Nicaragua v.

United States (Military and Paramilitary Activities in and against Nicaragua ICJ Report, 1986)
In this case, the Court made repeated reference to certain fundamental principles of humanity seemingly as an alternative
basis for responsibility in case it could be argued that customary or treaty law did not support the Court’s submissions.
The message appears to be that there is a fixed and universal standard of humanity which is making its way into
corpus of international law via the traditional law-creating channels, but which nevertheless stands alone and is
sufficient to be applied in areas where the law is unclear or underdeveloped.
In the Nicaragua case, the ICJ clarified that common Article 3 is more than a mere treaty provision. The Court viewed it
as an expression of ‘fundamental general principles of humanitarian law’ which are legally valid independent of
any treaty basis. Reflecting ‘elementary considerations of humanity’, Article 3 is thus a minimum yardstick forming also
part of customary law.

Legality of the Threat or Use of Nuclear Weapon (Elementary considerations humanitary)

The ICJ next considered whether recourse to nuclear weapons must be considered as illegal in the light of the principles
and rules of international humanitarian law applicable in armed conflict and of the law of neutrality. The Court stated that
the cardinal principles of international humanitarian law prescribing the conduct of military operations are: (1) the
protection of the civilian population and civilian objects and the prohibition of the use of weapons incapable of
distinguishing between combatants and non-combatants, and (2) the prohibition on causing unnecessary suffering to
combatants by using certain weapons. According to the Court, the fundamental rules of humanitarian law applicable in
armed conflict must be observed by all states whether or not they have ratified the conventions that contain them, because
they constitute intransgressible principles of international customary law. The ICJ agreed with the vast majority of states
as well as writers that there can be no doubt as to the applicability of the principles and rules of humanitarian law in armed
conflict to a possible threat or use of nuclear weapons, despite the fact that these principles and rules had evolved prior to
the invention of nuclear weapons.

(2) International humanitarian law: The Court goes on to hold that even if the threat or use of nuclear weapons is lawful
under the UN Charter (in other words, when it is necessary and proportionate), it must still meet the requirements of laws
regulating armed conflicts, including international humanitarian law and principles relating to neutrality. ICJ’s avoided
the issue by arguing that the most universally recognized humanitarian principles already constituted
intransgressible principles of international customary law.

Trail Smelter Arbitration (United States v. Canada)

Brief Fact Summary. The United States (P) sought damages from Canada by suing them to court and also prayed for an
injunction for air pollution in the state of Washington, by the Trail Smelter, a Canadian corporation which is domiciled in
Canada.
Facts. The Tail Smelter located in British Columbia since 1906, was owned and operated by a Canadian corporation. The
resultant effect of from the sulfur dioxide from Trail Smelter resulted in the damage of the state of Washington between
1925 and 1937. This led to the United States (P) suit against the Canada (D) with an injunction against further air
pollution by Trail Smelter.
Issue. Is it the responsibility of the State to protect to protect other states against harmful acts by individuals from within
its jurisdiction at all times?
Held. Yes. It is the responsibility of the State to protect other states against harmful act by individuals from within its
jurisdiction at all times. No state has the right to use or permit the use of the territory in a manner as to cause injury
by fumes in or to the territory of another or the properties or persons therein as stipulated under the United States
(P) laws and the principles of international law.
By looking at the facts contained in this case, the arbitration held that Canada (D) is responsible in international law for
the conduct of the Trail Smelter Company. Hence, the onus lies on the Canadian government (D) to see to it that Trail
Smelter’s conduct should be in line with the obligations of Canada (D) as it has been confirmed by International law. The
Trail Smelter Company will therefore be required from causing any damage through fumes as long as the present
conditions of air pollution exist in Washington.  So, in pursuant of the Article III of the convention existing between the
two nations, the indemnity for damages should be determined by both governments. Finally, a regime or measure of
control shall be applied to the operations of the smelter since it is probable in the opinion of the tribunal that damage may
occur in the future from the operations of the smelter unless they are curtailed.
Discussion. Responsibility for pollution of the sea or the existence of a duty to desist from polluting the sea has never
been laid at the feet of any country by any international tribunal. Although regulation of pollution is just commencing, it
must ensure that there is equilibrium against freedom of the seas guaranteed under general and long established rules of
international law.