relative to the Protection of civilian Persons in time of War of 12 august 1949

Article 4- Persons protected by the Convention are those who at a given moment and in any manner
whatsoever, find themselves, in case of a conflict or occupation, in the hands of persons a Party to the conflict or
Occupying Power of which they are not nationals.

Article 15- Any Party to the conflict may, either direct or through a neutral State or some humanitarian
organization, propose to the adverse Party to establish, in the regions where fighting is taking place, neutralized
zones intended to shelter from the effects of war the following persons, without distinction:

a) wounded and sick combatants or non-combatants;

b) civilian persons who take no part in hostilities, and who, while they reside in the zones, perform no work of a
military character.

Article 27 - Protected persons are entitled, in all circumstances, to respect for their per- sons, their honour,
their family rights, their religious convictions and prac- tices, and their manners and customs. They shall at all
times be humanely treated, and shall be protected especially against all acts of violence or threats thereof and
against insults and public curiosity.
Article 53 - Any destruction by the Occupying Power of real or personal property belong- ing individually or
collectively to private persons, or to the State, or to other public authorities, or to social or co-operative
organizations, is prohibited, except where such destruction is rendered absolutely necessary by military
operations.

ARSIWA - Responsibility of States for Internationally Wrongful Acts

Text adopted by the Commission at its fifty-third session, in 2001, and submitted to the
General Assembly as a part of the Commission’s report covering the work of that session.
The report, which also contains commentaries on the draft articles, appears in Yearbook of
the International Law Commission, 2001, vol. II (Part Two). Text reproduced as it appears in
the annex to General Assembly resolution 56/83 of 12 December 2001,

Article l - Every internationally wrongful act of a State entails the international responsibility
of that State.

Article 2 - There is an internationally wrongful act of a State when conduct consisting of an

action or omission: (a) is attributable to the State under international law; and (b) constitutes
a breach of an international obligation of the State.

Article 8 Conduct directed or controlled by a State The conduct of a person or group of

persons shall be considered an act of a State under international law if the person or group of
persons is in fact acting on the instructions of, or under the direction or control of, that State
in carrying out the conduct.

Article 9 Conduct carried out in the absence or default of the official authorities The conduct
of a person or group of persons shall be considered an act of a State under international law if
the person or group of persons is in fact exercising elements of the governmental authority in
the absence or default of the official authorities and in circumstances such as to call for the
exercise of those elements of authority.

Article 10 Conduct of an insurrectional or other movement 1. The conduct of an

insurrectional movement which becomes the new Government of a State shall be considered
an act of that State under international law.

Article 13 International obligation in force for a State An act of a State does not constitute a
breach of an international obligation unless the State is bound by the obligation in question at
the time the act occurs.

Article 18 Coercion of another State A State which coerces another State to commit an act is
internationally responsible for that act if: (a) the act would, but for the coercion, be an
internationally wrongful act of the coerced State; and (b) the coercing State does so with
knowledge of the circumstances of the act.
Article 20
Consent Valid consent by a State to the commission of a given act by another State precludes
the wrongfulness of that act in relation to the former State to the extent that the act remains
within the limits of that consent.

Article 21
Self-defence -The wrongfulness of an act of a State is precluded if the act constitutes a
lawful measure of selfdefence taken in conformity with the Charter of the United Nations.

Article 8-11 =

Juan Carlos Abella v. Argentina-

1. This case concerns events that took place on January 23 and 24, 1989, at the
barracks of the General Belgrano Mechanized Infantry Regiment No. 3 (RIM 3),
located at La Tablada, Buenos Aires province, and the consequences ensuing from
those events for 49 persons on whose behalf a complaint was filed with the Inter-
American Commission on Human Rights (hereinafter called the Commission). On
January 23, 1989, 42 armed persons launched an attack on the aforementioned
barracks. The attack precipitated a combat of approximately 30 hours duration
between the attackers and Argentine military personnel which resulted in the
deaths of 29 of the attackers and several State agents.2 The RIM 3 barracks had an
arsenal from which the attackers, after having entered the site, seized a number of
weapons which they used to defend their positions.

2. Although democracy was restored in Argentina in December 1983 after almost

eight years of military dictatorship, several uprisings involving the armed forces
have occurred since then. Specifically, little over a month before the events at La
Tablada, on December 12, 1988 a military uprising led by Colonel Mohamed Ali
Seineldin took place in the Villa Martelli military base.

Some of the differences between militants and terrorists are:

All terrorists are militants, but not all militants are terrorists;
> Terrorism is carried out by non-governmental groups that do not wear uniforms.
However, members of militants usually wear uniforms, identifying insignia or militia –
coloured clothes;
> Terrorists resort to physical violence. They utilise terror as a means of coercion
and use violence as a necessary means of attaining their political, religious or
ideological goals, thereby causing harm and death to innocent people and maximum
damage to property. Militants may or may not actively engage in physical violence,
but they are certainly very aggressive verbally or use verbal violence to achieve their
desired goals, as undoubtedly, they feel themselves in “war mode”;
> Terrorists have no regard for humankind and, usually target civilians, instil fear and
psychological effect on them in order to gain the attention of the authorities. As
terrorist organisations, they will commit violent acts by murdering civilians, scholars,
religious leaders and sanctioning of extortion and demanding ransom.
On the contrary, militants usually do not resort to harming civilians to champion their
cause but instead use confrontational or violent methods against the establishment
in support of a political or social cause. For example militants may choose to rebel
and use armed aggression for a country’s liberation; and
> Where both terms converge is when militants find they have no recourse to
achieve their goals and then they resort to terrorism if their needs are not met,
thereby transforming themselves into a terrorist group.

Prosecutor v. Kupreskic

Around dawn on the morning of April 16 1993, Bosnian Croat forces engaged in a surprise
attack on the Bosnian Muslim in habitants of Ahmici, a small village located in central
Bosnia. Th e Trial Chamber found that this was not a lawful combat operation, but rather a
deliberate attack on civilian Muslims by the Croatian Defence Council (HVO) as part of a
campaign to cleanse the village of Ahmici of its Bosnian Muslim inhabitants which, in turn,
was part of a broader strategy of expelling Bosnian Muslims from the Lasva River Valley
region. Specifically, the Trial Chamber found that over 100 civilians, including women and
children, were killed in Ahmici and that 169 Muslim homes were destroyed along with the
two mosques in the village. The Presiding Judge of the Trial Chamber concluded: …what
happened on April 16 in Ahmici has gone down in history as comprising one of the most
vicious illustrations of man’s inhumanity to man. Today, the name of that small village must
be added to the long list of previously unknown hamlets and towns that recall abhorrent
misdeeds and make all of us shudder with horror and shame: Dachau, Oradour sur Glane,
Katijn, Marzabotto, Soweto, My Lai, Sabra and Shatila, and so many others. This case is one
of several emanating from the Ahmici massacre. Others have involved high level civic and
military leaders from the region.
Icty has value because icj has used it